SLED Opportunity · INDIANA · CITY OF CARMEL
AI Summary
City of Carmel Police seeks bids for 2026 vehicle accessories and equipment to upfit police vehicles. Bids due April 15, 2026, via e-Procurement Portal. Delivery within 30 days of contract award. No bonds required. Detailed contract terms apply.
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 City of Carmel Police - 2026 Vehicle Accessories/Equipment 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 City of Carmel - Accessories/Equipment for Police Vehicles 2026 - IFB.
Delivery of items must be within 30 days of contract award and will be made to Carmel Street Department, 3400 W 131st St. Carmel, IN 46074.
Carmel Police Department is seeking bids for vehicle equipment/accessory supplies to upfit recently purchased vehicles for the department. Vendors must provide pricing on each and every item listed per the listed product sheet in the solicitation. Please provide in your completed bid, delivery timelines and all applicable freight costs.
To all prospective Bidders,
The City of Carmel, Indiana (the “City”) hereby issues this Addendum No. 1 to clarify delivery requirements due to current manufacturer lead times on certain components of the Bid. Specifically, the City recognizes that certain specified items, including but not limited to those listed in Line Items 50–52 of the Bid, may currently be subject to manufacturer lead times that exceed the required thirty (30) day delivery window from the date of contract award. In some instances, these lead times may extend to eight (8) weeks or more. To ensure an equitable and transparent bidding process, the City hereby adds the following mandatory requirements and clarifications regarding the disclosure and management of the affected components and associated lead times:
Please note that the disclosure of an extended lead time will not, in and of itself, serve as a basis for the City to deem a bid non-responsive or to penalize a contractor for failing to meet the standard thirty-day (30) delivery requirement, provided the delay is documented and attributed to the manufacturer as specified in this Addendum No. 1.
Please use the See What Changed link to view all the changes made by this addendum. Shipping Fee/Freight Line has been added to the Itemized Bid List Template.
Please use the See What Changed link to view all the changes made by this addendum.
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.
The following terms will be included in the resulting agreement between the awarded vendor and the City of Carmel herein referred to as “City.” Please read carefully. Questions pertaining to the technical specifications/scope of services and bidding documents may be directed to the City pursuant to the directions in the Notice to Bidders.
General Description
| Line Item | Part No. | Description | Quantity | UOM |
| 1 | Federal Signal INTG 51 | Dual Color Lightbar R/B front, B/A, R/A rear 2026 FPIU Ecoboost | 16 | ea |
| 2 | Federal Signal INTG 51 | Dual Color Lightbar R/B front, B/A, R/A rear 2026 Tahoe PPV | 1 | ea |
| 3 | Federal Signal PF200R | Remote 9 Button head | 16 | ea |
| 4 | Federal Signal Rear ILS | R/A, B/A Low Profile 2026 Tahoe PPV | 1 | ea |
| 5 | Federal Signal RBKIT- Compact | Pair of low frequency rumbler speakers | 16 | ea |
| 6 | Federal Signal RBC2-FPIU20ND | Passenger and Driver side no drill rumbler brackets-2026 FPIU Ecoboost | 15 | ea |
| 7 | Federal Signal RBC2-TAH21ND | Passenger and Driver side no drill rumbler brackets-2026 Tahoe PPV | 1 | ea |
| 8 | Federal Signal ES100 | 100 w siren speaker with ESB-U mounting bracket | 21 | ea |
| 9 | Federal Signal MPSMW9-TAHMIR | pair of Tahoe mirror light mounting brackets | 1 | ea |
| 10 | Federal Signal 416918 RBW | TRI Color hideaway LED R/B/W | 70 | ea |
| 11 | Federal Signal MPS-RWA | Micro pulse ultra 12 surface mount RWA | 20 | ea |
| 12 | Federal Signal MPS-BWA | Micro pulse ultra 12 surface mount BWA | 20 | ea |
| 13 | Federal Signal IPX-LPV2 | Micro pulse license plate bracket | 15 | ea |
| 14 | Federal Signal MPS63U-RWA | Micro pulse 6 tri color R/W/A | 100 | ea |
| 15 | Federal Signal MPS63U-BWA | Micro pulse 6 tri color B/W/A | 100 | ea |
| 16 | Federal Signal MPSW9-RBW | Micro pulse wide angle tri color RBW | 34 | ea |
| 17 | Federal Signal MPSM-DL | L bracket for 2 micro pulse 6 side by side. | 40 | ea |
| 18 | Federal Signal MPSMW9-FPIU25MIR | side mirror brackets for 2025+ FPIU | 15 | ea |
| 19 | Federal Signal OBDCABLE20-GMCAN | OBD2 interface cable for 2021+ Tahoe | 1 | ea |
| 20 | Federal Signal OBDCABLE 16-7 | 20ft OBD2 cable for 2025+ FPIU | 15 | ea |
| 21 | Federal Signal EXPMOD24 | 24 channel expansion module | 15 | ea |
| 22 | Federal Signal EXPMOD-2 | 18 channel rear expansion module | 15 | ea |
| 23 | Federal Signal EXPHARN03 | Rear Tail light connection harness FPIU | 15 | ea |
| 24 | Pro Gard P1300UINT20AOSB-R | 1/3 prisoner transport with retractable seat belt | 13 | ea |
| 25 | Pro Gard CSC47UINT20 | security cargo cover for use with Pro Gard barrier | 13 | ea |
| 26 | Pro Gard CSC47UINT20S | security cargo cover, stand alone | 6 | ea |
| 27 | Pro Gard PTL4213 | Prisoner transport lighting 2, 3" round LED R/W | 60 | ea |
| 28 | Pro Gard GVM4720S-H | Gun Rack self supporting, 2020+ FPIU single AR15 | 15 | ea |
| 29 | Havis C-PM-124-PC | Havis Pocket Jet printer mount | 15 | ea |
| 30 | Havis C-VS-0618-INUT | FPIU specific high, flat 24" console | 15 | ea |
| 31 | Havis C-ARM-103 | Flip up arm rest | 15 | ea |
| 32 | Havis CUP2-1001 | Self adjusting double cup holder | 15 | ea |
| 33 | Havis C-MCB | Mic clip bracket | 60 | ea |
| 34 | Havis C-EB30-APS-1P | Motorola APX-4500 one piece mounting bracket | 15 | ea |
| 35 | Havis C-VSW-1005-TAH-PM-3 | Tahoe PPV specific 15" wide angle with Pocket Jet 8 printer mount | 1 | ea |
| 36 | Havis C-W-MC1 | mic clip bracket with mic clip | 14 | ea |
| 37 | Havis C-EBW85-MXP-1P | Motorola XPR 4550 | 2 | ea |
| 38 | Havis C-EB30-FSR-1P | Pathfinder PF200R control head bracket | 2 | ea |
| 39 | Havis C-EB45-APX-1P | Motorola APX series charger bracket | 2 | ea |
| 40 | Havis C-ARM-W-103 | flip up arm rest for wide series consoles | 7 | ea |
| 41 | Havis C-FPW-05 | .5" filler plate for VSW consoles | 10 | ea |
| 42 | Havis C-FPW-1 | 1" filler plate for VSW consoles | 10 | ea |
| 43 | Havis C-FPW-2 | 2" filler plate for VSW consoles | 10 | ea |
| 44 | Havis C-FPW-3 | 3" filler plate for VSW consoles | 10 | ea |
| 45 | Havis C-FPW-4 | 4" filler plate for VSW consoles | 10 | ea |
| 46 | Havis C-FPW-5 | 5" filler plate for VSW consoles | 10 | ea |
| 47 | Havis C-FPW-15 | 1.5" filler plate for VSW consoles | 10 | ea |
| 48 | Havis C-FPW-25 | 2.5" filler plate for VSW consoles | 10 | ea |
| 49 | Havis C-FPW-35 | 3.5" filler plate for VSW consoles | 10 | ea |
| 50 | American Aluminium | E/Z Rider K9 platform unit for 2026 FPIU | 1 | ea |
| 51 | American Aluminium | E/Z Rider K9 platform unit with utility shelving 1/3, 2/3 2026 Tahoe PPV | 1 | ea |
| 52 | American Aluminium | E/Z Vault 45" X 28.5" X 10 with bracket | 1 | ea |
| 53 | Ace K9 HP-5020 | Hot n' Pop Pro ( door popper and heat alarm) | 2 | ea |
| 54 | Ace K9 AWD-7040 | Ace WatchDog for use with Pro Alarm systems | 2 | ea |
| 55 | Westin 36-2125 | Westin Push Bumper Elite for 2026 FPIU Ecoboost | 15 | ea |
| 56 | Westin 36-2125PB | Westin Elite Pit Bar for 2026 FPIU Ecoboost | 15 | ea |
| 57 | Westin 36-6005F2MP | Westin Elite 23.5" 2 Light Channel Federal Signal Micro pulse 6 | 15 | ea |
| 58 | Westin 36-2125W | Westin wing wrap for 2026 FPIU Ecoboost | 15 | ea |
| 59 | Westin 36-4045 | Westin push bumper elite for 2026 Tahoe PPV | 1 | ea |
| 60 | Westin 36-4045PB | Westin Elite pit bar for 2026 Tahoe PPV | 1 | ea |
| 61 | Westin 36-6015F2MP | Westin Elite 33.1" 2 light channel Federal Signal Micro pulse 6 | 1 | ea |
| 62 | Westin 36-52135W | Westin wing wrap for 2026 Tahoe PPV | 1 | ea |
| 63 | Freight | Shipping Fees | 1 | ea |
B. NOTE: Any related addenda to this bid, including written answers to questions, will be posted on the Procurement Portal at https://procurement.opengov.com/portal/carmelin. Vendors will be responsible for periodically checking the Procurement Portal for any related addenda up to and including the due date. Failure to acknowledge the addenda may cause a bid to be determined as non- responsive for review purposes.
2. Term Contract - N/A
3. Renewal - N/A
4. Firm Bids
All bids received shall be considered valid for not less than ninety (90) days from the date of bid opening. Pricing shall be firm for the length of the contract, including any renewals.
5. Bonds
There will be no bid bonds or performance bonds required for this contract.
6. Specifications
7. Contract Termination
The City may terminate the resulting contract for cause or convenience at any time during the term of the contract, without penalty, upon ten (10) calendar day’s written notice to the vendor. The City shall be the sole judge of the adequacy of the vendor’s performance pursuant to the resulting contract.
8. Proof of Insurance
At the time of award, vendor may be required to provide proof of insurance showing existing coverage in accordance with the terms and amounts stated in the Sample Agreement, or the terms and amounts of insurance coverage vendor proposes to furnish in lieu of the amounts in the Sample Agreement. The proof of insurance shall be issued by a financially responsible insurance company authorized to do business in Indiana.
9. Debarment and Suspension
A. Vendors should be aware that by entering into an agreement with the City, neither they, nor their principals, should be presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from entering into this agreement by any federal agency or by any department, agency, or political subdivision of the State of Indiana. The term principals, as used in this paragraph, means an officer, director, owner, partner, key employee, or other person with primary management or supervisory responsibilities, or a person who has critical influence on or substantive control over the operations of the vendor’s business.
B. The awarded vendor shall not have their business name(s) or principal’s name(s) listed on the debarment web site at https://www.sam.gov/SAM/. A check of this listing will be made by the City. The City reserves the right to nullify the award of any bid, quote, or request for proposal based on this listing. It is recommended that vendors check the website listing prior to submitting documents.
10. Successors and Assigns
By submitting a response to this bid/quote, each vendor agrees that it binds itself and its partners, successors, executors, administrators and assigns to City and to the partners, successors, executors, administrators and assigns of City, in respect to all covenants of this Bid Manual; except as otherwise provided herein, vendor shall not assign, sublet, or transfer its interest in such.
11. Bid Expenses
By submitting a response to this bid/quote, each vendor agrees that all of its related expenses are its sole responsibility, and that the City will not be responsible for any costs whatsoever incurred by the vendor in connection with or resulting from the bid/quote process, including but not limited to costs for preparation/submission of the bid/quote, travel & per diem, attending interviews, providing presentations or product demonstrations.
12. Sample Agreement
A Sample Agreement, which includes insurance requirements, is available for review at the end of this document. This sample agreement contains the City’s standard terms but may not contain language specific to this purchase. Any proposed exceptions to this document should be included in detail on the Exception Sheet.
13. E-Verify Program
Pursuant to IC 22-5-1.7, all public contracts for services entered into must contain E-Verify provisions. Any Bidder entering into a service agreement with the City shall affirm under penalties of perjury that it is and will remain in compliance with that statute.
14. Services or Goods Acquisition by the City
A. Written contracts not approved by the Office of Corporation Counsel are voidable. Bidder shall not begin performing services, acquiring, or delivering goods, prior to receipt of a fully executed contract, including the City’s applicable purchasing agent’s or deputy purchasing agent’s signature.
B. Awarded vendor(s) must have a validly issued purchase order prior to beginning services, acquiring or delivering goods. The vendor(s) will not be compensated for services rendered or goods secured prior to the issuance of a valid purchase order by City Controller
15. Method of Payment
Vendor must be willing to accept invoice payments via City check.
16. Point of Contact
The Bidder shall provide a point of contact assigned to oversee the resulting contract and to be able to keep the City informed of changes, progress, and to be able to answer any questions. The Bidder shall provide name, phone number, email address and any other pertinent contact information for the point of contact.
The following definitions shall apply to these Instructions To Bidders (ITB):
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.
N/A
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.
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.
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.
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.
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.
A. Failure to comply with all instructions or to sign and complete all necessary forms including in this Bid Manual
B. Failure to submit a bid surety completely and correctly executed at the time of bid submission in the correct amount (if required).
C. Failure to correctly and completely execute the non-collusion affidavit (if required).
D. Failure to comply with any other mandatory bid requirements.
Bidders may be required to provide with a bid, at time of submission, a bid surety in either a flat dollar amount or percentage of bid, as specified. Acceptable forms of bid surety are as follows:
A. Bid Bond secured from a bona fide bid surety firm.
B. A Certified Check (or equivalent) if issued by a financial institution insured by an agency of the United States.
C. Other Forms of Bid Surety as specified in a particular bid.
a. All forms of Bid Surety should be made payable to the City of Carmel. No cash or personal checks accepted. All bid surety will be held until formal award is made by the appropriate governing body and until awarded Bidder complies with all terms of the award.
b. Awarded bidder may be requested to provide a Performance Bond/Payment Bond in either a flat dollar amount or a percentage of the bid as specified, made payable to the City of Carmel, within ten days after receipt of award letter. Other forms of performance guarantee may be acceptable as specified in a particular bid.
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.
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.
A. The City of Carmel is exempt from Local, State and Federal Taxes and will not be responsible for any taxes levied on Bidder as a result of a bid award.
B. All terms contained in this document will become part of the contract between awarded bidder and the City of Carmel.
C. This contract may be renewed under the same terms and conditions subject to the approval in compliance with IC 5-22-17-4. The term of the renewed contract may not be longer than the term of the original contract. Any provision for automatic renewal is void.
D. The City of Carmel reserve the right to reject any and all bids and to waive any of the terms and conditions and provisions contained in the Request for Bid (RFB) or other documents, or any informality, irregularity, or omission in any bid, and to award to one or more bidders.
E. Manufacturer and/or model number of equipment being bid must be stated. It is the Bidder’s responsibility to show proof that goods being offered are of equal quality to those that were specified. Any exceptions to the specifications must be clearly set forth in the Bidder’s bid.
F. If not bidding a delivered price to point of destination, shipping price must be listed as a separate price on the itemized proposal form.
G. Upon delivery and/or inspection of ordered goods or upon performance of services, should the ordering agency determine that goods/services do not meet specifications; same will not be accepted and will be returned at the Bidder’s expense.
H. Formal contracts and/or proof of insurability may be required on applicable bids.
I. The City of Carmel reserves the right to deny payment to Bidders ordering or delivering goods/services without benefit of a verbal or written purchase order number.
J. The Bidder agrees to indemnify and hold harmless City of Carmel, its officials, agents, officers, and employees for any and all claims, actions, causes of action, judgments, and liens arising out of any negligent act of omission by the Bidder or any of its officers, agents, employees, or subcontractors or any defect in materials or workmanship or any supply, material or mechanism or other product which it or any of its officers, agents, employees, or subcontractors has supplied to the City or has used in connection with this agreement. Such indemnity shall include attorneys’ fees, costs and other expenses arising therefrom or incurred in connection therewith and shall not be limited by reason of the enumeration of any insurance coverage required herein.
K. The Bidder understands and agrees that, notwithstanding any other provision of this Bid Manual, if funds for the continued fulfillment of this Agreement by the City are at any time not forthcoming or are insufficient, through failure of any entity to appropriate funds or otherwise, then the City shall have the right to terminate this agreement without penalty by giving prior written notice documenting the lack of funds, in which instance, unless otherwise agreed to by the parties, this Agreement shall terminate and become null and void on the last day of the fiscal period for which appropriations were received. The City agrees that it will make its best effort to obtain sufficient funds, including but not limited to including in its budget for each fiscal period during the term hereof a request for sufficient funds to meet its obligations hereunder in full. This contract may be terminated by either party at the City’s option, upon 10 days written notice, unless otherwise specified.
L. The Bidder understands and agrees that no portion of the Agreement shall be sublet, assigned or otherwise disposed of by the Bidder except with the written consent of the City being first obtained. Consent to sublet, assign or otherwise disposed of any portion of this Agreement shall not be construed to relieve the Bidder of any responsibility for the fulfillment of the Agreement.
M. The Bidder understands and agrees that, unless otherwise specified within the Bid Manual and/or Agreement, the Bid Manual and/or Agreement shall be governed by the laws of the State of Indiana, and by all Municipal Ordinances and codes of the City of Carmel. The Bid Manual shall be in full force and effect upon the date of the Bid is submitted. The Agreement shall be in full force and effect upon the date of the Agreement is executed.
N. The Bidder understands and agrees that any goods and services provided under the Agreement shall meet or exceed all applicable Occupational Safety and Health Administration Standards.
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.
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.
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
Please enter corporation name, address, date registered with the State of Indiana and the Indiana Registered Agent's name and address
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 City 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 Technical Specifications and incorporates such Technical Specifications herein by reference.
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.
Please download Attachment B, complete, and upload.
Please download Attachment C, complete, and upload.
Please submit official manufacturer's literature regarding all items offered with the bid.
Unless otherwise indicated in the specifications, the minimum warranty required by the City for the entire unit is one (1) year from the date of acceptance. (If the manufacturer offers a full or limited warranty that is in excess of one year, the City shall take full advantage.) The minimum one-year warranty shall cover all parts and labor for defects in materials and workmanship. Please attach warranty statement(s).
Please download Attachment D, complete, and upload.
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.
Please download the below documents, complete and have notarized. An online notarization option will be provided for you when responding.
There will be no bid bonds or performance bonds required for this contract.
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: Bradley Pease, 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 (Manufacturer Lead Times): Some specified parts from specific manufacturers have current lead times of 8+ weeks (American Aluminum). How should this be documented in bid submissions as to not penalize the bidder awarded the contract(s)?
A: We have issued Addendum No. 1 for this question. To all prospective Bidders, The City of Carmel, Indiana (the “City”) hereby issues this Addendum No. 1 to clarify delivery requirements due to current manufacturer lead times on certain components of the Bid. Specifically, the City recognizes that certain specified items, including but not limited to those listed in Line Items 50–52 of the Bid, may currently be subject to manufacturer lead times that exceed the required thirty (30) day delivery window from the date of contract award. In some instances, these lead times may extend to eight (8) weeks or more. To ensure an equitable and transparent bidding process, the City hereby adds the following mandatory requirements and clarifications regarding the disclosure and management of the affected components and associated lead times: Bidders are required to provide firm, fixed pricing for all Bid items regardless of anticipated lead times and delivery dates. As a material condition of bid responsiveness, any Bidder aware of manufacturer lead times exceeding thirty (30) days, must clearly disclose the estimated lead time for each affected line item at the time of bid submission. This disclosure requirement applies to all products from any manufacturer where the Bidder has knowledge of such extensions. Following the Bid award, the successful Bidder shall provide written confirmation of the order date and the manufacturer’s acknowledged shipping schedule (or equivalent) within ten (10) business days. For any items where an extended lead time was disclosed and accepted by the City, the standard delivery period shall be adjusted to align with the disclosed manufacturer’s estimate. However, the successful Bidder remains responsible for keeping the City informed of any further fluctuations or additional delays. The successful Bidder is expected to exercise all reasonable commercial efforts to expedite delivery and mitigate the impact of delays. If lead times exceed the initial disclosure, the successful Bidder may be required to demonstrate their efforts to secure the items or, with the City’s prior written approval, propose an equivalent substitute that meets all original specifications and provides faster delivery. All other terms, conditions, and specifications of the original Bid solicitation remain in full force and effect. Please note that the disclosure of an extended lead time will not, in and of itself, serve as a basis for the City to deem a bid non-responsive or to penalize a contractor for failing to meet the standard thirty-day (30) delivery requirement, provided the delay is documented and attributed to the manufacturer as specified in this Addendum No. 1.
Q (Shipping): How do I add shipping to the proposal?
A: An additional line, Line 63, has been added to the Itemized Bidder List for Freight charges.
Q (Line 5): Should this be a quantity of 16? 15 for FPIU and 1 for Tahoe.
A: Yes, it should be 16 total. The itemized bid list template has been updated to reflect this change.
Q (Lighbar Color Configuration): The specified lightbar configuration states R/B front, B/A R/A rear. Does the agency require any white (flood/scene/takedown/alley) configurations or all R/B front and sides? Thank you
A: Forward facing is R/W & B/W. Rear facing is B/A & R/A. Alley lights are R/W & B/W. The capability of takedowns and white floods are forward facing.
Q (Delivery Location): To what location/address would all equipment be delivered? Does this location have a forklift or loading dock available?
A: Please deliver to Carmel Street Department located at: 3400 W 131st St Carmel, IN 46074 Prior to delivery, please confirm time of arrival with the Carmel Police Department.
Q (No subject): In the bid submission form, it is indicated as a requirement to "Please submit official manufacturer's literature regarding all items offered with the bid." Is literature specific to each part on the specification list required or can this be limited to parts quoted on the Exceptions List only? Can it be assumed that the City has selected the specified parts based on previous knowledge and approval of those components so literature is not necessary if not a deviation from the specifications list?
A: The bid is strictly for the items listed in the Itemized Bid Tab. The Carmel Police Department has used these parts in vehicles already in service. Exceptions will need to be clearly identified in your bid submissions. Please provide the most accurate information available as instructed in the bid.
Q (Line Item Entry Table Shows 16 FPIU in Line 1): Just calling attention to what is believed to be an error on the line item entry table reflecting 16 FPIU instead of 15.
A: Please see the answer to Question 3.
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.
SamSearch Platform
AI-powered intelligence for the right opportunities, the right leads, and the right time.