SLED Opportunity · INDIANA · CITY OF CARMEL
AI Summary
City of Carmel seeks bids for the 106th and Westfield Water Main Extension project involving installation of approximately 800 feet of water main using open cut or directional drilling. Bids due April 15, 2026. Project starts May 2026 and completes June 2026.
Notice is hereby given that the Board of Public Works and Safety for the City of Carmel, Hamilton County, Indiana, will receive sealed bids for 106th and Westfield Water Main Extension via the City's e-Procurement Portal at https://procurement.opengov.com/portal/carmelin. Bids will be accepted until 9:00 am on Wednesday, April 15, 2026.
Project work will include The project consist of, but is not limited to, the installation of approximately 800' of water main. Utilizing either open cut or directional drilling methods..
CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
1.1 Contractor shall promptly call to the attention of the Owner, Construction Manager and Architect any discrepancy or conflict in figures, Drawings, or Specifications that affect its Work. In the event of conflicts or discrepancies between and among the Contract Documents, the Owner shall determine which takes precedence over the other. However, typed language, terms and conditions shall take precedence over printed language, terms and conditions, figure dimensions shall take precedence over scale measurements, large scale details shall take precedence over small scale drawings, and drawings of later date shall take precedence over those of earlier date. Any part of the Work shown on the Drawings but not specifically mentioned in the Specifications, or vice versa, shall be considered as part of the Work, the same as though included in both. In the event of an inconsistency or conflict between Drawings and Specifications, or within either document not clarified by addendum, the better quality or the greater quantity or scope of the Work shall be provided, and the provision of a Contract Document imposing the greater obligation upon the Contractor or affording the greater right or remedy to the Owner shall govern, in accordance with the Owner's interpretation. Likewise, the Work to be undertaken by Contractor shall include all incidental work necessary as customarily done for the completion of the Project even though it may not be specifically described in the Specifications or Drawings.
1.2 It is the intent of the Contract Documents to accomplish a complete and first-class installation in which there shall be installed new products of the latest and best design and manufacturer, and in which workmanship and construction methods shall be of first class quality, executed by competent and experienced workmen so as to accomplish a neat and first class finished Project.
.1 Details of preparation, construction, installation, and finishing encompassed by the Contract Documents shall conform to the best practices of the respective trades. Where specific recognized standards are mentioned in the Specifications, it shall be interpreted that such requirements shall be complied with and met.
.2 The intent of the Contract Documents is to include all labor, equipment and materials necessary for the proper and timely execution and completion of the Work, even though such labor, equipment and materials are not expressly included in the Contract Documents. The Contract Documents are complimentary, and what is required by one will be as binding as if required by all.
1.3 The Drawings, Specifications, Estimates, Schedules, Building Information Model for the Project, electronic data, information and other documents, including those in electronic form, prepared, provided or procured by Architect during the course of furnishing services to Owner on this Project ("Instruments of Service") shall be and become the property of Owner, whether the Project is completed or not, and Owner shall retain all common law, statutory and other reserved rights, including copyrights. As such, the Instruments of Service may be used by Owner for information and reference and in connection with Owner's use and occupancy of the Project.
1.1 Abbreviations: The following abbreviations have the following meanings:
AA - Aluminum Association
AASHTO - American Association of State Highway & Transportation Officials
ACI - American Concrete Institute
AFBMA - Anti Friction Bearing Manufacturers Association
AGA - American Gas Association
AGMA - American Gear Manufacturers Association
AHDGA - American Hot Dip Galvanizer Association
AISC - American Institute for Steel Construction
AISI - American Iron and Steel Institute
ANSI - American National Standards Institute
ARI - American Refrigeration Institute
ASCE - American Society of Civil Engineers
ASHRAE - American Society of Heating, Refrigeration & Air Conditioning Engineers
ASME - American Society of Mechanical Engineers
ASTM - American Society of Testing and Materials
AWPI - American Wood Preservers Institute
AWS - American Welding Society
AWWA - American Water Works Association
CBRI - Copper and Brass Research Institute
CS - Commercial Standard (U.S. Department of Commerce)
FTI - Facing Title Institute Fed. Spec.
FS - Federal Specification (U.S.)
IEEE - Institute of Electrical and Electronic Engineers
IPCEA - Insulated Power Cable Engineers Association
MSS - Manufacturers Standardization Society of the Valve and Fitting Industry
NCMA - National Concrete Masonry Association
NEC - National Electric Code (U.S.)
NEMA - National Electrical Manufacturers Association
NFPA - National Fire Protection Association
NPC - National Plumbing Code
PS - United States Product Standards
SAE - Society of Automotive Engineers
SCPI - Structural Clay Products Institute
UL - Underwriters Laboratories
1.2 Definitions: Wherever used and not otherwise defined in these General Conditions or in other Contract Documents, the following terms have the meanings indicated which are applicable to both the singular and plural thereof:
Addenda/Addendum - Written or graphic instruments issued prior to the opening of Bids which clarify, correct or change the Bid Documents or the Contract Documents.
Agreement - The written Agreement between Owner and Contractor covering the Work to be performed; other Contract Documents are attached to the Agreement or incorporated by reference into and made a part thereof as provided therein sometimes referred to as the “Contract”.
Application for Payment - The form prescribed or approved by Owner and accepted by the Architect/Engineer which is to be used by Contractor in requesting progress or final payments and which is to include an approved schedule of values and/or such other supporting documentation as is required by the Contract Documents, including Affidavit and Waiver of Liens.
Architect or Architect/Engineer - The person or other entity designated as Engineer by the Contract Documents.
Bid Documents - Documents required to be submitted with the Bid.
Bids - The offer or proposal of the Bidder submitted on the prescribed form setting forth the prices for the Work to be performed.
Bonds - Bid, Performance, Payment and Maintenance Bonds and other instruments of suretyship. The term shall include letters of credit as applicable.
Change Order - A document issued on or after the Effective Date of the Agreement, recommended by the Engineer, which is signed by Contractor and Owner and which authorizes an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Time.
Contract Documents - The Agreement and any exhibits thereto, Addenda (which pertain to the Contract Documents), Instructions to Bidders, Notice to Bidders, Contractor’s Bid (including documentation accompanying the Bid and any post-Bid documentation submitted prior to the Notice of Award), when attached as an exhibit to the Agreement, the Notice to Proceed, the Bonds, the General Conditions, the Additional Requirements Section, any Supplemental Conditions, the Specifications and the Drawings as the same are more specifically identified in the Agreement, together with all Amendments, Modifications, and Supplements, Change Order, Work Change Directives, Field Orders and Engineer’s written interpretations and clarifications issued pursuant to Sections 3.4 and 3.5 on or after the Effective Date of the Agreement.
Contract Price - The moneys payable by Owner to Contractor for completion of the Work in accordance with the Contract Documents as stated in the Agreement.
Contract Time - The number of days or the date stated in the Agreement for the completion of the Work.
Contractor - The person, firm or corporation with whom Owner has entered into the Agreement.
Defective - An adjective which when modifying the word Work refers to Work that is (i) unsatisfactory, faulty or deficient, in that it does not strictly conform to the requirements of the Contract Documents, (ii) does not meet the requirements of any inspection, reference standard, test or approval referred to in the Contract Documents, or (iii) has been damaged prior to Engineer’s recommendation of final payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion in accordance with Sections 13.10 or 13.12).
Drawings - The drawings which show the character, scope and extent of the Work to be furnished and performed by Contractor and which have been prepared or approved by Engineer and are referred to in the Contract Documents.
Effective Date of the Agreement - The date indicated in the Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign.
Engineer - The person, firm or corporation named, employed or designated as such by the Owner to act as such and designated to observe the Work, acting directly or through duly authorized representatives.
Engineer's Consultant -A person, firm or corporation having a contract with Engineer to furnish services as Engineer's independent professional associate or consultant with respect to the Project and who is identified as such in the Special Conditions.
Field Order - A written order issued by Engineer or Owner which orders minor changes in the Work in accordance with Section 8.5 but which does not involve a change in the Contract Price or the Contract Time.
Furnish - Purchase and deliver to the work site. When used in connection with the terms "Work” or services, the term shall also mean perform.
Install - Incorporate into the Work equipment and materials furnished by others or the Contractor.
Laws and/or Regulations – Any and all applicable laws, rules, regulations, ordinances, codes, administrative actions and/or orders of any court or governmental agency or unit having jurisdiction over the Work.
Liens - Liens, charges, security interests or encumbrances upon real property or personal property.
Milestone -A principal event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work.
Notice of Award - The written notice by Owner to the apparent successful Bidder stating that upon compliance by the apparent successful Bidder with the conditions precedent enumerated therein, within the time specified, Owner will sign and deliver the Agreement.
Notice to Proceed - A written notice given by Owner to Contractor (with a copy to Engineer) fixing the date on which the Contract Time will commence to run and on which Contractor shall start to perform Contractor's obligations under the Contract Documents.
Owner - The City of Carmel, Indiana, acting by and through the agency or Department designated in the Agreement or other documents issued in solicitation of Bids; and such term shall also include the Project Manager or other duly appointed representative of such agency or department but shall not include Engineer.
Partial Utilization - The placement of a portion of the Work in service, or beneficial occupancy and use thereof, for the purpose for which it is intended (or a related purpose) before Substantial Completion of all the Work.
Project - The total construction of one or more improvements or structures of which the Work to be provided under the Contract Documents may be the whole, or a part, as indicated elsewhere in the Contract Documents.
Provide - Furnish and install.
Resident Project Representative - The authorized representative of Engineer who is assigned to the site or any part thereof.
Samples - Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged.
Shop Drawings - All drawings, diagrams, illustrations, schedules and other data or information which are specifically prepared or assembled by or for Contractor, to illustrate some portion of the Work and all illustrations, diagrams and other information prepared by a Supplier and submitted by Contractor to illustrate material or equipment for some portion of the Work.
Special Conditions -The part of the Contract Documents which amends or supplements these General Conditions based on Project or Work specific requirements.
Specifications - Those portions of the Contract Documents consisting of written general or technical descriptions of materials, equipment, construction systems, standards, quality, quantity and workmanship as applied to the Work, including the performance thereof, and certain administrative details applicable thereto.
Subcontractor - An individual, firm or corporation having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the site.
Substantial Completion - The stage of construction where, in the opinion of Owner, the Work (or specified portion thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or specified part) can be occupied, placed into service or otherwise utilized by Owner for the purpose for which it was intended. Substantial Completion may be evidenced by a certificate thereof issued by the Engineer and signed by the Owner.
Supplier -A manufacturer, fabricator, supplier. distributor, materialman or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or any Subcontractor.
Underground Facilities - All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other such facilities or structures, and any encasements containing such facilities, which have been installed at or below the surface of the ground for the purpose of furnishing, storing, removing or transmitting electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, computer signals or data, sewage, drainage, traffic or other control systems, or water.
Unit Price Work - Work to be paid for on the basis of unit prices established by the Contract Documents or by Change Order as an amount stated in the Bid as a price per unit of measurement for materials, equipment or services or a scope of work as described in the Bidding Documents.
Work - The entire completed construction, or the various separately identifiable parts thereof, required to be furnished under the Contract Documents. The Work includes and is the result and product of performing or furnishing labor and furnishing and incorporating materials and equipment into the construction, and performing or furnishing services and furnishing documents, all as required by the Contract Documents.
Work Change Directive - A written directive to Contractor, issued on or after the Effective Date of the Agreement and signed by Owner, making any change in the Work within the general scope of the Contract Documents, including but not limited to changes (i) In the Specifications (including drawings and designs), (ii) In the time, method or manner of performance of Work, (iii) in facilities, equipment, materials, services or site, and (iv) directing acceleration in the performance of the Work. A Work Change Directive will not by itself change the Contract Price or the Contract Time, but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order.
Written Amendment - A written amendment of the Contract Documents, signed by Owner and Contractor on or after the Effective Date of the Agreement and normally dealing with the non-engineering or non-technical rather than strictly Work-related aspects of the Contract Documents.
2.1 Delivery of Bonds. When Contractor delivers the executed Agreement to Owner, Contractor shall also deliver to Owner such Bonds as Contractor may be required to furnish in accordance with Article 5.
2.2 Delivery of Insurance. When Contractor delivers the executed Agreement to Owner, Contractor also shall deliver to Owner, with a copy to Engineer, certificates of Insurance (and other evidence thereof as requested by Owner) which Contractor is required to purchase and maintain in accordance with Article 5, and Owner shall deliver to Contractor certificates (and other evidence of insurance requested by Contractor) which, is required to purchase and maintain in accordance with Article 5.
2.3 Copies of Documents. Unless otherwise specified, Owner shall furnish to Contractor five (5) copies of the Contract Documents, or as many copies as are available from the printings made for bidding purposes and as are reasonably necessary for the execution of the Work. Additional copies will be furnished, upon request, at the cost of reproduction.
2.4 Commencement of Contract Times Notice to Proceed. Subsequent to or concurrently with the execution of the Agreement, Owner shall give Contractor a written Notice to Proceed specifying the date on which Contractor shall commence the Work. The date designated in the Notice to Proceed shall be the date on which the Contract Time will commence to run.
2.5 Starting the Work. Contractor shall start to perform the Work on the date designated In the Notice to Proceed, but no Work shall be done at the site prior to the date of the Notice to Proceed.
2.6 Before Starting Construction. Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures, standards, quantities, materials, field measurements, access, and other requirements or conditions affecting the work, Contractor shall promptly report in writing to Engineer any conflict, error, discrepancy or other adverse condition or circumstance which Contractor may discover, and shall obtain a written interpretation or clarification from Engineer before proceeding with any Work affected thereby. Contractor shall assume all risks and bear all costs associated with any conflicts, errors, ambiguities, discrepancies or conditions which are not discovered due to his failure to conduct such study and comparison, or which are discovered but not reported as required by this Section.
2.7 Initial Schedule and Submissions. Within ten (10) days after the Effective Date of the Agreement Contractor shall submit to Engineer for review:
2.7.1 A proposed progress schedule indicating the starting and completion dates of the various stages of the Work to be performed under this Contract. This schedule shall be in the form of an Arrow Diagram and shall reflect the Contract completion date. Engineer will review the proposed progress schedule to determine conformity to the Contract Documents. During the course of performing the Work, Contractor shall, at least monthly, submit to Engineer a revised progress schedule indicating any anticipated change from the original or previously revised progress schedule. The revised schedule shall include provisions for performing Work authorized under approved Change Orders. Engineer will review the original and revised progress schedules for general conformity with the Contract Documents and will make recommendations to the Owner concerning approval thereof; however the review, approval or other action taken by Engineer or Owner in respect of such schedules shall not relieve the Contractor of it’s obligations to perform the Work within the Contract Time. If Contractor shall fail to adhere to the approved original or revised progress schedule, except when due to Excusable Delays for which a claim has been submitted by Contractor and approved by Owner, he shall promptly adopt such other or additional means and methods of construction and commit such additional manpower, equipment and other resources as necessary to make up for the time lost and to assure completion of the Work in accordance with the Contract Documents.
2.7.2 A preliminary submittal schedule showing proposed dates for submission of required Shop Drawings, Samples and product data. Such schedule shall also include such durations as prescribed by Engineer to account for anticipated time allotments for review, approval or other action upon submittals by Engineer and additional allowances for resubmittals by Contractor; and
2.7.3 A preliminary schedule of values for all of the Work which will include quantities and prices of items aggregating the Contract Price and will subdivide the Work into component parts in sufficient detail to serve as the basis for progress payments during construction. Such prices will include an appropriate amount of overhead and profit applicable to each Item of Work, which will be confirmed in writing by Contractor at the time of submission.
2.7.3.1 Mobilization for Contractor and any tier of subcontractor(s) shall be considered collectively and shall not exceed 10 percent (10%) of the Contract Price. Mobilization shall be those costs associated with the initiation of the Project and sitework, including but not limited to, transporting of personnel, equipment, materials, supplies, incidental items; establishment of the field offices, temporary facilities necessary for the project, bonds and insurances, submittal requirements, permits, field supervision, final cleanup and demobilization. Mobilization does not include such items as, contract negotiations and bid preparation. Where the Work is covered by Unit Price and no item has been included for mobilization, then this Work is considered incidental to the Work and will not be paid separately.
2.7.3.2. Where the work is covered by Unit Prices, and item(s) for mobilization, as described in 2.7.3.1 have been included, the maximum allowable amount shall be ten percent (10%) of the aggregate of all items excluding mobilization. Where mobilization is included in multiple items, then the aggregate amount of all mobilization items shall not exceed the allowable ten percent (10%).
2.7.3.3 Costs for submittal requirements, field office and supervision, where identified separately in the schedule of values shall be considered for payment monthly. When the cost is a lump sum as submitted in accordance with 2.7.3, the monthly cost shall be established by dividing the lump sum by the number of monthly estimates based on the original Contract Time. No adjustments shall be made for any Contract Time extensions.
2.7.3.4 Mobilization shall be included in the progress payments, in accordance with the schedule of values and Unit Prices. When the Work, excluding mobilization and inventory, has progressed to an amount equal to five percent (5%) or more of the Contract Price, then an amount of not more than fifty percent (50%) of the mobilization cost will be considered for inclusion in the progress payment. Prior to the established five percent (5%), Owner may consider payment on invoices for bonds and insurances and permits; this amount shall be subtracted from the total amount for mobilization. Not more than forty percent (40%) of the mobilization cost will be considered for inclusion in the progress payments once the Work, excluding mobilization and inventory, has progressed to an amount equal to fifty percent (50%) of the Contract Price. The remaining mobilization payment will be paid as part of the final payment.
2.7.4 Where the Work is covered by Unit Prices and there have been included lump sum items, the Contractor shall submit to Engineer a schedule of values in accordance with the paragraph 2.7.3 for those lump sum items.
2.8 Preconstruction Conference. Before Contractor starts the Work at the site, a conference attended by Contractor, Owner, Engineer, and others as appropriate will be held to discuss the schedules referred to in Section 2.7, to discuss procedures for handling Shop Drawings and other submittals and for processing Applications for Payment, and to establish other procedures and understandings bearing upon coordination and performance of the Work.
2.9 Finalizing Schedules. Unless otherwise provided in the Contract Documents, at least ten (10) days before submission of the first Application for Payment, a conference attended by Contractor, Engineer, and others as appropriate, will be held to finalize the schedules submitted in accordance with Section 2.7.
2.9.1 Contractor shall have an additional ten (10) days to make corrections and adjustments and to complete and resubmit the schedules. No progress Payment shall be made to Contractor until the schedules are submitted to and acceptable to Engineer as provided below.
2.9.2 The finalized progress schedule will be acceptable to Engineer as providing an orderly progression of the Work to completion within any specified Milestones and the Contract Times, but such acceptance will neither impose on Engineer responsibility for the sequencing, scheduling or progress of the Work nor interfere with or relieve Contractor from Contractor's full responsibility therefor.
2.9.3 Contractor's schedule of Shop Drawing and Sample submissions will be acceptable to Engineer as providing a workable arrangement for reviewing and processing the required submittals.
2.9.4 Contractor's schedule of values will be acceptable to Engineer as to form and substance.
Please reference the ATTACHMENTS for Technical Specifications.
The following definitions shall apply to these Instructions To Bidders (ITB):
In all other respects, terms used herein shall have the meanings as stated in the Standard General Conditions or other Contract Documents.
DEFINITION
2.1 Owner may at its sole option assign one or more full or part time engineers, inspectors or other representatives to observe the performance of the Work. The duties, responsibilities and limitations of authority of any such representatives will be as provided in the Contract Documents or as otherwise stated to Contractor in writing by Owner.
INFORMATION AND SERVICES REQUIRED OF THE OWNER
2.2 To the extent reasonably required for Contractor's performance of the Work, Owner shall furnish surveys in its possession or in the possession of its Architect or other consultant describing the physical characteristics, legal limitations and utility locations for the site of the Project. Such items are for informational purposes only and neither Owner nor Architect shall be liable for inaccuracies or omissions therein, nor shall any inaccuracies or omissions in such items relieve Contractor of its responsibility to perform its Work in accordance with the Contract Documents. Contractor shall in every instance exercise proper precautions relating to the safe performance of the Work. Contractor shall confirm the location of each utility with the appropriate local utility company, shall relocate or dispose of each on-site utility and shall cap each utility as required by the Work or the Specifications. Contractor shall not be entitled to additional compensation resulting from its failure to confirm the location of the site utilities or existing structures prior to the opening of its Bid. Contractor also shall employ and pay a competent registered surveyor to provide all lines, marks, and levels necessary to the Construction of the Work including, but not limited to, a permanent benchmark and baseline.
OWNER'S RIGHT TO CARRY OUT THE WORK
2.3 If Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents, fails to remove and replace rejected Work as provided by this Article, or fails in any respect to perform the Work in strict accordance with the Contract Documents, and fails within a seven (7) day period after receipt of written notice from Owner to commence and continue correction of such default or neglect with diligence and promptness, Owner may after such seven day period, and without prejudice to other remedies Owner may have, correct and remedy any such default, neglect or deficiency, and may exclude Contractor from all or part of the site, take possession of all or part of the Work, suspend Contractor's services related thereto, and take possession of Contractor's tools, appliances, construction equipment and machinery at the site and incorporate in the Work all materials and equipment stored at the site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner, Architect, their respective representatives and other contractors full and unhindered access to the site to enable Owner to exercise the rights and remedies under this Subparagraph.
2.3.1 All claims costs, losses and damages incurred or sustained by Owner in exercising such rights and remedies will be charged against Contractor and its surety and Owner shall be entitled to a corresponding decrease in the Contract Price. Owner may, with or without a Change Order being issued, deduct from payments then or thereafter due Contractor the costs of correcting such default, neglect or deficiency, including Owner's expenses and compensation for Architect' additional services made necessary by such default, neglect or deficiency. Such direct, indirect and consequential costs will include, but not be limited to fees and charges of engineers, architects, attorneys and other professionals, all court and arbitration costs and all costs of repair and replacement of work or property of Owner or others destroyed or damaged by correction, removal or replacement of Contractor's defective Work. If payments then or thereafter due Contractor are not sufficient to cover such amounts, Contractor shall pay the difference to Owner. Contractor shall not be allowed an extension of the Contract Time because of any delay or hindrance in performance of the Work attributable to the exercise by Owner of Owner's rights and remedies hereunder.
2.3.2 If an order for relief in favor of Contractor is entered under the United States Bankruptcy Code, and Contractor is not performing its obligations hereunder, Owner may cause such Work to be performed by others until such time as Contractor, or its representative or trustee in bankruptcy, either rejects or accepts the agreement and gives Owner adequate assurance of Contractor's ability to perform further Work and Owner shall offset against the Contract Sum for the cost thereof.
2.3.3 Owner's reasonable exercise of its rights under the Contract Documents, including but not limited to: ordering changes in the Work, performance of separate Work consistent with Owner's obligations hereunder, carrying out Contractor's Work by Owner, exercising any of Owner's remedies in suspension of the Work or requirements for correction of non-conforming Work, withholding payment for just cause or otherwise exercising in good faith Owner's rights and remedies under this Agreement shall not be construed as intentional interference with Contractor's performance of the Work.
REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
3.1 Contractor represents that it has studied all surveys and investigative reports of subsurface and latent physical conditions referred to in the Contract Documents and has made such additional surveys and investigations necessary for the performance of the Work at the Contract Sum and in accordance with the requirements of the Contract Documents, that it has correlated the results of all such data with the requirements of the Contract Documents, and that the Contractor enters into the Contract on the basis of its own examination, investigation and evaluation of all such matters and risks associated with the Work, and not in reliance upon any opinions, statements or representations of the Owner, Architect or any of their respective officers, agents, servants or employees.
3.2 In the event of error, inconsistency, or omission reasonably discoverable in the Contract Documents, Contractor shall not proceed until written clarification has been issued by Architect. If Contractor fails to make such request for clarification, no excuse will be entertained for failure to carry out the Work in a satisfactory, workmanlike and timely manner. Neither the Owner nor Architect will be bound by oral clarifications.
3.3 Contractor shall not be liable to Owner or Architect for damages resulting from errors, inconsistencies or omissions in the Contract Documents unless Contractor recognized or in the proper performance of its duties under this Paragraph 3.3 should have recognized such error, inconsistency, omission or difference and knowingly or negligently failed to report it to Architect.
3.4 Where there is a conflict in or between the Contract Documents, including the Drawings and Specifications, in resolving conflicts, errors, discrepancies and disputes concerning the nature, character, scope or extent of Work to be performed or furnished by Contractor, or other rights and obligations of Owner and Contractor, the provision of a Contract Document expressing the greater quantity, quality or scope of the Work, or imposing the greater obligation upon Contractor or affording the greater right or remedy to Owner shall govern, without regard to the party who drafted such provision.
3.5 Only changes or interpretations covered by Addenda or written instruction or directive from Architect, including but not limited to Architect Supplemental Instructions and Field Orders issued by Architect will be permitted during construction of the Work. Contractor shall perform no portion of the Work at any time without Contract Documents or where required, received Shop Drawings, Product Data, or Samples for such portion of the Work.
3.6 Before ordering material or performing any Work, Contractor shall verify all measurements at the Project site. Any differences between dimensions on the Drawings and actual measurements shall be brought to the Architect's attention for consideration before the Work proceeds. Where actual measurements require more material and work than the Drawings call for, such material and Work shall be supplied at the cost of Contractor. No extra compensation will be allowed because of differences between actual measurements and dimensions indicated on the Drawings. Contractor shall assume full responsibility for the accuracy of measurements obtained at the work site.
3.7 Mechanical and Electrical Drawings are diagrammatic only. Actual work involved shall be installed from received Shop Drawings with all measurements obtained at the Project site by Contractor.
3.8 Dimensions which are lacking from the Drawings shall be obtained from Architect or field verified. In no case will Contractor assume that the Drawings are scaled.
3.9 Contractor may not rely upon and, except as otherwise provided in this Section, shall have no right of claim against Owner or Architect with respect to any graphical or written representation of any exploration, testing, boring or other forms of reports of subsurface or other existing physical conditions or structures at or contiguous to the site which have been utilized and relied upon by Architect or Owner in preparing the Contract Documents.
3.10 Notwithstanding the dimensions given on the Drawings and Specifications and other Contract Documents, it shall be the obligation and responsibility of Contractor to take such measurements as will insure the proper matching and fitting of all items and components of the Work covered by the Contract with other elements of the Work and with contiguous work of others and with the work performed by predecessor trades or contractors. When Contractor proceeds with its Work, Contractor accepts the conditions of the work performed by such predecessor trades and contractors that may impact or affect Contractor's Work, and Contractor assumes the responsibility with respect to those existing conditions of such predecessor activity that they will not adversely impact the performance and acceptability of Contractor's Work under the Contract.
3.11 Contractor shall verify measurements, lines and grades of existing work, conditions and structures at the site, and when indicated dimensions are not in agreement with Contractor's field measurements, shall notify Owner, Construction Manager and Architect immediately, in writing, requesting clarification. If such existing work, conditions and structures do not fit properly with the Work to be done by Contractor, Contractor shall make at Contractor's expense such alterations to its Work as may be necessary to assure proper fit and connections that meet the approval of Construction Manager and Architect. Contractor shall be responsible for the accuracy of all field measurements and shall not rely on any data furnished by or prepared by Owner, Construction Manager and Architect.
3.12 Contractor is responsible for his own layout and for the protection and preservation of all installed engineering data and layout points and shall take all necessary precautions to insure that said data or points are not damaged, destroyed, altered or changed. Re-engineering, if required, shall be performed at Contractor's expense.
3.13 Contractor shall be responsible for and shall perform all cutting, fitting, patching, sleeving, grouting and sealing of its Work that may be required to fit its Work to existing work, conditions and structures in place at the site, and to fit its Work to receive or be received by the work of other contractors, or otherwise required in the prosecution of the Work.
SUPERVISION AND CONSTRUCTION PROCEDURES
3.14 Unless otherwise specified in the Project Manual or Specifications, Contractor shall furnish and assume full responsibility for all materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, scaffolding, hoists, lifts, formwork, temporary shoring, fuel, power, light, heat, telephone, water and sanitary facilities and all other facilities and incidentals necessary for the furnishing, performance, testing, start-up and completion of the Work.
LABOR AND MATERIALS
3.15 Labor shall be performed in a workmanlike manner, by mechanics skilled in their respective trades. Standards of Work required throughout shall be of such grade as will bring results of good workmanship. Mechanics whose Work is unsatisfactory to Owner or Architect, or are considered by either Owner or Architect to be careless, incompetent, unskilled or otherwise objectionable, shall be dismissed from the Work upon notice from the Architect or Owner. Neither Owner nor Architect shall be responsible for any increased costs or delays caused by such dismissal.
3.15.1 All labor used throughout the Work and in performance of the Contract shall be acceptable to Owner and of a standing or affiliation that will permit the Work to be carried on harmoniously and without delay, and that will in no case cause any disturbance, interference or delay to the progress of the Work. Contractor agrees to proceed with his Work without interruption, regardless of any trade or craft affiliations or the lack thereof on the part of any workmen on the Project. Contractor agrees that where its Work is stopped or delayed or interfered with by strikes, slowdowns or work interruptions resulting from the acts or failures to act of its employees in concert, or by the breach of any of the terms of this provision, then Owner may treat such stoppage, delay or interference as a breach of the Contract and proceed in accordance with the Contract Documents.
3.15.2 Contractor will use best efforts to cooperate with Owner and any other affected parties to resolve any jurisdictional disputes that may arise during the prosecution of Contractor's Work, and shall abide by the procedures contained in and any decisions rendered under any applicable plan for settlement of jurisdictional disputes. Contractor shall, in all cases, continue to Work while any jurisdictional dispute remains unresolved. Contractor shall Work in harmony with Owner and all other contractors and subcontractors to assure that no labor disputes of any kind involving the Owner, other contractors and subcontractors, or other third parties, or their respective employees or agents shall occur or be manifested on the Project, and Contractor shall only employ persons on the Project who will Work at all times in harmony with other persons and trades employed on the Project. If Contractor has labor agreements with any organized labor unions, Contractor shall work in harmony with any and all contractors or subcontractors who employ personnel that are not represented by an organized union.
3.15.3 Contractor shall not be relieved of its obligations under the Contract by any jurisdictional dispute, work stoppage, slowdown or any other circumstances involving its employees that cause, create or aggravate any interference, delay, suspension or other form of impairment to performance or completion of any work by any contractor, subcontractor or other third party on the Project. If any such work stoppage, slowdown or any other action does occur due to any type of labor dispute or a picket line established for any reason, Contractor shall immediately adopt any and all measures (including, but not limited to, a separate gate) as necessary to eliminate and avoid delay or disruption to Contractor's Work or any other work of others at the Project. If a labor dispute involving Contractor does occur and, in the judgment of Owner, such dispute causes or threatens to cause delay or disruption to the orderly and efficient progress of construction, then such occurrence shall be deemed a default hereunder and just cause for termination of the Contract as provided in Article 14 hereof or other action or remedy permitted by the Contract Documents or applicable laws.
3.15.4 Contractor shall abide by, recognize and respect any split gate, reserve gate or similar system on the Project and agrees that the existence of a split gate, reserve gate or similar system shall not be grounds for any form of picket lines, strikes or walk-outs. Should any workers or employees of Contractor performing any work for the Project engage in a strike, boycott or other work stoppage or cease to work, due to picketing or a labor dispute of any kind or nature, whether involved with or caused by employees of Owner, any other contractor or subcontractor, supplier, trade, union or entity, the failure or refusal of those workers or employees to perform Contractor's Work shall be considered as a default under this Contract, and the remedies for defaults set forth in Article 14 and elsewhere herein shall apply.
3.16 Whenever, in the Contract Documents, an article, material, apparatus, equipment, or process is called for by trade name or by the name of a patentee, manufacturer, or dealer or by reference to catalogs of a manufacturer or dealer, it shall be understood as intending to mean and specify the article, material, apparatus, equipment, or process designated, or any approved equal thereto in quality, finish, design, efficiency and durability and equally serviceable for the purposes for which it is intended. Whenever material or equipment is submitted by Contractor for approval as being equal to that specified, the submittal shall include sufficient information and data to demonstrate that the material or equipment conforms to all Contract requirements. The decision as to whether or not such material or equipment is equal to that specified shall be made by Owner in consultation with Architect. Neither the approval of substituted material or equipment nor the furnishing of the material or equipment as specified will relieve Contractor of responsibility for failure of the material or equipment to perform the functions required by the Contract Documents due to faulty design, material, or workmanship.
3.17 Not later than ten (10) days from the date of execution of the Contract, Contractor shall provide to Owner, Construction Manager and Architect a list identifying the name of the manufacturer proposed to be used for each of the products identified in the Specifications and the name of the installing Subcontractor.
3.18 Materials shall conform to manufacturer's standards in effect at the date of issuance of the Contract Documents if there is no standard set forth otherwise in the Contract Documents and shall be installed in strict accordance with manufacturer's directions.
3.18.1 Where the Contract Documents require the Work, or any part of same, to be above the standards required by applicable laws, ordinances, rules, regulations or any statutory provisions pertaining to the Work, or above the quality of normal construction or trade standards, such Work shall be performed and completed by Contractor in strict accordance with the Contract Documents.
3.18.2 In the event any of the material or equipment specified, supplied and installed under this contract should fail to produce capacities or meet design or performance specifications as published or warranted by the manufacturer of the material or equipment involved, or fail to meet the requirements of the Contract Documents, Contractor shall remove and replace such material or equipment with replacement material or equipment that will meet all such requirements without cost to the Owner.
WARRANTY
3.19 The Contractor warrants to the Owner that materials and equipment furnished under the Contract will be of high quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants that the Work will strictly conform to the requirements of the Contract Documents and will be free from defects, except for those inherent in the quality of the Work or otherwise expressly permitted by the Contract Documents. The performance of the Work shall not limit, void or otherwise compromise or diminish any equipment or manufacturer warranty that is to be issued under the Contract or the Contract Documents. Work, materials, or equipment not conforming to these requirements may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, alterations to the Work not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.
3.19.1 Contractor shall, at its sole expense, promptly and properly repair, replace or otherwise correct any Work that is (i) rejected by Owner, Construction Manager or Architect, or (ii) known, observed or discovered at any time by Contractor, Owner or Architect to be defective or failing to conform to the Contract Documents and shall pay Owner for all expenses incurred in any delay caused by remedying defective or otherwise nonconforming Work.
3.19.2 As part of the above warranty, it is expressly understood and agreed that Contractor warrants that Contractor's Work shall be waterproof and weatherproof in every respect.
3.20 Any and all warranties which are available on any material or equipment or other service which is part of the Work will be provided to Owner at no additional cost. Upon completion of the Work, Contractor shall assign to Owner all warranties obtained or obtainable by Contractor from manufacturers and suppliers of equipment and materials incorporated into the Work by written instrument of assignment in a form acceptable to Owner. Contractor shall furnish Owner with copies of all warranties, guarantees, operating manuals relative to equipment installed, and a complete set of reproducible drawings with all field changes noted on them relating to the improvements constructed under the Contract. The assignment of such manufacturer and supplier warranties shall not relieve Contractor of any of its own warranty obligations under this Section, which shall remain in full force and effect.
3.21 Contractor warrants that the performance of the Work shall not limit, void or otherwise compromise or diminish any equipment or manufacturer warranty that is to be issued under the Contract or the Contract Documents, and that the Work under this Contract shall be and remain merchantable and fit for their particular purpose, and in strict conformance with the Contract Documents, including but not limited to requirements established by interpretations and decisions rendered by Architect in accordance with the Contract Documents. All Work not conforming to these standards shall be considered defective.
3.22 For a period of two (2) years from the date of final completion and acceptance of the Work by Owner, as evidenced by the date of the Architect's Certificate of Final Completion, the Contractor warrants to the Owner that all movable or adjustable Work shall remain in working order, including hardware, doors, windows, apparatus, machinery, mechanical and electrical equipment. For the same period, the Contractor warrants to Owner to make good, at his own expense, any defects, shrinkage, warpage or other faults in Work required under this Contract arising out of defective materials or workmanship, ordinary wear and tear excepted.
3.23 In addition to all of Contractor's warranties and obligations to correct defective Work provided by law or as set forth in any of the Contract Documents, Contractor agrees, upon notice from Owner or Architect, immediately to repair, restore, correct and cure, at Contractor's expense, all defects and omissions in workmanship and materials and all failures to comply with the Contract Documents which appear within two (2) years from the date of final completion and acceptance of the Work by Owner. Contractor shall pay for, and if requested, correct, repair, restore and cure any damage or injury, whenever the same shall occur or appear, resulting from any defects, omissions or failure in workmanship and materials, and indemnify, hold harmless, and defend Owner against any and all claims, losses, costs, damages and expenses, including attorney fees, suffered by Owner as a result of such damage or injury, whenever such damage or injury shall occur or appear. The period within which Contractor shall be obligated to correct Work shall be extended with respect to portions of Work, including corrective work, first performed after final completion and acceptance of the Project. Contractor's obligations under this Section shall survive completion and acceptance of the Work and Project and termination of the Contract.
3.24 Instead of requiring correction or removal and replacement of nonconforming Work, Owner may elect to accept such Work in the condition as provided. Contractor shall bear all direct, indirect and consequential costs attributable to Owner's evaluation of and determination to accept such defective work, to include but not be limited to fees and charges of Core Planning Strategies, attorneys and other professionals. If any such acceptance occurs prior to Architect's and Owner's Representative's recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and Owner shall be entitled to an appropriate decrease in the Contract Price to account for such costs and damages. If the acceptance occurs after such recommendation of final payment, such costs and damages shall be paid by Contractor and Surety to Owner. The acceptance of nonconforming Work by Owner shall be by written Change Order, signed by Owner's authorized representative. No person has authority to accept nonconforming work except pursuant to such written Change Order. The terms of this Subsection are not limited by any other limitation on Owner's right to recover consequential damages.
3.25 Notwithstanding anything to the contrary contained herein with respect to warranties, it is understood and agreed that the foregoing warranties and guarantees shall not affect, limit or impair Owner's right against Contractor with regard to latent defects in the Work which do not appear within the applicable warranty period following acceptance of the Work and which could not, by the exercise of reasonable care and due diligence, be ascertained or discovered by Owner within such warranty period. Contractor shall be and remain liable and responsible to correct and cure any such latent defects which are reported to Contractor by Owner in writing within thirty (30) days after such latent defect first appears or could, by the exercise of reasonable care and due diligence, be ascertained or discovered by Owner.
3.26 Upon completion of the Work, Contractor shall assign to Owner all warranties obtained or obtainable by Contractor from manufacturers and suppliers of equipment and materials incorporated into the Work by written instrument of assignment in a form acceptable to Owner. Contractor shall furnish Owner with copies of all warranties, guarantees, operating manuals relative to equipment installed, and a complete set of reproducible drawings with all field changes noted on them relating to the improvements constructed under the Contract.
3.27 At the time of final completion and acceptance of the Work by Owner, and as a condition of final payment by Owner to Contractor, in addition to any other closeout requirements set forth in the Contract Documents, Contractor shall execute and deliver to Owner the Contractor Warranty in the form attached hereto as Exhibit "T", Contractor Warranty.
3.28 At the time of final completion and acceptance of the Work by Owner, Contractor also shall furnish to Owner a Warranty Bond in the form attached hereto as Exhibit "U", Contractor Warranty Bond, with a penal sum equal to ten percent (10%) of the Contract Price.
3.29 The warranties provided herein shall be in addition to and not in limitation of any other warranty required by the Contract Documents or otherwise available or prescribed by law.
PERMITS, FEES AND NOTICES
3.30 Contractor represents and warrants that it is familiar with all governmental rules, regulations, laws and ordinances pertaining to the Work in existence at the time the Agreement is executed. If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, and without approval thereof by Owner and Architect, the Contractor shall assume full responsibility for such Work and shall bear any and all costs attributable to the original performance and any correction. If the Work performed is contrary to changes enacted in the applicable laws, ordinances, codes, rules and regulations relating to the Project or Site or the Work that arise after the Agreement is executed, which effect the Work and the time or cost for performing it, and Contractor was not aware of such changes at the time, or in the exercise of reasonable care could not have become aware of such changes before proceeding with the Work, then Contractor shall correct the non-conforming Work but it shall not bear the costs attributable to such correction, and the Contract Sum and the Contract Time shall be adjusted accordingly so as to compensate Contractor for such corrections.
CONCEALED OR UNKNOWN CONDITIONS
3.31 If Contractor uncovers, observes or otherwise becomes aware of any subsurface or otherwise concealed physical condition (other than Underground Facilities as defined in if3.) at or contiguous to the site and believes that such condition either (1) differs materially from that shown or indicated in the Contract Documents and is of such a nature as to establish that any data on which Contractor is entitled to rely with respect to physical and subsurface conditions is materially inaccurate or (2) is unknown and of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents; then Contractor shall, immediately but in no event later than two (2) business days after becoming aware thereof and before further disturbing or taking other action with respect thereto or performing any Work in connection therewith (except in an emergency as permitted), notify Owner, Construction Manager and Architect in writing about such condition, which notice shall state Contractor's recommendations or proposals for taking action in connection with the conditions.
3.31.1 Contractor shall not further disturb such conditions or perform any Work in connection therewith (except as aforesaid) until receipt of a written directive from Owner, Construction Manager or Architect to do so, but to the fullest extent possible Contractor shall continue to prosecute all other Work not affected by the conditions.
3.31.2 Construction Manager and Architect will promptly review the pertinent conditions, determine the necessity of obtaining additional explorations or tests with respect thereto and advise Owner in writing (with a copy to Contractor) of their findings and conclusions.
3.31.3 If Owner in consultation with Construction Manager and Architect concludes that a change in the Contract Documents or other action is required because of the conditions, a change order or change directive or other instructions or interpretations may be issued as provided in Article 7 to reflect and document the consequences of the conditions.
3.32 In each such case of a differing site condition as set out in if3.31, an increase or decrease in the Contract Price or an extension or shortening of the Contract Time, or any combination thereof, may be allowable, but only to the extent that (1) evidence of such conditions could not with the exercise of reasonable competence and diligence have been discovered or foreseen by Contractor prior to the Effective Date of the Contract, (2) Contractor, by the terms of the Contract and Contract Documents, has not assumed the risk of such conditions and (3) Contractor has explicitly fulfilled all of its requirements provided by if3.3land its subparts. Contractor shall in no event be entitled to an increase in the Contract Price in excess of costs, overhead and profit to perform authorized additional or changed Work to address the conditions, without additional allowances for delays or suspension of Work. If Owner and Contractor are unable to agree as to the amount or length of the adjustment to the Contract Price or Contract Time, a claim may be made therefore as provided in the Contract Documents.
3.33 If archaeological artifacts are encountered during excavation, Contractor immediately shall cease work in the immediate vicinity and shall notify Owner, Construction Manager and Architect in writing. Owner, Construction Manager and Architect will obtain a determination of the significance of and the disposition of such artifacts.
UNDERGROUND FACILITIES
3.34 Underground Facilities consist of all pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other manmade facilities or structures, and any encasements containing such facilities, which have been installed at or below the surface of the ground for the purpose of furnishing, storing, removing or transmitting electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, computer signals or data, sewage, drainage, traffic or other control systems, or water.
3.35 The information and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or contiguous to the site is based on information and data furnished to Owner or Architect by the owners of such Underground Facilities or by others. Owner and Architect shall not be responsible for the accuracy or completeness of any such information or data. Contractor shall have the sole responsibility for reviewing and checking all such information and data, for locating all Underground Facilities, shown or indicated in the Contract Documents, for coordination of the Work with the owners of such Underground Facilities during construction, for the safety and protection thereof and for repairing any damage thereto resulting from the Work or Contractor's operations, the cost of all of which having been included in the Contract Price.
3.36 If an Underground Facility is uncovered or revealed at or contiguous to the site which was not shown or indicated in the Contract Documents and of which Contractor could not reasonably have been expected to be aware, Contractor shall immediately but in no event later than two (2) business days after becoming aware thereof and before further disturbing conditions affected thereby (except in an emergency as permitted elsewhere herein), notify the owner of such Underground Facility and give written notice thereof to that owner and to Owner, Construction Manager and Architect. Construction Manager and Architect will promptly review the Underground Facility to determine the extent to which the Contract Documents should be modified to reflect and document the consequences of the existence of the Underground Facility, and the Contract Documents will be amended or supplemented to the extent necessary. During such time, Contractor shall be allowed an increase in the Contract Price or an extension of the Contract Time, provided such delay affects the critical path, or both, to the extent that they are attributable to the existence of any Underground Facility that was not shown or indicated in the Contract Documents and of which Contractor could not reasonably have been expected to be aware.
3.36.1 If the parties are unable to agree as to the amount or length thereof, Contractor may make a claim therefore as provided in the Contract Documents. However, Owner, Construction Manager and Architect shall not be liable to Contractor for any claims, costs, losses or damages incurred or sustained by Contractor for any claims, costs, losses or damages caused by or arising from any assessment, penalty or other liability imposed upon Contractor by utility companies or third parties.
MATERIALS FOUND AT THE PROJECT SITE
3.37 All existing equipment and materials as listed in the Specifications, removed from existing facilities shall remain the property of Owner. Such equipment and materials shall be stored on-site at locations identified by Owner, Construction Manager and Architect. All other existing equipment and materials removed from existing facilities shall be the property of Contractor and shall be removed from the site.
3.37.1 Construction materials such as gravel, stone, or sand found in excavations shall not be used for purposes other than indicated on the Drawings and Specifications without written approval of Owner, Construction Manager and Architect. When such approval is given, it shall state explicitly the provisions under which it is granted.
3.37.2 Contractor shall give prior notice to utility companies, make all arrangements and provide all services necessary to discontinue utilities or place same in service.
SUPERINTENDENT
3.38 The superintendent will be Contractor's representative at the site and shall have authority to act on behalf of Contractor in every manner and in all respects, all communications given to or issued by the superintendent shall be as binding as if given to or issued by Contractor. All communications upon which Contractor shall rely in whole or in part as the basis for any claim, right, or defense shall be made in writing.
3.39 Owner, Construction Manager and Architect shall have the right to require Contractor to remove a superintendent and replace him with a superintendent who is satisfactory to Owner.
CONTRACTOR'S CONSTRUCTION SCHEDULES
3.40 Within ten (10) days after the Effective Date of the Contract Contractor shall submit to Owner for review a construction schedule indicating the starting and completion dates of the various principal stages, milestones or elements of the Work. The schedule shall be in a form and format acceptable to Owner and shall reflect and conform to all Contract Completion Date(s). Construction Manager will review the schedule for general conformity to the Contract Documents and will make recommendations to Owner concerning approval thereof; however the review, approval or other action taken by Architect or Owner with respect to such schedule shall not relieve Contractor of its obligations to perform the Work within the Contract Time. The schedule shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. Contractor and each Subcontractor and/or Material Supplier shall furnish sufficient labor forces, construction plant and equipment, and shall work such hours, including night shifts and overtime operations, as may be necessary to ensure the prosecution of the Work in accordance with the approved schedule. The initial schedule and revisions thereof shall not exceed then current time limits under the Contract Documents.
3.40.1 Before Contractor starts the Work at the site, a conference attended by Contractor, Owner, Construction Manager, Architect and others as appropriate may be held to discuss the schedules and other preliminary matters, along with procedures for handling Shop Drawings and other submittals and for processing Applications for Payment, and to establish other procedures and understandings bearing upon coordination, performance and completion of the Work.
3.41 The Owner Representative, with the consent of Owner, if they deem necessary, may direct Contractor to Work overtime, in addition to any overtime required to meet the approved progress schedule as incorporated in the Contract Documents, and if so directed Contractor shall Work said overtime. Provided that Contractor is not in default under any of the terms or provisions of the Contract or of any of the other Contract Documents, Contractor will be reimbursed for such actual additional wages paid, if any, at rates which have been approved by Construction Manager and Architect and Owner plus taxes imposed by law on such additional wages, plus workmen's compensation insurance and levies on such additional wages if required to be paid by Contractor.
3.42 If the progress of the Work or of the Project be delayed by any fault or neglect or act or failure to act of Contractor or any of its officers, agents, servants, or employees, then Contractor shall, in addition to all of the other obligations imposed by the Contract upon Contractor in such cases, and at its own cost and expense, Work such overtime as may be necessary to make up for all time lost and to avoid delay in the completion of the Work and of the Project. If, after written notice is given, Contractor refuses to Work overtime required to make up lost time or to avoid delay in the completion of the Work and of the Project, Owner may hire others to perform the Work and deduct the cost from Contractor's Contract amount.
3.43 Should the progress of the Work or of the Project be delayed by any fault or neglect or act or failure to act of Contractor so as to cause any additional cost, expense, liability or damage to Owner, Construction Manager or Architect or any damages or additional costs or expenses for which Owner, Construction Manager or Architect may or shall become liable, Contractor shall and does hereby agree to compensate Owner, Construction Manager and Architect for and indemnify them against all such costs, expenses, damages and liability.
3.44 If Construction Manager or Owner considers it necessary for Contractor or its Subcontractors to cease Work at a designated point at any time for the orderly progress of the Work, Contractor or its Subcontractors, when directed by Construction Manager or Owner, shall transfer its or their men to such point or points as directed, and execute such portions of their Work as required to properly carry on their Work without delay.
DOCUMENTS AND SAMPLES AT THE SITE
3.45 Without otherwise affecting the roles and responsibilities of Owner and Contractor, Contractor shall include Owner's Representative (to be designated at the time of execution of the Contract) in the distribution of all substantive project related communication, including what otherwise is to be furnished to Architect and Construction Manager. This information shall include, but not be limited to, memoranda, letters, emails, transmittals, submittals, Requests for Information, Requests for Proposals, schedule updates, meeting minutes, daily reports, field reports, attachments, and notifications. Such distribution is for Owner's information, and shall be furnished at the same time and manner of distribution of the same information to Architect and Construction Manager, or other project participations, without delay.
SHOP ORAWINGS, PRODUCT DATA AND SAMPLES
3.46 Owner shall be kept informed by Contractor of the flow of all Shop Drawings, Product Data, Samples and other similar submittal information, review comments and approval status. Owner shall be provided one record copy of each Shop Drawing, Product Data, Sample and submittal promptly after it has been reviewed and approved by the appropriate person. Owner shall not be required to approve any documents other than those submittals required by the Contract Documents.
USE OF SITE
3.47 Contractor shall confine construction equipment, the storage of materials and equipment and the operations of workers to the Project site and land and areas identified in and permitted by the Contract Documents and other land and areas permitted by Laws and Regulations, rights-of-way, permits and easements. Contractor shall not unreasonably encumber the premises with construction equipment or other materials or equipment, and shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof or of any land or areas contiguous thereto, resulting from Contractor's operations at the site or the performance of the Work. Contractor's use of the site shall not impede, impair or endanger daily ongoing operations of Owner, and specifically Brookshire Golf Course. If Contractor must adjust operations, move stored materials on site or within the building or site, or otherwise accommodate Owner's ongoing daily operations through the fault or failure of Contractor, then Contractor shall do so at no additional cost or delay to Owner.
3.47.1 Should any claim be made against Owner, Construction Manager or Architect by any such owner or occupant described above, Contractor shall promptly attempt to settle or otherwise resolve such claim directly with such other party, by agreement or otherwise. Contractor shall, to the fullest extent permitted by law, indemnify and hold Owner, Construction Manager and Architect harmless from and against all claims, damages, losses and expenses (including, but not limited to, fees of engineers, architects, attorneys and other professionals and court and arbitration costs) arising directly, indirectly or consequentially out of any action, legal or equitable, brought by any such other party against Owner, Construction Manager or Architect to the extent based on a claim arising out of Contractor's site operations or performance of the Work.
3.47.2 Contractor, its subcontractors, and any separate contractor under direct contract with Owner shall be responsible for securing their own Work and their own equipment at the close of each workday.
3.47.3 Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work and shall take all necessary precautions for the safety of, and provide the necessary protection to prevent damage, injury or loss to (i) all employees on the Work and other persons and organizations who may be affected thereby, (ii) all the Work and all materials or equipment to be incorporated therein, whether in storage on or off the site, and (iii) other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities and underground facilities not designated for removal, relocation or replacement in the course of construction.
3.47.4 If Owner, Construction Manager or Architect requires Contractor to relocate materials which have been stored on site or within the building, Contractor shall relocate such materials at no additional cost to Owner.
3.47.5 Contractor shall maintain any existing buildings in a weathertight condition throughout the construction of the Project, and shall repair any and all damage thereto caused by its construction operations. Contractor shall take all precautions necessary to protect the existing buildings and its occupants during the course of the construction and performance of Contractor's Work.
3.47.6 Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it.
3.47.7 Contractor shall perform Work so as not to interfere with Owner's ongoing activities and so as not to create any hazards to Owner's employees or members of the public using Owner's property.
3.48 Contractor shall be responsible for securing temporary utilities at the Project, including electricity, light, heat and water. Contractor shall be responsible for the cost of all temporary utilities, including the cost of placing utilities in service, their continued operation during the construction of the Project, and their discontinuance thereafter.
3.48.1 During Contractor's use of the Site and the construction of the Project no Project identification or advertising signage shall be permitted on site without the express written approval of Owner.
CLEANING UP
3.49 During the progress of the Work, Contractor shall keep the premises free from accumulations of waste materials, rubbish and other debris resulting from the Work. At the completion of the Work Contractor shall remove all waste materials, rubbish and debris from and about the premises as well as all tools, appliances, construction equipment and machinery, and surplus materials, and shall leave the site clean and ready for occupancy by Owner. Contractor shall restore to original condition all property not designated for alteration by the Contract Documents.
ACCESS TO WORK
3.50 Owner will provide Contractor access to the Project Site. Contractor shall keep roads, walks, ramps, paths etc. on and adjacent to the Project site in good working order and condition and free from obstructions which might present a hazard to or interference with traffic. If construction operations necessitate the closing of traffic lanes, Contractor shall be responsible for arranging such closings in advance with the authorities having jurisdiction, Owner, and adjacent property owners. Contractor shall provide adequate barricades, signs and other devices for traffic guides and public safety. Contractor shall not store any materials on any part of the golf holes unless authorized to do so by the golf course director or his/her authorized representative.
INDEMNIFICATION
3.51 To the fullest extent permitted by law, Contractor shall indemnify, hold harmless and defend Owner, Owner Representative and all of their officers, directors, partners, agents, employees, consultants, attorneys and any other person or entity for whom any of them may be legally responsible, of and from and against all claims, suits, demands, causes of action, damages, losses, costs and expenses, including reasonable attorney's and consultant's fees and expenses, of any nature whatsoever which arise out of, or are alleged to arise out of, result from, or are in connection with or incidental to the performance of Contractor's Work under this Contract, or occasioned by any breach or nonperformance of its terms and obligations, or by any labor, services, materials or equipment furnished hereunder, provided that any such claim, suit, demand, cause of action, damage, loss, cost, fees or expense: (a) is attributable to, or alleged to arise out of or be attributable to, bodily injury, sickness, disease or death, or actual or alleged infringements of any patent, trademark, copyright or other intellectual property or proprietary right, or the breach of or failure to comply with any term, condition or obligation under the Contract, or to injury or damage to or destruction of tangible property or real property , including the loss of use thereof and consequential damages resulting therefrom, or is attributable to damages from economic harm or loss, or is attributable to damages to any party indemnified hereunder or its employees, servants and agents, and whether such claim, suit, demand, cause of action, damage, loss, cost, fees or expense, is based upon, or claimed to be based upon, statutory, contractual, tort or other liability of any indemnified party hereunder; and (b) is caused in whole or in part by any negligent act or omission, breach of contract, breach of warranty, strict liability, or other breach of any duty or obligation of Contractor, Architect, a Consultant, a Contractor, or anyone directly or indirectly employed by them or anyone for whose acts they may be liable, or is caused by or arises out of the use of any products, materials, machinery or equipment furnished by Contractor, regardless of whether such claim, suit, damage, loss, cost or expense is caused in part by any joint, several or comparative, but not sole, negligent act or omission, breach of contract, breach of warranty, strict liability, or other breach of duty or obligation by any party indemnified hereunder.
3.51.1 Without limiting the generality of the foregoing under 3.51 and in addition thereto, the indemnification, hold harmless and defense duties and obligations of Contractor under this 3.51.1 shall apply to any claims, suits, demands, causes of action, damages, losses, costs and expenses, including attorney and expert fees and expenses and court costs, of whatsoever kind, nature and type, whether based in contract, tort or otherwise, of Contractor and its employees against Architect, or any other Consultant, Contractor, material supplier or third party and to the claims of whatsoever kind, nature and type, whether based in contract, tort or otherwise, of Architect, or any other Consultant, Contractor, material supplier or third party, or its employees, against Contractor or Owner or any other party indemnified hereunder, consistent with the provisions of the Indiana Anti-Indemnity Statute, as codified at Indiana Code, §26-2-5-1.
3.51.2 In any and all claims against Owner or any of its officers, directors, partners, agents, employees, consultants, attorneys and any other person or entity for whom any of them may be legally responsible, by any employee of Contractor or anyone directly or indirectly employed by Contractor, or anyone for whose acts Contractor may be liable, the indemnification obligations under this 3.51 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Contractor under worker's compensation acts, disability benefit acts or other employee benefit acts.
3.51.3 The indemnification, hold harmless and defense duties and obligations of Contractor arising under the Contract and this 3.51 shall extend to any and all claims, suits, demands, causes of action, damages, losses, costs and expenses, including attorney and expert fees and expenses, occurring after the Work under this Contract is completed and the performance obligations of Contractor hereunder are concluded as well as while the Contract remains in full force and effect, and such indemnification, hold harmless and defense duties and obligations shall continue until there is a final adjudication or determination that any and all such claims, suits, demands and causes of action against the parties indemnified hereunder are fully and finally barred by applicable statutes of limitation or operation of law.
3.51.4 Contractor shall assume all liability, financial or otherwise, in connection with its Contract and the Work and shall protect and save harmless Owner, Construction Manager and Architect from any and all damages or claims that may arise because of inconvenience, delay, or loss experienced by Contractor and caused directly or indirectly by the acts or omissions of other contractors or third parties. Contractor shall make no claim for damages against Owner, Construction Manager or Architect by reason of any act or omission to act by any other contractor or third party or in connection with the Construction Manager's, Architect's or Owner's acts or failures to act in connection with such other contractor or third party, but Contractor shall have a direct right to recover such damages from other contractors under substantially the same provisions as are set forth and contained in this Article.
3.51.5 Upon receipt of a progress payment, Contractor shall pay promptly all valid bills and charges for materials, equipment, labor or other costs in connection with or arising out of the Work, and will hold Owner free and harmless from and against all liens and claims of liens for such materials, equipment, labor and other costs, or any of them, filed against the Project or the site, or any part thereof, and from and against all expense and liability in connection therewith including, but not limited to, the court costs and attorney fees resulting or arising therefrom. Should any liens or claims of liens be filed ofrecord against the Project or the Site, or should Owner receive notice of any retainage claim or of any unpaid bill of charge in connection with the Work, Contractor shall forthwith either pay or discharge the same and cause the same to be released of record, or shall furnish Owner with appropriate indemnity in form and amount satisfactory to Owner.
3.51.6 If any part of the indemnity provisions of this 3.5 l is adjudged to be contrary to law, the remaining parts of the provisions shall in all other respects be and remain legally effective and binding. Moreover, such indemnity obligation shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity or other right which would otherwise exist as to any party or person described in this Article.
LINES AND GRADES
3.52 All work under the Contract shall be constructed in accordance with the lines and grades shown on the Drawings or as otherwise given by Owner’s Representative, Construction Manager, or Architect, and Contractor shall retain the full and exclusive responsibility for maintaining specified alignments and grades throughout the course of the Work. Control points and reference marks for lines and grades shall be set by Contractor as the Work progresses and shall be located to avoid any undue inconvenience to the prosecution of the Work. Contractor shall place excavation and other materials so as to cause no inconvenience in the use of the reference marks provided. Contractor shall remove any obstructions placed by Contractor contrary to this Section at no cost to Owner.
3.52.1 Contractor shall safeguard all points, stakes, grade marks, monuments and bench-marks made or established on the Work, bear the cost of reestablishing them if disturbed, and bear the entire expense of rectifying work improperly installed due to not maintaining or protecting or to removing without authorization such established points, stakes and marks. Contractor shall safeguard all existing and known property comers, monuments and marks adjacent to but not related to the Work and, if required, shall bear the cost of reestablishing them if disturbed or destroyed.
3.1 Integration of Contract Documents. The Contract Documents comprise the entire Agreement between Owner and Contractor concerning the Work. The Contract Documents are complementary; what is called for by one is as binding as if called for by all. The Contract Documents will be construed in accordance with the law of the State of Indiana and without regard to the party by or for whom they were prepared or drafted.
3.2 Intent and Meaning. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance therewith. Any Work, materials or equipment that may reasonably be inferred from the Contract Documents, as being required to produce the intended result will be supplied whether or not specifically called for. Notations, details or other descriptions, which apply to one of a number of situations, materials, processes or Work items, shall apply to all except as specifically stated otherwise. When words which have a well-known technical or trade meaning are used to describe Work, materials or equipment, such words shall be given that meaning unless a different meaning is reasonably apparent as determined by the Engineer. Reference to standard specifications, manuals or codes of any technical society, organization or association, or to the Laws or Regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual or code or Laws or Regulations in effect at the time of opening of Bids. If said standard specification, manual or code or Laws or Regulations are promulgated, amended, revised or otherwise changed subsequent to the opening of Bids, Contractor shall notify Owner who may direct compliance under Section 9.1. However, no provision of any referenced standard specification, manual or code (whether or not specifically incorporated by reference in the Contract Documents) shall be effective to change the duties and responsibilities of Owner, Contractor or Engineer, or any of their consultants, agents or employees, or to limit or impair any right or remedy of the Owner, as set forth in the Contract Documents, nor shall it be effective to assign to the Owner, Engineer or any of their respective consultants, agents or employees any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility, contrary to the provisions of Section 8.10 or 8.11.
3.3 Duty To Report Discrepancies. If, during the performance of the Work, Contractor discovers a conflict, error or discrepancy in the Contract Documents, Contractor shall so report to Engineer in writing at once and before proceeding with the Work affected thereby and shall obtain a written interpretation or clarification from Engineer.
3.4 Major Modification. The Contract Documents may be amended to provide for additions, deletions and revisions in the Work or to modify the terms and conditions thereof by (i) a formal Written Amendment, or (ii) a Change Order (pursuant to Section 9.4) or (iii) a Work Change Directive (pursuant to Section 9.1). As indicated in Sections 10.2 and 11.5, the Contract Price and Contract Time may only be changed by a Change Order or a Written Amendment.
3.5 Minor Deviations. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized by (i) a Field Order (pursuant to Section 8.5), or (ii) an Engineer’s approval of a Shop Drawing, Working Drawing, or Samples (pursuant to Section 6.22) or an Engineer’s written interpretation or clarification (pursuant to Section 8.4).
3.6 Reuse of Documents. Neither Contractor nor any Subcontractor or Supplier or other person or organization performing or furnishing any of the Work under a direct or indirect contract with Owner shall have or acquire any title to or ownership rights in any of the Drawings, Specifications or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer; and they shall not reuse any of them on extensions of the Project or any other project without written consent of Owner and Engineer and specific written verification or adaptation by Engineer.
ARCHITECT'S ADMINISTRATION OF THE CONTRACT
4.1 The Architect, Owner’s Representative or Construction Manager have authority to recommend to the Owner the rejection of Work which does not conform to the Contract Documents, and subject to Owner's prior approval, to reject that Work, and to require special inspection or testing, but will take such action only after consultation with the Owner.
4.2 Notwithstanding the foregoing, where Architect has actual knowledge that a Contractor submittal depicts a condition which is not in conformance with the Contract Documents, Architect shall promptly notify Owner and Construction Manager of such condition.
4.3 Neither Architect's authority to act under this Article or elsewhere in the Contract Documents nor any decision made by Architect in good faith either to exercise or not to exercise such authority shall give rise to any duty or responsibility of Architect to Contractor, any Subcontractor, Supplier or any other person or organization performing any of the Work, or to any surety for any of them.
4.4 Owner and Architect shall have no responsibility for Contractor's selection or implementation of means, methods, techniques, sequences or procedures of construction, or the safety precautions and programs incident thereto, and Owner and Architect shall not be responsible for Contractor's failure to perform or furnish the Work or to fulfill other duties in accordance with the Contract Documents.
4.1 Availability of Lands. Owner shall furnish, as indicated in the Contract Documents, the lands upon which the Work is to be performed, rights-of-way and easements for access thereto, and such other lands which are designated for the use of Contractor. Owner shall identify any encumbrances or restrictions not of general application but specifically related to use of lands so furnished with which Contractor will have to comply in performing the Work. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by Owner, unless otherwise provided in the Contract Documents. If Contractor believes that any delay in Owner furnishing these lands, rights-of-way or easements entitles Contractor to an extension of the Contract Time, Contractor may make a claim therefore as provided in Article 11. Contractor shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment.
4.1.1 The Owner shall provide permanent easements and temporary construction easements as shown on the Drawings for buried pipelines across private property. If the easements obtained are not sufficient for the Work, the Contractor shall obtain any additional easements required. There will be no additional compensation made for obtaining these easements, damages to private property outside easements, or additional cost to the Contractor because of the easements or lack thereof.
4.2 Subsurface and Physical Conditions (Excluding Underground Facilities). Reports of explorations and tests of subsurface conditions and drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the site (except Underground Facilities) have been utilized and relied upon by Engineer in preparing the Contract Documents. Contractor may rely upon the general accuracy of the “technical data” contained in such reports and drawings but such reports and drawings are not Contract Documents. Such "technical data” is identified in the Specifications. Except for reliance on such “technical data”, Contractor may not rely upon and may not make any claim against Owner, Engineer or any of Engineer's Consultants with respect to (i) the completeness of such reports and drawings for Contractor’s purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by Contractor and safety precautions and programs incident thereto, or (ii) other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings.
4.3 Differing Subsurface or Physical Conditions. If Contractor uncovers, observes or otherwise becomes aware of any subsurface or physical condition (other than Underground Facilities) at or contiguous to the site and believes that such condition either (i) differs materially from that shown or indicated in the Contract Documents, (ii) is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents, or (iii) is of such a nature as to establish that any "technical data" on which Contractor is entitled to rely as provided in paragraph 4.2 is materially inaccurate; then Contractor shall, immediately upon becoming aware thereof and before further disturbing or taking other action in respect thereof or performing any Work in connection therewith (except in an emergency as permitted by Section 6.21), notify Owner and Engineer in writing about such condition, which notice shall state the Contractor’s recommendations or proposals for taking action in connection with the conditions.
4.3.1 Contractor shall not further disturb such conditions or perform any Work in connection therewith (except as aforesaid) until receipt of a written directive from Owner or Engineer to do so, but to the fullest extent possible Contractor shall continue to prosecute all other Work not affected by the conditions;
4.3.2 Engineer will promptly review the pertinent conditions, determine the necessity of obtaining additional explorations or tests with respect thereto and advise Owner in writing (with a copy to Contractor) of Engineer's findings and conclusions;
4.3.3 If Owner in consultation with the Engineer concludes that a change in the Contract Documents or other action is required because of the conditions, a Work Change Directive or other instructions or interpretations may be issued as provided in Article 9 to reflect and document the consequences of the conditions;
4.3.4 In each such case, an increase or decrease in the Contract Price or an extension or shortening of the Contract Time, or any combination thereof, may be allowable, but only to the extent that (i) evidence of such conditions could not with the exercise of reasonable competence and diligence have been discovered or foreseen by Contractor prior to submission of the Contractor’s Bid, (ii) the Contractor, by the terms of the Contract Documents, has not assumed the risk of such conditions, and (iii) Contractor has explicitly fulfilled the written notice requirements provided by this Section 4.3. The Contractor shall in no event be entitled to an increase in the Contract Price in excess of direct costs to perform authorized additional or changed Work to address the conditions, without additional allowances for delays or suspension of Work. If Owner and Contractor are unable to agree as to the amount or length of the adjustment to the Contract Price or Time, a claim may be made there for as provided in Articles 10 and 11. However, Owner and Engineer shall not be liable to Contractor for any incidental or consequential damages, claims or costs including, but not limited to, costs, losses or damages incurred or sustained by Contractor on or in connection with any other project or anticipated project or home office overhead.
4.4 Underground Facilities.
4.4.1 Shown or Indicated: The information and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or contiguous to the site is based on information and data furnished to Owner or Engineer by the owners of such Underground Facilities or by others. Owner and Engineer shall not be responsible for the accuracy or completeness of any such information or data. Contractor shall have the sole responsibility for reviewing and checking all such information and data, for locating all Underground Facilities, shown or indicated in the Contract Documents, for coordination of the Work with the owners of such Underground Facilities during construction, for the safety and protection thereof as provided in Section 6.20 and for repairing any damage thereto resulting from the Work or Contractor's operations, the cost of all of which having been included in the Contract Price.
4.4.2 Not Shown or Indicated. If an Underground Facility is uncovered or revealed at or contiguous to the site which was not shown or indicated in the Contract Documents and of which Contractor could not reasonably have been expected to be aware, Contractor shall promptly after becoming aware thereof and before further disturbing conditions affected thereby (except in an emergency as permitted by Paragraph 6.21), notify the owner of such Underground Facility and give written notice thereof to that owner and to Owner and Engineer. Engineer will promptly review the Underground Facility to determine the extent to which the Contract Documents should be modified to reflect and document the consequences of the existence of the Underground Facility, and the Contract Documents will be amended or supplemented to the extent necessary. During such time, Contractor shall be allowed an extension of the Contract Time, provided such delay affects the critical path, or both, to the extent that they are attributable to the existence of any Underground Facility that was not shown or indicated in the Contract Documents and of which Contractor could not reasonably have been expected to be aware. If the parties are unable to agree as to the amount or length thereof, Contractor may make a claim therefore as provided in Articles 10 and 11. However, Owner and Engineer shall not be liable to Contractor for any incidental or consequential damages, claims or costs, including but not limited to, losses or damages incurred or sustained by Contractor on or in connection with any other project or anticipated project, home office overhead, or for any claims, costs, losses or damages caused by or arising from any assessment, penalty or other liability imposed upon Contractor by utility companies or third parties.
4.5 Reference Points and Layout. Owner or other parties will provide engineering surveys for construction to establish reference points for construction as determined by Engineer to be necessary to enable Contractor to proceed with the Work unless otherwise specified. Contractor shall be responsible for laying out the Work, shall locate all mechanical and electrical services uncovered by excavation, shall establish all grades, lines, levels and bench-marks, and shall protect and preserve the established reference points and shall make no changes or relocations without the prior written approval of Owner. Contractor shall report to Engineer when any reference point is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points by professionally qualified personnel. Contractor shall maintain a bound surveyor's field notebook to accurately record all discrepancies, if any, discovered in Owner’s data. The field notebook shall be furnished to and become the property of Owner upon completion of the Work.
4.6 Lines and Grades.
4.6.1 All work under this Contract shall be constructed in accordance with the lines and grades shown on the Plans, or as given by Engineer. The full responsibility for keeping alignment and grade shall rest upon Contractor. Contractor shall establish base line controlling points. Reference marks for lines and grades shall be set by Contractor as the Work progresses and will be located to cause as little inconvenience to the prosecution of the Work as possible. Contractor shall place excavation and other materials so as to cause no inconvenience in the use of the reference marks provided. Contractor shall remove any obstructions placed by Contractor contrary to this provision at no cost to Owner.
4.6.2 Contractor shall furnish and maintain, at his own expense, stakes and other such materials, and give such assistance, including qualified helpers, as may be required by Engineer for setting and checking line and grade reference marks. Contractor shall check such reference marks by such means as he may deem necessary and, before using the reference marks, shall call Engineer’s attention to any inaccuracies. Contractor shall, at his own expense, establish all working or construction lines and grades as required from the reference marks set by Engineer, and shall be solely responsible for the accuracy thereof. Contractor shall, however, be subject to the check and review of Engineer. Contractor shall keep Engineer informed a reasonable time in advance as to his need for line and grade reference marks, in order that they may be furnished and all necessary measurements made for record and payment with the minimum of inconvenience to Engineer or of delay to Contractor. When necessary, working operations shall be suspended for such reasonable time as Engineer may require for this purpose.
4.6.3 Contractor shall safeguard all points, stakes, grade marks, monuments and beach-marks made or established on the Work, bear the cost of reestablishing them if disturbed, and bear the entire expense of rectifying work improperly installed due to not maintaining or protecting or to removing without authorization such established points, stakes and marks. Contractor shall safeguard all existing and known property corners, monuments and marks adjacent to but not related to the Work and, if required, shall bear the cost of reestablishing them if disturbed or destroyed.
4.6.4 All elevations indicated or specified refer to the Mean Sea Level Datum Plane, 1929 General Adjustment, of the United States Coast and Geodetic Survey and are expressed in feet and decimal parts thereof, or in feet and inches.
4.7 Hazardous Materials.
4.7.1 For the purpose of this section, “Hazardous Material” means any hazardous, special, radioactive or toxic substance, material or waste which is or becomes regulated by any local government authority, the State of Indiana or the United States Government. The term “hazardous material” includes, without limitation, any material or substance which is (i) defined as a “hazardous substance” under I.C. 13-7-8.7-1 of the Indiana Hazardous Substance Response Trust Fund Act, (ii) petroleum, (iii) asbestos, (iv) designated as a hazardous substance pursuant to the Federal Water Pollution Control Act (33 U.S.C. § 1251 et. seq.), (v) defined as a “hazardous waste” pursuant to the Federal Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), (vi) defined as a “hazardous substance” pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq., (vii) defined as a “regulated substance” pursuant to the Solid Waste Disposal Act (42 U.S.C. § 6991 et seq.), (viii) defined as a toxic “chemical substance” pursuant to the Toxic Substance Control Act (7 U.S.C. § 136 et seq.), (ix) defined as a "hazardous chemical" or "hazardous substance" pursuant to the Emergency Planning and Community Right to Know Act (42 U.S.C. § 11001 et seq.) or (x) defined as a “radioactive waste” pursuant to the Atomic Energy Act (42 U.S.C. § 2011 et seq.)
4.7.2 Owner shall be responsible for the existence of any Hazardous Materials uncovered or revealed at the site, which were not shown or indicated in Drawings or Specifications or identified in the Contract Documents to be within the scope of the Work. Owner shall not be responsible for any such materials brought to the site by Contractor, Subcontractor, Supplier or anyone else for whom Contractor is responsible.
4.7.3 Contractor shall be the party responsible for reporting to the appropriate agencies and authorities any release or discharge of any Hazardous Materials.
4.7.4 Upon encountering any Hazardous Materials Contractor shall immediately (i) stop all Work in connection with such Hazardous Materials and in any area affected thereby (except in an emergency as required by Section 6.21), (ii) notify the appropriate agencies or authorities, (iii) notify Owner and Engineer (and thereafter confirm such notice in writing), (iv) establish site security by excluding unnecessary traffic and personnel from the affected area, (v) conduct operations within the affected area to minimize exposure to personnel and the general public and to eliminate the potential for airborne dispersion, and (vi) as necessary to carry out the requirements of this section, handle, store and/or dispose of Hazardous Materials in a proper manner.
4.7.5 Contractor shall remain responsible for the jobsite until Owner has been notified of the uncovering or revealing of Hazardous Materials and Owner has assumed formal control of the worksite from Contractor.
4.7.6 After completing the above obligations, Contractor shall be required to resume Work in connection with such Hazardous Materials, if directed by Owner, after Owner has obtained any required permits related thereto and established any special terms or conditions under which said Work shall be performed.
4.7.7 Contractor claims qualifying under this section are intended to be treated as differing site condition claims and therefore the provisions of Sections 4.2 and 4.3 apply.
5.1 Performance, Payment and Other Bonds. Contractor shall furnish Performance and Payment Bonds, each in an amount at least equal to one hundred percent (100%) of the Contract Price as security for the faithful performance and payment of all Contractor’s obligations under the Contract Documents. These Bonds shall remain in effect at least until one (1) year after final payment and settlement with the Contractor and as provided otherwise by Law or Regulation or by the Contract Documents. All Bonds shall be in the forms prescribed by Law, Regulation, and the Contract Documents and be executed by such Sureties as (i) are licensed to conduct business in the State of Indiana, and (ii) are named in the current list of “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies” as published in Circular 570 (amended) by the Audit Staff Bureau of Government Financial Operations, U.S. Treasury Department. All Bonds signed by an agent must be accompanied by a certified copy of the power of attorney or other instrument establishing the such agent's authority to act.
5.2 Maintenance Bond. Contractor shall, as a condition to Owner’s obligation to make final payment, supply a three (3) year Maintenance Bond executed by a surety meeting the qualifications set forth in the preceding Section and in such form as prescribed by the Contract Documents, which bond shall secure the obligations contained in Section 12.7, beginning on the date of Final Acceptance in an amount equal to ten percent (10%) of the Contract Price as adjusted for Change Orders or such different percentage as may be specified by other Contract Documents.
5.3 Additional Requirements.
5.3.1 Substitute Bonds. If the Surety on any Bond furnished by Contractor becomes a party to a supervision, liquidation, rehabilitation or other similar action, or if its right or lawful authority to do business in the State of Indiana is terminated, Contractor shall, within ten (10) days thereafter substitute another Bond and Surety, both of which must be acceptable to Owner. Failure of Contractor to obtain a substitute Bond shall constitute a material breach of Contract and may at the option of Owner result in the termination of the Contract upon the ground of Contractor’s default.
5.3.2 Licensed Sureties and Insurers. All Bonds and Insurance required by the Contract Documents to be purchased and maintained by Owner or Contractor shall be obtained, from surety or insurance companies that are duly licensed or authorized in the jurisdiction in which the Project is located to issue Bonds or insurance policies for the limits and coverages so required. Such surety and insurance companies shall also meet such additional requirements and qualifications as may be provided in the Special Conditions, if any. The surety and insurance companies providing any coverages on this Project shall have and maintain during the term of this Agreement a minimum A.M. Best (Best's Key Rating Guide) rating classification of "A-".
5.3.3 Certificates of Insurance. Contractor shall deliver to Owner, with copies to each Additional Insured identified in the Contract Documents and Special Conditions, if any, certificates of insurance (and other evidence of insurance requested by Owner or any other additional insured) which Contractor is required to purchase and maintain in accordance with paragraph 5.4. The Contractor shall file policies and/or certificates of insurance, in duplicate, for all coverages required with the Owner and the Engineer, naming the Owner and the Engineer as Certificate Holders. Addresses of Owner and Engineer must also be shown. The certificate of insurance shall show that all coverages are provided on an occurrence basis and shall indicate the aggregate limit available for this Project as of the date the certificate is issued. Binders will be accepted as evidence of coverage for only the first ninety (90) days and cannot be renewed or extended beyond that time. All insurance policies and certificates of insurance must include a provision stating a minimum thirty (30) days' prior written notice will be provided to the Owner and Engineer for any cancellation, non-renewal, material change, or reduction of coverage. The Contractor shall cease operations upon the occurrence of any such cancellation, non-renewal, material change, or reduction of coverage, and shall not resume operations until satisfactory replacement insurance is provided, coverage is effective and certificates of insurance are received.
5.4 Contractor’s Liability Insurance. Contractor shall purchase and maintain such commercial general liability and other insurance as is required for the Work being performed and furnished and as will protect Contractor, Owner and Engineer, their employees, officers, or agents from (i) claims under workers' or workmen's compensation, disability benefits and other similar employee benefit acts which are applicable to the Work to be performed including private entities performing Work at the site and exempt from the coverage on account of number of employees or occupation, which entities shall maintain voluntary compensation coverage at the same limits specified for the mandatory coverage for the duration of the Project; in case any such Work is sublet, the Contractor shall require the Subcontractor to provide insurance for all employees of the Subcontractor engaged in such Work unless such employees are covered by the coverage afforded by the Contractor's insurance; (ii) claims for damages because of bodily injury, occupational sickness or disease, or death of Contractor’s employees or persons or entities excluded by statute from the requirements of (i), but required by the Contract Documents to provide the insurance required therein; (iii) claims for damages because of bodily injury, sickness or disease, or death of any person other than Contractor’s employees; (iv) claims for damages insured by personal injury liability coverage which are sustained by any person as a result of an offense directly or indirectly related to the employment of such person by Contractor, or by any other person for any other reason; (v) claims for damages, other than to the Work itself, because of physical injury to or destruction of tangible property wherever located, including loss of use resulting there from; (vi) claims for bodily injury or property damage arising out of completed operations; and (vii) claims involving contractual liability insurance applicable to the Contractor's obligations under the Indemnification requirements of Section 5.11.
i. Contractor shall purchase and maintain commercial general liability and commercial automobile liability insurance during the entire term of this Agreement. The policies shall be based on terms commonly referred to in the insurance industry as an occurrence coverage form (Claims made policy forms are not acceptable.)
ii. The certificate of insurance for commercial general liability insurance shall indicate the amount of the aggregate limit remaining for this Project as of the date of the certificate.
iii. The commercial general liability policy must contain the following definition of "insured contract":
"That part of any other contract or agreement pertaining to your business (including an indemnification of a municipality in connection with work performed for a municipality) under which you assume the tort liability of another party to pay for "bodily injury" or "property damage" to a third person or organization. Tort liability means a liability that would be imposed by law in the absence of any contract or agreement."
iv. The certificate of insurance shall include this specific language on the certificate of insurance confirming this definition of an insured contract or a certified copy of the policy is to be submitted which includes this definition of an insured contract.
v. The Contractor shall purchase and maintain commercial automobile liability coverages for any owned or leased vehicles. Non-owned and hired auto liability coverages shall also be included.
vi. This policy shall cover the total Project and include explosion, collapse, and underground coverages for the entire Work provided by the Contractor and Subcontractors.
vii. The policy shall stipulate that the "designated Contractor” includes the Contractor and all Sub-contractors engaged in the Work.
viii. The original policy shall be submitted to and filed with the Owner or its designated representative.
5.4.1 The insurance required by this Section shall be written for not less than the minimum limits of liability and coverages as provided herein or as required by Law, or by the Special Conditions, whichever is greater. The Commercial General Liability Insurance shall include coverage of (i) premises and operations, (ii) Contractual liability as applicable to any indemnification hold harmless agreements in the Contract Documents, (iii) Products and Completed Operations, with completed operations coverage being maintained for a period of one (1) year after final payment and Contractor shall continue to provide evidence of such coverage to Owner during the aforementioned period, (iv) Broad form Property Damage - including completed operations, (v) Fellow Employee claims under Personal Injury; and (vi) Independent contractors. Such insurance shall specifically include coverage for property damage from explosion, collapse, and underground operations. Coverage for explosion, collapse, and underground operations shall include blasting or explosion, collapse of structures or structural injury due to grading of land, excavation, filling, back filling, tunneling, pile driving, caisson work, moving, shoring, underpinning, raising of or demolition of any structure, or removal or rebuilding of any structural support of a building or structure. Such insurance shall further include coverage for damage to wires, conduits, pipes, mains, sewers, or other similar apparatus encountered below the surface of the ground when such damage is caused by any occurrence arising out of the performance of the Work, performed by Contractor or by any Subcontractor or anyone directly or indirectly employed by either.
5.4.2 The minimum limits of liability for all coverages in each of the proceeding paragraphs above shall be as follows, unless otherwise specifically required by Law or by the Special Conditions (whichever is greater). Coverages shall be maintained without interruption from the date of commencement of the Work until date of final payment and termination of any coverage required to be maintained after final payment.
A. Workers Compensation/Employer’s Liability:
Coverage A (Worker’s Compensation) - Statutory
Coverage B (Employer’s Liability) - $1,000,000 / each accident; $1,000,000 Disease-each employee; $1,000,000 Disease-policy limit.
This coverage to be valid in all states covered for the Contract Work.
B. Commercial General Liability:
General Aggregate (except Products/Completed Operations) - $6,000,000;
Bodily Injury & Property Damage - $5,000,000 Combined Single Limit/Per Occurrence;
Personal/Advertising Injury $5,000,000/occurrence;
Products/Completed Operations General Aggregate - $5,000,000;
Coverage to include exposures listed in 5.4.2.2;
Coverage includes Contractual Liability and Broad Form Property Damage including Completed Operations;
Coverage to apply on a “Per Project” basis in order that coverage will not be diminished by unrelated work.
C. Commercial Automobile Liability (Owned, Leased, Hired/Non-Owned):
Bodily Injury & Property Damage - $5,000,000 / occurrence.
All coverages provided above shall be endorsed to include the Owner, Engineer as Additional Insured except for A (Worker’s Compensation) and will stipulate that this coverage is primary respecting any other coverages the Owner, Engineer or Consultants might have. The additional insured endorsement will include “Completed Operations” of the Contractor (and any Subcontractor). The coverage requirements apply to all Contractor’s, Subcontractors, Sub-subcontractors and Suppliers; Contractor is responsible to verify these requirements for each and every one of its Subcontractors, Sub-subcontractors and Suppliers.
5.4.3 If a commercial umbrella liability policy is used to satisfy the minimum limits of liability requirements, the combined limits must equal these minimum limits of liability.
5.4.4 If the aggregate liability limits required by this Agreement for any policy subsequently fall below the aggregate limits required by this Agreement for this Project, immediate steps shall be taken to effect reinstatement of the minimum aggregate liability limits required by this Agreement. A revised certificate of insurance, in compliance with paragraph 5.3.3, is required to confirm compliance with this requirement. Any additional premiums resulting from such reinstatement shall be at no additional cost to Owner.
5.4.5 Upon specific request by Owner or Engineer, the original policy shall be filed with the Owner or his designated representative within thirty (30) days of request.
5.4.6 With respect to products and/or completed operations insurance coverage, will remain in effect for at least three (3) years after final payment (and Contractor shall furnish Owner, and each other insured identified in the General Conditions to whom a certificate of insurance has been issued, evidence satisfactory to Owner and any such other insured or additional insured of continuation of such insurance at final payment and three (3) year thereafter).
5.4.7 These coverage requirements and minimum coverage limits are to provide the minimum acceptable insurance coverages and their existence does not in any way limit or reduce the Contractor's or Subcontractor's indemnity obligations under the Contract Documents.
5.4.8 No representation or warranty is made by the Owner or Engineer regarding the sufficiency or adequacy of the insurance requirements, coverages or limits stated in the Contract Documents. The Contractor and Subcontractors are advised to consult with their respective insurance agents or professional advisors to determine their coverage needs and requirements.
5.4.9 Contractor shall be responsible for paying all deductible amounts.
5.5 Owner’s Liability Insurance. In addition to the insurance required in Section 5.4 by Contractor, Owner, at Owner’s option, may procure and maintain Owner's own liability insurance as will, in Owner’s opinion, protect Owner from any contingent liability to others or damages because of bodily injury, including death and property damage, which may arise from operations under this Agreement.
5.6 Property Insurance. Owner shall purchase and maintain property insurance / builder’s risk insurance upon the Work at the site of the Project in the amount of the full replacement cost thereof, except for the errors and omissions of the Engineer.
5.6.1 The Owner shall purchase and maintain special form coverage and include demolition occasioned by enforcement of Laws and Regulations; earthquake; water damage; and such other perils as may be specifically required by the General Conditions Builders Risk Property Insurance upon the Work at the site to the full insurable replacement cost value thereof, including underground pipelines. The Owner shall also purchase and maintain special form coverage and include demolition occasioned by enforcement of Laws and Regulations; earthquake; water damage; and such other perils as may be specifically required by the General Conditions on any property, whether real property or personal property, whether or not it is located at the site or in transit, in which the Owner and/or Engineer have an insurable interest as evidenced by current Estimates, or other terms of this Agreement, and include the interests of Owner, Contractor, Subcontractors of any tier, Engineer, Engineer's Consultants and any other persons or entities identified in the General Conditions, each of whom is deemed to have an insurable interest and shall be listed as an additional insured.
5.6.2 This coverage is to be provided on a separate Builder's Risk completed value policy, with special form coverage. This insurance shall:
5.6.2.1 include expense incurred in the repair or replacement of any insured property (including, but not limited to, fees and charges of Engineers and architects);
5.6.2.2 cover materials, property, and equipment in transit for incorporation in the Work or stored at the site or at another location prior to being incorporated in the Work;
5.6.2.3 be maintained in effect until final payment and settlement is made unless otherwise agreed to in writing by Owner, Contractor, and Engineer with thirty (30) days written notice to each other additional insured to whom a certificate of insurance has been issued prior to the cessation of such coverage.
5.6.3 Owner shall purchase and maintain such boiler and machinery insurance or additional property insurance as may be required by the Special Conditions or Laws and Regulations which will include the interests of Owner. Contractor, Subcontractors, Engineer, Engineer's Consultants and any other persons or entities identified in the Special Conditions each of whom is deemed to have an insurable interest and shall be listed as an insured or additional insured.
5.7 Waiver of Subrogation.
5.7.1. Owner and Contractor intend that all policies purchased in accordance with paragraphs 5.6 will protect Owner, Contractor, Subcontractors and Engineer and all other persons or entities identified in the General Conditions to be listed as insureds or additional insureds in such policies and will provide primary coverage for all losses and damages caused by the perils covered thereby. All such policies shall contain provisions to the effect that in the event of payment of any loss or damage, the insurers will have no rights of recovery against any of the insureds or additional insureds thereunder. Owner and Contractor waive all rights against each other and their respective officers, directors, employees, and agents for all losses and damages caused by, arising out of, or resulting from any of the perils covered by such policies and any other property insurance applicable to the Work; and, in addition, waive all such rights against Subcontractors and Engineer and all other persons or entities identified in the General Conditions to be listed as insureds or additional insureds under such policies for losses and damages so caused. None of the above waivers shall extend to the rights that any party making such a waiver may have to the proceeds of insurance held by Contractor as trustee or otherwise payable under any policy so issued. The property insurance policies shall be modified to reflect and approve this waiver of subrogation rights. However, this waiver shall not apply to losses arising out of errors or omissions of the Engineer, Engineer’s Consultants or Sub-Consultants, that are not covered by the Builder’s Risk policy.
5.8 Acceptance of Insurance. If Owner has any objection to the coverage afforded by or other provisions of the Insurance required to be purchased and maintained by Contractor in accordance with this Article, on the basis of its not complying with the Contract Documents, Owner will notify Contractor in writing thereof within ten (10) days of the date of delivery of such certificates to Owner in accordance with Section 2.7. Contractor shall provide to Owner such additional information in respect to insurance provided by Contractor as Owner may reasonably request. Failure by Owner to give any such notice of objection within the time provided shall constitute acceptance of such insurance purchased by Contractor as complying with the Contract Documents. With the prior approval of Owner, Contractor may substitute different types or amounts of coverage for those specified as long as the total amount of required protection is not reduced.
5.9 Partial Utilization Property Insurance. If Owner finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion of all the Work, such use or occupancy may be accomplished in accordance with Section 13.12; provided that no such use or occupancy shall commence before the insurers providing the property insurance have acknowledged notice thereof and in writing effected the changes in coverage necessitated thereby. The insurers providing the property insurance shall consent by endorsement on the policy or policies, but the property insurance shall not be canceled or lapse on account of any such partial use or occupancy.
5.10 No Limit To Liability. Nothing in this Article shall operate or be construed as limiting the amount of liability of Contractor to the above enumerated amounts.
5.11 Indemnification.
5.11.1 To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer and the officers, directors, employees, agents and other consultants of each and any of them from and against all claims, costs, losses and damages (including but not limited to all fees and charges of engineers, architects, attorneys and other professionals and all court or arbitration or other dispute resolution costs) arising out of or resulting from the performance of the Work, provided that any such claim, cost, loss or damage: (i) is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom, and (ii) is caused in whole or in part by any negligent act or omission of Contractor, any Subcontractor; any Supplier, any person or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable, regardless of whether or not caused in part by any negligence or omission of a person or entity indemnified hereunder or whether liability is imposed upon such indemnified party by Laws and Regulations regardless of the negligence of any such person or entity.
5.11.2 In any and all claims against Owner or Engineer or any of their respective consultants, agents, officers, directors or employees by any employee (or the survivor or personal representative of such employee) of Contractor, any Subcontractor, any Supplier, any person or organization directly or indirectly employed by any of them to perform or furnish any of the Work, or anyone for whose acts any of them may be liable, the indemnification obligation under paragraph 5.11 shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for Contractor or any such Subcontractor, Supplier or other person or organization under workers' compensation acts, disability benefit acts or other employee benefit acts.
5.11.3 The indemnification obligations of Contractor under paragraph 5.11 shall not extend to the liability of Engineer and Engineer's Consultants, officers, directors, employees or agents caused by the professional negligence, errors or omissions of any of them.
5.11.4 All representations, indemnifications, warranties and guarantees made in, required by or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion and acceptance of the Work and termination or completion of the Agreement.
DEFINITIONS
5.1 A material supplier is a manufacturer, fabricator, supplier, distributor, materialman or vendor who furnishes materials or equipment to the site of the Work pursuant to a contract with the Contractor or a Subcontractor.
Within three (3) business days of notification by OWNER, the apparent lowest responsive Bidder will be required to submit additional Documents and satisfy additional requirements as conditions to such Bidder being found by the OWNER to be a responsible Bidder, as follows:
6.1 Supervision. Contractor shall supervise, inspect and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. Contractor shall be solely responsible for the means, methods, techniques, sequences and procedures of construction, but Contractor shall not be responsible for the negligence of others in the design or specification of a specific means, method, technique, sequence or procedure of construction which is shown or indicated in and expressly required by the Contract Documents. Contractor shall be responsible to see that the completed Work complies strictly with the Contract Documents.
6.2 Resident Superintendent. Contractor shall keep on the work site at all times during its progress a competent resident superintendent, who shall not be replaced without written notice to Owner and Engineer except under extraordinary circumstances. The superintendent will be Contractor’s representative at the site and shall have authority to act on behalf of Contractor. All communications given to or issued by the superintendent shall be as binding as if given to or issued by Contractor.
6.3 Personnel and Work Hours. Contractor shall provide competent, suitably qualified personnel to survey, lay out and construct the Work as required by the Contract Documents. Contractor shall at all times maintain good discipline and order at the site. Except in connection with the safety or protection of persons or the Work or property at the site or adjacent thereto, and except as otherwise indicated in the Contract Documents, all Work at the site shall be performed during regular working hours, and Contractor will not permit overtime work or the performance of Work on Saturday, Sunday or any legal holiday without Owner's written consent given after prior written notice to Engineer.
6.4 Full Responsibility. Unless otherwise specified in the Contract Documents, Contractor shall furnish and assume full responsibility for all materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water and sanitary facilities and all other temporary facilities and incidentals necessary for the furnishing, performance, testing, start-up and completion of the Work.
6.5 General Standards of Quality. All materials and equipment shall be of good quality and new, except as otherwise provided in the Contract Documents. All warranties and guarantees specifically called for by the Contract Documents shall expressly run to the benefit of Owner. If required by Engineer or Owner, Contractor shall furnish satisfactory evidence (including reports of required tests) as to the kind and quality of materials and equipment. All materials and equipment shall be applied, installed, connected, erected, used, cleaned and conditioned in accordance with the instructions of the applicable supplier, except as otherwise provided in the Contract Documents; but no provisions of any such instructions will be effective to assign to Owner, Engineer, or any of Engineer’s consultants, agents or employees, any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility contrary to the provisions of Sections 8.10 or 8.11.
6.6 Progress Schedule. Contractor shall adhere to the progress schedule established in accordance with paragraph 2.9 as it may be adjusted from time to time. Contractor shall submit to Engineer for acceptance (to the extent indicated in Section 2.7) proposed adjustments in the progress schedule that will not change the Contract Times (or Milestones). Such adjustments will conform generally to the progress schedule then in effect and additionally will comply with any provisions of the General Conditions applicable thereto.
6.7 Substitute or “Or Equal” Items. Whenever, in the Contract Documents, an article, material, apparatus, equipment, or process is called for by trade name or by the name of a patentee, manufacturer, or dealer or by reference to catalogs of a manufacturer or dealer, It shall be understood as intending to mean and specify the article, material, apparatus, equipment, or process designated, or any approved equal thereto in quality, finish, design, efficiency and durability and equally serviceable for the purposes for which it is intended. Whenever material or equipment is submitted by Contractor for approval as being equal to that specified, the submittal shall include sufficient information and data to demonstrate that the material or equipment conforms to all Contract requirements. The decision as to whether or not such material or equipment is equal to that specified shall be made by the Owner in consultation with Engineer. Neither the approval of alternate material or equipment as being equivalent to that specified nor the furnishing of the material or equipment specified, shall in any way relieve Contractor of responsibility for failure of the material or equipment, due to faulty design, material, or workmanship, to perform the functions required by the Contract Documents.
6.8 Engagement of Subcontractors, Suppliers and Others. General Contractor must contribute at least 15% of the contract price in work, materials services or any combination thereof. Contractor shall not employ any Subcontractor, Supplier or other person or organization, whether initially or as a substitute, against whom Owner or Engineer may have reasonable objection. Contractor shall not be required to employ any Subcontractor, Supplier or other person or organization to furnish or perform any of the Work against whom Contractor has reasonable objection. If the Contract Documents require the identity of certain Subcontractors, Suppliers or other persons or organizations (including those who are to furnish the principal items of materials and equipment) to be submitted to Owner prior to the Effective Date of the Agreement, for acceptance by Owner and Engineer, and if Contractor has submitted a list thereof in accordance with the Contract Documents, Owner's or Engineer's acceptance or acquiescence as to any such Subcontractor, Supplier or other person or organization so identified may be revoked on the basis of reasonable objection after due investigation, in which case Contractor shall submit an acceptable substitute, in which case the Contract Price will be adjusted by the difference in the cost occasioned by such substitution and an appropriate Change Order will be issued or Written Amendment signed. No acceptance by Owner or Engineer of any such Subcontractor, Supplier or other person or organization shall constitute a waiver of any right of Owner or Engineer to reject Defective Work.
6.9 Responsibility For Others. Contractor shall be fully responsible to Owner and Engineer for all acts and omissions of his Subcontractors, Suppliers and other persons and organizations performing or furnishing any of the Work under a direct or indirect contract with Contractor just as Contractor is responsible for Contractor’s own acts and omissions. Nothing in the Contract Documents shall create for the benefit of any such Subcontractor, Supplier or other person or organization any contractual relationship between Owner or Engineer and any Subcontractor, Supplier or other person or organization, except as to warranties enforceable by Owner as against such parties, nor shall it create any obligation on the part of Owner or Engineer to pay or to see to the payment of any moneys due any such Subcontractor, Supplier or other person or organization, except as may otherwise be required by Laws and Regulations.
6.9.1 Contractor shall be solely responsible for scheduling and coordinating the Work of Subcontractors, Suppliers and other persons and organizations performing or furnishing any of the Work under a direct or indirect contract with Contractor.
6.9.2 Contractor shall require all Subcontractors, Suppliers and such other persons and organizations performing or furnishing any of the Work to communicate with the Engineer through Contractor.
6.9.3 Owner or Engineer may furnish to any such Subcontractor, Supplier, or other person or organization, to the extent practicable, information about amounts paid to Contractor in accordance with Contractor's Applications for Payment on account of the particular Sub-contractor's, Supplier's, other person's, or other organization's work.
6.10 Allocation of Work. The sections of the Specifications and the identifications of any Drawings shall not control Contractor in dividing the Work among Subcontractors or Suppliers or delineating the Work to be performed by any specific trade.
6.11 Subcontract Provisions. All Work performed by Subcontractors will be pursuant to an appropriate agreement between Contractor and the Subcontractor which specifically binds the Subcontractor to these General Conditions and the applicable terms and conditions of all other Contract Documents for the benefit of the Owner and Engineer. Whenever any such agreement is with a Subcontractor or Supplier who is listed as an additional insured on the property insurance provided in paragraph 5.5 or 5.6, the agreement between the Contractor and the Subcontractor or/Supplier will contain provisions whereby the Subcontractor or Supplier waives all rights against Owner, Contractor and Engineer and all other additional insureds for all losses and damages caused by, arising out of or resulting from any of the perils covered by such policies and any other property insurance applicable to the Work. If the insurers on any such policies require separate waiver forms to be signed by any Subcontractor or Supplier, Contractor will obtain the same.
6.12 Patent Fees and Royalties. Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product or device is specified in the Contract Documents for use in the performance of the Work and if to the actual knowledge of Owner or Engineer its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by Owner in the Contract Documents. To the fullest extent permitted by Law, Contractor shall indemnify and hold harmless Owner and Engineer and anyone directly or indirectly employed by either of them from and against all claims, costs, attorneys’ fees, damages, losses and expenses (including attorney fees and court and arbitration costs) arising out of or resulting from any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product or device not specified in the Contract Documents, and shall defend at it sole cost, if requested by Owner or Engineer, all such claims in connection with any alleged infringement of such rights.
6.13 Permits. Unless otherwise provided in the Contract Documents, Contractor shall obtain and pay for all construction permits and licenses. Owner shall assist Contractor, when necessary, in obtaining such permits and licenses. Contractor shall pay all governmental charges and inspection fees necessary for the prosecution of the Work, which are applicable at the time of opening of Bids. Contractor shall pay all charges of utility owners for connections to the Work, and Owner shall pay all charges of such utility owners for capital costs related thereto such as plant investment fees.
6.14 Laws and Regulations. Contractor shall give all notices and comply with all Laws and Regulations in effect during the furnishing and performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, neither Owner nor Engineer shall be responsible for monitoring Contractor’s compliance with Laws or Regulations. If Contractor performs any Work knowing or having reason to know that it is contrary to Laws or Regulations, Contractor bear all claims, costs, losses and damages caused by, arising out of or resulting therefrom; however, it shall not be Contractor’s primary responsibility to make certain that the Specifications and Drawings are in accordance with Laws and Regulations, however, this shall not relieve Contractor of Contractor’s obligations under this paragraph or under Section 2.6 or Section 3.3. If Contractor performs any Work knowing or having reason to know that it is contrary to such Laws and Regulations, and without such notice to Engineer and Owner, Contractor shall bear the risk of all claims, costs, losses and damages caused by, arising out of or resulting therefrom.
6.15 Taxes. Contractor shall pay all sales, consumer, use and other similar taxes required to be paid by Contractor in accordance with the Laws and Regulations applicable to the place where the Project is located. Owner is required by statute to withhold certain taxes, including Indiana State Gross Income tax, from all payments made to non-resident contractors who are corporations and to remit such tax quarterly to the Indiana Department of Revenue. A foreign corporation, which is registered with the Indiana Secretary of State to do business in Indiana, shall be exempt from this withholding requirement. Exemption certificates for the Indiana Gross Retail tax (sales tax) for property that becomes property of Owner and all Federal Excise tax can be furnished by Owner and therefore such taxes shall not be included in the Contract Price. Contractor may request exemption certificate forms directly from Owner.
6.16 Use of Premises. Contractor shall confine construction equipment, the storage of materials and equipment and the operations of workers to the Project site and land and areas identified in and permitted by the Contract Documents, and other land and areas permitted by Laws and Regulations, rights-of-way, permits and easements, and shall not unreasonably encumber the premises with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof or of any adjacent land or areas contiguous thereto, resulting from the performance of the Work. Should any claim be made by any such owner or occupant because of the performance of the Work, Contractor shall promptly settle with such other party by negotiation or otherwise resolve the claim by arbitration, other dispute resolution proceeding or at law. Contractor shall, to the fullest extent permitted by Laws and Regulations, indemnify and hold Owner and Engineer harmless from and against all claims, damages, losses and expenses (including, but not limited to, fees of engineers, architects, attorneys and other professionals and court and arbitration costs) arising directly, indirectly or consequentially out of any action, legal or equitable, brought by any such other party against Owner or Engineer to the extent based on a claim arising out of Contractor's performance of the Work
6.17 Control of Waste. During the progress of the Work, Contractor shall keep the premises free from accumulations of waste materials, rubbish and other debris resulting from the Work. At the completion of the Work Contractor shall remove all waste materials, rubbish and debris from and about the premises as well as all tools, appliances, construction equipment, machinery and surplus materials, and shall leave the site clean and ready for occupancy by Owner. Contractor shall restore to original condition all property not designated for alteration by the Contract Documents.
6.18 Loads on Structures. Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it.
6.19 Record Documents. Contractor shall maintain in a safe place at the site one record copy of all Specifications, Drawings, Addenda, Written Amendments, Change Orders, Work Change Directives, Field Orders and written interpretations and clarifications (issued pursuant to Section 8.4) in good order and annotated to show all changes made during construction. These record documents together with all approved samples and a counterpart of all approved Shop Drawings will be available to Engineer for reference. Upon completion of the Work, these record documents, samples and Shop Drawings shall be delivered to Engineer for Owner as a condition to Contractor’s right to receive final payment.
6.20 Safety and Protection.
6.20.1 Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work and shall take all necessary precautions for the safety of, and provide the necessary protection to prevent damage, injury or loss to (i) all employees on the Work and other persons and organizations who may be affected thereby, (ii) all the Work and all materials or equipment to be incorporated therein, whether in storage on or off the site, and (iii) other property at the site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities and Underground Facilities not designated for removal, relocation or replacement in the course of construction.
6.20.2 Contractor shall comply with all applicable Laws and Regulations of any public body having jurisdiction for the safety of persons or property or to protect them from damage, injury or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property, owners of Underground Facilities and utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation and replacement of their property. All damage, injury or loss to any property referred to in Section 6.20.1 caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor or Supplier, or any other person or organization directly or indirectly employed by any of them to perform or furnish any of the Work or anyone for whose acts any of them may be liable, shall be remedied by Contractor (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of Owner or Engineer or anyone employed by either of them or anyone for whose acts either of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of Contractor). Contractor’s duties and responsibilities for the safety and protection of the Work shall continue until such time as all the Work is completed and Engineer has issued a notice to Owner and Contractor in accordance with Section 13.11 that the Work is acceptable (except as otherwise expressly provided in connection with Substantial Completion).
6.20.3 Pursuant to I.C. 36-1-12-20, all Work which requires the creation of a trench or hole of at least five (5) feet in depth, shall be provided with a trench safety system. Trench safety systems shall meet all of the requirements of IOSHA Regulations 29 C.F.R. 1926, Subpart P or other applicable safety standards and regulations. The cost or compliance with any and all such regulations shall be borne by the Contractor without any increase in the Contract Price. Owner shall pay for the trench safety system as a separate pay item if one is provided on unit cost work; or, if a separate pay item is not provided, Owner shall pay for the safety system as part of the pay item or schedule of values item for the principal Work with which the safety system is associated, as determined by Engineer.
6.20.4 Contractor shall designate a responsible representative at the site whose duty shall be the prevention of accidents. This person shall be Contractor’s superintendent unless otherwise designated in writing by Contractor to Owner.
6.20.5 Contractor shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the site in accordance with Laws or Regulations.
6.21 Emergencies. In emergencies affecting the safety or protection of persons or the Work or property at the site or adjacent thereto, Contractor, without special instruction or authorization from Engineer or Owner, is obligated to act to prevent threatened damage, injury or loss. Contractor shall give Engineer and Owner immediate written notice if Contractor believes that any significant changes in the Work or variations from the Contract Documents are caused thereby. If Owner determines that a change in the Contract Documents is required because of the action taken in response to an emergency, a Work Change Directive or Change Order will be issued to document the consequences of the changes or variations.
6.22 Shop Drawings and Working Drawings.
6.22.1 Contractor shall promptly prepare and submit layout, detail and shop drawings to insure proper construction, assembly, and installation of the Work using those materials and equipment specified in the Technical Specifications. Such drawings will be known as “Working Drawings”. A schedule of Working Drawings submissions shall be submitted for Engineer’s approval on a form acceptable to Engineer within ten (10) days of the effective date after the signing of the Agreement by Owner
6.22.2 Working Drawings shall be numbered consecutively and shall accurately and distinctly present (i) all working and erection dimensions, (ii) arrangements and sectional views, (iii) necessary details, including complete information for making connections between Work under this Contract and work under other contracts, (iv) electrical wiring connections between all equipment furnished under the Contract, including all internal wiring between internal components of equipment, (v) kinds of materials and finishes, and (vi) parts lists and description thereof.
6.22.3 Drawings for mechanical and electrical equipment shall present, where applicable, such data as dimensions, weight and performance characteristics. This data shall show conformance with the performance characteristics and other criteria incorporated in the Contract Documents. Each drawing or page shall include (i) submittal date and revision dates, (ii) project name, division number and descriptions, (iii) Detailed Specifications section number and page number, (iv) identification of equipment, product or material, (v) name of Contractor and Subcontractor, (vi) name of Supplier and Manufacturer, (vii) relation to adjacent structure or material, (viii) field dimensions, clearly identified, (ix) ASTM, Federal and other Specification references, (x) space for Engineer's stamps (xi) identification of deviations from the Contract Documents, (xii) Contractor’s stamp, initialed or signed, dated and certifying to review of submittal, certification of field measurements and compliance with Contract, and (xiii) location at which the equipment or materials are to be installed (both physical location and location relative to other connected or attached material). Engineer will return, unchecked, any submittal which does not contain complete data on the Work and full information on related matters. Stock or standard drawings will not be accepted for review unless full identification and supplementary information is shown thereon in ink or typewritten form.
6.22.4 Contractor shall check and approve all Working Drawings before transmitting them to Engineer to determine that they comply with requirements of the Contract Documents. Drawings which are incomplete or are not in compliance with the Contract Documents shall not be submitted for processing by Engineer. Contractor shall place his signature or initials on his stamp of approval on all Working Drawings submitted to Engineer to indicate compliance with this requirement. Contractor's approval shall constitute a representation that all quantities, dimensions, field construction criteria, materials, catalog numbers, performance criteria and similar data have been verified and that, in his opinion, the submittal fully meets the requirements of the Contract Documents. Contractor shall schedule, prepare and submit all working drawings in accordance with a time-table that will allow his Suppliers and Manufacturers sufficient time to fabricate, manufacture, inspect, test and deliver their respective products to the project site in a timely manner so as to not delay the complete performance of the Work. The time-table so developed shall be in conformance with the completion dates specified in the Agreement.
6.22.5 If the Working Drawings show departures from the Contract requirements, Contractor shall make specific mention thereof in his letter of transmittal, otherwise approval of such submittals by Engineer shall not constitute approval of the departure. Approval of the drawings shall constitute approval of the subject matter thereof only and not of any structure, material, equipment or apparatus shown or indicated.
6.22.6 The approval of Working Drawings will be general and shall not relieve Contractor of responsibility for the accuracy of such drawings, nor for the proper fitting and construction of the Work, nor for the furnishing of materials or work required by the Contract and not indicated on the drawings. No Work called for by Working Drawings shall be done until such drawings have been approved by Engineer.
6.22.7 The procedure in seeking approval of the Working Drawings shall be as follows:
.1 Contractor shall submit six (6) complete sets of drawings and other descriptive data together with six (6) copies of a letter of transmittal to Engineer for approval. The letter of transmittal shall contain the name of the Project, Workmanship and Materials section number, the name of Contractor, the list of drawings submitted including numbers and titles, requests for any approval of departures from the contract requirements and any other pertinent information.
.2 Drawings or descriptive data will be stamped "Approved”, “Approved as Noted”, or “Not Approved” by the Engineer, and one (1) copy with a letter of transmittal will be returned to Contractor.
.3 If a drawing or other data is stamped "Approved”, Contractor shall insert the date of approval on six (6) additional copies of the document and transmit the six (6) copies to Engineer together with one copy of a letter of transmittal containing substantially the same information required in Sub-Section .1.
.4 If a drawing or other data is stamped “Approved as Noted', Contractor shall make the corrections indicated and proceed as in Sub-Section .3.
.5 If a drawing or data is stamped “Not Approved”, Contractor shall make the necessary corrections and resubmit the documents as required in Sub-Section .1. The letter transmitting corrected documents shall indicate that the documents comprise a resubmittal.
.6 If any corrections, other than those noted by Engineer, are made on a Working Drawing prior to resubmittal, such changes must be pointed out by Contractor upon resubmittal.
.7 Contractor shall revise and resubmit the Working Drawings as required until approval thereof is obtained. Costs associated with the Engineer’s review of any third and subsequent submittals shall be borne by Contractor. Contractor shall be billed for these costs by Owner or the Owner may deduct such costs from subsequent payment.
6.23 Continuing the Work. Contractor shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with Owner. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as permitted by Section 14.5 or as Contractor and Owner may otherwise specifically agree in writing. Any work stoppage, delay, suspension or significant reduction in manpower, or removal of equipment from the site, determined by the Engineer or Owner to have occurred by reason of any such unresolved dispute or disagreement shall constitute an event of default thereby subjecting Contractor to termination of the Contract.
6.24 Subcontractor and other Liens. Contractor agrees and warrants to the Owner that no claim or lien shall attach to or be filed on the Project by virtue of Contractor’s default in paying any employee, subcontractor or supplier. Should such claim or lien be filed, payment otherwise due the Contractor will not be due until Contractor delivers to Owner a complete release of such claim or lien, or, at Owner’s option, a bond satisfactory to Owner indemnifying Owner against such claim or lien.
6.25 Installation of Utility Service. Contractor shall assume all responsibility for proper installation of utility services to meet all rules and regulations of all utility companies or government agencies involved. It is the responsibility of Contractor to provide a complete service and provide all work necessary to coordinate the Work with the work of the utility companies.
6.26 Damage, Survey and Correction. Contractor, accompanied by a representative of Owner and/or Engineer, shall make a damage survey of the work site and adjacent properties prior to commencing the Work and before making application for final payment for the Work. Contractor shall provide Owner a written inventory of damage observed during each survey. Contractor shall replace or repair all existing construction and facilities (both surface and subsurface) including, but not limited to, sidewalks, fences, yards, plantings, mechanical services and electrical services which may be damaged in the performance of the Work. All damage shall be corrected and such facilities shall be restored to their original condition. Materials and construction shall be new and equal in quality, design, workmanship and installation to the existing material and construction.
6.27 Damage Notification. Contractor shall notify Engineer immediately upon observing damage to the site regardless of whether or not the damage is the result of Contractor's operations.
6.28 Employee Compensation. Contractor may not pay employees in cash. Contractors must certify that they are in compliance with the federal Fair Labor Standards Act (FLSA) and the Indiana Minimum Wage Law.
6.29 Contractor Employee Drug Testing Program. When the estimated cost of the project exceeds $150,000, the Contractor must submit in the bid paperwork a written plan for a program to test the Contractor’s employees for drugs that is consistent with IC 4-13-18-5. The requirement for a drug testing program applies to all Subcontractors. Failure to comply with the drug testing program will result in cancellation of the contract.
OWNER'S RIGHT TO PERFORM CONSTRUCTION WITH OWN FORCES AND TO AWARD OTHER CONTRACTS
6.1 When Owner performs construction or operations with Owner's own forces including persons or entities under separate contracts not administered by the Construction Manager, Contractor shall cooperate with the activities of Owner's own forces and of each separate contractor and coordinate the Work of Contractor with them.
6.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor Agreement. These separate Contractors may also be referred to in the Contract Documents as "Multiple Prime Contractor".
MUTUAL RESPONSIBILITY
6.3 Contractor shall do all cutting, fitting and patching of the Work that may be required to make its several parts come together properly and integrate with such other work. The duties and responsibilities of Contractor under this Paragraph are for the benefit of both Owner and the separate contractors and, accordingly, Contractor's obligations may be directly enforced by the separate contractors as well as by Owner.
6.3.1 If part of Contractor's Work depends for proper and timely execution or results upon construction or operations by Owner with its own forces, by a separate contractor or by other contractors, Contractor shall, prior to proceeding with that portion of the Work, inspect and promptly report in writing to Construction Manager and Architect apparent delays, discrepancies or defects in such other construction that would render it unavailable or unsuitable for such proper and timely execution and results.
6.3.2 Contractor shall be liable for costs incurred or damages sustained by Owner or a separate contractor or other contractors because of delays, improperly timed activities, defective construction or any other failure of performance by Contractor. Owner shall not be responsible to Contractor for costs incurred by Contractor because of delays, improperly timed activities, damage to the Work or defective construction of such separate contractor or other Multiple Prime Contractors. Each contractor who executes a contract containing the provisions of Paragraph 6.3 agrees that all other separate contractors or other contractors are intended additional beneficiaries of such Contractor's obligations insofar as they pertain to the Work of separate contractors or other contractors. Accordingly, if the Contractor is delayed, hindered, or otherwise damaged by the act, omission, or delay by any separate contractor or other contractors, Contractor's sole right and recourse shall be against such separate contractor or other contractors except as to the conditional right to an extension of time as provided in Article 8 hereof.
6.3.3 If such separate contractor or other contractors initiate any dispute proceedings against Owner on account of any damage alleged to have been caused by Contractor, Owner shall notify Contractor who shall indemnify Owner and hold Owner harmless and shall defend such proceedings at Contractor's expense.
GENERAL
7.1 No action, conduct omission, prior failure or course of dealing by Owner shall be effective to waive, modify, change or alter the requirements that Changes in the Work, whether by Change Order, Construction Change Directive, or Minor Modifications must be in writing and signed by the Owner. As such, Change Orders or Construction Change Directives are the exclusive methods of affecting any change in the Contract Sum or Contract Time. Contractor acknowledges that the Contract Sum and Contract Time cannot be changed by implication, oral agreement, actions, inactions, or course of conduct other than the methods prescribed by the Construction Documents.
CHANGE ORDERS
7.2 If Owner requests a proposal for a change in the Work from Contractor, before Contractor prepares the proposal, the following must occur:
a) Contractor must first provide Owner with a written estimate of any costs that may be incurred under this paragraph if the proposal is not accepted by Owner, including any costs for the preparation of the proposal that Contractor seeks to recover from Owner.
b) Owner must accept responsibility for those costs if the proposal is not accepted, and authorize preparation of the proposal.
c) If Contractor proceeds with the preparation of the proposal without providing an estimate of the cost of preparation and receiving Owner's authorization to proceed, no claim under this paragraph will be allowed.
CONSTRUCTION CHANGE DIRECTIVES
7.3 The cost of Contractor's overhead and profit combined, to be included on any Change Order or Construction Change Directive, shall be based on the following schedule:
.1 For extra Work performed by the Contractor's own forces, ten percent (10%) of the cost.
.2 For extra Work performed by a Subcontractor of Contractor, five percent (5%) of the amount due the Subcontractor.
.3 For each Subcontractor or Sub-Subcontractor involved, for extra Work performed by its own forces, ten percent (10%) of the cost.
.4 For each Subcontractor, for extra Work performed by its Sub-Subcontractors, five percent (5%) of the amount due the Sub-Subcontractor.
.5 For Work deleted which would have been completed by Subcontractors of Contractor, five percent (5%) shall be credited to the Owner as the allowance for overhead and profit.
7.3.1 In order to facilitate checking of quotations for extras or credits, all proposals, except those so minor that their propriety can be seen by inspection, shall be accompanied by a complete itemization of costs showing quantities, with unit price of labor and materials for each quantity, including those items furnished by Subcontractors. Where major cost items are subcontracts, they shall be itemized also and a copy of their quotations, itemized as indicated above, shall be included in the proposal. In no case shall a change involving over One Thousand Dollars ($1,000.00) be approved without such itemization. The Contractor shall submit the cost itemization to Construction Manager and Architect within fourteen (14) days after receipt of the proposal request.
7.3.2 No action, conduct, omission, prior failure or course of dealing by Owner, Construction Manager or Architect shall act to waive, modify, change or alter the requirements that Change Orders and Construction Change Directives must be in writing and signed by the parties as provided herein, and that such written Change Orders and Construction Change Directives are the exclusive method of effecting any change to the Contract Sum or Contract Time. Contractor acknowledges that the Contract Sum and Contract Time cannot be changed by implication, oral agreements, actions, inaction, course of conduct, or constructive change order.
7.1 Separate Work By Others. Owner may perform other work related to the Project at the site by Owner’s own forces, have other work performed by utility owners or their contractors or let other direct contracts which shall contain General Conditions similar to these. If the performance of such work is not reasonably indicated by the Contract Documents or is not reasonably inferable therefrom or otherwise inherent in connection with the Work as described by the Contract Documents as such work relates to the overall Project, written notice thereof will be given to Contractor prior to starting any such other work; and, if Contractor believes that such performance requires additional time, and the parties are unable to agree as to the extent thereof, Contractor may make a claim therefore as provided in Article 11. Contractor shall afford each utility owner or its contractors and any other contractor who is a party to such a direct contract, or Owner's employees if Owner is performing work with its own forces, proper and safe access to the site and reasonable opportunity for the proper, efficient and timely performance of such work and for introduction and storage of materials and equipment, and shall properly connect and coordinate the Work with the work and activities of such other parties. Contractor shall do all cutting, fitting and patching of the Work that may be required to make its several parts come together properly and integrate with such other work. Contractor shall not endanger any work of others by cutting, excavating or otherwise altering their work and will only cut or alter their work with the written consent of Engineer and the others whose work will be affected. The duties and responsibilities of Contractor under this Section are for the benefit of and may be directly enforced by such utility owners and other separate contractors to the extent that there are comparable provisions for the benefit of the Contractor in said direct contracts between Owner and such utility owners and other contractors.
7.2 Inspecting Other Work. If the proper execution or results of any part of Contractor’s Work depends upon the work of any such other contractor or utility owner or Owner’s forces, Contractor shall inspect and promptly report to Engineer in writing any delays, defects or deficiencies in such work that render it unavailable or unsuitable for such proper execution and results or that hinder or otherwise impact the Work to be performed by Contractor. Contractor’s failure to report will constitute an acceptance of the other work as fit and proper for integration with Contractor’s Work except for latent or non-apparent defects and deficiencies in the other work.
7.3 Coordination. Contractor shall schedule the Work such that it shall cause no delay in the work of the other contractors. Engineer will monitor the Contractor’s coordination of its Work with the work of other contractors. Where coordination and scheduling conflicts arise between the Work and the work of other contractors on the site, Engineer will provide input to resolve the conflict, but such input or monitoring by the Engineer shall not relieve the Contractor of its obligations in respect of coordination with other contractors. Except as provided in Section 11.4, Contractor shall have no claim against Owner for delays, disruptions or hindrances caused by other contractors who may be operating at the site, including, without limitation, delays resulting from lack of coordination. Should Contractor cause damage to another contractor or subcontractor employed on the Project, Contractor agrees to settle with such other contractor or subcontractor by agreement, if the other party will so settle. If such other contractor or subcontractor sues Owner or Engineer on account of damage alleged to have been sustained, Owner or Engineer as applicable, shall notify Contractor and Contractor shall bear the cost of defending such proceedings, and if a judgment or award in arbitration against Owner or Engineer arises therefrom, Contractor shall pay or satisfy said judgment, and pay all cost incurred by Owner or Engineer, including attorney fees.
DELAYS AND EXTENSIONS OF TIME
8.1 Any claim for an extension in the Contract Time shall be based on written notice delivered to Owner, Construction Manager and Architect within ten (10) days of the commencement of the event or occurrence giving rise to the claim. Such notice must set forth (a) the cause of the delay, or series of events or occurrences, (b) a description of the portion or portions of the Work affected thereby, and (c) all details pertinent thereto. Additional supporting data, as required by Owner, Construction Manager or Architect, including the specific number of days extension of time requested, shall be delivered to Owner, Construction Manager and Architect within twenty (20) days after such notice unless, for good cause shown, Owner allows an additional period of time to ascertain more accurate data. A notice of time extension request by Contractor under this Subparagraph shall be conclusively presumed to include all direct, indirect and cumulative impact upon the time required by Contractor to perform and complete the Work as a result of all facts, occurrences and events giving rise thereto.
8.2 It is a condition precedent to the consideration or prosecution of claims relating to any delays, interferences, hindrances, disruptions, accelerations, suspensions or causes which justify an extension of the Contract Time, that such claims be made and furnished in strict accordance with all applicable time limits provided in this Article. Otherwise, if the Contractor fails to comply, such claims shall be waived, invalid and unenforceable as against Owner, Construction Manager and Architect.
8.3 Contractor agrees that whether or not any delay shall be the basis for an extension of time it shall have no claim against Owner for an increase in the Contract Price, nor a claim against Owner for a payment or allowance of any kind for damage, loss or expense resulting from delays or acceleration, suspension, hindrance or disruption nor shall Contractor have any claim for damage, loss or expense resulting from interruptions to, or suspension of its Work to enable other contractors to perform their Work. As between Contractor and Owner, Contractor shall assume the risk of any and all accelerations or suspensions of, delays or interference in or hindrances to the performance of the Work and the consequences thereof, regardless of the length thereof or the party responsible therefore, arising from any and all causes whatsoever, including without limitation, those due to any acts or omissions of Owner, Construction Manager or Architect or other contractors or subcontractors, except only to the extent that an extension of time may be due to Contractor as expressly provided for in this Article for such suspension, delay, interference or hindrance. Contractor shall assume all risk and bear all direct and indirect costs, expenses and liabilities which it may incur in connection with such accelerations, suspensions, delays, interference or hindrances. All such accelerations, suspensions, delays, interference or hindrances, costs, expenses and liabilities of any nature whatsoever, whether or not specially provided for in the Contract Documents, shall conclusively be deemed to have been within the contemplation of the parties. The sole and exclusive remedy available to Contractor shall be an extension of time. Contractor acknowledges the risks imposed upon it by this provision and hereby waives any rights to claim the non-applicability of this Subparagraph upon grounds of interference or hindrance by Owner, Construction Manager or Architect, unreasonableness of delays, or that any delay was not within the contemplation of the parties as of the Request for Proposal Date or effective date of the Contract.
8.4 Owner's exercise of any of its rights under the Contract Documents, including but not limited to, its rights regarding changes in the Work, regardless of the extent or number of such changes, performance of separate work or carrying out Contractor's Work by Owner, directing overtime or changes in the sequence of the Work, withholding payment or otherwise exercising its rights under the provisions of the Contract Documents, or exercising any of its remedies of suspension of the Work or requirements of correction or re-execution of any defective work shall not, under any circumstances, be construed as intentional interference with or hindrance to Contractor's performance of the Work.
8.1 Owner’s Representative. Engineer will be Owner’s representative during the construction period. The duties and responsibilities and the limitations of authority of Engineer as Owner’s representative during construction are set forth in the Contract Documents and shall not be extended without written consent of Owner and Engineer.
8.2 Visits to Site. Engineer will make visits to the site at intervals appropriate to various stages of construction to observe and become cognizant with the progress, quality and quantity of the executed Work and to determine, in general, if the Work is proceeding in accordance with the Contract Documents. Engineer will also, as he deems necessary, make on-site inspections to check the quality or quantity of the Work. Engineer's efforts will be undertaken solely for the purpose of providing Owner a greater degree of confidence that all Work will conform to the Contract Documents. On the basis of such visits and on-site observations as an experienced and qualified design professional, Engineer will keep Owner informed of the progress of the Work and will endeavor to guard Owner against defects and deficiencies in the Work.
8.3 Project Representation. Owner may, at its sole option, assign one or more full or part time engineers, inspectors or other representatives to observe the performance of the Work. The duties, responsibilities and limitations of authority of any such representatives will be as provided in the General Conditions or as otherwise stated to Contractor in writing by the Director or other duly appointed official of the department or agency of the Owner for whose use and/or benefit the Project is to be constructed.
8.4 Clarifications and Interpretations. Engineer will issue with reasonable promptness written clarifications or interpretations of the requirements of Contract Documents (in the form of Drawings or otherwise) as Engineer may determine necessary, which shall be consistent with the intent of and reasonably inferable from the Contract Documents. Such clarifications and interpretations shall become binding upon the Contractor upon ratification thereof by the Owner. If Contractor believes that a written clarification or interpretation justifies an increase in the Contract Price or an extension of the Contract Time and the parties are unable to agree to the amount or extent thereof, Contractor may make a claim therefore as provided in Article 10 or Article 11.
8.5 Authorized Variations in Work. Owner, or Engineer following consultation with and approval by the Owner, may authorize minor variations in the Work requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Time and are consistent with the overall intent of the Contract Documents. These may be accomplished by a Field Order or other form of written directive and will be binding on Owner, and also on Contractor who shall perform the Work involved promptly. If Owner or Contractor believes that a Field Order or other written directive issued pursuant to this Section justifies an adjustment in the Contract Price or an extension of the Contract Time, Contractor shall make a claim therefore as provided in Article 10 or 11.
8.6 Rejecting Defective Work. Owner or Engineer will have authority to disapprove or reject Work which is believed or determined to be defective, and will also have authority to require special inspection or testing of the Work as provided in Section 12.4, whether or not the Work is fabricated, installed or completed.
8.7 Engineer’s Interpretations and Decisions.
8.7.1 Engineer will determine the actual quantities and classifications of Unit Price Work performed by Contractor. Engineer will review with Contractor the Engineer's preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). Engineer's written decision thereon will be final and binding upon Owner and Contractor, unless, within ten (10) days after the date of any such decision, either Owner or Contractor delivers to the other and to Engineer written notice of intention to appeal from Engineer's decision and formal proceeding is instituted by the appealing party in a forum of competent jurisdiction to exercise such rights or remedies as the appealing party may have with respect to Engineer's decision, unless otherwise agreed in writing by Owner and Contractor.
8.7.2 Engineer will be the initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the Work thereunder to the extent that such requirements and issues respecting acceptability of the Work involve decisions or interpretations dealing with technical, engineering, design or other subject matters, arising out of the Technical Specifications and within the expertise of the Engineer. Written notice of each such claim, dispute and other matter will be delivered by the claimant to Engineer and the other party to the Agreement promptly (but in no event later than twenty (20) days) after the start of the notice of the event giving rise thereto, and written supporting data will be submitted to Engineer and the other party within thirty (30) days of such occurrence unless Engineer allows an additional period of time for the submission of additional or more accurate data in support of the claim, dispute or other matter. The opposing party shall submit any response to the Engineer and the claimant within thirty (30) days after receipt of the claimant’s last submittal (unless the Engineer allows additional time). The Engineer will render a formal decision in writing within thirty (30) days after receipt of the opposing party’s submittal, if any, in accordance with this section. Engineer's written decision on such claim, dispute or other matter will be final and binding upon Owner and Contractor unless a written notice of intention to appeal from Engineer's written decision is delivered by Owner or Contractor to the other and to Engineer within thirty (30) days after the date of such decision and a formal proceeding is instituted by the appealing party in a forum of competent jurisdiction to exercise such rights or remedies as the appealing party may have with respect to such claim, dispute or other matter in accordance with applicable Laws and Regulations within thirty (30) days of the date of such decision, unless otherwise agreed in writing by Owner and Contractor.
8.8 Non-liability of Engineer. Neither Engineer’s authority to act under this Article or elsewhere in the Contract Documents nor any decision made by Engineer in good faith, either to exercise or not to exercise such authority, shall give rise to any duty or responsibility of Engineer to Contractor, any Subcontractor, any Supplier, or any other person or organization performing any of the Work, or to any surety for any of them.
8.9 Purposes of Engineer’s Activities. Whenever in the Contract Documents the terms “as ordered”, "as directed”, “as required”, “as allowed”, “as approved” or terms of like effect or import are used, or the adjectives “reasonable”, “suitable”, "acceptable”, “proper” or “satisfactory” or adjectives of like effect or import are used to describe requirement, direction, review or judgment of Engineer as to the Work, it is intended that such requirement, direction, review or judgment will be solely to evaluate the Work for compliance with the Contract Documents (unless there is a specific statement indicating otherwise). The use of any such term or adjective shall not be effective to assign to Engineer any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility contrary to the provisions of this Article.
8.10 Construction Methods. Owner and Engineer shall have no responsibility for Contractor's selection or implementation of means, methods, techniques, sequences or procedures of construction, or the safety precautions and programs incident thereto, and Owner and Engineer will not be responsible for Contractor's failure to perform or furnish the Work or to fulfill other duties in accordance with the Contract Documents.
8.11 Acts or Omissions By Others. Owner and Engineer will not be responsible for the acts or omissions of Contractor or of any Subcontractors, any Supplier, or of any separate contractor or other person or organization furnishing any work, labor, materials or services for or in furtherance of the Project.
8.12 Communications. Owner may issue all communication to Contractor through Engineer or at its option may communicate with the Contractor directly, with a copy to the Engineer.
8.13 Replacement for Engineer. In case of termination of the employment of Engineer, Owner shall appoint an engineer whose status under the Contract Documents shall be that of the former Engineer; provided, that Owner may, at its sole option and with notice to Contractor, elect to exercise all or part of the function and authority of the Engineer following such termination, either permanently or on an interim basis.
9.1 Owner’s Right To Initiate Changes. Without invalidating the Agreement and without notice to any surety, Owner may at any time order additions, deletions or revisions in the Work. Such changes will be authorized by a Written Amendment, a Change Order or a Work Change Directive. Upon receipt of any such document, Contractor shall promptly proceed with the Work involved, which will be performed under the applicable provisions of the Contract Documents except as otherwise specifically provided.
9.2 Inability To Agree on Price or Time Adjustments. If Owner and Contractor are unable to agree as to the extent, if any, of an increase or decrease in the Contract Price or an extension or shortening of the Contract Time that should be allowed as a result of an Owner-initiated change, a claim may be made therefore as provided in Article 10 or Article 11.
9.3 Non-Required Work. Contractor shall not be entitled to an increase in the Contract Price or an extension of the Contract Time with respect to any Work performed that is not required by the Contract Documents, as amended, modified and supplemented as provided in Sections 3.4 and 3.5, except in the case of an emergency as provided in Section 6.21 and except in the case of uncovering Work as provided in Section 12.4.
9.4 Change Orders and Amendments. Owner and Contractor shall execute appropriate Change Orders or Written Amendments covering (i) changes to the Work which are ordered by Owner pursuant to Section 9.1, are required because of acceptance of Defective Work under Section 12.8 or correcting Defective Work under Section 12.9; (ii) changes in the Contract Price or Contract Time which are agreed to by the parties; and (iii) changes in the Contract Price or Contract Time which embody the substance of any written decision rendered by Engineer pursuant to Section 8.7, provided that, in lieu of executing any such Change Order, an appeal may be taken from any such decision in accordance with the provisions of the Contract Documents and applicable Laws and Regulations, but during any such appeal, Contractor shall carry on the Work and adhere to the progress schedule as provided in Section 6.23.
9.5 Notification to Surety. If notice of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Price or Contract Times) is required by the provisions of any Bond to be given to a surety, the giving of any such notice will be Contractor's responsibility, and the amount of each applicable Bond will be adjusted accordingly.
APPLICATIONS FOR PAYMENT
9.1 Construction Manager and Architect will process the payment request and recommend to Owner what payments should be made, but any such payment certificates or determinations shall serve only as recommendations to Owner, and shall not, of themselves, be binding upon Owner.
9.1.1 Progress payment requests shall be submitted on AIA Document 0702, Application and Certificate for Payment, supported by AIA Document 0703, Continuation Sheet. The Continuation Sheet 0703 shall be prepared the same as in the Schedule of Values submitted by Contractor. These requests shall detail the value of the various materials stored on the site and the value of the various types of labor performed during the period of time since the previous payment request. Contractor shall attach to each payment request a statement certifying that all payments due Contractor from previously issued Certificates for Payment have been paid. Contractor shall furnish such additional supporting documents and data substantiating Contractor's right to payment as Owner, Construction Manager and Architect may require, including but not limited to waivers of lien (limited to those Subcontractors and suppliers whose contract price exceeds Five Thousand Dollars ($5,000) in amount unless specifically requested otherwise by Owner, Construction Manager or Architect) and verified lists of Subcontractors and suppliers on forms approved by Owner.
9.1.2 While not required by applicable law, Contractor's Application for Payment shall, if requested by Owner, Construction Manager or Architect, be accompanied by a payroll report by Contractor and each of its Subcontractors (limited to those Subcontractors whose contract price exceeds Five Thousand Dollars ($5,000) in amount unless specifically requested otherwise by Owner, Construction Manager or Architect) for the pay period covered by the application. The report shall state as to each employee his/her name, address and social security number, work classification, hours worked, rate of pay, itemized deductions, gross amount earned, net pay and fringe benefit information.
9.1.3 Final Payment, including any remaining retainage, shall not be made until Contractor provides Owner with complete and legally effective releases or waivers of all claims or liens arising out of or filed in connection with the Work, which instruments shall be upon such forms as approved by Owner. In lieu thereof and as approved by Owner, Contractor may furnish receipts or releases in full; an affidavit of Contractor that the releases and receipts include all labor, services, material, and equipment for which a claim or lien could be filed, and that all payrolls, material work equipment bills, and other indebtedness connected with the Work for which Owner or his property might in any way be responsible have been paid or otherwise satisfied; and consent of the Surety, if any, to final payment. If any Subcontractor, manufacturer, fabricator, supplier or distributor fails to furnish a release or receipt in full, Contractor may furnish a Bond or other collateral satisfactory to Owner to indemnify Owner against any claim or lien.
9.1.4 Contractor will indemnify Owner and Owner's property from any liens, claims, security interests or encumbrances in favor of Contractor, Subcontractors or their Sub-Subcontractors, regardless of tier, material suppliers, or other persons or entities making a claim by reason of having provided labor, materials, equipment, services or supplies relating to the Work, and from all cost and expenses, including attorney and consultant fees, incurred by Owner in evaluating or defending against such liens, claims, security interests or encumbrances.
DECISIONS TO WITHHOLD CERTIFICATION
9.2 In the event Owner withholds any payment, partial or final, from Contractor by virtue of Contractor's failure to make payments properly to subcontractors, laborers and material suppliers for labor, materials and/or equipment furnished to the Project, Owner may, but shall not be obligated or required to, make direct payment on behalf of Contractor of any part or all of such sums due and owing to said subcontractors, material suppliers and/or laborers for their labor, materials or equipment furnished to the Project, not to exceed the Contract Sum remaining due and owing to Contractor, and charging all such direct payments against the Contract Sum under the Contract. However, nothing contained in this paragraph shall create any personal liability on the part of Owner to any subcontractor, material supplier or laborer, or any direct contractual relationship between Owner and them.
9.2.1 If any claim or lien is made or filed with or against Owner, the Project, real estate, or contract proceeds by any person claiming that Contractor or any subcontractor or other person for whom Contractor is liable has failed to make payment for labor, services, materials, equipment, taxes or other items or obligations furnished or incurred for or in connection with the Work, or if at any time there shall be evidence of such non payment or of any claim or lien which is chargeable to Contractor, or if Contractor or any subcontractor or other person for whom Contractor is liable causes damage to the Work or to any other Work on the Project, or if Contractor fails to perform or is otherwise in default under any of the terms or provisions of the Contract Documents, Owner shall have the right to retain from any payment then due or thereafter to become due an amount which it deems sufficient to (1) satisfy, discharge and/or defend against such claim or lien or any action which may be brought or judgment which may be recovered thereon, (2) make good any such non-payment, damage, failure or default, and (3) compensate Owner for and indemnify it against any and all losses, liability, damages, costs, and expenses including legal fees and disbursements which may be sustained or incurred by either or both of them in connection therewith. Owner shall have the right to apply and charge against Contractor so much of the amount retained as may be required for the foregoing purposes. If the amount retained is insufficient therefore, Contractor shall be liable for the difference and shall pay the same to Owner.
9.2.2 If Contractor disputes a determination and recommendation to Owner by Architect with regard to a Certificate of Payment, and during any related dispute resolution, arbitration, litigation or other proceeding, Contractor nevertheless shall continue to execute the Work as described in the Contract Documents.
SUBSTANTIAL COMPLETION
9.3 Upon receipt of Contractor's self-developed punch list, Architect, assisted by Construction Manager, shall make an inspection and other investigation as appropriate to determine whether the Work or designated portion thereof is substantially complete and whether Contractor has satisfied other requirements of the Contract Documents to be met prior to the Work being certified as substantially complete. If Architect's inspection or other investigation discloses any item or requirement, whether or not included on Contractor's list, which is not sufficiently complete or in accordance with the Contract Documents, Contractor shall, before issuance of the Certificate of Substantial Completion, complete, correct or satisfy such item or requirement upon notification by Architect. In such case, Contractor then shall submit a request for another inspection and investigation by Architect, assisted by Construction Manager, to determine Substantial Completion.
9.3.1 At the time Architect, assisted by Owner’s Representative or Construction Manager, commences the Substantial Completion Inspection, if Architect discovers excessive additional items requiring completion or correction, Architect may decline to continue the inspection, instructing Contractor as to the general classification of deficiencies which must be corrected before Architect, assisted by Construction Manager, will resume the Substantial Completion Inspection. If Contractor fails to pursue the Work so as to make it ready for Substantial Completion Inspection in a timely fashion, Architect and Construction Manager shall, after notifying Contractor, conduct inspections and develop a list of items to be completed or corrected. This list of items shall be furnished to Contractor who shall proceed to correct such items within seven (7) days. Architect, assisted by Construction Manager, will conduct additional inspections. Contractor shall reimburse Owner for the costs of such additional inspections, and Owner may offset the amounts payable to Architect, assisted by Construction Manager, for such services from the amounts due Contractor under the Contract Documents.
9.3.2 The time fixed by Architect, assisted by Owner’s Representative or Construction Manager, for the completion of all items on the list accompanying the Certificate of Substantial Completion shall not be greater than thirty (30) days. Contractor shall complete items on the list within such thirty (30) day period unless a reasonably longer time is needed, in which event Contractor shall make a request in writing for a longer time to complete the remaining items identified in the request, which request shall not be unreasonably denied. If Contractor fails to do so, Owner in its discretion may perform the Work by itself or others and the cost thereof shall be charged against Contractor. Failure to do so may serve as cause for Owner to declare Contractor in default and terminate the Contractor pursuant to Article 14 of the General Conditions, as modified.
9.3.3 If more than one inspection by Architect, assisted by Owner’s Representative or Construction Manager, for the purpose of evaluating corrected Work is required by the subject list of items to be completed or corrected, it will be performed at Contractor's expense unless Contractor has requested additional time and Owner has consented thereto. In such an event an additional inspection shall not be performed at Contractor's expense, unless and until an additional re-inspection of corrected work is required and Architect has charged Owner for such re inspection.
9.3.4 Contractor shall submit a written list of unresolved claims with Owner to Owner, Owner’s Representative or Construction Manager and Architect no later than thirty (30) days after Substantial Completion. Contractor shall endeavor to identify all known claims. Excluded from this listing requirement are the following: (a) claims for retainage, (b) claims for unpaid base contract or approved change work, (c) any claim arising out of an unknown lower tier subcontractor or supplier claim or other third party claim against Owner or Contractor that has not been asserted prior to these dates for which the claimant may contend the other party hereto is responsible, in whole or in part, (d) any claim in lower tier or third party litigation for which Contractor or Owner otherwise would have a right to a counterclaim, cross-claim or third party claim, (e) any claims arising out of latent conditions, (f) any claims arising out of events which occur after submission of the list, (g) any claims for personal injury or indemnity, (h) any claims which relate or pertain to Contractor's punch list or warranty obligations, or (i) any claims for defective design or construction. Each of Contractor's contractors, subcontractors and suppliers shall be bound to Contractor by the claim identification deadline of this paragraph. Likewise, Owner shall submit a written list of unresolved back charge claims with Contractor within the same time period and subject to the same exceptions as stated herein.
PARTIAL OCCUPANCY OR USE
9.4 No occupancy or separate use of part of the Work shall relieve Contractor of its guarantee of said Work and materials nor of its obligation to make good at its own expense any defective materials or workmanship which may occur or develop prior to Contractor's release from responsibility to Owner. However, Contractor shall not be responsible for the maintenance of such portion of the Work as may be used or occupied by Owner, nor for any damage thereto that is due to or caused by the negligence of Owner during such period of use or occupancy.
FINAL COMPLETION AND FINAL PAYMENT
9.5 Architect's Final Certificate for Payment will serve as a recommendation to Owner concerning final payment.
9.5.1 Final payment and release of retainage shall not become due to Contractor until and unless (1) all Work for the Project is fully completed and performed in accordance with the Contract Documents and is satisfactory to and approved and accepted by Owner, Construction Manager and Architect, (2) Contractor has delivered to Construction Manager for Owner all operating and maintenance manuals, as-built or record drawings, guarantees, and warranties for material, machinery and equipment furnished by Contractor, and all testing and/or inspection results or reports, (3) Contractor has delivered to Owner satisfactory evidence that all labor and material accounts incurred by Contractor in connection with Contractor's Work have been paid in full, and (4) Contractor has fulfilled all other requirements and furnished all other documentation, including certifications and consents of Surety, required for Project closeout which are prescribed in the Contract or the Contract Documents as conditions to final payment.
9.5.2 In addition to the foregoing, as a condition to final payment and release of retainage, Contractor shall submit to Owner through Construction Manager: (1) Contractor's affidavit that payrolls, including wages and fringe benefits, union dues, payroll taxes, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied; (2) Contractor's affidavit of payment in the form of AIA Document G706- Contractor's Affidavit of Payment of Debt and Claims or equal; (3) Contractor's release of liens in the form of AIA Document G706A- Contractor's Affidavit of Release of Liens, or as may otherwise be reasonably requested or required to comply with Indiana law; (4) releases and final unconditional waivers of lien from all subcontractors and suppliers; (5) Consent of Surety in the form of AIA Document G707 -Consent of Surety Company to Final Payment or equal; and (6), if required by Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances arising out of the Contract, to the extent and in such form as may be designated by Owner.
9.5.3 In addition to the above requirements for final payment and release of retainage, the following items also must be submitted by Contractor to Owner through Owner’s Representative or Construction Manager: (1) Contractor's certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least thirty (30) days' prior written notice has been given to Owner; (2) Contractor's written statement that Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Document; (3) Contractor's certification stating that no materials containing asbestos were incorporated into the Work; (4) Contractor's certification that all final punch list items have been completed; (5) Contractor's certificate of code compliance from the mechanical, electrical and plumbing subcontractors, if applicable; (6) Contractor's certification from its plumbing subcontractor, if any, that no lead was used in any fittings and connections; (7) Contractor's charts, graphs and locations of concealed work required under the Contract Documents; (8) any and all extra or spare parts, equipment and materials required under the Contract Documents; (10) Contractor's evidence that all startup, testing and/or commissioning requirements under the Contract Documents have been met; and (11) Contractor's maintenance agreements or maintenance bonds required under the Contract Documents.
9.5.4 Contractor shall furnish such evidence as may be necessary to show that any out-of-state subcontractor or supplier has fully met the requirements of payment of taxes as established in any law of the State or local subdivision thereof which may be in effect at the time of final payment. Owner will require the submission of such proof or evidence before final payment will be approved or made.
9.5.5 The making and acceptance of Final Payment shall constitute a waiver of all claims by Owner against Contractor and by Contractor against Owner except (i) liens, security interests or encumbrances arising out of the Contract unsettled; (ii) claims previously made in writing by either party and remaining unsettled as of the date of final payment; (iii) claims by Owner attributable to Defective Work or prior corrective work, appearing after final inspection; (iv) failure of the Work to comply with the requirements of the Contract Documents; (v) Contractor's neglect or failure in any respect to perform any of its duties or responsibilities in accordance with the Contract Documents; (vi) Owner claims and other rights arising under the terms of any general or special warranties or guarantees specified by the Contract Documents or arising thereunder, (vii) Owner claims and other rights in respect of Contractor's and its surety's continuing obligations under Laws and Regulations or the Contract Documents, and (viii) unresolved claims that remain from those claims designated on the Contractor and Owner claim lists required above.
10.1 Items Included in Contract Price. The Contract Price constitutes the total compensation (subject to authorized adjustments) payable to Contractor for performing the Work and assuming all obligations and risks as provided by the Contract Documents. All duties, responsibilities and obligations assigned to or undertaken by Contractor shall be at his expense without change in the Contract Price.
10.2 Changes in Contract Price. The Contract Price may only be changed by a Change Order or by a Written Agreement. Any claim for an increase or decrease in the Contract Price shall be based on written notice delivered by the party making the claim to the other party and Engineer promptly (but in no event later than twenty (20) days) after the start of the occurrence of the event or the commencement of a series of events giving rise to the claim. Notice of the amount of the claim with supporting data shall be delivered to the other party and Engineer within thirty (30) days after the start of such occurrence or event after the required notice (unless Engineer allows an additional period of time for claimant to submit additional or more accurate date in support of the claim. A written statement of the amount claimed by claimant shall be conclusively presumed to include all direct, indirect and consequential amounts claimed or to be claimed by claimant as a result of all facts, occurrences and events giving rise thereto. Nothing provided in this Section shall be construed to afford the Contractor any rights or claims otherwise precluded by any other provisions of these General Conditions or other Contract Documents. The burden of proof for such claim shall be on claimant.
10.3 Value of Affected Work. The value of any Work affected by a Change Order, or any Written Agreement, or of any increase or decrease in the Contract Price in respect of Owner-initiated changes or Contractor claims as provided by this Section shall be determined in one of the following ways:
10.3.1 For Work covered in whole or in part by unit prices contained in the Contract Documents, by application of such unit prices to the quantities of the contract items involved, unless otherwise provided in the Contract Documents;
10.3.2 For items or elements of Work not covered by unit prices, by mutual acceptance of a lump sum or unit price; or, if no such agreement is reached, on the basis of the Cost of the Work (determined as provided in Sections 10.4 and 10.5) plus a reasonable allowance for Contractor’s profit and overhead based on a percentage of the Cost of Work not to exceed ten percent (10%), or such different percentage as may be specified by other Contract Documents.
10.4 Cost of The Work. The term Cost of the Work means the sum of all costs necessarily incurred and paid by Contractor in the proper and efficient performance of the particular Work for which costs thereof are to be determined. Except as otherwise may be agreed to in writing by Owner, such costs shall be in amounts no higher than those prevailing in the locality of the Project. Such costs shall not include any of the costs itemized in Section 10.5 and may include only the following items:
10.4.1 Payroll costs for employees in the direct employ of Contractor in the performance of the affected Work under schedules of job classifications agreed upon by Owner and Contractor. Such employees shall include without limitation superintendents, foremen and other personnel employed full time at the site. Payroll costs for employees not employed full time on the Work shall be apportioned on the basis of their time spent on such Work. Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits which shall include social security contributions, unemployment, excise and payroll taxes, workers' or workmen's compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. Such employees shall not include superintendents or other management and supervisory personnel whose costs are included in the Contract Price. The expenses of performing Work after regular working hours, on Saturday, Sunday or legal holidays shall be included only if previously authorized by Owner in writing.
10.4.2 Cost of all materials and equipment properly furnished and incorporated in the Work, including costs of transportation and storage thereof, and field services by suppliers or manufacturers required in connection therewith. All cash discounts shall accrue to Contractor unless Owner deposits funds with Contractor with which to make payments, in which case cash discounts shall accrue to Owner. All trade discounts, rebates and refunds, and all returns from sale of surplus materials and equipment shall accrue to Owner and Contractor shall make provisions so that they may be obtained.
10.4.3 Payments made by Contractor to Subcontractors for affected Work performed or furnished by Subcontractors. If required by Owner, Contractor shall obtain competitive bids from Subcontractors acceptable to Owner and Contractor and shall deliver such bids to Owner who will then determine, with the advice of Engineer, which bids will be accepted. If a subcontract provides that the Subcontractor is to be paid on the basis of cost of the affected Work Plus a fee, Subcontractor’s cost of such Work shall be determined in the same manner as Contractor’s Cost of the Work. All subcontracts shall be subject to the other provisions of the Contract Documents insofar as applicable.
10.4.4 Cost of special consultants (including, but not limited to, engineers, architects, testing laboratories, surveyors, attorneys and accountants) employed for services specifically related to the affected Work.
10.4.5 Supplemental costs including the following:
.1 The proportion of necessary transportation, travel and subsistence expenses of Contractor’s employees incurred in discharge of duties connected with the affected Work.
.2 Costs, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office and temporary facilities at the site and hand tools not owned by the workers, which are consumed in the performance of the affected Work, and cost less market value of such items used but not consumed which remain the property of Contractor.
.3 Rentals of all construction equipment and machinery and the parts thereof whether rented from Contractor or others in accordance with rental agreements approved by Owner with the advice of Engineer, and the costs of transportation, loading, unloading, installation, dismantling and removal thereof all in accordance with terms of said rental agreements. The rental of any such equipment, machinery or parts shall cease when the use thereof is no longer necessary for the affected Work. When construction equipment is owned by Contractor, the cost of such equipment shall be in accordance with U.S. Army Corps of Engineers publication titled “Construction Equipment Ownership and Operating Schedule” for Region II.
.4 Sales, consumer, sue or similar taxes related to the affected Work, and for which Contractor is liable, imposed by Laws or Regulations.
.5 Deposits lost for causes other than negligence of Contractor, any Subcontractor or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, and royalty payments and fees for permits and licenses.
.6 Losses, damages, and expenses caused by damage to the Work not compensated by insurance or otherwise, related to the Work or otherwise sustained by Contractor in connection with the performance and furnishing of the affected Work (except losses and damages within the deductible amounts of property insurance established by Owner in accordance with Article 5, provided they have resulted from causes other than the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable). Such losses shall include settlements made with the written consent and approval of Owner. No such losses, damages and expenses shall be included in the Cost of the Work for the purpose of determining Contractor’s Fee. If, however, any such loss or damage requires reconstruction and Contractor is placed in charge thereof, Contractor shall be paid for services a fee proportionate to that stated in Section 10.3.
.7 The cost of utilities, fuel and sanitary facilities at the site.
.8 Minor expenses such as telegrams, long distance telephone calls, telephone service at the site, expressage and similar petty cash items in connection with the Work.
.9 Cost of premiums for additional Bonds and Insurance required because of changes in the Work and premiums for property insurance coverage within the limits of the deductible amounts established by Owner in accordance with Article 5.
10.5 Excluded Costs. The term Cost of the Work shall not include (i) expenses of Contractor's branch offices other than Contractor's office at the site, (ii) any part of Contractor’s capital expenses, including interest on Contractor's capital employed for the Work and charges against Contractor for delinquent payments (iii) cost of premiums for all Bonds and for all insurance whether or not Contractor is required by the Contract Documents to purchase and maintain same (except for cost of premiums covered by Subparagraph 10.4.5 above), (iv) costs due to the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including, but not limited to, the correction of Defective Work, disposal of materials and equipment wrongly supplied and making good any damage to property, and/or (v) other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in Section 10.4.
10.6 Cash Allowances. It is understood that Contractor has included in the Contract Price all allowances so named in the Contract Documents, if any, and shall cause the Work so covered to be done by such Subcontractors or Suppliers and for such sums within the limit of the allowances as may be acceptable to Owner. Contractor further agrees that:
10.6.1 The Cash Allowances include the cost to Contractor (less any applicable trade discounts) of materials and equipment required by the allowances to be delivered at the site and all applicable taxes; and
10.6.2 Contractor’s costs for unloading and handling on the site, labor, installation costs, overhead, profit and other expenses contemplated for the Cash Allowances have been included in the Contract Price and not in the Cash Allowances. No demand for additional payment on account of any such costs will be valid.
10.6.3 Prior to final payment, an appropriate Change Order will be issued as recommended by Engineer to reflect actual amounts due Contractor on account of Work covered by Cash Allowances, and the Contract Price shall be adjusted accordingly.
10.7 Unit Price Work.
10.7.1. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the established unit price for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Agreement.
10.7.2 The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and classifications of Unit Price Work performed by Contractor will be made by Engineer in accordance with paragraph 10.7.
10.7.3 Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor's overhead and profit for each separately identified item.
10.7.4 The unit price of an item of Unit Price Work shall be subject to reevaluation and adjustment under the following conditions:
i. If the total cost of a particular item of Unit Price Work amounts to five percent (5%) or more of the Contract Price and the variation in the quantity of that particular item of Unit Price Work performed by Contractor differs by more than twenty percent (20%) from the estimated quantity of such item indicated in the Agreement; and
ii. If there is no corresponding adjustment with respect to any other item of Work; and
iii. If Contractor believes that Contractor has incurred additional expense as a result thereof; or if Owner believes that the quantity variation entitles Owner to an adjustment in the unit price, either Owner or Contractor may make a claim for an adjustment in the Contract Price in accordance with Article 12 if the parties are unable to agree as to the effect of and such variation in the quantity of Unit Price Work performed.
SAFETY PRECAUTIONS AND PROGRAMS
10.1 Contractor acknowledges that safety is of prime importance to Owner, and agrees to utilize all reasonable efforts to prevent injuries to personnel. Contractor shall be solely responsible for the safety of its employees and those of other contractors and Subcontractors working at the Project site that may be affected by its Work.
10.1.1 Contractor shall comply with all applicable laws, ordinances, rules, regulations and orders of any public authority for the safety of persons or property, including but not limited to State and Federal Occupational Health and Safety Acts ("OSHA"), in accordance with the requirements of the Contract Documents and shall conform to the safety and health standards and regulations for construction issued by the Secretary of Labor pursuant to Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333), entitled "Safety and Health Regulations for Construction" (29 CFR Part 1926).
10.1.2 In the event that any action is taken against Contractor, including but not limited to assessments of fines or penalties, whether by State or Federal OSHA agencies or otherwise, due to any actual or alleged violation, act or omission of the duties, responsibilities and obligations set out herein that are caused or created by Contractor or any of its contractors or Subcontractors, or any other party for whom Contractor is responsible, whether also caused in part by Owner, Construction Manager or Architect, Contractor shall defend, indemnify and hold Owner, Construction Manager and Architect harmless therefrom, and Contractor shall be liable for all costs and damages sustained by Owner, Construction Manager and Architect as a result thereof, including, but not limited to, fines, penalties and attorney fees incurred in the defense of or appeal from any such action, and any OSHA proceeding or hearing which may occur or be related thereto. The failure of Contractor to comply with these requirements may be treated by Owner as a default under the Agreement.
SAFETY OF PERSONS AND PROPERTY
10.2 Contractor shall immediately report in writing any safety-related injury, loss, damage or accident arising from the Work at the Project to Owner, Construction Manager and Architect and, to the extent mandated by applicable laws, ordinances, codes, rules and regulations, including those relating to health and safety matters, relating to the Project or Site or their performance of the Work, to all government or quasi-government authorities having jurisdiction over safety-related matters involving the Project or the Work.
10.2.1 Contractor shall make frequent and regular inspections of the jobsite by a competent onsite safety representative designated by Contractor. Unsafe acts and/or conditions noted during inspections shall be corrected immediately and reported to Owner, Construction Manager and Architect. The name of the Contractor's onsite safety representative will be kept at the jobsite and furnished to Owner, Construction Manager and Architect prior to Contractor commencing its Work on the Project.
10.2.2 Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, cause other damage or create an unsafe condition, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. Legal load restrictions shall be complied with on public roads beyond the limits of the Project. A special permit shall not relieve Contractor of liability for damage that may result from the moving of equipment. The operation of equipment of such weight or so loaded as to cause damage to structures or the roadway or to any other type of construction is not permitted. No loads or construction vehicles be permitted on new construction where damage or contamination may be caused from premature loading or tracking, unless otherwise approved by Architect and/or Owner. Special consideration shall be given to concrete pavement, concrete bases, and/or structures prior to loading and or utilizing due to required curing periods. Contractor shall be responsible for all damage done by Contractor, its employees, agents, or subcontractors. Hauling or handling of materials on complete or partially completed structure, pavement structures, or paved shoulders in excess of legal weight limits is not permitted unless approved in writing in advance of the operation. Approval shall be obtained from the authority having jurisdiction over the structures, pavement structures, or paved shoulders.
10.2.3 Contractor shall develop and implement a site safety program that shall address as a minimum the following: clothing requirements, personal protective equipment, signs, signals and barricades, rigging equipment, hand and power tools, compressed gas cylinders, scaffolds, equipment and motor vehicles, electrical work, ladders, floor and wall openings and stairways, excavations and trenching, steel erection, working in confined areas or spaces and housekeeping. Contractor's site safety program also shall provide for the availability of medical personnel for advice and consultation, and prior to the commencement of the Work at the Project, shall make provisions for prompt medical attention in case of serious injury or other medical emergency. OSHA standards will serve as the minimum safety requirements for performance of the Work. A copy of Contractor's site safety program shall be available at the Site prior to the commencement of Contractor's Work at the Project and shall be furnished to each of Contractor's other contractors and Subcontractors utilized on the Project.
10.2.4 Contractor shall comply with all applicable safety recommendations of the Associated General Contractors of America, American National Standards Institute and National Fire Protection Association, the Occupational Safety and Health Act, and all special safety and security requirements of Owner. If any inconsistency exists between the provisions of this Subparagraph 10.2.10 and Subparagraphs 10.1.1 and 10.2.2, Subparagraphs 10.1.1 and 10.2.2 shall take precedence.
10.2.5 Contractor shall indemnify, save harmless and defend Owner, Construction Manager and Architect from any liability , including any and all claims, damages, losses, costs, attorney fees and other professional fees, resulting from any violation of all such applicable laws, ordinances, rules, regulations, lawful orders and safety requirements referred to in Paragraphs 10.2 and its subparts.
HAZARDOUS MATERIALS
10.3 Contractor shall comply with all state and federal safety laws, including those of the Federal Occupation Safety and Health Administration ("OSHA") and its Hazardous Communications Law. Contractor shall have in place, and be conforming to, a written Hazard Communication Program ("HAZCOM") meeting the Federal OSHA Standard 1926.59 and 29 CFR 1910.1200.This program must include provisions for conducting a chemical inventory and developing a list of materials to be used on the Project in the performance of the Work, inspecting and maintaining container labels for use at the Project, providing and maintaining onsite material safety data sheets ("MSDS") for all materials to be used on the Project, employee training, furnishing of personnel protection equipment, and provide for emergency responses, hazards of non-routine tasks, multi contractor sites, and posting.
EMERGENCIES
10.4 In emergencies affecting the safety or protection of persons or the Work or property at the site or adjacent thereto, Contractor, without special instruction or authorization from Construction Manager, Architect or Owner, shall act to prevent threatened damage, injury or loss. Contractor shall give Construction Manager, Architect and Owner immediate written notice if Contractor believes that any significant changes in the Work or variations from the Contract Documents are caused thereby. If Owner, Construction Manager or Architect determines that a change in the Contract Documents is required because of the action taken in response to an emergency, a Construction Change Directive or Change Order will be issued to document the consequences of the changes or variations. The emergency status of a condition encountered during the course of performing Work shall not, of itself, constitute grounds to deny or diminish any remedy or right otherwise available to Owner or to augment any right or remedy available to Contractor.
10.4.1 Nothing in this Paragraph shall be construed as relieving Contractor from the cost and responsibility for emergencies covered hereby, which with normal diligence, planning, and the close supervision of the Work as required under the Contract, could have been foreseen or prevented. Contractor shall provide the Owner, Construction Manager and Architect a list of names and telephone numbers of the designated employees for each Subcontractor to be contacted in case of emergency during non-working hours. A copy of the list will also be displayed on the job site.
In the attachments are sample forms proposed to be used for the issuance of change orders, field orders, and work directive changes. Procedure for the development, submittal and processing of these forms will be discussed during the pre-construction conference.
11.1 Liquidated Damages - Assessment. If Contractor does not achieve Substantial Completion or Final Completion of all elements of the Work within the time required by the Contract Documents, and liquidated damages are established by the Agreement or other Contract Documents to be assessed and recovered by Owner to compensate Owner for such delay in completion, it is understood and agreed that Owner will incur substantial damages and losses which are and will hereafter be difficult or impossible to quantify, ascertain and prove as actual damages for such delay. Such damages are foreseen to include, without limitation, extended or additional costs for observation, inspection, engineering, utilities, insurance, administration, and also indeterminate damages, hindrance, or inconvenience to members of the public, deprivation of use and operation and impairment of financing. Accordingly, and in lieu of actual damages, Contractor and his Surety shall be liable to Owner, and Owner shall be entitled to collect and recover such liquidated damages from Contractor and his Surety, in lieu of actual damages and not as a penalty, in the respective amounts per day for each calendar day that Substantial Completion or Final Completion of the entire Work, as appropriate, is delayed beyond the date(s) or time limitation(s) provided by the Contract Documents. Neither partial acceptance nor partial Beneficial Occupancy or use of portions of the Work by Owner prior to achievement of Substantial Completion of all elements of the Work shall defeat or impair Owner's rights in respect to liquidated damages as provided by this Article.
11.2 Liquidated Damages - Reasonable Amount. The original Contract Price provided in the Contract Documents shall be deemed to include adequate consideration and payment to compensate Contractor for the risk of liability imposed upon Contractor under this Section in respect to liquidated damages and Contractor acknowledges and agrees that the respective amounts of such liquidated damages are reasonable with due consideration for the type, nature and extent of the Work and the Contract Price and that such liquidated damages fairly approximate the nature and amount of actual damages which Owner may incur as a result of delayed completion and that such liquidated damages may be assessed and recovered by Owner without proof or evidence concerning the types or amounts of such actual damages.
11.3 Delay Following Termination. The liquidated damages provided by this Article shall apply equally to delay in the achievement of Substantial Completion following abandonment of the Work by Contractor or termination by Owner because of Contractor's default, to the extent that such delays are caused in whole or in part by such abandonment, termination, default or other acts or omissions for which Contractor is responsible. No delay or forbearance by Owner in enforcing any rights or remedies under the Contract Documents, including without limitation, the right to termination of the Contractor's right to proceed and the right to engage completion contractors to complete the Work shall constitute a waiver by Owner or deprive Owner of its right to retain, receive and recover such liquidated damages from Contractor and its surety or diminish the period of delayed completion from which such liquidated damages are to be determined.
11.4 Extension of Contract Time. If Contractor is delayed or hindered at any time in the progress of the Work by any act or neglect of Owner or Engineer, or by any employee of either, or by changes ordered in the Work, or by unavoidable labor disputes, fire, unusual delay in transportation, unavoidable casualties, unforeseeable abnormal and unusually severe weather conditions, or any other causes beyond Contractor’s control and the risks of which are not otherwise assumed by Contractor under the Contract Documents (collectively referred to as Excusable Delays), or by delay authorized by Owner pending arbitration, or by any other cause which Owner, in consultation with Engineer, determines may justify the delay, then the Contract Time shall be extended by Change Order for such reasonable time as Owner may determine. Contractor shall not be entitled to an extension of time for delays or hindrances caused by weather conditions or other natural phenomena of normal intensity for the locality and season during which Work is performed, unsuitable ground conditions except as may be provided in Article 4, inadequate construction forces, financial difficulties of Contractor or his Subcontractors or the failure of Contractor or its subcontractors or material suppliers to provide shop drawings or other required submittals on a timely basis and as scheduled or to place orders for equipment or materials sufficiently in advance to insure timely and proper delivery.
11.5 Notice of Delays or Hindrances. The Contract Time (or Milestones) may only be changed by a Change Order or by a Written Agreement. Any claim for adjustment of the Contract Time (or Milestones) shall be based on written notice delivered by the party making the claim to the other party and to the Engineer promptly (but in no event later than twenty (20) days after the event or occurrence of the event giving rise to the claim and stating the general nature of the claim. Notice of the extent of the claim with supporting data shall be delivered within thirty (30) days after such occurrence or event giving rise to the claim (unless Engineer allows an additional period of time o ascertain more accurate data in support of the claim). A notice of time extension request by Contractor under this Section shall be conclusively presumed to include all direct, indirect and cumulative impact upon the time required by Contractor to perform and complete the Work as a result of all facts, occurrences and events giving rise thereto. Nothing provided in this Section shall be construed to afford the Contractor any rights or claims otherwise precluded by any other provisions of these General Conditions or other Contract Documents.
11.6 Time Extension As Exclusive Remedy. As between Contractor and Owner, Contractor shall assume the risk of any and all suspensions of, delays or interference’s in or hindrances to the performance of the Work, regardless of the length thereof or the party responsible there for and arising from any and all causes whatsoever, including, without limitation, those due to any acts or omissions of or interference by Owner, Engineer, other contractors or Subcontractors, except only to the extent that an extension of time may be due to Contractor as expressly provided for in this Article for such suspension, delay, interference or hindrance. Contractor shall bear all direct or indirect costs, expenses and liabilities which he may incur in connection with such suspensions, delays, hindrances or interference’s and all such suspensions, delays, interference’s or hindrances, costs, expenses and liabilities of any nature whatsoever, whether or not specifically described or referred to in the Contract Documents, shall conclusively be deemed to have been within the contemplation of the parties.
11.7 Limitations on Time Extensions. Contract Time extensions will be granted only to the extent that Excusable Delays occur without concurrent non-excusable delays and actually extend the time required by Contractor to perform and complete critical Work elements and activities and which thereby cause an actual delay to achievement of Project completion. Extensions of Contract Time shall be based solely upon the effect of delays to the Work as a whole. The Contract Time shall not be extended for delays to parts of the Work, whether or not changed by any Change Order, that are not on the critical path of the progress schedule. Concurrent Work activities, which are not critical to Project completion shall not be the subject of additional time extensions or compensation if those work activities are performed, or could be performed, within a moveable time frame concurrent with a critical item.
CONTRACTOR'S LIABILITY INSURANCE
11.1 Employer's Liability Insurance shall be for coverage of no less than One Million Dollars ($1,000,000.00) for bodily injury caused by accident (for each accident), One Million Dollars ($1,000,000.00) for bodily injury by disease (policy limit), and One Million Dollars ($1,000,000.00) for bodily injury caused by disease (for each employee).
11.1.1 Contractor's Commercial, General and Automobile Liability Insurance shall be written on an occurrence basis and for not less than limits of liability as set out in the insurance requirements attached as an Exhibit to the Contract, or as required by law, whichever is greater, and shall name Owner, Construction Manager and Architect as Additional Insured.
11.1.2 The Commercial General Liability policy shall have limits of not less than Two Million Dollars ($2,000,000.00) for each occurrence and Three Million Dollars ($3,000,000.00) Products/Completed Operations Aggregate, and One Million Dollars ($1,000,000.00) Personal and Advertising injury limits.
11.1.3 Additional Insured coverage shall apply as primary insurance with respect to any other insurance afforded to Owner, Construction Manager and Architect and Contractor's policy will not seek contribution from any and all insurance afforded to Owner, Construction Manager and Architect, whether as Additional Insured or otherwise. Contractor's Commercial General Liability Insurance coverage shall include, but not be limited to, the following: bodily injury, personal injury, property damage, contractual liability, products and completed operations, advertising injury, fire damage, medical expenses and comprehensive automobile liability. Each coverage, where applicable, shall be per occurrence and in the general aggregate (subject to a per project general aggregate provision applicable to the Project). Contractor's Commercial General Liability Insurance shall cover liability arising from premises, operations, independent contractors, products-completed operations, personal and advertising injury, employee dishonesty, Contractor's pollution liability and liability assumed under an insured contract, including any tort liability of another assumed by contract. Coverage shall be afforded to the Additional Insured whether or not a claim is in litigation. Comprehensive Automobile Liability shall include coverage for liability arising out of owned, non-owned and hired automobiles and for bodily and property damage.
11.1.4 Such insurance coverage shall be placed with companies that have insurer ratings no lower than "A+ VIII" in the AM Best's Insurance Guide, latest edition as of the date of the Contract, or at time of renewal, and to which Owner has no objection.
11.1.5 Contractor's Commercial General Liability Insurance also shall include, if not already covered by the requirements of Paragraph 11.1, (a) premises and operations that include explosion, collapse and underground operations "XCU" coverage) and covering blasting, the grading of land, excavation, burrowing, backfilling, tunneling, drilling, pile driving and cofferdam or caisson work, moving, shoring, underpinning, raising or demolition of any building or structure or removal or rebuilding of any structural support thereof, (b) elevators, (c) blanket contractual liability on all written contracts, including contractual liability as applicable to any indemnification or hold harmless obligations set forth in the Contract Documents, (d) personal injury liability, coverages A,B and C with Fellow Employee Exclusion deleted, (e) all including broad form property damage coverage, and (f) stopgap liability for $100,000 limits.
11.1.6 Where Contractor's Work includes blasting, or the grading of land, excavation, burrowing, backfilling, tunneling, drilling, pile driving and cofferdam or caisson work, or includes moving, shoring, underpinning, raising or demolition of any building or structure or removal or rebuilding of any structural support thereof, the Commercial General Liability form shall not modify or exclude injury to or destruction of property arising out of or caused by such work, and any XCU (explosion, collapse and underground operations), underground property damage or work performed by Contractors or similar exclusion or endorsement shall be voided.
11.1.7 For all worker's compensation and employer's liability insurance required hereby, Contractor shall require waiver of subrogation for itself and for all subcontractors, or others performing Work on the Project pursuant to the terms of Contractor's Contract with Owner.
11.1.8 Commercial General Liability Insurance may be arranged under a single policy for the full limits required or by a combination of a base Two Million Dollar ($2,000,000.00) Commercial General Liability Policy with the balance provided by an Excess or Umbrella Liability policy that attaches to the Commercial General Liability Policy at the Two Million Dollar ($2,000,000.00) level and which covers all of the required insurance under this Article, including the commercial general liability, comprehensive automobile liability, and excess or umbrella liability coverage.
11.1.9 To the extent that Contractor engages subcontractors for a portion of the Work required by its Contract, Contractor will require each and every subcontractor also to assume all of the duties, obligations and requirements in this Article. Contractor shall require such subcontractors to provide Certificates of Insurance evidencing the insurance, naming Contractor, Owner and Architect as additional insured, except as respects workers compensation insurance, and stating that the insurance carried and maintained by the subcontractor meets all of the requirements of this Article. Contractor shall not permit any subcontractor to commence Work until a Certificate of such insurance has been submitted and on file with Contractor.
11.1.10 Each of the foregoing minimum limits on the required subcontractor coverage set forth in this Article may be reduced to lesser limits, if consented to in writing in advance by Owner and the acceptable level of risks under the respective subcontract permits such a reduction in limits based upon the sole and exclusive judgment of Owner, for any subcontractor whose contract sum initially is less than One Hundred Thousand Dollars ($100,000.00). The Contractor's Commercial Liability insurance for each subcontractor shall be written on an occurrence basis.
11.1.11 Contractor shall not commence the Work until it has obtained all insurance required under this Paragraph and has submitted the Certificate of Insurance forms to Owner, Construction Manager and Architect. Certificates shall be furnished on AIA Document G705 or an equivalent form and submitted to Architect, in duplicate, at least five (5) days prior to starting Work. The Certificates shall contain a provision that coverage afforded under the policies will not be cancelled or allowed to expire until at least thirty (30) days prior written notice has been given to the Owner, Construction Manager and Architect of policy cancellation or of material change. If requested, certified copies of the policies shall be submitted to Owner and Architect for their review. No less than fourteen (14) days prior to the expiration, cancellation or termination of any policy, Contractor shall supply Owner with a new and replacement Certificate of Insurance and Additional Insured endorsement as proof of renewal of the original policy and coverages, with such new or replacement policy and endorsements in the same manner and for the same coverages and amounts in favor of Owner, Construction Manager and Architect as set forth in this Article. Within two (2) business days of a request from Owner, Construction Manager or Architect, Contractor will provide Owner with copies of any insurance policies under which the coverage required herein are provided.
11.1.11.1 Should Contractor fail or neglect to provide the required insurance set forth in this Article, or allow any required coverage to lapse, Owner shall have the right, but not the duty, to provide such insurance and deduct the cost thereof from any money due to Contractor any and all premiums paid by Owner for and on account of said insurance.
11.1.12 In addition to the insurance to be provided by Contractor set forth above, if the Work or Contract Documents require design or engineering input, certification or approval of any Contractor furnished or installed system, component, part, equipment, controls, tools, materials, connections, loads, scaffolding, hoists or safety measures, or if any shop drawing or submittal requires preparation, certification or approval by a design professional, then Contractor shall maintain during the performance of the Work, at its own expense, a professional liability or errors and omissions policy of insurance satisfactory to Owner with a limit of liability of not less than Two Million Dollars ($2,000.000.00) per claim and in the aggregate, with not more than a Ten Thousand Dollar ($10,000.00) deductible. Contractor likewise shall, throughout the term of this Contract, require separately from each of Contractor's design professionals that it may utilize professional liability insurance satisfactory to Owner, in the amount of coverage of not less than One Million Dollars ($1,000,000.00) per claim and in the aggregate.
11.1.12.1 Contractor shall maintain its professional liability coverage in effect for at least four (4) years after final completion and acceptance by Owner of the Project, and shall require the same duration for the professional liability coverage from its subcontractors. This insurance shall be maintained at no additional cost to Owner.
11.1.13 In addition to the insurance coverage set forth above in this Article, and in excess of and concurrent with such coverage, Contractor shall secure and maintain Excess Liability Umbrella coverage which shall be in the amounts either set forth in the insurance requirements attached as an Exhibit to the Contract or in the amounts of not less than Five Million Dollars ($5,000,000.00) for Each Occurrence and Five Million Dollars ($5,000,000.00) General Aggregate, whichever limits of liability amounts are greater.
11.1.14 Contractor shall maintain the foregoing coverage set forth in this Article for not less than two (2) years following final completion and Owner acceptance of the Work, including the required contractual liability and products and completed operations coverage. Contractor shall continue to provide evidence of such coverage to Owner during such period. Insurance coverage shall be kept in force until final acceptance of the Work and payment to Contractor, and at all times thereafter when Contractor may be correcting, removing or replacing the Work. To the extent that any different dates for maintaining coverage are set forth in Subparagraph 11.1.2 above, the durations set forth herein shall control and take precedence.
11.1.15 Contractor and its respective insurance carriers shall have no right of subrogation against Owner and each other and any of their officers, directors, consultants, agents and employees, and Design-Builder shall obtain from each of its insurers a waiver of subrogation on all insurance coverage required in this Article, including, but not limited to, Commercial General Liability, Workers Compensation, Employer's Liability and Business Auto Liability, in favor of the parties identified herein with respect to losses arising out of or in connection with the Work on the Project under the Agreement. Design-Builder shall require waivers of subrogation in favor of Owner from its consultants, contractors, subcontractors, suppliers and consultants, if any, in its agreements with those entities.
PROPERTY INSURANCE
11.2 Property insurance purchased by Owner shall be in the form and provide such specific coverage as selected by Owner. This insurance is not intended and will not cover Contractor's machinery, tools, equipment and material at the site which are not intended to become a permanent part of the completed Project. Contractor shall bear the entire risk of loss with respect to such machinery, tools, equipment and material.
11.2.1 Contractor shall be responsible for any minimum deductible or self insurance up to One Thousand ($1,000.00) per claim. Above such limit, Owner shall be responsible.
11.2.2 Contractor waives all rights against (1) Owner and (2) Architect, Architect's consultants, separate contractors, if any, and any of their subcontractors, sub-subcontractors, agents and employees, for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to Paragraph
11.2 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by Owner as fiduciary.
11.2.3 Owner or Contractor, as appropriate, shall require of Architect, Architect's consultants, separate contractors, if any, and the subcontractors, sub-subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers of subrogation each in favor of the other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged.
11.2.4 Owner, in good faith, shall have the power to adjust and settle any loss with the insurers. Owner, in good faith, shall make settlement with the insurers.
11.2.5 Nothing contained in these insurance requirements is to be construed as limiting the extent of Contractor's responsibility for payment of damages resulting from its failure to perform the Work in accordance with the Contract Documents.
PERFORMANCE BOND AND PAYMENT BOND
11.3.1 Bonds furnished by Contractor shall meet the following requirements:
a. Bonds from an approved surety company, made in favor of Owner shall be secured and delivered to Owner prior to the commencement of any construction activity, except as may be provided otherwise in Subparagraph 11.3.3 below.
b. Surety companies furnishing these Bonds must be listed in the U.S. Department of Treasury, Circular 570, latest revision at the time of commencement of construction, whose underwriting limitation is at least three (3) times the total Contract Amount excluding any surety companies de-listed subsequent to the latest publication date of Circular 570.
c. Bonds shall be written in an amount not less than 100% of the portion of the total Contract Amount. The premium cost of the Bonds is to be included in the total Contract Amount.
d. Bonds are to be furnished on AIA document A312, Performance and Payment Bond - 2010 Edition. Contractor shall require the Attorney-in-Fact that executes the required Bonds on behalf of the surety to affix to the Bonds a certified and current copy of his Power of Attorney.
e. Surety on the Performance Bond and Payment Bond shall not be released until at least two (2) years after the date of the Final Settlement between Owner and Contractor.
11.3.2 Contractor shall have no right to receive any payments under this Contract until and unless Payment and Performance Bonds as called for in this 1l 1.3 are properly executed and furnished to Owner, regardless of the status of the Work or performance by Contractor.
11.3.3 If Bonds are not required as of the date of this Contract, Owner nevertheless, by written notice to Contractor at any time before final completion and acceptance of Contractor's Work, may require Contractor to provide Performance and/or Payment Bonds as described in ,i11.3.1, in such penal sums as Owner may designate which shall not be greater than 100% of the value of Work remaining to be performed, completed or corrected as of the date of Owner's notice, including any Contractor payment obligations outstanding. If Contractor is not then in default under this Contract and no cause exists for withholding of payment to Contractor by Owner as provided elsewhere herein, the premium costs for such bonds, excluding overhead and profit, will be added to the Contract Price by Change Order; otherwise, such costs shall be paid by Contractor without increase in the Contract Price.
11.3.4 The penal sum or other limiting amount stated on the face of any bond issued and delivered to Owner pursuant to the Contract Documents shall be deemed automatically adjusted by the aggregate sum of any Change Orders signed by Owner and Contractor, notwithstanding any contrary provision set forth in any such bond as executed. The surety upon the bond shall be deemed to have consented in advance to such adjustment and accordingly, Owner shall not be required to give any prior notice to or obtain any separate consent to the adjustment of the penal sum by such surety.
11.3.5 The Performance and Payment Bonds shall be liberally construed in favor of Owner and against surety in order to assure that the Project and the subject Real Estate will be protected and held harmless from and against any liens or claims and that Owner will be protected and held harmless from and against any cost, expense, claims or indebtedness in connection with the Project in excess of the Contract Sum. No extension of time, change in the Work, alteration or addition to the terms of the Contract or the Work to be performed thereunder, or in the Contract Documents shall in any way affect Contractor's and surety's obligations on said bonds, and notice of such time extension, change, alteration or addition hereto is waived by each surety. Likewise, no action taken by the Owner against the Contractor or any separate contractor or any failure of Owner to take any action, and no failure on the part of Owner to notify any surety of any default or of any action to be taken by Owner hereunder shall relieve, release or discharge any such surety from liability upon said bonds, and such notice is hereby waived by each surety.
11.3.6 Contractor shall deliver any required bonds to the Owner no later than the date of execution of the Contract, or if work is to be commenced prior thereto, the Contractor shall, prior to commencement of work, submit evidence satisfactory to the Owner, that such bonds will be issued.
UNCOVERING OF WORK
12.1 Owner, Construction Manager, Architect and all governmental agencies with jurisdictional interests in respect of the Work or the activities of Contractor or its subcontractors shall be afforded complete and unhindered access to the Work for their observation, inspecting and testing. Contractor shall provide proper and safe conditions for such access and advise them of Contractor's site safety procedures and programs so that they may comply therewith as applicable.
12.1.1 Contractor shall give Architect, Construction Manager or Owner’s Representative timely notice of readiness of the Work for all required inspections, tests or approvals. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) to specifically be inspected, tested or approved, Contractor shall assume full responsibility therefore, pay all costs in connection therewith and furnish Architect, Construction Manager and Owner’s Representative the required certificates of inspection, testing or approval, subject to any provisions on quality control to the contrary set forth and contained in the Specifications. The cost of all other inspections, tests and approvals which are required by Contract Documents shall be paid by Owner except as otherwise specified. All inspections, tests or approvals other than those required by Laws or Regulations of any public body having jurisdiction shall be performed by organizations acceptable to Owner and Contractor or by Architect, with the assistance of Construction Manager, if so specified.
12.1.2 Neither observations by Architect or Construction Manager nor inspections, tests or approvals by others shall relieve Contractor from Contractor's obligations to perform the Work in accordance with the Contract Documents.
CORRECTION OF WORK
12.2 Within Seventy Two (72) hours after written notice from Construction Manager, Architect or Owner (except such period shall be seven (7) days when notice is given after final payment) that the work is rejected or fails to conform to the Contract Documents, or immediately upon oral notice, if the failure or nonconformance constitutes a threat to the safety of persons or property, Contractor, without waiting for the resolution of any disputes that may exist (i) shall commence to correct such failure or nonconformance, and (ii) shall thereafter use its best efforts to complete necessary corrections so that the failure or nonconformance is eliminated to the satisfaction of Construction Manager, Architect and Owner within seven (7) days of such notice. Contractor shall bear all costs of correcting the failure or nonconformance, including additional testing and inspections and additional service fees of Architect, with the assistance of Construction Manager. The notice provided for in this l2.2 may be given at any time. It is the intent that the obligations under this l2.2 shall continue to apply after substantial and final completion and final payment.
12.2.1 In circumstances where Owner determines that a defect involves an imminent threat to persons, property or Owner's ability to comply with governmental orders, laws or regulations, Owner may, without notice to Contractor, immediately take such action as Owner deems necessary to effectuate the repair, replacement, restoration or rebuilding of any damaged or Defective Work or the protection and preservation of other Work or property threatened thereby. As soon as practicable thereafter, Owner shall notify or otherwise afford Contractor a reasonable opportunity to investigate and continue or complete corrective action as required, if any. If Contractor fails to commence and continue required corrective action in a prompt and timely manner, Owner may complete the repair, replacement, restoration or rebuilding of the damaged or Defective Work using its own personnel or those of a third party.
12.2.2 In addition to all of Contractor's warranties and obligations to correct defective Work provided by law or as set forth in any of the Contract Documents, Contractor agrees that it shall, at its sole expense, promptly and properly repair, replace, restore or otherwise correct and cure all defects and omissions in workmanship and materials and all failures to comply with the Contract Documents which appear within two (2) years from the date of final completion and acceptance of the Work by Owner, including any Work that is (1) rejected by Owner, Construction Manager or Architect, or (2) known, observed or discovered at any time by Owner, Construction Manager or Architect to be defective or failing to conform to the Contract Documents, and shall pay Owner for all expenses incurred in any delay caused by remedying defective or otherwise nonconforming Work. Furthermore, if within one year after final completion and Owner acceptance of the Work and Project, or such longer period as established with respect to Contractor's obligations under the Contract Documents, the Work or any portion thereof is found to be not in accordance with the requirements of the Contract Documents, Contractor shall correct it promptly after receipt of written notice from Owner to do so. The period within which Contractor shall be obligated to correct Work shall be extended with respect to portions of Work, including corrective work, first performed after final completion and acceptance of the Project. Contractor's obligations under this Paragraph shall survive completion and acceptance of the Work and Project, and termination of the Contract. Furthermore, Contractor shall indemnify, hold harmless, and defend Owner against any and all claims, losses, costs, damages and expenses, including attorney fees, suffered by Owner as a result of such damage or injury, whenever such damage or injury shall occur or appear.
12.2.3 If Contractor fails to correct any defective or nonconforming Work as required or persistently fails to carry out Work in accordance with the Contract Documents, Owner may, in addition to any other right or remedy afforded by this Contract, issue a written order to Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated. Notwithstanding this right or remedy, Owner's right to stop the Work shall not give rise to a duty on the part of Owner to exercise such right for the benefit of Contractor or other persons or entities. Owner may, after seven (7) days written notice to Contractor, correct and remedy any such deficiency, and may exclude Contractor from all or part of the site, take possession of all or part of the Work, suspend Contractor's services related thereto, and take possession of Contractor's tools, appliances, construction equipment and machinery at the site and incorporate in the Work all materials and equipment stored at the site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner, Construction Manager and Architect, their respective representatives and other contractors, full and unhindered access to the site to enable Owner to exercise the rights and remedies under this Section.
12.2.3.1 All claims costs, losses and damages, whether direct, indirect or consequential, incurred or sustained by Owner in exercising its right and remedy to correct defective work as provided in 12.2.3 shall be charged against Contractor and Owner shall be entitled to a corresponding decrease in the Contract Price and a Change Order or Written Amendment will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work. Such direct, indirect and consequential costs, losses and damages shall include, but not be limited to fees and charges of Construction Manager, Architect, engineers, architects, attorneys and other professionals, all court costs, as well as all costs of repair and replacement of work or property of Owner or others destroyed or damaged by correction, removal or replacement of Contractor's defective Work. Contractor shall not be allowed an extension of the Contract Time because of any delay or hindrance in performance of the Work attributable to the exercise by Owner of Owner's rights and remedies hereunder.
ACCEPTANCE OF NONCONFORMING WORK
12.3 If instead of requiring correction or removal and replacement of nonconforming Work, Owner elects to accept such Work in the condition as provided, Owner may do so. Contractor shall bear all direct, indirect and consequential costs attributable to Owner's evaluation of and determination to accept such Defective Work, to include but not be limited to fees and charges of Construction Manager, Architect, engineers, attorneys and other professionals. If any such acceptance occurs prior to Construction Manager and Architect's recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work and Owner shall be entitled to an appropriate decrease in the Contract Price to account for such costs and damages. If the acceptance occurs after such recommendation of final payment, such costs and damages shall be paid by Contractor and its surety to Owner. The acceptance of nonconforming Work by the Owner shall be by written Change Order, signed by the Owner's authorized representative. No person has authority to accept nonconforming work except pursuant to such written Change Order.
12.1 Warranty. Contractor warrants and guarantees to Owner and Engineer that all Work will be performed, supplied, furnished and installed, and that the Work will be performed in strict accordance with the Contract Documents and will not be Defective. Notice of all Work determined or suspected to be Defective or not in conformity with the Contract Documents shall be given to Contractor within a reasonable time after observance thereof.
12.2 Access to Work. Owner, Engineer and their respective representatives, and all governmental agencies with jurisdictional interests in respect of the Work or the activities of Contractor or its subcontractors shall be afforded complete and unhindered access to the Work for their observation, inspecting and testing. Contractor shall provide proper and safe conditions for such access and advise them of Contractor’s site safety procedures and programs so that they may comply therewith as applicable.
12.3 Tests and Inspections. Contractor shall give Engineer timely notice of readiness of the Work for all required inspections, tests or approvals. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) to specifically be inspected, tested or approved, Contractor shall assume full responsibility therefore, pay all costs in connection therewith and furnish Engineer the required certificates of inspection, testing or approval. Contractor shall also be responsible for and shall pay all costs in connection with Owner’s or Engineer's acceptance of materials or equipment proposed to be incorporated in the Work, or of materials or equipment submitted for approval prior to Contractor's purchase thereof for incorporation in the Work. The cost of all other inspections, tests and approvals which are required by Contract Documents shall be paid by Owner except as otherwise specified. All inspections, tests or approvals other than those required by Laws or Regulations of any public body having jurisdiction shall be performed by organizations acceptable to Owner and Contractor or by Engineer if so specified. Neither observations by Engineer nor inspections, tests or approvals by others shall relieve Contractor from Contractor's obligations to perform the Work in accordance with the Contract Documents.
12.4 Uncovering Work. If any Work is covered contrary to written request of Engineer, it must, if requested by Engineer, be uncovered for Engineer's observation and replaced at Contractor’s expense. If any Work (including the work of others) that is to be inspected, tested or approved is covered or reasonable access thereto is impaired without written concurrence of Engineer, it must, if requested by Owner or Engineer, be uncovered or access thereto open for observation. Such uncovering shall be at Contractor’s expense unless Contractor has given Engineer timely notice of Contractor’s intention to cover such Work and Engineer has not acted with reasonable promptness in response to such notice. If Engineer considers it necessary or advisable that covered Work be observed by Engineer or inspected or tested by others, Contractor, at Engineer’s request, shall uncover, expose or otherwise make available for observation, inspection or testing as Engineer may require, that portion of the Work in question, furnishing all necessary labor, material and equipment. If it is found that such Work is Defective, Contractor shall bear all direct, indirect and consequential costs of such uncovering, exposure, observation, inspection and testing and of satisfactory reconstruction, (including, but not limited to, fees and charges of engineers, architects, attorneys and other professionals) and Owner shall be entitled to an appropriate decrease in the Contract Price by Change Order or Written Agreement. If, however, such Work is not found to be Defective, Contractor shall be allowed an increase in the Contract Price or an extension of the Contract Time, or both, directly attributable to such uncovering, exposure, observation, inspection, testing and reconstruction; and, if the parties are unable to agree as to the amount or extent thereof, Contractor may make a claim therefore as provided in Articles 10 and 11.
12.5 Owner May Stop the Work. If the Work is determined by Owner or Engineer to be Defective, or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to furnish or perform the Work in such a way that the completed Work will conform to the Contract Documents, Owner may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of Owner to stop the Work shall not give rise to any duty on the part of Owner to exercise this right for the benefit of Contractor or any other party.
12.6 Pre-Completion Correction or Removal of Defective Work. If required by Owner or Engineer prior to Substantial Completion, Contractor shall promptly, as directed, either correct all Defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by Owner or Engineer, remove it from the site and replace it with non-Defective Work. Contractor shall bear all direct and consequential costs of such correction or removal, made necessary thereby, including but not limited to fees and charges of engineers, architects, attorneys and other professionals.
12.7 Post-Completion Correction Period. Except as otherwise required by the Contract Documents or provided by any special warranties furnished there under, Contractor shall promptly and properly repair, replace, restore or rebuild, as Owner determines, any finished Work in respect of which defects of materials or workmanship may appear or as to which damage may occur because of such defects during the following periods: (i) for defects in materials, a period of three (3) calendar years commencing on the date of Substantial Completion, and (ii) for defects in workmanship, a period of three (3) calendar years commencing on the date of Final Acceptance.
12.7.1 In circumstances where Owner determines that a defect does not involve an imminent threat to persons, property or Owner’s ability to comply with governmental orders, laws or regulations, Owner shall give Contractor written notice of such defect. Contractor shall, at its sole cost and within seven (7) calendar days after receipt of Owner’s written notice, commence the repair, replacement, restoration or rebuilding of the damaged or Defective Work using his own personnel or those of a third party, and shall diligently and without interruption complete all such required corrective action within a reasonable time.
12.7.2 In circumstances where Owner determines that a defect does involve an imminent threat to persons, property or Owners ability to comply with governmental orders, laws or regulations, Owner may, without notice to Contractor, immediately take such action as Owner deems necessary to effectuate the repair, replacement, restoration or rebuilding of any damaged or Defective Work or the protection and preservation of other Work or property threatened thereby. As soon as practicable thereafter, Owner shall notify or otherwise afford Contractor a reasonable opportunity to investigate and continue or complete corrective action as required, if any. If Contractor fails to commence and continue required corrective action in a prompt and timely manner, Owner may complete the repair, replacement, restoration or rebuilding of the damaged or Defective Work using its own personnel or those of a third party.
12.7.3 In all circumstances, Contractor and its surety shall be liable for any and all costs and damages sustained by Owner in respect of any such defect.
12.7.4 Nothing contained in this Section shall be construed to establish a period of limitation with respect to other obligations of Contractor under the Contract Documents, including, without limitation, Contractor's obligations under Warranties. Establishment of time periods in this Section relates only to the specific obligation of Contractor to correct the Work and has no relationship to the time within which proceedings may be commenced to establish or enforce Contractor’s liability with respect to obligations other than specifically to correct defects in the Work as prescribed by this Section.
12.7.5 If Contractor does not promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the defective Work corrected or the rejected Work removed and replaced, and all claims, costs, losses and damages caused by or resulting from such removal and replacement (including but not limited to all costs of repair or replacement of work of others and attorneys’ fees) will be paid by Contractor.
12.7.6 Where defective Work (and damage to other Work resulting therefrom) has been corrected, removed or replaced under this paragraph 13.7, the correction period hereunder with respect to such Work will be extended for an additional period of one (1) year after such correction or removal and replacement has been satisfactorily completed. If the defective work is completed or repaired in the third year.
12.8 Option To Accept Defective Work. Instead of requiring correction or removal and replacement of Defective Work, Owner (and, prior to Engineer’s recommendation of final payment) may elect to accept such Work in the condition as provided. Contractor shall bear all direct, indirect and consequential costs attributable to Owner’s evaluation of and determination to accept such Defective Work, to include, but not be limited to, fees and charges of engineers, architects, attorneys and other professionals. If any such acceptance occurs prior to Engineer's recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and Owner shall be entitled to an appropriate decrease in the Contract Price to account for such costs and damages. If the acceptance occurs after such recommendation of final payment, such costs and damages shall be paid by Contractor and its surety to Owner.
12.9 Owner May Correct Defective Work. If Contractor fails within seven (7) days after written notice from Engineer to correct Defective Work or to remove and replace rejected Work as provided by Section 12.6, or if Contractor fails in any respect to perform the Work in accordance with the Contract Documents or if Contractor fails to comply with any other provision of the Contract Documents, Owner may, after seven (7) days written notice to Contractor, correct and remedy any such deficiency, and may exclude Contractor from all or part of the site, take possession of all or part of the Work, suspend Contractor’s services related thereto, and take possession of Contractor’s tools, appliances, construction equipment and machinery at the site and incorporate in the Work all materials and equipment stored at the site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner, Engineer, their respective representatives and other contractors full and unhindered access to the site to enable Owner to exercise the rights and remedies under this Section. All claims costs, losses and damages, including attorneys’ fees, incurred or sustained by Owner in exercising such rights and remedies will be charged against Contractor and a Change Order or Written Agreement will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work. Such direct, indirect and consequential costs shall include, but not be limited to, fees and charges of engineers, architects, attorneys and other professionals, all court and arbitration costs and all costs of repair and replacement of work or property of Owner or others destroyed or damaged by correction, removal or replacement of Contractor’s Defective Work Contractor shall not be allowed an extension of the Contract Time because of any delay or hindrance in performance of the Work. attributable to the exercise by Owner of Owner’s rights and remedies hereunder.
13.1 Schedule of Values. Contractor shall provide Engineer with a Schedule of Values as required by Section 2.7. The Schedule of Values will serve as a basis of progress payments during construction.
13.2 Basis For Payments. Payment for the Work is based upon a lump sum and/or unit prices as established by the Agreement. Subject to the limitations and conditions provided elsewhere in these General Conditions or in other Contract Documents, progress payments for lump sum items shall be based upon percentage of completion at the time of request for such payments as determined or approved by Engineer while progress payments for unit price Contract Items shall be determined by Engineer based upon approved estimated quantities of such items completed and in place. The method for calculating estimated quantities shall be based upon reasonable engineering methods for such estimates. If a unit price for a Contract Item includes compensation for successful testing of Work or for finish grading, cleanup or other surface or site restoration as part of such item, Owner may at its sole option deduct from payments and withhold (i) up to fifteen percent (15%) of the unit price for Work installed but not successfully tested, and (ii) up to ten percent (10%) of the unit price for Work installed but as to which finish grading, cleanup or other surface or site restoration has not been completed which sums shall be in addition to retainage and other amounts withheld by Owner as permitted by the Contract Documents. Such sums shall be released to Contractor upon satisfactory completion of testing or restoration, as applicable.
13.3 Stored Materials and Equipment. Payments for materials or equipment not incorporated into the Work, but delivered and suitably stored at the site, or, if provided by the Contract Documents or agreed upon in writing, at some other location off of the site, shall be conditioned upon compliance by Contractor with procedures satisfactory to Owner to establish Owner’s title to such materials and equipment or otherwise protect the Owner’s interest and shall include applicable insurance, storage and transportation to the site. Payments for stored materials or equipment may not exceed one hundred percent (100%) less retainage of the net value of such stored material or equipment.
13.4 Specially Manufactured Items. If payment for work on undelivered specifically manufactured items is permitted by the Contract Documents or by Owner’s written approval, such payment shall be conditioned upon submission by Contractor of bills of sale, invoices and other documentation establishing in favor of Owner a valid security interest in the items and establishing or certifying that the items are covered by appropriate Insurance and other arrangements to protect the Owner's interest therein, all of which will be satisfactory to Owner. The Owner may further condition such payment upon Engineer’s observation of the progress of such items, and in such case Contractor shall provide transportation and reasonable lodging and other appropriate expenses for a representative of Owner or Engineer to travel to the place of manufacture of such equipment or material to conduct such observation.
13.5 Retainage. Owner shall withhold retainage in the amount of ten percent (10%) of each Progress Payment until the Work or designated portion thereof is fifty percent (50%) complete. Thereafter, no further retention under this Section shall be made, provided that Contractor is making satisfactory progress and there is no specific cause for greater withholding. If required by governing statutes, such retainage shall be deposited into an interest bearing escrow account pursuant to the terms of a written Escrow Agreement executed in accordance with such statutes, and upon such form as approved by Owner. Upon issuance and Owner's execution of a Certificate of Substantial Completion, Owner may reduce the retained amount to not less than two hundred percent (200%) of the cost of the Work remaining to be completed, corrected or accepted. Retainage may not be reduced until Contractor provides Owner with complete and legally effective releases or waivers of all claims or liens arising out of or filed in connection with the Work, which instruments shall be upon such forms as approved by Owner. In lieu thereof and as approved by Owner, Contractor may furnish receipts or releases in full; an affidavit of Contractor that the releases and receipts include all labor, services, material, and equipment for which a claim or lien could be filed, and that all payrolls, material work equipment bills, and other indebtedness connected with the Work for which Owner or his property might in any way be responsible have been paid or otherwise satisfied; and consent of the Surety, if any, to final payment. If any Subcontractor, manufacturer, fabricator, supplier or distributor fails to furnish a release or receipt in full, Contractor may furnish a Bond or other collateral satisfactory to Owner to indemnify Owner against any claim or lien.
13.6 Applications for Progress Payment. At least twenty (20) days before each Progress Payment is scheduled (but not more often than once a month), Contractor shall submit to Engineer for review a properly completed and signed Application for Payment upon such form as Owner may prescribe, together with such supporting documentation as Owner may prescribe under the Contract Documents. The submission of any request for progress payment shall be deemed a waiver and release by Contractor of all liens and claims with respect to the Work and period to which such Progress Payment request pertains except as specifically reserved and noted on such request. The second and each subsequent Application for Progress Payment shall include an affidavit from Contractor stating that all previous Progress Payments received on account of the Work have been applied to discharge in full all of Contractor’s obligations in respect of Work covered by prior Applications. Owner or Engineer may reject Contractor's Application for Progress Payment if Contractor fails to submit updated progress schedules as provided in Section 2.7.
13.7 Payroll Reports. Contractor's Application for Payment shall be accompanied by a payroll report by Contractor and each of its Subcontractors for the pay period covered by the application. The report shall state, as to each employee, his/her name, address and social security number, work classification, hours worked, rate of pay, itemized deductions, gross amount earned, net pay and fringe benefit information. This report shall be provided either on Federal Form WH-347 for reporting prevailing wages under the Davis Bacon Act, or otherwise by submitting the payroll information in Contractor’s format along with Federal Form WH-348 Statement of Compliance under the Davis Bacon Act.
13.8 Contractor’s Warranty of Title. Contractor warrants and guarantees that title to all Work, materials and equipment covered by any Application for Payment, whether incorporated in the project or not, will pass to Owner no later than the time of payment free and clear of all claims and liens.
13.9 Action Upon Applications for Payment. Engineer will, within five (5) days after receipt of each Application for Payment, either (i) indicate in writing a recommendation of payment and present the Application to Owner, or (ii) return the Application to Contractor indicating in writing Engineer’s reasons for refusing to recommend payment. In the latter case, Contractor may make the necessary corrections and resubmit the Application to Owner, with notice that the deficiencies noted by Engineer have been corrected. Payments to Contractor shall not be due until the expiration of thirty-five (35) days from the date of Owner's approval of Engineer's recommendation of payment. Engineer may refuse to recommend the whole or any part of any payment if, in Engineer’s opinion, it would be incorrect to make such representations to Owner. Engineer may also refuse to recommend any such payment or, because of subsequently discovered evidence or the results of subsequent inspections or tests, nullify any such payment previously recommended, to such extent as may be necessary in Engineer's opinion to protect Owner from loss because (i) the Work is Defective, or completed Work has been damaged requiring correction or replacement, (ii) the Contract Price has been reduced by Written Amendment or Change Order, (iii) Owner has suffered a loss as provided in Section 6.24 or has been required to correct Defective Work or complete Work in accordance with Section 12.9, or (iv) of Engineer’s actual knowledge of the occurrence of any of the events enumerated in Sections 14.2. Owner may refuse to make payment of the full amount recommended by Engineer because claims have been made against Owner on account of Contractor’s performance or furnishing of the Work, or claims have been filed in connection with the Work, or there are other items entitling Owner to a set-off against the amount recommended, but Owner must give Contractor immediate written notice (with a copy to Engineer) stating the reasons for such action.
13.10 Substantial Completion. When Contractor considers the entire Work ready for its intended use Contractor shall, in writing to Owner and Engineer, request the issuance of a Certificate of Substantial Completion. Within a reasonable time thereafter, Engineer shall respond to Contractor by either (a) scheduling an inspection of the Work by Owner, Engineer and Contractor to determine the status of completion or (b) notifying Contractor in writing that the Work has been determined by Owner or Engineer not to be substantially complete and explaining the basis therefore. If, after such inspection, Owner and Engineer conclude that the Work is not substantially complete, Engineer will, within fourteen (14) days after such inspection, notify Contractor in writing, stating basis therefore. If, after the inspection, Owner and Engineer consider the Work substantially complete, Engineer shall prepare and deliver to Owner a recommended Certificate of Substantial Completion, which shall fix the date of Substantial Completion, and address the respective responsibilities of Owner and Contractor with respect to security, operation, safety, maintenance, heat, utilities, insurance and warranties. The Certificate, as recommended by Engineer or as approved by Owner, may have attached a list of items to be completed or corrected prior to final payment and may state any additional issues or reservations to remain unaffected by substantial completion. The certificate of Substantial Completion, as accepted and approved by Owner, will be submitted to Contractor for acceptance, which acceptance shall be deemed effective, and Contractor shall become unconditionally bound to the terms thereof, upon (i) Contractors execution of the certificate, or (ii) Contractor's failure to provide written notice objecting to the terms of such certificate within five (5) days after receipt thereof.
13.11 Site Access Upon Substantial Completion. Owner shall have the right, but not the obligation, to exclude Contractor from the site of the Work after the date of Substantial Completion, but Owner shall allow Contractor reasonable access to the site to complete or correct items of Work or to fulfill other obligations as provided by the Certificate of Substantial Completion.
13.12 Partial Utilization and Occupancy. Use or occupancy by Owner of portions of the Work may be accomplished prior to Substantial Completion of all the Work upon determination by Owner in consultation with Engineer that any such portion constitutes a separately functioning and usable part of the Work that can be used by Owner without causing substantial interference with Contractor's performance of the remainder of the Work, subject to the following:
13.12.1 Owner, at any time may give written notice to Contractor of Owner’s intent to use or occupy any part of the Work, which Owner believes to be ready for its intended use and substantially complete. If Contractor agrees, Contractor will certify to Owner and Engineer that said part of the Work is substantially complete and request Engineer to issue a Certificate of Partial Substantial Completion for that part of the Work. Contractor, at any time, may notify Owner and Engineer in writing that Contractor considers any such part of the Work ready for its intended use and substantially complete and request Engineer to issue a Certificate of Partial Substantial Completion for that part of the Work. The provisions and procedures set forth in Sections 13.10 and 13.11 shall govern inspections and recommendations concerning partial substantial completion and certification thereof.
13.12.2 Owner may, at any time, give written notice to Contractor of Owner's intent to use or occupy any part of the Work, which is not substantially complete. Within a reasonable time thereafter Owner, Contractor and Engineer shall make an inspection of that part of the Work to determine its status of completion and shall prepare a list of the items remaining to be completed or corrected thereon before final payment. Upon failure of the parties to agree upon such list, Engineer will promptly finalize the list and deliver same to Owner and Contractor together with a written determination as to the division of responsibilities pending final payment between Owner and Contractor with respect to security, operations, safety, maintenance, utilities, insurance, warranties and guarantees for that part of the Work. Such list and determination will become binding upon Owner and Contractor except as otherwise agreed in writing between them. During the period of Owner’s use or occupancy of such part of the Work, Owner shall afford Contractor reasonable access and opportunity to complete or correct items on said list and to complete other related Work.
13.12.3 No occupancy or separate operation of part of the Work will be accomplished prior to compliance with the requirements of Section 5.9 with respect to property insurance.
13.13 Final Inspection. Upon written notice from Contractor that the entire Work or an agreed upon portion thereof is complete, Engineer will make a final inspection with Owner and Contractor and will notify Contractor in writing of all particulars in which this inspection reveals that the Work is incomplete or Defective. Contractor shall immediately take such measures as are necessary to complete and remedy such Work to the satisfaction of Owner and Engineer. Upon written notice from Contractor that all Work, which was incomplete or defective has been completed or remedied, Engineer and Owner will make an additional inspection to verify the work performed. If it is determined that the Work is still incomplete or defective, Contractor shall bear all direct, indirect and consequential costs of re-inspecting said Work (including, but not limited to, fees and charges of engineers, architects, attorneys, and other professionals) and Owner shall be entitled to an appropriate decrease in the Contract Price by Change Order or written agreement.
13.14 Final Application for Payment. After Contractor has completed the Work and all corrections as provided elsewhere in this Article and delivered all maintenance and operating instructions, schedules, guarantees, bonds, certificates of inspection, marked-up record documents (as provided in Section 6.19) and all other documents as required by the Contract Documents, and after Engineer has indicated that the Work is acceptable (subject to the provisions of Section 13.16), Contractor may make application for Final Payment which, except as otherwise provided in this Article, shall be subject to the procedures and requirements in respect of progress payments. The Final Application for Payment shall be accompanied by complete and legally effective releases or waivers by all subcontractors and material suppliers from all claims or liens arising out of or filed or which could otherwise be filed in connection with the Work. In lieu thereof and as approved by Owner, Contractor may furnish: receipts or releases in full; an affidavit from Contractor that the releases and receipts include all labor, services, material and equipment for which a claim or lien could be filed, and that all payrolls, material and equipment bills, and other indebtedness connected with the Work for which Owner, contract funds or Owner's property might in any way be responsible have been paid or otherwise satisfied; and consent of the Surety to final payment. If any Subcontractor or Supplier fails to furnish a release or receipt in full, Contractor may, at Owner's option, furnish a Bond or other collateral satisfactory to indemnify Owner against any claim or lien. Contractor's Application for Final Payment shall be accompanied by a list of all Subcontractors involved in the project, and the amount in dollars paid to each Subcontractor. The list shall identify MBEs and WBEs and shall include the final Contract Price for each.
13.15 Final Payment and Acceptance. If, on the basis of Engineer’s observation of the Work during construction and final inspection, and Engineer’s review of the Final Application for Payment and accompanying documentation, all as required by the Contract Documents, Owner is satisfied that the Work has been completed and Contractor’s other obligations under the Contract Documents have been fulfilled, Engineer will, within ten (10) days after receipt of the Final Application of Payment, indicate in writing Engineer’s recommendation of payment and present the Application to Owner for payment. Otherwise, Engineer will return the Application to Contractor, indicating in writing the reasons for refusing to recommend Final Payment, in which case Contractor shall make the necessary corrections and resubmit the Application. If the application and accompanying documentation are approved by Owner as to form and substance, Owner shall pay Contractor the amount recommended by Engineer.
13.16 Delayed Final Completion. If, through no fault of Contractor, final completion of the Work is significantly delayed and if Engineer so confirms, Owner will, upon receipt of Contractor’s Final Application for Payment and recommendation of Engineer, and without terminating the Agreement, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance to be held by Owner for Work not fully completed or corrected is less than the retainage stipulated in the Agreement, and if Bonds have been furnished as required in Section 5.1, the written consent of the Surety to the payment of the balance due for the portion of the Work fully completed and accepted shall be submitted by Contractor to Engineer with the Application for such payment. Such payment will be made under the terms and conditions governing Final Payment, except that it shall not constitute a waiver of claims.
13.17 Contractor’s Continuing Obligations. Except as otherwise expressly provided to the contrary by the Contract Documents, Contractor's duty to perform and complete the Work and to fulfill other obligations in accordance with the Contract Documents shall be absolute. Neither recommendation of any Progress Payment or Final Payment by Engineer, nor approval or acceptance thereof by Owner, nor the issuance of a Certificate of Substantial Completion, nor any payment by Owner to Contractor under the Contract Documents, nor any use or occupancy of the Work or any part thereof by Owner, nor any act of acceptance by Owner nor any failure to do so, nor any review and approval of a Shop Drawing or sample submission, nor any activities by Contractor or Owner in correction of Defective Work will constitute an acceptance of Work not in accordance with the Contract Documents or a release or waiver of Contractor’s obligations under the Contract Documents or of Owner’s rights and remedies there under.
13.18 Waiver of Claims By Final Payment. The making and acceptance of Final Payment shall constitute a waiver of all claims by Contractor against Owner except (i) claims previously made in writing by either party and remaining unsettled as of the date of final payment, (ii) claims by Owner attributable to Defective Work or prior corrective work, appearing after final inspection or from failure to comply with the Contract Documents, (iii) Owner claims and other rights arising under the terms of any general or special warranties or guarantees specified by the Contract Documents or arising there under, and (iv) Owner claims and other rights in respect of Contractor’s and its surety's continuing obligations under Laws and Regulations or the Contract Documents;
TESTS AND INSPECTIONS
13.1 If any portion of the Work to be inspected, tested or approved under the observation of Architect, with the assistance of Construction Manager, is not ready for such inspections, tests or approvals at the time designed in Contractor's notice to Construction Manager and Architect, Contractor shall bear all costs for Construction Manager and Architect's additional services made necessary by such delay.
13.1.1 Certificates of inspection or testing shall indicate if that portion of the Work inspected or tested meets the minimum requirements of the standard or regulation specified. Certificates shall include the name of Contractor, name of Project and location and date inspection or test was conducted.
13.1.2 Regardless of whether Owner, Construction Manager or Architect request any testing or attend any test or inspection, Contractor shall not be relieved of or excused from its duties and obligations to perform its Work in conformance with the terms and conditions of the Contract and to meet the performance and quality standards set forth herein and elsewhere in the Contract Documents.
CLOSEOUT
13.2 Contractor, through qualified individuals, shall adequately instruct designated employees of Owner in the operation and care of all equipment installed hereunder. Contractor shall also furnish and deliver to Construction Manager for submittal to Architect within forty-five (45) days of the shop drawing approval date, four (4) complete sets for permanent files, identified in accordance with the section headed "Working Drawings" hereof, of instructions, technical bulletins and any other printed matter, such as diagrams, prints or drawings, containing full information required for the proper operation, maintenance and repair of the equipment installed and the ordering of spare parts, except for equipment that may be furnished by Owner.
13.2.1 The Contract Price shall include the costs of furnishing competent and experienced engineers, superintendents or other technically qualified representatives who shall represent equipment manufacturers and shall assist Contractor, when required, to install, adjust, test and place in operation equipment in conformity with the Contract Documents. When equipment is ready for permanent operation, such engineers, superintendents or representatives shall make all adjustments and tests required by Owner, Construction Manager and Architect to prove that such equipment is in proper and satisfactory operating condition, and shall instruct such personnel as may be designated by Owner in the proper operation and maintenance of such equipment.
OWNER AUDIT
13.3 Contractor shall maintain all pertinent accounting records of its Project costs on a generally recognized accounting basis, including all supporting vouchers, canceled checks, subcontracts, purchase orders, time records, project cost reports and similar data as required to substantiate an expenditure, including but not limited to the following items: (a) costs incurred and payments for labor and material, including supervision and equipment (whether rented or owned); (b) costs incurred and payments to Subcontractors and suppliers and vendors; (c) changes in the Work; (d) Claims submitted by Contractor; (e) suspension of the Work and Contractor operations; (f) Project closeout; (g) termination of the Contract; and (h) whenever Contractor's costs and expenses are subject to audit under the Contract Documents. Said accounting records shall be subject to review by the Owner, and said records shall be available to Owner or his authorized representative at mutually convenient times.
TERMINATION BY THE OWNER FOR CAUSE
14.1 The Owner may terminate the Contract if the Contractor
.1 Fails in any respect to prosecute the Work with promptness, diligence and in accordance with the Contract Documents;
.2 Refuses or fails to supply enough properly skilled consultants, contractors, subcontractors or otherwise fails or neglects to supply an adequate quality or quantity of workers, supervision, materials, equipment, services or facilities;
.3 Fails to make payment for services, materials or labor in accordance with their respective agreements with the Design-Builder;
Repeatedly disregards applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of a public authority;
.5 ls adjudged a bankrupt or insolvent, or makes a general assignment for the benefit of creditors, or Contractor or a third party files a petition to take advantage of any debtor's act or to reorganize under the bankruptcy or similar laws, or a trustee or receiver is appointed for Contractor or for any of Contractor's property on account of the Contractor's insolvency, and Contractor or its successor in interest does not provide adequate assurance of future performance in accordance with the Contract Documents within ten (10) days of receipt of a written request by Owner for such assurance;
.6 Fails or refuses to perform or prosecute the Work or any separate part or element thereof in accordance with the Contract Documents and with such diligence as will insure its completion within the Contract Time;
.7 Fails to adhere to the original and any revised progress schedules established under the Contract Documents;
.8 Performs any Work which is rejected as defective and fails or neglects to correct any such Work;
.9 Abandons or suspends performance of any of the Work, or removes from the site materials or equipment reasonably required to perform and complete the Work, without Owner's written consent, directive or approval;
.10 Fails in the performance of any agreement or obligation on its part herein contained or provided by the Contract Documents;
.11 Delays the work of Owner, other contractors or other third parties or otherwise fails or neglects to supply an adequate quality or quantity of workers, supervision, materials, equipment, services or facilities or is otherwise guilty of material breach of a provision of the Contract Documents.
.12 If any of the above stated events or conditions of default shall exist under any uncompleted separate or additional Contract between Contractor and Owner, whether for this Project or any other project.
14.1.1 When any of the above reasons exist, then Owner may: (a) provide such materials, supplies, equipment and labor as may be necessary to complete said Work, or any portion thereof, on a regular or overtime basis, and take such other steps as Owner may, in its discretion, deem advisable or necessary to correct or address such default or failure, pay for same and deduct the Price so paid from any money then or thereafter due Contractor; (b) terminate the employment of Contractor on the Project upon the grounds of Contractor's default, whereupon Owner shall have the right in addition to such other rights and remedies as may be afforded to Owner under the Contract, the Contract Documents or by law, to enter upon the premises and take possession of Contractor's materials, tools, appliances, scaffolding, construction equipment and machinery of any kind whatsoever at the site, and use or authorize third party contractors to use the same for completing or correcting the Work, and to employ or contract with one or more other persons or use its own forces to finish the Work and/or to correct or take other action to bring the Work into conformity with the requirements of the Contract Documents; or (c) by notice addressed to Contractor's surety, require surety to enter upon the premises and take possession, for use in completing the Work, of all Contractor's materials, supplies, tools, appliances, scaffolding, construction equipment and machinery of any kind whatsoever at the site, and to complete the Work, or to have the same completed by others, all in accordance with the Contract Documents. Regardless of whether Owner elects to proceed under (a), (b) or (c) hereof, Owner shall not be liable to Contractor for any further payments under the Contract until final payment is due and then only if and to the extent that the unpaid balance of the amount to be paid under the Contract exceeds any costs and damages as herein provided.
14.1.2 In the event that Owner shall elect to proceed as provided under 14.1.1 (a), (b) or (c) above, Contractor shall not be entitled to receive any payment under the Contract which might otherwise be due Contractor until the Work shall be finished and payment in full therefore shall be made by Owner. At that time, if the unpaid balance of the amount to be paid under the Contract shall exceed the expenses incurred by Owner in completing and correcting Contractor's Work, plus any costs and damages sustained by Owner by reason of such failure or lack of performance by Contractor, including but not limited to delay damages, attorney's fees, costs of administration, and a reasonable allowance for overhead and profit, such excess Contract balance shall be paid by Owner to Contractor, or to Contractor's surety if Owner proceeds to complete the work underif 14.1.1
(c). However, if Owner's expenses, costs and damages shall exceed such unpaid balance, Contractor and Surety shall be liable to Owner for such deficiency. Contractor or its surety shall pay Owner such excess expenses, costs and damages within thirty (30) days after submission to Contractor or surety of Owner's invoice.
14.1.3 In the event that Owner shall elect to proceed as provided under 14.1.1 (a), (b) or (c) above, Owner may exclude Contractor from the site and take possession of the Work and of all Contractor's tools, appliances, construction equipment and machinery at the site and use or authorize separate contractors to use the same for completing or correcting the Work, and incorporate in the Work all materials and equipment stored at the site or for which Owner has paid Contractor but which are stored elsewhere. Owner and completion contractors shall not be liable to Contractor for the cost or value of any such property used or incorporated in the course of such completion or correction.
14.1.4 In the event that Owner shall elect to proceed as provided under 4.1.1 (a), (b) or (c) above, Owner may, by any means it may deem expedient and appropriate under the circumstances, complete and correct or contract with one or more separate contractors for completion and correction of the Work. Owner shall not be required to accept the lowest price or the shortest duration proposed for such completion or corrective Work. In the event that Owner takes RFP Responses or bids for completion or corrective Work, Contractor shall not be eligible for the award of any contracts resulting therefrom.
14.1.5 As used in this Paragraph 14.1, the costs of correcting, completing or finishing the Work shall mean any and all direct, indirect and consequential costs and expenses paid or incurred by Owner for or incidental to completion of the Work or correction of previous Work performed by Contractor, whether by Owner's own forces or by one or more separate contractors engaged by Owner for such purposes, and shall include but not be limited to all fees and charges of Construction Manager, Architect, engineers, consultants, attorneys and other professionals, plus court costs, arbitration and arbitrator fees and charges.
14.1.6 The occurrence of any labor dispute, work stoppage, strike (including sympathetic strike), slow down, picketing, or any other activity directly or indirectly attributable to Contractor's employees, either caused by them or resulting from their employment on the Project which interrupts, interferes with or delays the Work of Contractor or other separate contractors shall constitute a breach of the Contract. In such event, Owner shall have the right, in addition to any other rights and remedies provided by this Contract or the Contract Documents, or by law, following three (3) days' written notice to Contractor, to terminate this Contract or any part thereof for all or any portion of the Work, and for purpose of completing the Work, to enter upon the premises and take possession in the same manner, to the same extent, and upon the same terms and conditions as set forth elsewhere herein.
14.1.7 If the unpaid balance of the Contract Price exceeds costs of finishing the Work and other damages incurred by the Owner and not expressly waived, including any costs and damages sustained by Owner by reason of such failure or lack of performance by Contractor, including but not limited to delay damages, attorney fees and costs of administration, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, Contractor and its surety shall pay the difference to the Owner. The obligation for such payments shall survive termination of the Contract.
TERMINATION BY THE OWNER FOR CONVENIENCE
14.2 The Owner may, at any time, terminate the Contract for the Owner's convenience and without cause.
14.2.1 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the Contractor shall take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all existing Project agreements, including agreements with the Architect, Consultants, Contractors, and purchase orders, and enter into no further Project agreements and purchase orders.
14.2.2 In case of such termination for the Owner's convenience, the Contractor shall be entitled to receive payment for Work executed, and reasonable costs incurred by reason of such termination, but shall not be entitled to any compensation with respect to the Work not executed. Recovery by Contractor of lost anticipated profit, overhead, or other direct, indirect or consequential damages relating to portions of Work not performed under the uncompleted portions of the Contract is hereby specifically excluded. The payment provided by this Paragraph shall constitute Contractor's sole and exclusive remedy in the event of such termination for convivence.
14.2.3 Upon receipt of written notice of Owner's termination for convenience, Contractor shall immediately discontinue Work and follow all other instructions of Owner as stated in such notice, and shall take all other action as may be required or appropriate to minimize costs, damages and expenses in consequence of the termination. Furthermore, Contractor shall deliver to Owner all survey notes, drawings, specifications and estimates completed or partially completed and these shall become the property of Owner.
14.2.4 If the Contract is terminated for the convenience of Owner, or if terminated upon Owner's belief that Contractor is in default but Contractor is not then in default, then Owner shall pay to Contractor an amount limited to the unpaid Contract value of authorized and approved Work performed by Contractor prior to notice of termination, adjusted for amounts and damages, if any, for which Contractor is liable or which the Owner is entitled to retain and withhold pursuant to the terms of the Contract. Recovery by Contractor of lost anticipated profit, overhead, or other direct, indirect or consequential damages relating to portions of Work not performed under the uncompleted portions of the Contract are hereby specifically excluded. The payment provided by this Paragraph shall constitute Contractor's sole and exclusive remedy in the event of such termination for convivence.
TERMINATION CONVERSION
14.3 If Owner terminates the Contract for cause pursuant to l4.1 and it subsequently is found or determined in legal proceedings or for any reason that Contractor was not in default or breach of the Contract by failure to perform in accordance with its terms, or that such failure to perform was caused through the fault of Owner, or that such termination was wrongful as against Contractor, or that adequate grounds did not exist to support the termination or such termination was not otherwise proper, then the termination shall be deemed to be a termination for the convenience of Owner, whereupon the rights and obligations of the parties shall be determined and governed in accordance with the provisions 14.2. A determination of default made by Owner in good faith under the belief that a default exists under the terms hereof, shall be conclusive on the fact of such default and on Owner's right to proceed as herein provided.
CONTRACTOR INSOLVENCY
14.4 If Contractor files a petition or proceedings under the Bankruptcy Code, the Contract shall terminate (a) if Contractor or Contractor's Bankruptcy Trustee rejects the Contract, (b) if there exists a default hereunder by Contractor at the time of its bankruptcy filing and Contractor or its Trustee is not able or willing to furnish adequate assurance of Contractor's continued performance of its duties and obligations under the Contract, including curing or correcting any and all defaults hereunder, or (c) if Contractor otherwise is unable to comply with the requirements for timely assuming the Contract under the applicable provisions of the Bankruptcy Code. While Owner is waiting on Contractor or its Bankruptcy Trustee to assume or reject the Contract and to provide the required adequate assurances of Contractor's continued ability to perform the Contract, Owner may employ any and remedies hereunder as Owner deems reasonably necessary to assure the timely and continued performance of the Contract in order to maintain the Project Schedule and completion of Owner's obligations under its Contract with Owner, and any and all costs, damages and expenses so incurred by Owner shall be subject to the provisions of Paragraph 14.2 hereof.
RIGHT TO ATTORNEY FEES
14.5 Should Contractor default in any of the provisions of the Contract and should Owner employ an attorney to advise Owner on its rights and remedies under the Contract or to enforce any provision hereof, regardless of whether formal dispute resolution proceedings are undertaken, or to collect damages for breach of the Contract or to recover on any bond required hereunder, Contractor and surety agree to pay Owner its attorney fees expended therein. Wherever in the Contract Contractor agrees to pay expenses incurred by Owner such expenses shall include, but are not limited to, attorney fees incurred by Owner.
14.5.1 With respect to surety's obligations to pay Owner attorney fees as set forth in 14.5, attorney fees and legal costs shall be owed by surety to Owner in addition to the penal amount of the bond should Owner demand or sue for collection more than ninety (90) days after presentation of a claim against the bond.
14.1 Owner May Suspend Work. Owner may, at any time and without cause, suspend the Work or any portion thereof by notice in writing to Contractor and Engineer, which will fix either the date or requisite events for resumption of the Work. Contractor shall resume the Work on the date so fixed. Contractor may make a claim for an extension of the Contract Time on account of such suspension, as provided by and subject to the limitations of Article 11 hereinabove.
14.2 Contractor Default. The Owner may declare Contractor to be in default under the Agreement and may terminate Contractor's right to proceed thereunder if Contractor (i) is adjudged a bankrupt or insolvent, or makes a general assignment for the benefit of creditors, or Contractor or a third party files a petition to take advantage of any debtors act or to reorganize under the bankruptcy or similar laws, or a trustee or receiver is appointed for Contractor or for any of Contractor's property on account of the Contractor’s insolvency, and Contractor or its successor in interest does not provide adequate assurance of future performance in accordance with the Contract Documents within ten (10) days of receipt of a written request by Owner for such assurance; or (ii) admits in writing an inability to pay his debts generally as they become due; or (iii) fails or refuses to perform or prosecute the Work or any separate part or element thereof in accordance with the Contract Documents and with such diligence as will insure its completion within the Contract time, or Contractor fails to complete the Work within such Contract Time; or (iv) performs any Work which is rejected as Defective and fails or neglects to correct any such Work, or (v) fails to supply sufficient skilled workers or suitable materials or equipment; or (vi) fails to adhere to the original and any revised progress schedules established under the Contract Documents; or (vii) fails to make prompt payment to laborers, subcontractors and material suppliers; or (viii) abandons or suspends performance of any of the Work, or removes from the site materials or equipment reasonably required to perform and complete the Work, without Owner's written consent, directive or approval; or (ix) disregards Laws or Regulations or similar requirements and orders of any public body having jurisdiction; or (x) disregards the authority of Owner or Engineer, or (xi) otherwise violates in any material way any provisions or requirements of the Contract Documents.
14.3 Default Termination By Owner. Upon occurrence of any of the events of default provided by Section 14.2, Owner may, after giving Contractor and the Surety seven (7) days written notice, terminate the Agreement and Contractor's right to proceed there under, which termination shall become effective without further notice upon the expiration of such seven (7) day period, unless otherwise rescinded or modified by Owner in writing. The following shall govern in the event of a default termination by Owner as provided by this Section:
14.3.1 Owner may exclude Contractor from the site and take possession of the Work and of all Contractor’s tools, appliances, construction equipment and machinery at the site and use or authorize third party contractors to use the same for completing or correcting the Work, and incorporate in the Work all materials and equipment stored at the site or for which Owner has paid Contractor but which are stored elsewhere. Owner and completion contractors shall not be liable to Contractor for the cost or value of any such property used or incorporated in the course of such completion or correction;
14.3.2 Owner may, by any means it may deem expedient and appropriate under the circumstances, complete and correct or contract with one or more separate contractors for completion and correction of the Work. Owner shall not be required to accept the lowest price or the shortest duration proposed for such completion or corrective Work. In the event that Owner takes Bids for completion or corrective Work, Contractor shall not be eligible for the award of any contracts resulting there from.
14.3.3 Contractor shall not be entitled to receive any further payment until all Work is completed and corrected and the total costs incurred by Owner in respect of such completion and correction have been ascertained.
14.3.4 Contractor and its surety shall be liable for liquidated damages for delayed completion of the Work as provided in the Contract Documents, based upon (i) the agreed dates for substantial and final completion as established by the contract(s) between Owner and the completion contractors, or (ii) the actual dates of substantial and final completion, whichever occurs first;
14.3.5 If the unpaid balance of the Contract Price exceeds the sum of (i) liquidated damages (ii) the Completion Costs as herein defined, (iii) such other damages to which Owner is entitled by reason of Contractor's breach or default under the Agreement or the termination thereof, and (iv) attorney fees incurred by Owner incidental to the enforcement of any rights and remedies against Contractor and its Surety afforded by the Contract Documents, such excess will be paid to Contractor or Surety as appropriate. If such sum exceeds such unpaid balance, Contractor and its surety shall pay the difference to Owner.
14.3.6 As used in this Section, the term “Completion Costs” shall mean any and all direct, indirect and consequential costs and expenses paid or incurred by Owner for or incidental to completion of the Work or correction of previous Work performed by Contractor, whether by Owner’s own forces or by one or more separate contractors engaged by Owner for such purposes, and shall include but not be limited to all fees and charges of engineers, architects, consultants, attorneys and other professionals, plus court costs, arbitration and arbitrator fees and charges.
14.3.7 Termination will not affect any rights or remedies of Owner against Contractor then existing or which may thereafter accrue. Any retention or payment of moneys due Contractor by Owner will not release Contractor from liability.
14.3.8 If it is determined for any reason that Contractor was not in default, the termination shall be deemed a termination for convenience of the Owner, whereupon the rights and obligations of the parties shall be determined and governed in accordance with Section 14.4.
14.4 Termination For Convenience. Upon seven (7) days' written notice to Contractor and Engineer, Owner may, without cause and without prejudice to any other right or remedy of Owner, elect to terminate the Agreement in whole or in part for its convenience. Contractor shall immediately discontinue Work and follow all other instructions of Owner as stated in such notice, and shall take all other action as may be required or appropriate to minimize costs, damages and expenses in consequence of the termination. Furthermore, Contractor shall deliver to Owner all survey notes, drawings, specifications and estimates completed or partially completed and these shall become the property of Owner. Contractor shall not be entitled to payment on account of loss of anticipated profits or revenue or other economic loss associated with any terminated Work. Amounts payable to Contractor shall be limited to the following:
14.4.1 A portion of the Contract Price as fairly allocated to Work executed by Contractor in accordance with the Contract Documents prior to the effective date of termination;
14.4.2 Reasonable expenses sustained by Contractor prior to the effective date of termination in performing services and furnishing labor, materials or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses, which shall not exceed the percentages established in Article 10;
14.4.3 Reasonable costs, losses and damages paid by Contractor in settlement of just claims under terminated contracts with Subcontractors, Suppliers and others.
14.5 Contractor Suspension of Work and Right To Terminate. If, through no act or fault of Contractor, the Work is suspended for a period of more than ninety (90) days by Owner or under an order of court or other public authority, or Owner substantially fails to perform or make payment to Contractor as prescribed by the Contract Documents, Contractor may, upon thirty (30) days written notice to Owner and Engineer, terminate the Agreement and recover from Owner payment for all Work executed and any expense sustained plus reasonable termination expenses.
15.1 Giving Notice. Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have been validly given if delivered in person or by facsimile telephone transmission (FAX) to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice.
15.2 Computation of Time. When any period of time is referred to in the Contract Documents by days, it shall be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction such day shall be omitted from the computation. A “day” and a "calendar day” are defined as twenty-four hours measured from midnight to the next midnight.
15.3 Injury to Persons and Property. Should Owner or Contractor suffer injury or damage to his person or property because of any error, omission or act of the other party or of any of the other party’s employees or agents or others for whose acts the other party is legally liable, claim will be made in writing to the other party within a reasonable time of the first observance of such injury or damage. The provisions of this Section shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or repose.
15.4 Cumulative Duties and Rights. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and not to be construed in any way as a limitation of any rights and remedies available by Laws and Regulations, by special warranty or guarantee or by other provisions of the Contract Documents, and the provisions of this Section shall be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy to which they apply.
15.5 Assignment. Except as provided for in Section 6.8, Contractor may not delegate his duty of performance or assign all or part of his obligations or rights under the Contract Documents without Owner’s prior written consent. Subject to the restrictions of the preceding sentence, the Contract Documents are binding upon Owner and Contractor, their successors or assigns.
15.6 Governing Law. The Contract Documents shall be interpreted in accord with and governed by the laws of the State of Indiana, except for the conflict of laws provisions thereof. If any provision of the Contract Documents is found to be in conflict with those laws, the remaining provisions of the Contract Documents shall remain in effect. Owner and Contractor agree that any litigation associated with or arising from the Agreement shall be filed with a court of competent jurisdiction within Hamilton County, Indiana.
15.7 Indiana Department of Transportation Standard Specifications. All applicable portions of the Indiana Department of Transportation (INDOT) Standard Specifications shall apply to these Contract Documents to the extent not in conflict with the terms thereof. Where the words 'Standard Specifications' along with a reference consisting of a number or number and letter are used, they shall be construed as referring to the Indiana Department of Transportation Standard Specifications and the most recent supplemental specifications issued prior to Bid opening.
15.8 Salvage of Existing Equipment and Materials. Unless otherwise provided all existing equipment and materials as listed in the Technical Specifications, removed from existing facilities shall remain the property of Owner. Such equipment and materials shall be stored on-site at locations identified by Engineer. All other existing equipment and materials removed from existing facilities shall be the property of Contractor and shall be removed from the site.
15.9 English Language Requirement. All submittals, including, but not limited to, all shop drawings, catalog cuts, manufacturers' recommendations, and assembly and maintenance instructions shall only be written in the English language.
15.10 Trade Practice. In the event of any inconsistencies between the requirements of the Contract Documents and normal practice in the trade, the requirements of the Contract Documents shall control.
15.11 Cross-References. Cross-references in the Contract Documents are not intended as complete lists of related requirements specified elsewhere. The absence of a cross-reference to another section of the Contract Documents should not be deemed or construed to indicate that such other section does not specify related requirements where the two sections, read together, indicate otherwise.
15.12 Accounting Records. Contractor shall maintain proper accounting records for the work to be performed under this Agreement and shall provide an accounting for all charges and expenditures as may be necessary for auditing purposes. All such records shall be subject to examination and inspection by Owner representatives at reasonable hours.
15.13 Steel Products. In accordance with Indiana Code 5-16-8, if steel products are to be utilized or supplied in the performance of any contract or subcontract, only domestic steel products shall be used. Reference is hereby made to such statute for definitions applicable to this Section. Owner may not authorize or make any payment to Contractor unless Owner is satisfied that Contractor has fully complied with this provision.
15.14 Non-Discrimination. Contractor certifies for itself and all its subcontractors compliance with all existing laws of the United States and the State of Indiana prohibiting the discrimination against any employee or applicant for employment or subcontract work in the performance of the Work contemplated by the Agreement with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment or subcontracting because of race, religion, color, sex, handicap, national origin, ancestry, age, disabled veteran status or Vietnam era veteran status. The City of Carmel reserves the right to collect a penalty as provided in IC 5-16-6-1 for any person discriminated against.
15.15 Operating Instructions. Contractor, through qualified individuals, shall adequately instruct designated employees of the Owner in the operation and care of all equipment installed hereunder, except for equipment that may be furnished by the Owner. Contractor shall also furnish and deliver to Engineer within forty-five (45) days of the shop drawing approval date, five (5) complete sets for permanent files, identified in accordance with the section hereof headed “Working Drawings”, of instructions, technical bulletins and any other printed matter, such as diagrams, prints or drawings, containing full information required for the proper operation, maintenance and repair of the equipment installed and the ordering of spare parts, except for equipment that may be furnished by Owner.
15.16 Operation and Maintenance Manual. Contractor shall prepare and submit to Engineer five (5) copies of an Operation and Maintenance (O&M) Manual for all equipment and associated control systems furnished and installed under this Contract, if applicable. When the Work reaches sixty-five (65) to seventy (70) percent completion Contractor shall submit to Engineer for approval two (2) copies of the manual with all specified material that is available at that time. The submittal shall accompany Contractor’s partial payment request for the specified completion. Within thirty (30) days after Engineer's approval of the two-copy submittal Contractor shall furnish to Engineer the five (5) copies of the manual. Appropriate space shall be left in the manual for material not available at the time of submittal. All missing material for the manual shall be submitted prior to the request for final payment.
15.16.1 Each copy of the manual shall be prepared and arranged as follows:
1. One copy of each manufacturer's operation, lubrication and maintenance instructions and spare parts list for all equipment and controls furnished. All equipment operating, lubrication and maintenance instructions and procedures and parts lists shall be furnished on 8 1/2 x 11 inch commercially printed or typed forms. Such forms shall include equipment name, serial number and other identifying references.
2. List of electrical relay settings and control and alarm contact settings.
3. Electrical interconnection wiring diagram for equipment furnished including all control and lighting systems.
15.16.2 Each copy of the manual shall be assembled in one or more binders, each with the title page, typed table of contents, and heavy section dividers with copper reinforced holes and numbered plastic index tabs. Each manual shall be divided into sections paralleling the “Workmanship and Materials” equipment specifications. Binders shall be 3-ring, hard-back Type No. S-43772 as manufactured by Marshall-Jackson Co, Chicago, Illinois, or equal. All loose data shall be punched for binding and composition and printing shall be arranged so that punching does not obliterate any data. The cover and binding edge of each manual shall have the project title and manual title printed thereon, all as furnished and approved by Engineer.
15.16.3 All operating and maintenance material that comes bound by the equipment manufacturer shall be left that way. The appropriate sections of Contractor's O&M Manual shall cross-reference the manufacturers bound manual.
15.16.4 Where more than one (1) binder is required they shall be labeled Vol. 1, Vol. 2, and so on. The table of contents for the entire set, identified by volume number, shall appear in each binder.
15.16.5 The five (5) copies of the manuals and data included therein shall be provided in conformance with the subsection headed "Working Drawings" and, in addition, to the requirements of the Technical Specifications Workmanship and Materials Section. The costs of the Operation and Maintenance Manual shall be included in the lump sum Contract Price and no separate payment will be made therefore. The Operation and Maintenance Manual shall be included as a separate item in Contractor's schedule of values.
15.17 Service of Manufacturer’s Representatives. The Contract Price shall include the costs of furnishing competent and experienced engineers, superintendents or other technically qualified representatives who shall represent equipment manufacturers and shall assist Contractor, when required, to install, adjust, test and place in operation equipment in conformity with the Contract Documents. When equipment is ready for permanent operation, such engineers, superintendents or representatives shall make all adjustments and tests required by Engineer to prove that such equipment is in proper and satisfactory operating condition, and shall instruct such personnel as may be designated by Owner in the proper operation and maintenance of such equipment.
15.18 Water. Contractor shall provide, at its expense, the necessary water supply for Contractor's activities, and shall, if necessary, provide and lay necessary water lines from existing mains to the place where such water service is required, and shall secure all necessary permits and pay for all hookups, meters and taps to water mains or hydrants and for all water used at the established rates.
15.19 Light and Power. Contractor shall provide, at its own expense, temporary lighting and power facilities required for the proper prosecution and inspection of the Work, unless specified otherwise. Contractor shall meter and pay for Contractor’s share of all power utilized.
15.20 Contractor’s Field Office. Contractor shall erect, furnish and maintain a field office with a telephone at the site during the entire period of construction. He or an authorized agent shall be present at this office at all times while his work is in progress. Readily accessible copies of both the Contract Documents and the latest approved Working Drawings shall be kept at this field office.
15.21 Prevention, Control and Abatement of Erosion and Water Pollution. Contractor shall be responsible for prevention, control and abatement of erosion, siltation and water pollution resulting from construction of the project until Final Acceptance of the project.
15.21.1 Contractor shall provide, install, construct and maintain coverings, mulching, sodding, sand bagging, berms, slope drains, sedimentation structures or other devices necessary to meet Owner, State and Federal regulatory agency codes, rules and laws.
15.21.2 Contractor shall take sufficient precautions to prevent pollution of adjacent rivers and streams with fuels, oils, bitumens, or other harmful materials. Also, Contractor shall conduct and schedule operations so as to avoid or otherwise minimize pollution or siltation of the waters.
15.21.3 Storm drainage facilities, both open and closed conduit, serving the construction site shall be protected by the Contractor from pollutants and contaminants. If it is determined that siltation of drainage facilities has resulted due to the project, Engineer will advise Contractor to remove and properly dispose of the deposited material. Should Contractor fail to or elect not to remove the deposits, Owner will provide maintenance cleaning as needed and will charge all costs of such service against the amount of money due or to become due Contractor.
15.21.4 Excavated material shall not be deposited in streams, ditches or impoundments, or in a position close enough thereto to be washed away by high water or runoff.
15.21.5 Contractor shall not disturb lands or waters outside the limits of construction and public rights of way. The location of and methods of operation in all detention areas, borrow pits, material supply pits and disposal areas furnished by Contractor shall meet the approval of Engineer as being such that erosion during and after completion of the Work will not likely result in detrimental siltation or water pollution.
15.21.6 Contractor shall schedule operations such that the area of unprotected erodible earth exposed at any one time is not larger than the minimum area necessary for efficient construction operations; and the duration of exposure of uncompleted construction to the elements shall be as short as practicable.
15.21.7 Clearing and grubbing shall be so scheduled and performed that grading operations can follow immediately thereafter, and grading operations shall be so scheduled and performed that permanent erosion control features can follow immediately thereafter if conditions on the project permit.
15.21.8 The surface areas of unprotected erodible earth exposed by clearing and grubbing, excavation or filling operations shall be kept to a minimum. Immediate erosion or pollution control measures to prevent siltation or contamination of any stream, ditch or other impoundment or to prevent damage to the project or property outside the project limits shall be provided when necessary.
15.22 Air Borne Particulate. Contractor shall comply with Indianapolis Air Pollution Regulation II-4, which is hereby incorporated into this Section by reference. A copy of such regulation will be furnished to Contractor upon request.
15.23 Professional Fees and Court Costs Included. Whenever reference is made to claims, costs, losses or damages recoverable by Owner against Contractor or its surety, such recovery shall include, but not be limited to, all fees and charges of engineers, architects, attorneys and other professionals and all court or arbitration or other dispute resolution costs.
CLAIMS
15.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, payment of money, or other relief with respect to the terms of the Contract. The term "Claim" also includes other disputes and matters in question between Owner and Contractor arising out of or relating to the Contract. The responsibility to substantiate Claims shall rest with the party making the Claim.
15.1.1 Notice of Claims. Claims by either Owner or Contractor must be initiated by written notice to the other party with a copy sent to Construction Manager and Architect. Claims by either party must be initiated within twenty one (21) days after occurrence of the event giving rise to such Claim or within twenty one (21) days after the claimant first recognizes the condition giving rise to the Claim, whichever is later. The failure to give such written notice by Contractor within the twenty-one (21) day time limit allowed shall constitute an irrevocable waiver of the Claim.
15.1.2 Continuing Contract Performance. Pending final resolution of a Claim, except as otherwise agreed in writing, Contractor shall proceed diligently with performance of the Contract and Owner shall continue to make payments in accordance with the Contract Documents.
15.1.3 Claims for Additional Cost. If Contractor wishes to make a Claim for an increase in the Contract Price, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property.
CLAIMS FOR ADDITIONAL TIME
15.1.4 If the Contractor wishes to make a Claim for an increase in the Contract Time, written notice as provided herein shall be given. The Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a continuing delay, only one Claim is necessary. Contractor shall have the burden of substantiating the basis for the Claim and demonstrating the effect of the claimed delay on the Contract Time, and shall furnish Owner, Construction Manager and Architect with documentation relating thereto as Owner may reasonably require. The failure to give such written notice and such claim substantiation within the time limit allowed in l5.1.1 shall constitute an irrevocable waiver of the Claim for Additional Time.
15.1.5 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and had an adverse effect on the scheduled construction.
15.1.6 Claims for Consequential Damages. Contractor waives Claims against Owner for all consequential damages arising out of or relating to the Contract for principal office expenses, including the compensation of personnel stationed there, extended or unabsorbed home office overhead, losses of financing, business and reputation, and for loss of profit, except anticipated profit arising directly from the Work. This waiver is applicable, without limitation, to all consequential damages due to Contractor's termination in accordance with Article 14.
DISPUTE RESOLUTION
15.2 Owner and Contractor are fully committed to working with each other throughout the Project and agree to communicate regularly with each other at all times so as to avoid or minimize disputes or disagreements. If Claims, disputes or disagreements do arise, Owner and Contractor each commit to resolving such disputes or disagreements in an amicable, professional and expeditious manner so as to avoid unnecessary losses, delays and disruptions to the Work.
15.2.1 Owner and Contractor will first attempt to resolve Claims, disputes or disagreements at the field level through discussions between project managers. If a Claim, dispute or disagreement cannot be resolved through discussions between the project managers, upon the request of either party, senior executives from the Owner and Contractor shall meet as soon as conveniently possible, but in no case later than twenty-one (21) days after such a request is made, to attempt to resolve such Claim, dispute or disagreement. If after a meeting of the senior executives, it is determined that the Claim, dispute or disagreement cannot be resolved on terms satisfactory to both parties, the parties shall submit the Claim, dispute or disagreement to non-binding mediation as set forth hereinafter.
MEDIATION
15.3 Any Claim or dispute arising out of or related to the Contract shall be subject to mediation as a condition precedent to litigation by either party. Unless the parties mutually agree otherwise, mediation shall be conducted in accordance with the Indiana Rules for Alternative Dispute Resolution currently in effect.
15.3.1 A request for mediation shall be made in writing and delivered to the other party to the Contract. The request may be made concurrently with the filing of a complaint, in which event mediation shall proceed in advance of the litigation proceedings, which shall be stayed pending mediation for a period of ninety (90) days from the date of filing, unless stayed for a longer period by agreement of the parties or court order.
15.3.2 The Parties, in good faith, shall attempt to agree upon a mediator. If the Parties cannot so agree within ten (10) business days of the other Party's receipt of the request for mediation, the Parties shall jointly petition the Circuit Court of Hamilton County, Indiana to provide a list of five (5) mediators from which the parties shall strike. The Parties shall strike within five (5) business days of receipt of the list of mediators with the Party that requested mediation striking first. The individual remaining at the conclusion of the striking process shall serve as mediator, unless the Parties agree otherwise on a mediator. The parties shall share the mediator's fee and any filing fees equally.
15.3.3 The mediation shall be held in the City of Carmel, Indiana unless another location is mutually agreed upon. Agreements reached in mediation shall be enforceable as settlement agreements in any court having jurisdiction thereof. If mediation is unsuccessful, the parties shall proceed to litigation as described hereinafter.
15.3.4 No demand for mediation of a Claim or dispute or other matter properly referred to Construction Manager or Architect initially for decision shall be made until the earlier of (a) the date on which Construction Manager or Architect has rendered a decision or (b) the tenth (10th) day after the parties have presented their evidence to Construction Manager or Architect if a written decision has not been rendered by Construction Manager or Architect before that date. No demand for mediation of any such Claim or dispute shall be made later than thirty (30) days after the date on which Construction Manager or Architect has rendered a written decision with respect to such Claim or dispute; and the failure to demand mediation within said thirty (30) days period shall result in Construction Manager or Architect's decision being final and binding upon Owner and Contractor.
15.3.5 Any decision or determination by Construction Manager or Architect under the Contract Documents that in any manner and by whatever means becomes binding upon Owner shall also become equally binding upon Contractor insofar as it relates to or affects Contractor's Work or other obligations assumed or to be fulfilled by Contractor, including without limitation any prices and payments to which Contractor may be entitled or for which Contractor may be liable.
LITIGATION
15.4 Claims, disputes and other matters in controversy arising out of or related to the Contract, not otherwise resolved in accordance with the provisions above, shall be decided by litigation in a court of law of competent jurisdiction. All such claims, disputes and other matters shall be decided by an Indiana court of law, and by trial to the bench. Trial by jury is expressly waived by Owner and Contractor.
15.4.1 The litigation proceedings shall be governed by the laws of the State of lndiana. The parties hereto consent to the choice of law, the choice of dispute resolution, venue as provided herein, and to personal jurisdiction over them as provided herein, and waive any right to object to the exercise of personal jurisdiction by the designated tribunals and to exclusive venue in these locales.
15.4.2 Any litigation arising out of relating to the Contract may include, by consolidation, joinder or in any other manner, an additional person or entity not a party to the Contract as a party to the litigation provided that the claims and issues being litigated relate to or involve such additional person or party. The foregoing agreement to litigate and other agreements to litigate with an additional person or entity shall be specifically enforceable in accordance with applicable law in any court having jurisdiction thereof.
15.4.3 Any award, judgment or agreement in settlement of a dispute concerning such matters and resulting from negotiations or litigation in which Owner and Contractor are parties or participants shall be as binding upon surety as though surety were named and joined in such proceeding, provided that Contractor has been given a reasonable opportunity to join, participate, assist or provide supporting evidence in the presentation of any claim, defense or other issue in controversy that is settled or resolved thereby.
15.4.4 No dispute under this Article shall interfere with the progress of the Work, and Contractor shall proceed with all Work, including disputed work, despite the existence of, and without awaiting the resolution of, any such dispute. The failure or refusal of Contractor to continue work under such circumstances shall constitute a default under the Contract as provided in Article 14 hereof.
15.4.5 In any instance or proceeding whereby any claim, dispute or other matter in controversy between Owner and Contractor involves, arises from or gives rise to a similar claim, dispute or other matter in controversy as between Owner and another third party, Contractor shall furnish and present to Owner evidence, documentation and other information to support its claim, defense or other position with respect thereto and shall pay or reimburse Owner for all costs, attorney and expert fees and expenses associated with the negotiation, settlement, litigation or other means undertaken to resolve such matter. It is expressly understood that as to any and all Work performed or agreed to be performed by Contractor and as to any and all actual or alleged damages incurred by Contractor in connection with the Project, Owner shall under no circumstances be liable to Contractor to any greater extent than Owner or other third party is found liable to Owner.
15.4.6 In any instance whereby Owner is entitled, under the terms of the Contract, to be indemnified by or recover any moneys from Contractor, Owner shall be entitled, in addition, to recover from Contractor (1) interest on any sums due from Contractor at the rate of eight percent (8%) per annum to accrue from the date due until paid, notwithstanding any dispute or uncertainty concerning the means or standards by which the Price of monetary recovery is to be ascertained, (2) reasonable attorney and expert fees and expenses incurred by Owner for all investigation, negotiation, litigation, and other such services commonly performed by attorneys, and (3) all court costs, fees paid to experts and like expenses.
SUBSTITUTE OR "OR EQUAL" ITEMS
16.1 Whenever, in the Contract Documents, an article, material, apparatus, equipment, or process is called for by trade name or by the name of a patentee, manufacturer, or dealer or by reference to catalogs of a manufacturer or dealer, it shall be understood as intending to mean and specify the article, material, apparatus, equipment, or process designated, or any approved equal thereto in quality, finish, design, efficiency and durability and equally serviceable for the purposes for which it is intended. Whenever material or equipment is submitted by Contractor for approval as being equal to that specified, the submittal shall include sufficient information and data to demonstrate that the material or equipment conforms to all of the requirements of the Contract Documents. The decision as to whether or not such material or equipment is equal to that specified shall be made by Owner in consultation with Construction Manager and Architect and any such approval by Owner shall be issued in writing.
16.1.1 Neither the approval of alternate material or equipment as being equivalent to that specified nor the furnishing of the material or equipment specified, shall in any way relieve Contractor of responsibility for failure of the material or equipment, due to faulty design, material, or workmanship, to perform the functions required by the Contract and Contract Documents.
LAWS AND REGULATIONS
16.2 Contractor shall give all notices and comply with all Federal, state and local laws, rules, regulations, ordinances, codes, administrative actions and/or orders of any court or governmental agency or unit ("Laws and Regulations") in effect during the furnishing and performance of the Work. Except where otherwise expressly required by applicable Laws and/or Regulations, neither Owner, Construction Manager nor Architect shall be responsible for monitoring Contractor's compliance with the Laws and Regulations. If Contractor observes that the Drawings and Specifications are at variance with any such Laws and Regulations, Contractor shall give Owner, Construction Manager and Architect prompt written notice thereof, and if Owner in consultation with Construction Manager and Architect determines any changes to be necessary such changes will be authorized by one of the methods indicated in Article 7.
16.2.1 It shall not be Contractor's primary responsibility to make certain that the Drawings and Specifications are in accordance with the Laws and Regulations applicable to the Work, however, this shall not relieve Contractor of Contractor's obligations under this Paragraph or other provisions of the Contract. If Contractor performs any Work knowing or having reason to know that it is contrary to such Laws and/or Regulations, and without such notice to Owner, Construction Manager and Architect, Contractor shall bear the risk of all claims, costs, losses and damages caused by, arising out of or resulting therefrom.
16.2.2 Contractor shall pay all sales, consumer, use and other similar taxes required to be paid by Contractor in accordance with the Laws and/or Regulations applicable to the place where the Project is located. It is understood that Owner is a municipal utility that is exempt from certain Indiana sales, use and other taxes. Further, neither sales nor use tax apply to construction materials for the Project, whether acquired directly by Owner or another on Owner's behalf. Contractor shall request of Owner any and all necessary Indiana sales, use and other tax exemption certificates. Contractor is responsible for all applicable sales and use tax on machinery, tools, equipment and supplies or other items (other than construction material) that Contractor uses to perform the Work. In no event shall Owner be liable for any taxes from which Owner is exempt.
AS-BUILT DOCUMENTS
16.3 Contractor shall maintain in a safe place at the Project site one copy of all Drawings and Specifications, Addenda, Written Amendments, Change Orders, Construction Change Directives, Field Orders and written interpretations and clarifications related to the Project in good order and annotated to show all changes made during construction. These documents, together with all approved samples and a counterpart of all approved Shop Drawings, including the final As-Built or Record Drawings shall be available to Owner, Construction Manager and Architect for reference. Upon completion of the Work, separate copy sets of these documents, samples, and Shop Drawings shall be delivered to each of Owner, Construction Manager and Architect as a condition precedent to Contractor's right to receive final payment.
16.3.1 Contractor shall, during the progress of the Work, keep a master set of the Drawings and Specifications on the Project site, on which is kept a careful and neat record of all deviations from the Drawings and Specifications made during the course of the Work.
16.3.2 Contractor shall provide Owner, Construction Manager and Architect with the master set of Drawings and Specifications annotated as per i]l6.3.l incorporating the revisions and changes made during construction up to acceptance of the Project. These updated documents shall reflect all changes to the original construction documents to indicate the as-built conditions, including revisions in site and building area tabulations. These Drawings and Specifications shall be certified as to their correctness by the signature of Contractor.
16.3.3 Owner, Construction Manager and Architect reserve the right to review the as-built documents described in l6.3.2 at any time during the life of the Project. Contractor shall present to Owner, Construction Manager and Architect for review updated as-built documents on a monthly basis as a condition precedent for submitting an application for payment.
SHOP DRAWINGS AND WORKING DRAWINGS
16.4 A schedule of Working Drawings and Shop Drawings submissions shall be submitted by Contractor for Construction Manager and Architect's approval on a form acceptable to Construction Manager and Architect within ten (10) days of the effective date of the Contract. Contractor's proposed submission schedule shall allow adequate time for review and approval by Architect and to allow the suppliers and manufacturers sufficient time to fabricate, manufacture, inspect, test and deliver their respective equipment and products to the Project site in a timely manner so as to not delay the complete performance of the Work. The proposed submission schedule shall be in conformance with the completion dates specified in the Contract. Contractor shall prepare and submit Working Drawings and Shop Drawings in accordance with the approved submission schedule.
16.4.1 Unless otherwise specified in the Contract Documents, Working Drawings shall be numbered consecutively and shall accurately and distinctly present (1) all working and erection dimensions, (2) arrangements and sectional views, (3) necessary details, including complete information for making connections between Work under this Contract and work under other contracts, (4) electrical wiring connections between all equipment furnished under the Contract, including all internal wiring between internal components of equipment, (5) kinds of materials and finishes, and (6) parts lists and description thereof.
16.4.2 Unless otherwise specified in the Contract Documents, Shop Drawings shall present, where applicable, such data as dimensions, weight and performance characteristics. This data shall show conformance with the performance characteristics and other criteria incorporated in the Contract Documents. Each drawing or page shall include (1) submittal date and revision dates, (2) project name, division number and descriptions, (3) Detailed Specifications Section number and page number, (4) identification of equipment, product or material, (5) name of Contractor and subcontractor, (6) name of supplier and manufacturer, (7) relation to adjacent structure or material, (8) field dimensions, clearly identified, (9) ASTM, Federal and other Specification references, (10) space for Architect's stamp, (11) identification of deviations from the Contract Documents, (12) Contractor's stamp, initialed or signed, dated and certifying to review of the submittal, certification of field measurements and compliance with the Contract Documents, and (12) location at which the equipment or materials are to be installed (both physical location and location relative to other connected or attached material). Architect will return unreviewed any submittal which does not contain complete data on the Work and full information on related matters or otherwise fails to comply with this Section. Stock or standard drawings will not be accepted for review unless full identification and supplementary information is shown thereon in ink or typewritten form.
16.4.3 Contractor shall check and approve all Working Drawings and Shop Drawings before transmitting them to Construction Manager and Architect to determine that they comply with requirements of the Contract Documents. Drawings which are incomplete or are not in compliance with the Contract Documents shall not be submitted for processing. Contractor shall place its signature or initials on its stamp of approval on all Working Drawings and Shop Drawings submitted to Construction Manager and Architect to indicate compliance with this requirement. Contractor's approval shall constitute a representation that all quantities, dimensions, field construction criteria, materials, catalog numbers, performance criteria and similar data have been verified and that, in its opinion, the submittal fully meets the requirements of the Contract Documents.
16.4.4 If the Working Drawings or Shop Drawings show departures from the requirements of the Contract Documents, Contractor shall make specific mention thereof in its letter of transmittal, otherwise approval of such submittals by Architect shall not constitute approval of the departure. Approval of the drawings shall constitute approval of the subject matter thereof only and not of any structure, material, equipment or apparatus shown or indicated.
16.4.5 The approval of Working Drawings and Shop Drawings shall be general and shall not relieve Contractor of responsibility for the accuracy of such drawings, nor for the proper fitting and construction of the Work, nor for the furnishing of materials or Work required by the Contract and not indicated on the Drawings. No Work called for by Working Drawings or Shop Drawings shall be done until such drawings have been approved by Architect.
PERFORMANCE SPECIFICATIONS
16.5 If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of Contractor by the Contract Documents, Architect will specify in the Contract Documents all performance and design criteria that such services must satisfy. Contractor shall cause such services or certifications to be provided by a properly licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Owner shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications and approvals performed or provided by such design professionals. Architect will review, approve or take other appropriate action on such submittals only for the limited purpose of checking for conformance with information given and the design concept expressed in the Contract Documents.
DAMAGE SURVEY AND CORRECTION
16.6 Contractor, accompanied by a representative of Owner, Construction Manager and Architect, shall make a damage survey of the Project site and adjacent properties prior to commencing the Work and before making application for final payment for the Work. Contractor shall provide Construction Manager and Architect a written inventory of damage observed during each survey. Contractor shall replace or repair all existing construction and facilities (both surface and subsurface) including, but not limited to, sidewalks, fences, yards, plantings, mechanical services and electrical services which may be damaged in the performance of the Work. All damage shall be corrected and such facilities shall be restored to their original condition. Materials and construction shall be new and equal in quality, design, workmanship, and installation to the existing material and construction.
16.6.1 Contractor shall notify Construction Manager and Architect immediately upon observing damage to the site regardless of whether or not the damage is the result of Contractor's operations.
WATER, LIGHTS AND POWER
16.7 Unless otherwise specified in the Contract and Contract Documents, Contractor shall provide, at its expense, the necessary water supply for Contractor's activities, and shall, if necessary, provide and lay necessary water lines from existing mains to the place where such water service is required, and shall secure all necessary permits and pay for all hookups, meters, and taps to water mains or hydrants and for all water used at the established rates.
16.7.1 Contractor shall provide, at its own expense, temporary lighting and power facilities required for the proper prosecution and inspection of the Work, unless specified otherwise in the Contract Documents. Owner shall furnish electrical power to the Site to which Contractor shall be responsible to secure hook-ups and any electrical connections for temporary lighting and power service, as needed, to perform the Work. Contractor shall meter and pay for Contractor's share of all power utilized.
PREVENTION, CONTROL AND ABATEMENT OF EROSION AND WATER POLLUTION
16.8 Contractor shall be responsible for prevention, control and abatement of erosion, siltation and water pollution resulting from construction of the project until Final Acceptance of the Project.
16.8.1 Contractor shall provide, install, construct, and maintain coverings, mulching, sodding, sand bagging, berms, slope drains, sedimentation structures, or other devices necessary to meet Owner, State and Federal regulatory agency codes, rules and laws.
16.8.2 Contractor shall take sufficient precautions to prevent pollution of adjacent rivers and streams with fuels, oils, bitumens, or other harmful materials. Also, Contractor shall conduct and schedule Contractor's operations so as to avoid or otherwise minimize pollution or siltation of the waters.
16.8.3 Storm drainage facilities, both open and closed conduit, serving the construction area shall be protected by Contractor from pollutants and contaminants. If it is determined that siltation of drainage facilities has resulted due to the project, Construction Manager and Architect will advise Contractor to remove and properly dispose of the deposited material. Should Contractor fail to or elect not to remove the deposits, Owner will provide maintenance cleaning as needed and will charge all costs of such service against the amount of money due or to become due Contractor.
16.8.4 Excavated material shall not be deposited in streams, ditches or impoundments, or in a position close enough thereto to be washed away by high water or runoff.
16.8.5 Contractor shall not disturb lands or waters outside the limits of construction and public rights of way. The location of and methods of operation in all detention areas, borrow pits, material supply pits and disposal areas furnished by Contractor shall meet the approval of Construction Manager and Architect as being such that erosion during and after completion of the Work will not likely result in detrimental siltation or water pollution.
16.8.6 Contractor shall schedule operations such that the area of unprotected erodible earth exposed at any one time is not larger than the minimum area necessary for efficient construction operations; and the duration of exposed, uncompleted construction to the elements shall be as short as practicable.
16.8.7 Clearing and grubbing shall be so scheduled and performed that grading operations can follow immediately thereafter; and grading operations shall be so scheduled and performed that permanent erosion control features can follow immediately thereafter if conditions on the project permit.
16.8.8 The surface areas of unprotected erodible earth exposed by clearing and grubbing, excavation or filling operations shall be kept to a minimum. Immediate erosion or pollution control measures to prevent siltation or contamination of any stream, ditch or other impoundment or to prevent damage to the project or property outside the project limits shall be provided when necessary.
PATENTS, COPYRIGHTS AND INFRINGEMENT CLAIMS
16.9 All inventions, ideas, designs and methods contained in the Instruments of Service and the Contract Documents in which Owner has, or acquires patent, copyright or other intellectual property rights ("Intellectual Property") shall remain reserved for the exclusive use of Owner and may not be utilized, reproduced or distributed by or on behalf of Contractor, or any employee, Third Party or agent of Contractor without the prior written consent of Owner except to the extent that the Intellectual Property are necessarily required in connection with performance of the Work.
16.9.1 lf, pursuant to performance of the Work, Contractor or any of its agents, officers, employees or Third Parties shall produce any patentable or copyrightable subject matter as to which Owner does not gain ownership rights, Owner shall thereupon have, without cost or expense, an irrevocable, non-exclusive, royalty-free license to make, have made or use, either itself or by another contractor or other party on its behalf, such subject matter in connection with the Work or any activity now or hereafter undertaken by or on behalf of Owner. The license herein granted shall not be transferable and shall not extend to contractors or other parties except to the extent of their work or activity on behalf of Owner.
16.9.2 Except to the extent that rights are held by Contractor or others under existing valid patents or copyrights and are not given to Owner, Owner shall have the right to use or permit the use of all such Instruments of Service and Contract Documents, and also any oral information of any nature whatsoever received by Owner, and any ideas or methods represented by such Intellectual Property, for any purposes and at any time without other compensation than that specifically provided herein, and no such Intellectual Property shall be deemed to have been given in confidence and any statement or legend to the contrary on any of said Instruments of Service and Contract Documents shall be void and of no effect.
16.9.3 Contractor warrants that the Work performed shall be free from any claims made against Owner or Indemnified Parties of Intellectual Property from any other person or entity. Contractor shall save harmless and indemnify the Indemnified Parties from and against all costs, expenses and damages, including attorney fees and legal costs, which any of them shall incur or be obligated to pay by reason of any such infringement or claim of infringement, and shall, at the election of Owner, defend at the Contractor's sole expense all such claims in connection with any alleged infringement.
16.9.4 If Owner is enjoined from using any portion of the Instruments of Service and Contract Documents as to which the Contractor is to indemnify Owner against Intellectual Property claims, Owner may at its option and without thereby limiting any other right it may have hereunder or at law or in equity, require the Contractor to supply at its own expense, temporarily or permanently, facilities not subject to such injunction and not infringing any Intellectual Property, and if the Contractor shall fail to do so, the Contractor shall, at its expense, remove such offending facilities and refund the cost thereof to Owner or take such steps as may be necessary to ensure compliance by Owner with such injunction, to the satisfaction of Owner.
16.9.5 Contractor is responsible to determine whether a prospective Third Party is a party to any litigation involving Intellectual Property infringement claims, including antitrust or other trade regulation claims, or is subject to any injunction which may prohibit it under certain circumstances from providing Work or using any Instruments of Service to be used or furnished under this Contract. Contractor enters into any agreement with a party to such litigation at its own risk and Owner will not undertake to determine the merits of such litigation. Owner, however, reserves the right to reject any article which is the subject of such litigation or injunction, or in its judgment use of such article as a result of such circumstances, would delay the Work or be unlawful.
END OF SUPPLEMENTARY CONDITIONS
Please enter name, title, phone and email of the authorized representative
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The undersigned Bidder proposes to furnish all necessary labor, machinery, tools, apparatus, materials, equipment, service and other necessary supplies, and to perform and fulfill all obligations incident thereto in strict accordance with and within the time(s) provided by the terms and conditions of the Contract Documents for the above described Work and Project, including any and all addenda thereto, for the Unit Prices applicable to the Contract Items as stated in the pricing table. The Bidder acknowledges that evaluation of the lowest Bid shall be based on such price and further acknowledges that the unit quantities listed in pricing table of this Proposal are estimates solely for the purpose of Bid evaluation and Contract award, and are not to be construed as exact or binding. The Bidder further understands that all Work which may result on the Contract shall be compensated for on a Unit Price basis and that the OWNER and ENGINEER cannot and do not guarantee the amount or quantity of any item of Work to be performed or furnished under the Contract.
The Bidder agrees to be bound by the terms and provisions of all Contract Documents as defined in the Standard General Conditions and incorporates such Contract Documents herein by reference.
Attachment of Bidder’s financial statement is mandatory. Any Bid submitted without said financial statement as required by statute shall thereby be rendered invalid. The financial statement provided hereunder to OWNER must be specific enough in detail so that OWNER can make a proper determination of the Bidder’s capability for completing the Work/Project if awarded. Information on Bidder’s company and financial statement shall be consistent with the information requested on the State Board of Accounts Form 96, entitled “CONTRACTOR'S BID FOR PUBLIC WORK"
The individual person(s) executing this Bid Proposal, being first duly sworn, depose(s) and state(s) that the Bidder has not directly or indirectly entered into a combination, collusion, undertaking or agreement with any other Bidder or person (i) relative to the price(s) proposed herein or to be bid by another person, or (ii) to prevent any person from bidding, or (iii) to induce a person to refrain from Bidding; and furthermore, this Bid Proposal is made and submitted without reference to any other bids and without agreement, understanding or combination, either directly or indirectly, with any persons with reference to such bidding in any way or manner whatsoever.
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Format: The Project consists of, but is not necessarily limited to, the following:
site preparation, utility installation, and construction of a two-story office building with parking, landscaping, and essential systems (electrical, plumbing, HVAC, fire protection).
Include name and title
Example: Jeremy M. Kashman, City Engineer
Include company name and address
Example: Advanced Engineering, 15th Street, Cambridge, MA 02120
When does the construction project start
Date the project will be completed
Q (Alternative Material): Can We add Fusible PVC as an approved alternate to the 12" HDPE pipe?
A: No, the Utility will not except fusible PVC.
Q (Bid Form): The Bid Form contains an option for open cut installation and one for directional drilled installation. Will the bid be awarded based upon the lowest of the two options? If so, can contractors fill out the respective bid form for only the option they want to quote?
A: Yes, the bid will be awarded based upon the lowest option. Please complete the respective bid form for the option you wish to quote.
SLED stands for State, Local, and Education. These are solicitations issued by state governments, counties, cities, school districts, utilities, and higher education institutions — as opposed to federal agencies.
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