HomeMy WebLinkAbout2008-10-27-Meeting Agendawww.augustaga.gov
Public Safety Committee Meeting Committee Room- 10/27/2008- 12:15 PM
PUBLIC SAFETY
1. Motion to approve purchasing of Thermal Imaging Cameras with residual
funding.
Attachments
2. Motion to approve award of a contract with McKnight Construction Co. for
construction of the Webster Detention Center Expansion.
Attachments
3. Motion to approve a request for transfer of funds from 9-1-1 Fund Balance
Unreserved to 2008 9-1-1 Operating Budget for purchase of a replacement
Logging Recorder.
Attachments
4. Motion to approve the transfer of 911 Unreserved Funds to 2008 Operating
Budget for purchase of computer monitors.
Attachments
Public Safety Committee Meeting
10/27/2008 12:15 PM
Funding for Thermal Imaging Camera
Department:Fire, Howard Willis ,Chief
Caption:Motion to approve purchasing of Thermal Imaging Cameras with residual
funding.
Background:The Fire Department has recently completed the replacement of our self-
contained breathing apparatus that is used by the firefighters. In the contract
with the vendor, Hagemeyer of Augusta, they were required to purchase our
old equipment that was being replaced. We have received a check for
$50,375.00 for the purchase of this equipment.We are asking to use this
funding for the purchase thermal imaging cameras to upgrade our existing
equipment.
Analysis:Thermal imaging cameras are used to locate victims within a structure
where visibility is impaired due to smoke conditions within a structure that
is involved in a fire. They are also used to locate hidden fires within the
walls and ceilings of structures. The present equipment is becoming dated
and has not kept pace with the improvement in the technology of the newer
cameras. We are requesting to use the funding generated by the sale of our
old breathing apparatus to fund the purchase of eight of these new cameras.
Financial Impact:The cost for the purchase of eight units will be $6,295.00 per unit for a total
of $50,360.00.
Alternatives:None at this time.
Recommendation:Approve the use of $50,375.00 from the sale of old breathing apparatus for
the purchase of eight thermal imaging cameras.
Funds are Available in
the Following
Accounts:
If approved the $50,375.00 from the sale of old breathing apparatus will be
placed in 274-03-4110 54.26120
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Cover Memo
Item # 1
Attachment number 1
Page 1 of 1
Item # 1
Public Safety Committee Meeting
10/27/2008 12:15 PM
Motion to Approve Contract Award with McKnight Construction Co. for the Webster Detention Center Expansion
Department:Richmond County Sheriff's Office
Caption:Motion to approve award of a contract with McKnight Construction Co. for
construction of the Webster Detention Center Expansion.
Background:Three bids were received from pre-qualified bidders on October 9, 2008.
The bids have been analyzed and McKnight Construction has been found to
be the lowest responsive bidder.
Analysis:McKnight’s bid has been thoroughly reviewed and they are the lowest
responsive, responsible bidder. They are a local company, and are qualified
to perform the work.
Financial Impact:McKnight’s bid, inclusive of select alternates which are practical
necessities, is $27,041,000.00. This is effectively within the budgeted cost
(utilizing less than 3% of project contingencies). This scope of work will
provide a new housing pod, along with a new medical/mental health facility
and video visitation facility. Inclusion of the second (female) pod would
raise the total contract amount to $32,991,000.00, and would require
additional funding of $5.22M.
Alternatives:Option A: Award contract of $27,041,000.00 to McKnight Construction,
adding (1) new housing pod, new medical pod and new video visitation
facility. Option B: Provide $5.22M in additional funding and award contract
of $32,991,000.00 to McKnight Construction, adding (2) new housing pods,
new medical pod and new video visitation facility.
Recommendation:Award Contract to McKnight Construction Co. in amount stipulated in
either Option A or Option B.
Funds are Available in
the Following
Accounts:
GL – 325-05-1130 / 206351101 GL - 325-05-1120 / 208251101
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Cover Memo
Item # 2
Clerk of Commission
Cover Memo
Item # 2
OWNER-CONTRACTOR AGREEMENT (DRAFT A)
00 52 00-1
OWNER-CONTRACTOR AGREEMENT (DRAFT A)
7+,6&216758&7,21&2175$&7 ³&RQWUDFW´ PDGHWKLV4th day of November, 2008, by
and between McKnight Construction Co., Inc. ³&RQWUDFWRU´ ZKRVHDGGUHVVLV 635 NW
Frontage Rd, Augusta, Georgia, 30907, and Augusta Richmond County, by and through the
Augusta Richmond County &RPPLVVLRQIRUWKHEHQHILWRI5LFKPRQG&RXQW\6KHULII¶V2IILFH
WITNESSETH, that the Contractor and the Owner, for the consideration set forth herein,
the adequacy and sufficiency of which is hereby acknowledged by each party, agree as follows:
Project Name and Description ³Additions and Renovations WRWKH:HEVWHU'HWHQWLRQ&HQWHU´
which includes modifications to existing and erection of new detention facilities, at the Webster
Detention Center in Augusta, Georgia KHUHLQDIWHUWKH³3URMHFW´
1. Existing Documents. The Contractor has reviewed and taken into consideration the
Bidding Documents in preparing bid.
2. The Contract Sum: The Owner shall pay the Contractor for the performance of the
contract, subject to additions and deductions provided by approved change orders, in
current funds, the Contact Sum as follows:
TWENTY-SEVEN MILLION FORTY-ONE THOUSAND DOLLARS ($27,041,000.00).
3. The Substantial Completion Date shall be achieved within 665 consecutive calendar
days beginning the date specified in the Notice to Proceed.
4. The agreed daily amount for Liquidated Damages is: $1000.00 per day.
5. Notice. All notices in accordance with the General and Special Conditions of the Contract
shall be given to the following addresses:
CONTRACTOR: McKnight Construction Company, Inc.
635 Frontage Road
Augusta, GA 30907
Attention: Pat Patrick
Phone Number: (706) 863-7784
Facsimile Number: (706) 863.2031
OWNER: Augusta Richmond County Administrator
530 Greene Street
Room 801
August, Georgia, 30911
Phone Number: (706) 821-2400
Facsimile Number: (706) 821-2819
Attachment number 1
Page 1 of 132
Item # 2
OWNER-CONTRACTOR AGREEMENT (DRAFT A)
00 52 00-2
CONSTRUCTION PROGRAM MANAGER: Heery International, Inc.
501 Greene Street, Suite 313
Augusta, GA 30901
Attn: Bob Munger
Phone Number: (706) 842-5543
Facsimile Number: (706) 821-2484
ARCHITECT: KSGW
2500 Northwinds Parkway
Suite 250
Alpharetta, GA 30004
Attn: Gregory Washington
770.619.5913
770.619.5919 ± Fax
USING AGENCY: 5LFKPRQG&RXQW\6KHULII¶V2IILFH
401 Walton Way
Augusta, GA 30911
Attn: Major Gene Johnson
Phone Number: (706) 821-1113
Facsimile Number: (706) 821-1106
6. Scope of the Work: The Contractor shall furnish all equipment, materials and labor to
perform all of the Work and do all things required by the Contract Documents. Specific
Work tasks include :
a. Within 14 calendar days of executed Agreement, submit General Work Plan to
2ZQHU¶V3URMHFW0DQDJHULQFOXGLQJVFKHGXOHGFRPSOHWLRQRIDOOPDMRUWDVNV
b. 3UHSDUHD6DIHW\3ODQDQGVXEPLWWR2ZQHU¶V3URMHFW0DQDJHUZLWKLQGD\VRI
executed Agreement. Plan should include emergency response procedures, discussion
of potential hazards, etc.
c. Attend Pre-Construction Conference with Owner Representatives.
d. Obtain and pay for all required permits, taking into account all applicable laws
and regulations.
e. Erect new inmate housing pods, medical/mental health facility, video visitation
facility and appurtenances, as required by the Contract Documents.
f. Modify and renovate existing detention facilities, including but not limited to
housing pods, kitchen and laundry facilities, as required by the Contract Documents.
g. Install high-security fencing, and appurtenances and accessories, surrounding
the detention center, as indicated by the Contact Documents
All salvageable materials will become the property of the Contractor, unless specifically
Attachment number 1
Page 2 of 132
Item # 2
OWNER-CONTRACTOR AGREEMENT (DRAFT A)
00 52 00-3
noted otherwise.
7. Schedule and Completion: The Work shall commence upon issuance of the Notice to
Proceed and be completed within the time period specified herein and in accordance with
the General Conditions of the Contract.
8. Periodic Progress Payments: The Owner shall make progress payments, less retainage,
as set forth in the General Conditions of the Contract. Invoices shall be addressed to the
Construction Program Manager. The terms of this instant agreement supersede any and
all provisions of the Georgia Prompt Pay Act.
9. Payment for Substantial and Final Completion: The Owner shall make payments for
Substantial Completion and Final Completion as set forth in the General Conditions of the
Contract.
10. Contract Documents: This Contract, together with The Bidding Documents, General and
Special Conditions of the Contract, constitute the Contract Documents for the Project.
11. Bonds. The Contractor shall furnish both a Performance Bond and a Payment Bond and
shall pay the premiums thereon as a cost of the Work. The Performance Bond shall
guarantee the full performance of the Contract.
12. Unit Prices: Should changes in the scope of Work be required, as related to the following,
the cost of such changes shall be consistent with these unit prices:
Item Description Unit Bid Unit Price
1 Machine excavate common earth or clay; deposit and
compact elsewhere on site
Cu. yd. $4.36
2 Stone backfill (no. 53 compacted in place) for trenches Cu. Yd. $39.24
3 Engineered backfill for undercut or over-excavated areas Cu. yd. $15.80
4 Removal of unsuitable soils Cu. Yd. $9.80
5 Rock removal Cu. Yd. $85.00
6 ¶KLJKSHULPHWHUVHFXULW\IHQFHFRPSOHWH LF $94.37
7 ¶KLJKSHULPHWHUVHFXULW\IHQFHFRPSOHWH LF $67.90
8 Fit-out of existing detention cells in existing pods Each $20,000.00
13. Applicable Law: This Contract and all rights, privileges and responsibilities shall be
interpreted and construed according to the laws of the State of Georgia.
14. Dispute Resolution: Should mediation of disputes prove unsuccessful, the parties to this
Agreement agree that the matter(s) in question will be decided in the Superior Court of
Richmond County, Georgia. By signing this Agreement, the Design Consultant waives any
right to contest the venue in the Superior Court of Richmond County, Georgia.
Attachment number 1
Page 3 of 132
Item # 2
OWNER-CONTRACTOR AGREEMENT (DRAFT A)
00 52 00-4
15. No Conflict of Interest: The Contactor covenants that it presently has no interest and
shall not acquire any interest, direct or indirect, that would conflict in any manner or degree
with the performance required under this Contract. The Contractor further covenants that,
in the performance of this Contract, it shall neither contract with nor employ any person
having any such interest.
16. No Assignment: This Contract and the proceeds of this Contract may not be assigned or
sublet as a whole, nor may the performance thereunder be assigned, without the prior
written consent of the Owner.
17. No Waiver: The failure of the Owner at any time to require performance by the Contractor
of any provision hereof, shall in no way affect the right of the Owner thereafter to enforce
any provision or any part of the Contract, nor shall the failure of the Owner to enforce any
breach of any provision hereof to be taken or held to be a waiver of such provision, or as a
waiver, modification or rescission of the Contract itself.
18. Full Agreement: The Contract Documents superseded all prior negotiations, discussion,
statements and agreements between the Owner and Contractor and constitute the full,
complete, and entire agreement between Owner and Contractor. There can be no
changes to this Contract by oral means, nor by course of conduct of the parties, nor by
custom of the trade. No changes to this Contract will be binding on either party hereto
unless such change is properly authorized, in writing, in accordance with Article GC-12 of
the General Conditions.
Attachment number 1
Page 4 of 132
Item # 2
OWNER-CONTRACTOR AGREEMENT (DRAFT A)
00 52 00-5
IN WITNESS WHEROF the parties hereto have executed this Contract the day and year first
written above.
C O N T R A C T O R
McKnight Construction Company, Inc.
ATTEST: a Georgia corporation
__________________________ By:______________________________
__________________________ William D. McKnight, President
Seal
O W N E R
ATTEST: Augusta Richmond County, a political Subdivision of
the State of Georgia acting by and through the
Augusta Richmond County Commission
____________________________ By:______________________________
Lena Bonner, Clerk of Commission Deke Copenhaver, Mayor
Attachment number 1
Page 5 of 132
Item # 2
OWNER-CONTRACTOR AGREEMENT (DRAFT B)
00 52 00-1
OWNER-CONTRACTOR AGREEMENT (DRAFT B)
7+,6&216758&7,21&2175$&7 ³&RQWUDFW´ PDGHWKLVth day of November, 2008, by
and between McKnight Construction Co., Inc. ³&RQWUDFWRU´ ZKRVHDGGUHVVLV1:
Frontage Rd, Augusta, Georgia, 30907, and Augusta Richmond County, by and through the
Augusta Richmond County Commission, for the benefit of Richmond County 6KHULII¶V2IILFH
WITNESSETH, that the Contractor and the Owner, for the consideration set forth herein,
the adequacy and sufficiency of which is hereby acknowledged by each party, agree as follows:
Project Name and Description ³Additions and Renovations WRWKH:HEVWHU'HWHQWLRQ&HQWHU´
which includes modifications to existing and erection of new detention facilities, at the Webster
Detention Center in Augusta, Georgia KHUHLQDIWHUWKH³3URMHFW´
1. Existing Documents. The Contractor has reviewed and taken into consideration the
Bidding Documents in preparing bid.
2. The Contract Sum: The Owner shall pay the Contractor for the performance of the
contract, subject to additions and deductions provided by approved change orders, in
current funds, the Contact Sum as follows:
THIRTY-TWO MILLION NINE HUNDRED NINETY-ONE THOUSAND DOLLARS
($32,991,000.00).
3. The Substantial Completion Date shall be achieved within 665 consecutive calendar
days beginning the date specified in the Notice to Proceed.
4. The agreed daily amount for Liquidated Damages is: $1000.00 per day.
5. Notice. All notices in accordance with the General and Special Conditions of the Contract
shall be given to the following addresses:
CONTRACTOR: McKnight Construction Company, Inc.
635 Frontage Road
Augusta, GA 30907
Attention: Pat Patrick
Phone Number: (706) 863-7784
Facsimile Number: (706) 863.2031
OWNER: Augusta Richmond County Administrator
530 Greene Street
Room 801
August, Georgia, 30911
Phone Number: (706) 821-2400
Facsimile Number: (706) 821-2819
Attachment number 1
Page 6 of 132
Item # 2
OWNER-CONTRACTOR AGREEMENT (DRAFT B)
00 52 00-2
CONSTRUCTION PROGRAM MANAGER: Heery International, Inc.
501 Greene Street, Suite 313
Augusta, GA 30901
Attn: Bob Munger
Phone Number: (706) 842-5543
Facsimile Number: (706) 821-2484
ARCHITECT: KSGW
2500 Northwinds Parkway
Suite 250
Alpharetta, GA 30004
Attn: Gregory Washington
770.619.5913
770.619.5919 ± Fax
USING AGENCY: 5LFKPRQG&RXQW\6KHULII¶V2IILFH
401 Walton Way
Augusta, GA 30911
Attn: Major Gene Johnson
Phone Number: (706) 821-1113
Facsimile Number: (706) 821-1106
6. Scope of the Work: The Contractor shall furnish all equipment, materials and labor to
perform all of the Work and do all things required by the Contract Documents. Specific
Work tasks include :
h. Within 14 calendar days of executed Agreement, submit General Work Plan to
2ZQHU¶V3URMHFW0DQDJHULQFOXGLQJVFheduled completion of all major tasks.
i. 3UHSDUHD6DIHW\3ODQDQGVXEPLWWR2ZQHU¶V3URMHFW0DQDJHUZLWKLQGD\VRI
executed Agreement. Plan should include emergency response procedures, discussion
of potential hazards, etc.
j. Attend Pre-Construction Conference with Owner Representatives.
k. Obtain and pay for all required permits, taking into account all applicable laws
and regulations.
l. Erect new inmate housing pods, medical/mental health facility, video visitation
facility and appurtenances, as required by the Contract Documents.
m. Modify and renovate existing detention facilities, including but not limited to
housing pods, kitchen and laundry facilities, as required by the Contract Documents.
n. Install high-security fencing, and appurtenances and accessories, surrounding
the detention center, as indicated by the Contact Documents
All salvageable materials will become the property of the Contractor, unless specifically
Attachment number 1
Page 7 of 132
Item # 2
OWNER-CONTRACTOR AGREEMENT (DRAFT B)
00 52 00-3
noted otherwise.
7. Schedule and Completion: The Work shall commence upon issuance of the Notice to
Proceed and be completed within the time period specified herein and in accordance with
the General Conditions of the Contract.
8. Periodic Progress Payments: The Owner shall make progress payments, less retainage,
as set forth in the General Conditions of the Contract. Invoices shall be addressed to the
Construction Program Manager. The terms of this instant agreement supersede any and
all provisions of the Georgia Prompt Pay Act.
9. Payment for Substantial and Final Completion: The Owner shall make payments for
Substantial Completion and Final Completion as set forth in the General Conditions of the
Contract.
10. Contract Documents: This Contract, together with The Bidding Documents, General and
Special Conditions of the Contract, constitute the Contract Documents for the Project.
11. Bonds. The Contractor shall furnish both a Performance Bond and a Payment Bond and
shall pay the premiums thereon as a cost of the Work. The Performance Bond shall
guarantee the full performance of the Contract.
12. Unit Prices: Should changes in the scope of Work be required, as related to the following,
the cost of such changes shall be consistent with these unit prices:
Item Description Unit Bid Unit Price
1 Machine excavate common earth or clay; deposit and
compact elsewhere on site
Cu. yd. $4.36
2 Stone backfill (no. 53 compacted in place) for trenches Cu. Yd. $39.24
3 Engineered backfill for undercut or over-excavated areas Cu. yd. $15.80
4 Removal of unsuitable soils Cu. Yd. $9.80
5 Rock removal Cu. Yd. $85.00
6 ¶KLJKSHULPHWer security fence, complete LF $94.37
7 ¶KLJKSHULPHWHUVHFXULW\IHQFHFRPSOHWH LF $67.90
8 Fit-out of existing detention cells in existing pods Each $20,000.00
13. Applicable Law: This Contract and all rights, privileges and responsibilities shall be
interpreted and construed according to the laws of the State of Georgia.
14. Dispute Resolution: Should mediation of disputes prove unsuccessful, the parties to this
Agreement agree that the matter(s) in question will be decided in the Superior Court of
Richmond County, Georgia. By signing this Agreement, the Design Consultant waives any
right to contest the venue in the Superior Court of Richmond County, Georgia.
Attachment number 1
Page 8 of 132
Item # 2
OWNER-CONTRACTOR AGREEMENT (DRAFT B)
00 52 00-4
15. No Conflict of Interest: The Contactor covenants that it presently has no interest and
shall not acquire any interest, direct or indirect, that would conflict in any manner or degree
with the performance required under this Contract. The Contractor further covenants that,
in the performance of this Contract, it shall neither contract with nor employ any person
having any such interest.
16. No Assignment: This Contract and the proceeds of this Contract may not be assigned or
sublet as a whole, nor may the performance thereunder be assigned, without the prior
written consent of the Owner.
17. No Waiver: The failure of the Owner at any time to require performance by the Contractor
of any provision hereof, shall in no way affect the right of the Owner thereafter to enforce
any provision or any part of the Contract, nor shall the failure of the Owner to enforce any
breach of any provision hereof to be taken or held to be a waiver of such provision, or as a
waiver, modification or rescission of the Contract itself.
18. Full Agreement: The Contract Documents superseded all prior negotiations, discussion,
statements and agreements between the Owner and Contractor and constitute the full,
complete, and entire agreement between Owner and Contractor. There can be no
changes to this Contract by oral means, nor by course of conduct of the parties, nor by
custom of the trade. No changes to this Contract will be binding on either party hereto
unless such change is properly authorized, in writing, in accordance with Article GC-12 of
the General Conditions.
Attachment number 1
Page 9 of 132
Item # 2
OWNER-CONTRACTOR AGREEMENT (DRAFT B)
00 52 00-5
IN WITNESS WHEROF the parties hereto have executed this Contract the day and year first
written above.
C O N T R A C T O R
McKnight Construction Company, Inc.
ATTEST: a Georgia corporation
__________________________ By:______________________________
__________________________ William D. McKnight, President
Seal
O W N E R
ATTEST: Augusta Richmond County, a political Subdivision of
the State of Georgia acting by and through the
Augusta Richmond County Commission
____________________________ By:______________________________
Lena Bonner, Clerk of Commission Deke Copenhaver, Mayor
Attachment number 1
Page 10 of 132
Item # 2
GENERAL CONDITIONS
GENERAL CONDITIONS OF
THE CONTRACT FOR
CONSTRUCTION
HI/201/LF
Attachment number 1
Page 11 of 132
Item # 2
GENERAL CONDITIONS
General Conditions of the Contract for Construction
00 72 00-TOC-1
HI/201/LF
TABLE OF CONTENTS
ARTICLE 1 CONTRACT DOCUMENTS
1.1 DEFINITIONS ........................................................................................................ 1
1.2 EXECUTION, CORRELATION AND INTENT ....................................................... 8
1.3 OWNERSHIP AND USE OF DOCUMENTS ....................................................... 12
ARTICLE 2 DESIGN CONSULTANT
2.1 DEFINITIONS ...................................................................................................... 12
2.2 SERVICES OF THE DESIGN CONSULTANT .................................................... 13
ARTICLE 3 OWNER
3.1 DEFINITIONS ...................................................................................................... 15
3.2 CONSTRUCTION PROGRAM MANAGER ......................................................... 15
3.3 INFORMATION, SERVICES AND RIGHTS OF THE OWNER ........................... 15
3.4 DIFFERING SITE CONDITIONS ......................................................................... 17
3.5 OWNER’S RIGHT TO STOP OR TO SUSPEND THE WORK............................ 19
3.6 OWNER’S RIGHT TO CARRY OUT THE WORK AND DIRECT
OVERTIME .......................................................................................................... 20
3.7 RIGHT TO AUDIT AND PRESERVATION OF RECORDS ................................. 21
ARTICLE 4 CONTRACTOR
4.1 DEFINITIONS ...................................................................................................... 22
4.2 REVIEW AND MAINTENANCE OF CONTRACT DOCUMENTS ....................... 23
4.3 SUPERVISION AND CONSTRUCTION PROCEDURES ................................... 23
4.4 CONTRACTOR REPRESENTATIONS AND WARRANTIES AS
TO PERFORMANCE ........................................................................................... 25
4.5 LABOR AND MATERIALS ................................................................................... 27
4.6 CONTRACTOR S WARRANTY AS TO MATERIALS AND
WORKMANSHIP .................................................................................................. 29
4.7 UNCOVERING AND CORRECTION OF WORK ................................................ 30
4.8 TAXES ................................................................................................................ 31
4.9 PERMITS, FEES AND NOTICES ........................................................................ 31
4.10 ALLOWANCES .................................................................................................... 32
4.11 CONSTRUCTION SCHEDULE ........................................................................... 32
4.12 RESPONSIBILITY FOR COMPLETION .............................................................. 33
4.13 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES ..................................... 34
4.14 EQUAL PRODUCTS AND SUBSTITUTIONS ..................................................... 37
4.15 USE OF SITE ....................................................................................................... 39
4.16 CUTTING AND PATCHING OF WORK ............................................................... 40
4.17 CLEANING UP ..................................................................................................... 40
4.18 COMMUNICATIONS............................................................................................ 41
4.19 ROYALTIES AND PATENTS ............................................................................... 41
4.20 IDEMNIFICATION ................................................................................................ 41
4.21 PERSONS AUTHORIZED TO SIGN DOCUMENTS AND MAKE
DECISIONS FOR CONTRACTOR ...................................................................... 42
4.22 CONDITIONS AFFECTING THE WORK............................................................. 42
4.23 TESTS ................................................................................................................ 42
4.24 QUALITY CONTROL ........................................................................................... 44
Attachment number 1
Page 12 of 132
Item # 2
GENERAL CONDITIONS
General Conditions of the Contract for Construction
00 72 00-TOC-2
ARTICLE 5 SUBCONTRACTORS
5.1 DEFINITIONS ...................................................................................................... 45
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR
FOR PORTIONS OF THE WORK ....................................................................... 45
5.3 SUBCONTRACT RELATIONS ............................................................................ 47
5.4 QUALIFICATION SUBMITTALS .......................................................................... 48
5.5 PREPARATORY WORK ...................................................................................... 48
5.6 PAYMENTS TO SUBCONTRACTORS ............................................................... 49
ARTICLE 6 WORK BY OWNER OR BY SEPARATE CONTRACTORS
6.1 OWNER¶S RIGHT TO PERFORM WORK AND TO AWARD
SEPARATE CONTRACTS .................................................................................. 49
6.2 MUTUAL RESPONSIBILITY ................................................................................ 49
6.3 OWNER¶S RIGHT TO PERFORM DISPUTED WORK ....................................... 51
6.4 COORDINATION OF THE WORK ....................................................................... 52
ARTICLE 7 MISCELLANEOUS PROVISIONS
7.1 GOVERNING LAW .............................................................................................. 54
7.2 SUCCESSORS AND ASSIGNS .......................................................................... 54
7.3 PERSONAL INJURY AND PERSONAL AND REAL PROPERTY
DAMAGE CLAIMS ............................................................................................... 54
7.4 PERFORMANCE BOND, LABOR AND MATERIAL PAYMENT
BOND AND MAINTENANCE BOND ................................................................... 54
7.5 RIGHTS AND REMEDIES ................................................................................... 55
7.6 ATTORNEY¶S FEES AND OTHER EXPENSES ................................................. 56
7.7 NOTICE ................................................................................................................ 56
7.8 DISPUTE RESOLUTION ..................................................................................... 57
7.9 ORGANIZED LABOR AGREEMENTS ................................................................ 58
ARTICLE 8 TIME
8.1 DEFINITIONS ...................................................................................................... 59
8.2 PROGRESS AND COMPLETION ....................................................................... 59
8.3 DELAYS AND EXTENSIONS OF TIME .............................................................. 60
8.4 LIQUIDATED DAMAGES FOR DELAY ............................................................... 64
ARTICLE 9 PAYMENTS AND COMPLETION
9.1 DEFINITION ......................................................................................................... 65
9.2 VALUES OF CONSTRUCTION ACTIVITIES ...................................................... 65
9.3 APPLICATIONS FOR PAYMENT ........................................................................ 65
9.4 CERTIFICATES FOR PAYMENT ........................................................................ 66
9.5 PROGRESS PAYMENTS .................................................................................... 67
9.6 PAYMENTS WITHHELD ..................................................................................... 68
9.7 FAILURE OF PAYMENT ..................................................................................... 69
9.8 PARTIAL UTILIZATION AND OCCUPANCY BY OWNER.................................. 70
9.9 SUBSTANTIAL COMPLETION ............................................................................ 70
9.10 FINAL COMPLETION AND FINAL PAYMENT .................................................... 71
ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY
10.1 RESPONSIBILITY FOR SAFETY AND HEALTH ................................................ 73
10.2 SAFETY OF PERSONS AND PROPERTY ......................................................... 74
Attachment number 1
Page 13 of 132
Item # 2
GENERAL CONDITIONS
General Conditions of the Contract for Construction
00 72 00-TOC-3
10.3 EMERGENCIES ................................................................................................... 77
10.4 EFFECT OF SUBMISSION OF CONTRACTOR S SAFETY PLAN .................. 77
10.5 FAILURE OF COMPLIANCE ............................................................................... 77
ARTICLE 11 INSURANCE
11.1 CONTRACTOR’S LIABILITY INSURANCE ......................................................... 78
11.2 PROPERTY INSURANCE ................................................................................... 79
11.3 EFFECT OF SUBMISSION OF CERTIFICATES ................................................ 80
11.4 FAILURE OF COMPLIANCE ............................................................................... 80
11.5 OWNER’S INSURANCE ...................................................................................... 80
ARTICLE 12 CHANGES IN THE WORK
12.1 CHANGE ORDERS ............................................................................................. 81
12.2 OWNER DIRECTED CHANGES REQUIRING AN INCREASE IN
CONTRACT SUM ................................................................................................ 81
12.3 CHANGES REQUIRING A DECREASE IN CONTRACT SUM OR
CONTRACT TIME ................................................................................................ 84
12.4 CONTRACTOR NOTICE OF CHANGE............................................................... 84
12.5 DISPUTES REGARDING CHANGES ................................................................. 85
12.6 COST OF THE WORK ......................................................................................... 85
12.7 GENERAL PROVISIONS RELATED TO CHANGES .......................................... 88
ARTICLE 13 SCHEDULES & REPORTS
13.1 GENERAL REQUIREMENTS .............................................................................. 89
13.2 POST AWARD ACTIVITIES ................................................................................ 92
13.3 DRAFT OF CONSTRUCTION SCHEDULE ........................................................ 93
13.4 CONSTRUCTION SCHEDULE ........................................................................... 93
13.5 SCHEDULE OF VALUES .................................................................................... 94
13.6 CONSTRUCTION SCHEDULE CONTENT ......................................................... 94
13.7 CONTRACTOR APPROVAL AND CERTIFICATION .......................................... 95
13.8 UPDATING OF CONSTRUCTION SCHEDULE/PROGRESS
REPORTS ............................................................................................................ 95
13.9 INITIAL PROGRESS PAYMENT ......................................................................... 97
13.10 RECOVERY SCHEDULE .................................................................................... 97
13.11 SCHEDULE REVISIONS ..................................................................................... 98
13.12 FLOAT TIME ........................................................................................................ 98
13.13 CONTRACTOR’S ORGANIZATION .................................................................... 99
13.14 DEFAULT ............................................................................................................. 99
ARTICLE 14 TERMINATION OF THE WORK
14.1 TERMINATION DUE TO WORK STOPPAGE .................................................... 99
14.2 TERMINATION FOR CONVENIENCE OF THE OWNER ................................. 100
14.3 DEFAULT TERMINATION ................................................................................. 100
14.4 ALLOWABLE TERMINATION COSTS .............................................................. 101
14.5 GENERAL TERMINATION PROVISIONS ........................................................ 103
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GENERAL CONDITIONS OF THE
CONTRACT FOR CONSTRUCTION
ARTICLE 1
CONTRACT DOCUMENTS
1.1 DEFINITIONS
Wherever used in these General Conditions or in the other Contract Documents, the
following terms have the meanings indicated which are applicable to both the singular
and plural thereof:
1.1.1 ADDENDA:
Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or
change any part of the Bidding Documents or of the Contract Documents.
1.1.2 AGREEMENT:
The written agreement between Owner and Contractor (also referred to as the
Owner-Contractor Agreement) covering the Work to be performed.
1.1.3 APPLICATION FOR PAYMENT:
The document used by Contractor in requesting progress or final payments including
such supporting documentation as is required by the Contract Documents.
1.1.4 AS SHOWN, AS INDICATED, AS DETAILED:
These words, and words of like implication, refer to information contained in the Contract
Documents which describes the Work, unless explicitly stated otherwise.
1.1.5 BID:
A complete and properly executed Bid Form and supporting data, conforming to and
complying with all of the requirements of the form as well as the requirements of the
Instruction For Bidders, Supplemental Instructions to Bidders and the proposed Contract
Documents, whereby a Bidder proposes to do the Work or designated portion thereof for
the sums stipulated therein. The word "Bid" may also, in context, mean a "Proposal" as
defined herein.
1.1.6 BIDDER:
Any person, individual, company, corporation, partnership, joint venture or other entity
who submits a bid to the Owner for the Work, as distinct from a sub-bidder who submits a
bid to a Bidder.
1.1.7 BIDDING DOCUMENTS:
The Invitation to Bid, Instructions to Bidders, Sample Forms, Proposal, the Bid Bond, the
Provisional Preliminary Network, all Conditions of the Contract, Specifications, Drawings,
and Addenda issued prior to receipt of bids by Owner.
1.1.8 BONDS:
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Bid bond, performance and payment bonds, maintenance bonds and other instruments of
surety.
1.1.9 CHANGE ORDER:
A written order of the Owner which authorizes an addition, deletion, or revision in the
Work or Contract Documents and may include an adjustment in the Contract Price, the
Contract Time or Specific Dates, which is issued on or after the Effective Date of the
Agreement.
1.1.10 CONSTRUCTION PROGRAM MANAGER:
The Construction Program Manager is Heery International, Inc. The Construction
Program Manager is the Owner's exclusive representative and agent to the Contractor
with respect to the Project during the construction and until the issuance of the final
Certificate for Payment. The term Construction Program Manager is referred to
throughout the Contract Documents as if singular in number and masculine in gender.
1.1.11 CONTRACT DOCUMENTS:
The Contract Documents consist of the Owner-Contractor Agreement (or herein
"Agreement"), the Conditions of the Contract (General, Supplementary, Special and all
other conditions), the Drawings, the Specifications, and all Addenda issued prior to
execution of the Contract, written amendments to the Contract signed by both parties,
Change Orders issued in accordance with the provisions of Article 12 hereof, and written
interpretations or clarifications issued by the Design Consultant pursuant to
Subparagraph 2.2.6 or by the Construction Program Manager pursuant to Subparagraph
3.3.14. The Contract Documents also include the Bidding Documents, the Contractor's
Bid or Proposal (including required documentation accompanying the Bid or Proposal
Form submitted by Contractor and any required post-bid documentation submitted prior
to the Notice of Award); provided, however, that the Contract Documents do not include
any exceptions to or modifications made by Contractor to the Bidding Documents which
are not called for by the bidding or proposal requirements and which are not approved by
the Owner in writing prior to Notice of Award. The Contract Documents do not include
any other documents, including, but not limited to, soils, geological or other reports,
surveys and analyses, which may be printed, bound or assembled with the Contract
Documents, or otherwise made available to the Contractor for review or information
under this Contract. The fact a particular document or page is printed, bound or
assembled with the Contract Documents, as specifically defined herein, at the time of bid,
does not make such document or page a part of the Contract Documents unless the
document or page is a part of those items specifically enumerated in the Contract
Documents as being part thereof.
1.1.12 CONTRACT:
The Contract is the sum of all the Contract Documents. The Contract may be amended
or modified only by a written amendment to the Contract signed by both parties, a
Change Order issued in accordance with the provisions of Article 12 hereof, a written
interpretation or clarification issued by the Design Consultant pursuant to Subparagraph
2.2.6 or by the Construction Program Manager pursuant to Subparagraph 3.3.14, or a
written order by the Owner for a Minor Change in the Work issued in accordance with
Paragraph 12.7 hereof.
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1.1.13 CONTRACT PRICE OR SUM:
The moneys payable by Owner to Contractor pursuant to the Contract Documents.
1.1.14 CONTRACT TIME:
The number of days or period of time allotted in the Contract Documents for Final
Completion of the Work, including authorized adjustments thereto.
1.1.15 CONTRACTOR:
The Contractor is the person or organization identified as such in the Agreement and is
referred to throughout the Contract Documents as if singular in number and masculine in
gender. The term "Contractor" means the Contractor or his authorized representatives,
who have authority to bind the Contractor in all matters pertinent to this Contract and any
Subcontractor, Sub-Subcontractor or Supplier with whom Contractor has a contract for
the performance of any portion of the Work.
1.1.16 DEFECTIVE:
An adjective, which, when modifying the word "Work", refers to Work that is
unsatisfactory, faulty, deficient, does not conform to the Contract Documents, does not
meet the requirements of the Owner's or any other required inspection, referenced
standard, test, or approval referred to in the Contract Documents, or has been damaged
prior to Construction Program Manager's recommendation of final payment (unless
responsibility for the protection thereof has been assumed by Owner at Substantial
Completion in accordance with Article 9 hereof).
1.1.17 DESIGN CONSULTANT:
The terms "Design Consultant", "A/E", "Architect", or "Engineer" as used or set forth in
the Contract Documents shall mean the entity and their consulting firms or agencies, their
employees and sub-consultants, or their duly authorized representatives, that are
responsible for designing or engineering the Work, and performing the activities specified
herein, as identified in the Agreement, including any consulting engineers or
subcontractors to said entities or firms. Such firms or agencies and their representatives
shall act jointly and severally within the scope of the particular duties entrusted to them,
unless otherwise provided for in the Contract. The Design Consultant is identified in the
Agreement and is referred to throughout the Contract Documents as if singular in number
and masculine in gender. The Design Consultant is further described throughout this
document, and shall mean, one or both of the following:
1.1.17.1 ARCHITECT:
A person or other legal entity lawfully licensed to practice architecture in the state
wherein the Project is located and engaged by Owner or Engineer for the Project.
1.1.17.2 ENGINEER:
A person or other legal entity lawfully licensed to practice engineering in the state
wherein the Project is located and engaged by Owner or Architect for the Project.
1.1.18 DAY, DATE:
Whenever the word "day" is used in the Contract Documents, it shall mean a calendar
day unless otherwise specifically provided. All dates set forth in the Contract Documents
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shall begin at 12:01 a.m. of the indicated day, and shall end at midnight of that day,
unless otherwise stipulated.
1.1.19 DIRECTED, REQUIRED, ACCEPTABLE:
When these words refer to the Work or its performance, "directed," "required,"
"permitted," "ordered," "designated," "prescribed," and words of like implication, mean, in
context, "by direction of," "requirements of," "permission of," "order of," "designation of,"
or "prescription of" the Owner, Construction Program Manager or Design Consultant.
Likewise, "acceptable," "satisfactory," "in the judgment of," and words of like import,
mean "recommended by," "acceptable to," "satisfactory to," "approved by," "in the
judgment of the Owner, Construction Program Manager or Design Consultant."
1.1.20 DRAWINGS:
The drawings which show the character, nature and scope of the Work to be performed
and which have been prepared or approved by Design Consultant and are referred to in
the Contract Documents.
1.1.21 EFFECTIVE DATE OF THE AGREEMENT:
The date indicated in the Agreement on which it becomes effective. If no such date is
indicated, it means the date of the Notice to Proceed to Contractor or the effective date
set forth in such Notice to Proceed.
1.1.22 FINAL COMPLETION:
Final Completion of the Work is the date certified by the Construction Program Manager,
the Design Consultant and Owner when the Work is totally complete in accordance with
the Contract Documents and Contractor has fulfilled all obligations thereunder, including,
but not limited to all Punch List work, in accordance with the Contract Documents; and
the Owner may fully occupy and utilize all of the Work for the use for which it is intended.
1.1.23 FURNISH AND INSTALL, PROVIDE:
The terms "Furnish and Install" and "Provide", unless specifically limited in context,
mean: furnishing, installing or incorporating a specified item, product or material in the
Work, including all necessary labor, materials and equipment necessary to perform the
Work required, ready for use, complete in all respects.
1.1.24 LAWS, REGULATIONS:
Laws, rules, regulations, ordinances, codes, or orders of a public authority having
jurisdiction of the Work or Project.
1.1.25 MANUALS:
Except as provided in Subparagraph 1.1.37, the word "Manuals" means manufacturer's
installation, start-up, operating, maintenance and repair instructions, together with parts
lists, pictures, sketches and diagrams which set forth the manufacturer's requirements.
1.1.26 MANUFACTURER:
Any person or entity who manufactures, fabricates, or assembles a product to be
incorporated in the Work.
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1.1.27 MATERIAL SUPPLIER, SUPPLIER, VENDOR:
Any person or entity who supplies, but who is not responsible for the installation of
materials, products or equipment for the Work.
1.1.28 NOTICE:
The word "Notice" as used in the Contract Documents shall mean and require written
Notice. There is a presumption that written Notice was received by the party to whom it
was sent, when same was delivered to or at the last known business address of the
person, firm or corporation for whom the Notice is intended, or to his duly authorized
agent, representative or officer, or when enclosed in a postage prepaid wrapper or
envelope addressed to such person, firm or corporation at his, their or its last known
business address and deposited in a United States mailbox.
1.1.29 NOTICE OF AWARD:
The written Notice by Owner or Construction Program Manager to the apparent
successful bidder stating that upon compliance by the apparent successful bidder with
the conditions precedent enumerated therein, within the time specified, Owner will sign
and deliver the Agreement.
1.1.30 NOTICE TO PROCEED:
A written Notice given by Owner or Construction Program Manager to Contractor fixing
the date on which the Contract Time will commence to run and on which Contractor shall
start to perform Contractor's obligations under the Contract Documents. A Notice to
Proceed may be issued separately for the commencement of portions of the Work.
1.1.31 OWNER:
The Owner is the person or entity identified as such in the Owner-Contractor Agreement
and is referred to throughout the Contract Documents as if singular in number and
masculine in gender. The term "Owner" means the Owner or his authorized
representative or agent.
1.1.32 PARTIAL UTILIZATION:
Placing a portion of the Work in service for the purpose for which it is intended (or a
related purpose) before reaching Substantial Completion for all the Work.
1.1.33 PLANS OR DRAWINGS:
All drawings or reproduction of drawings pertaining to the Work, which are part of the
Contract Documents.
1.1.34 PRODUCT:
Purchased items, articles, devices or fixtures for incorporation into the Work, regardless
of whether specifically purchased for the Project or taken from Contractor's stock of
previously purchased Products. The term also includes "materials," which are defined as
Products which must be substantially cut, shaped, worked, mixed, finished, refined, or
otherwise fabricated, processed, installed, or applied to form units of work. The term also
includes "equipment," which is defined as Products with operational parts, regardless of
whether motorized or manually operated, and particularly including products with service
connections (wiring, piping, etc.). The term "Product" is also extended to include, without
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negating its distinctive meaning, other terms used in Contract Documents such as
"specialties," "systems," structure," "finishes," "accessories," "furnishings," "special
construction," and similar terms which are self-explanatory and which have recognized
meanings in the construction industry.
1.1.35 PRODUCT DATA:
Illustrations, standard schedules, performance charts, instructions, brochures, diagrams
or other information furnished by the Contractor to illustrate a material, product or system
for some portion of the Work.
1.1.36 PROJECT:
The total construction, of which the Work to be provided under the Contract Documents
by Contractor may be the whole, or a part thereof as set forth in the Contract Documents.
1.1.37 PROJECT MANUAL:
The Project Manual includes all Contract Documents except for the Drawings, which are
listed therein.
1.1.38 PROPOSAL:
A complete and properly executed Form of Proposal, conforming to all requirements of
the Bidding Documents, whereby a person or entity proposes to do the Work or
designated portion thereof for the sums stipulated therein, supported by all required data.
The word "Proposal" may also, in context, mean a "Bid" as defined herein.
1.1.39 PUNCH LIST:
A list, prepared during performance or near the completion of the Work, or designated
portion thereof, indicating items to be furnished, performed, completed or corrected by
Contractor in accordance with the Contract Documents.
1.1.40 RECORD DRAWINGS:
Drawings revised to show Changes made during the performance of the Work; usually
based upon marked-up prints, Drawings and other data furnished by the Contractor or
the Design Consultant.
1.1.41 SAMPLES:
Physical examples furnished by Contractor, which illustrate materials, equipment or
workmanship and, if in conformance with the Contract Documents, establish standards
by which the Work will be judged.
1.1.42 SHOP DRAWINGS:
Drawings, diagrams, illustrations, schedules or other data which are specifically
prepared by or for Contractor to illustrate some portion of the Work and all illustrations,
brochures, standard schedules, performance charts, specifications, instructions,
diagrams, and other information prepared by a Supplier or Manufacturer and submitted
by Contractor to illustrate material or equipment for some portion of the Work.
1.1.43 SPECIFICATIONS:
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Those portions of the Contract Documents consisting of written technical descriptions,
provisions or requirements pertaining to the materials and workmanship applicable to the
Work to be performed under the Contract Documents, including, but not limited to, the
quantities or quality of materials, equipment, construction systems or applications.
1.1.44 SPECIFIC DATES:
Specific Dates are dates set forth in the Contract Documents, in addition to the Notice to
Proceed and Contract Time, by which Contractor agrees to complete parts, portions,
systems, components of the Work or the Work itself. Specific Dates are the last
acceptable dates for the Substantial Completion of the stated items or portions of the
Work.
1.1.45 SUBCONTRACTOR:
A Subcontractor is a person or entity who has a contract directly with the Contractor to
perform any portion of the Work. The term "Subcontractor" is referred to throughout the
Contract Documents as if singular in number and masculine in gender and means a
Subcontractor or his authorized representative (and, by definition, any Sub-Subcontractor
or Supplier with whom a Subcontractor has a contract to perform any portion of the
Work). The term "Subcontractor" does not include any separate contractor (or his
subcontractors) not in direct contract with Contractor.
1.1.46 SUB-SUBCONTRACTOR:
A Sub-Subcontractor is a person or entity who has a direct or indirect contract with a
Subcontractor to perform any portion of the Work and includes, by definition, any Supplier
or Subcontractor with whom Sub-Subcontractor has a contract to perform any portion of
the Work. The term "Sub-Subcontractor" is referred to throughout the Contract
Documents as if singular in number and masculine in gender and means a
Sub-Subcontractor or an authorized representative thereof.
1.1.47 SUBSTANTIAL COMPLETION:
The progression of the Work (or a specified part thereof) to the point where, in the
opinion of Construction Program Manager, Design Consultant and Owner, it is complete
(except for minor punch list items) in accordance with the Contract Documents, so that
the Work (or specified part) can be fully utilized for the purposes for which it is intended,
with all of the Project's parts and systems operable as required by the Contract
Documents. The terms "substantially complete" and "substantially completed", as applied
to any portion or the whole of the Work, refer to Substantial Completion thereof.
1.1.48 SUBSTITUTIONS:
Products or forms or types of construction which are not identified on Drawings or in
Specifications as acceptable and which have been proposed by Contractor to replace
specified Products or forms or types of construction. Any Changes made in Contract
Documents as a result of requests made by Design Consultant or Owner are not within
the definition of "Substitutions".
1.1.49 SUPPLEMENTARY CONDITIONS, SPECIAL CONDITIONS:
Those parts of the Contract Documents which amend or supplement these General
Conditions and other requirements of the Contract Documents.
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1.1.50 UNDERGROUND FACILITIES OR UTILITIES:
All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other
such facilities or attachments, and any encasements containing such facilities which have
been installed underground to furnish, among other things, any of the following services
or materials: electricity, gases, water, steam, liquid petroleum products, telephone or
other communications, cable television, sewage or drainage removal, traffic, or other
control systems.
1.1.51 WORK:
The Work comprises the construction and other requirements of the Contract Documents
and includes all labor, material, equipment, supplies and all facilities or things necessary
thereto or a part thereof.
1.2 EXECUTION, CORRELATION AND INTENT:
1.2.1 Within five (5) days of receipt by Contractor from Owner of three unsigned
counterparts of the Agreement and all other Contract Documents, Contractor shall sign
and deliver at least three counterparts of the Agreement to Owner with all other Contract
Documents attached. After receipt thereof, Owner will deliver a fully signed counterpart
to Contractor. Each copy so executed shall be deemed an original, but all of which shall
constitute one and the same instrument. If either the Owner or the Contractor or both do
not sign the Conditions of the Contract, Drawings, Specifications, or any of the other
Contract Documents, the Construction Program Manager shall identify such Documents.
1.2.2 By signing the Agreement, Contractor has made and confirmed representations
and warranties to the Owner as set forth in Paragraph 4.4 hereof, upon which Owner has
relied in signing the Agreement.
1.2.3 The Contract Documents comprise the entire agreement between Owner and
Contractor concerning and relating in any way to the Work; any preceding or prior
discussions, negotiations, representations and any oral or written agreements or
understandings between Owner and Contractor are merged herein and are hereby
superseded and voided unless specifically adopted by reference and made a part of the
Contract Documents.
1.2.4 The Contract Documents are complementary; what is called for by one is as
binding as if called for by all. The Contract Documents are to be interpreted and read as
a whole, and all parts thereof are to be interpreted together. Effect shall be given to all
parts of the Contract, and an interpretation which gives a reasonable meaning to all of the
Contract's provisions shall be preferred to one which leaves a portion of the Contract
useless or inexplicable.
1.2.4.1 It is the intent of the Contract Documents to include all items necessary for the
proper execution and coordination of the Work and to describe a functionally complete
Project (or part thereof) to be constructed in accordance with the Contract Documents,
including all alternates accepted by the Owner, including all actions necessary and
required to provide all labor, plant, materials, supplies, equipment, transportation,
facilities, and appurtenances which are indicated or implied by, or reasonably inferable
from, each Drawing and each page of the Specifications, all of which are collectively
necessary and required for the completion of the Work. Performance by the Contractor
shall be required only to the extent consistent with the Contract Documents and
reasonably inferable from them as being necessary to produce the intended results.
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1.2.4.2 Anything shown on the drawings and not mentioned in the specifications, or
mentioned in the specifications and not shown on the drawings, shall have the same
effect as if shown or mentioned respectively in both. Any work shown on one drawing
shall be construed to be shown in all drawings, and Contractor will coordinate the Work
and the drawings.
.1 Before making his proposal or bid to the Owner, and continuously after signing
the Agreement, the Contractor shall carefully study and compare the Contract
Documents and shall at once report to the Owner through the Construction
Program Manager any error, inconsistency, omission, ambiguity, discrepancy,
conflict or variance he may discover, including any requirement which may be
contrary to any law, code, ordinance, rule, regulation or order of any public
authority being applicable to the performance of the Work. By submitting his
proposal or bid for the Work hereunder, Contractor agrees that the Contract
Documents appear accurate, consistent, and complete insofar as can reasonably
be determined.
.2 If any portion of the Contract Documents shall be in conflict with any other portion
after the application of the rules of interpretation set forth in this Paragraph 1.2,
the various documents comprising the Contract Documents shall govern in the
order of precedence as herein set forth according to their latest date of
execution: written interpretation or clarification by the Design Consultant issued
pursuant to Subparagraph 2.2.6 or by the Construction Program Manager
pursuant to Subparagraph 3.3.14; Change Orders; written amendment to the
Owner-Contractor Agreement; the Owner-Contractor Agreement; Addenda;
Special Conditions; Supplementary Conditions; General Conditions. The
Specifications take precedence over Drawings for the specific type or quality of
materials or the quality of installation; the Drawings take precedence over the
Specifications with regard to quantities, locations or detail of installation; as
between schedules and general notes given on Drawings, the general notes shall
take precedence; as between general notes given on the Drawings and specific,
detailed notes, the latter shall take precedence; as between large-scale Drawings
and small-scale Drawings, the larger scale shall take precedence. Specifications
having greater detail or specificity take priority over specifications of lesser detail
or specificity; and details take precedence over general drawings. Contractor
agrees that he is not entitled to and will not submit any request for any claim,
cause of action or time extension relating to any alleged error, inconsistency,
omission, ambiguity, discrepancy, conflict or variance that is resolved by the
application of the foregoing order of precedence of the Contract Documents;
Contractor hereby waives any such claims or causes of action, and covenants
not to sue and to indemnify and hold Owner, the Construction Program Manager
and the Design Consultant harmless with regard to any such claim.
1.2.5 Words and abbreviations which have well-known technical or trade meanings are
used in the Contract Documents in accordance with such recognized meanings unless
otherwise specifically defined herein. The table of contents, titles, headings, running
headlines and marginal notes contained herein and in said documents are solely to
facilitate reference to various provisions of the Contract Documents and in no way affect,
limit, interpret or modify the interpretation of the provisions to which they refer.
1.2.6 Reference in the Contract Documents to standard or published specifications or
manuals of any manufacturer, society, organization, association, or to any code or other
published standard, or to the laws or regulations of any governmental authority, whether
such reference be specific, by implication or by operation of law, shall mean the latest
standard specification, manual, code, or laws or regulations in effect at the time of
opening of Bids (or, on the effective Date of the Agreement if there were no bids), except
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as may be otherwise specifically stated in the Contract Documents. Contractor, if
requested, shall furnish an affidavit from the manufacturer certifying that materials,
equipment or products delivered to the project comply with all standards and
requirements specified in the Contract Documents or required by referenced standards,
codes or documents. In case of a conflict between any referenced standard or code or
other document and the specifications for the Work, the more stringent requirement shall
govern. However, no provision of any referenced standard specification, manual, or code
(whether or not specifically incorporated by reference in the Contract Documents) shall
be effective to change the duties and responsibilities of Owner, Contractor, Construction
Program Manager, or Design Consultant, or any of his consultants, agents, or
employees, from those set forth in the Contract Documents, nor shall it be effective to
assign to Construction Program Manager or Design Consultant, or any of Construction
Program Manager's or Design Consultant's consultants, agents, or employees, any duty
or authority to supervise or direct the furnishing or performance of the Work or any duty
or authority to undertake responsibility contrary to the provisions of The Contract
Documents.
1.2.7 The organization of the Specifications into divisions, sections and articles,
and the arrangement of Drawings is for clarity only, and shall not control the Contractor in
dividing the Work among Subcontractors or in establishing the extent of Work to be
performed by any trade. The Contractor may subcontract the Work in such divisions as
he sees fit; Contractor is responsible for furnishing all the Work required by the Contract
Documents regardless of the divisions Contractor may make in the Work.
1.2.8 Whenever in the Contract Documents the terms "as ordered," "as directed," "as
required," "as allowed," "as approved," or terms of like effect or import are used, or the
adjectives "reasonable," "suitable," "acceptable," "proper," or "satisfactory" or adjectives
of like effect or import are used to describe a requirement, direction, review, or judgment
of Construction Program Manager or Design Consultant as to the Work, it is intended that
such requirement, direction, review, or judgment will be exercised solely to evaluate the
Work for compliance with the Contract Documents (unless there is a specific statement
indicating otherwise). The use of any such term or adjective shall not be effective to
assign Construction Program Manager or Design Consultant any duty or authority to
supervise or direct the furnishing or performance of the Work or any duty or authority to
undertake responsibility contrary to the requirements or provisions of the Contract
Documents.
1.2.9 Contractor shall complete the Work in full and complete compliance with all
requirements of the Contract Documents. Contractor hereby waives any right or defense
he may have to claim that substantial compliance with any requirements of the Contract
Documents is equal to or sufficiently satisfies his duty and obligations for full and
complete compliance with the Contract Documents as herein required.
1.2.10 Contractor agrees that nothing contained in this Contract or in any contract
between the Owner and the Construction Program Manager or the Owner and the Design
Consultant shall create any contractual relationship between the Construction Program
Manager and the Contractor, the Design Consultant and the Contractor, the Design
Consultant and the Construction Program Manager or between the Owner, Design
Consultant, and the Construction Program Manager and any Subcontractor,
Sub-Subcontractors or any other third party.
1.2.11 Contractor acknowledges and agrees that should Contractor have any claim or
cause of action arise during the course of his performance hereunder, that Contractor
has a sole and sufficient remedy against Owner, as may be provided by law or under the
Contract Documents (subject to all provisions, requirements and limitations of this
Contract). Contractor further acknowledges and agrees that it is the intent of this
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Contract to provide for the economical and efficient resolution of all matters, claims or
causes of action that may arise relating to Contractor's performance of the Work under
this Contact; and that it is the intent of this Contract that all such matters be resolved
between Contractor and Owner (or between Contractor and any separate contractor as
provided in this Contract), without any separate claims or causes of action being asserted
against Owner's officers, directors, employees, agents or representatives (including
Construction Program Manager and Design Consultant); and that it is the intent of this
Contract to reduce the possible cost and attorney's fees in any litigation which may result
relating hereto by limiting the number of parties in any such proceeding and providing for
one forum in which all such issues may be resolved. Therefore, to implement and carry
out this intent, Contractor agrees as follows:
.1 Contractor acknowledges and agrees that the contracts between Owner and
Construction Program Manager and between Owner and the Design Consultant
are not intended for the benefit of Contractor or any Subcontractor or
Sub-Subcontractor and that Contractor (and any Subcontractor or
Sub-Subcontractor) is not a third-party beneficiary of such contracts. Contractor
waives any right, claim or cause of action he may have as an alleged third-party
beneficiary of any contracts between Owner and Construction Program Manager
or Owner and the Design Consultant and covenants not to sue Construction
Program Manager or Design Consultant as a third-party beneficiary of said
contracts.
.2 Contractor waives any claim or cause of action he may have as a matter of law
or equity (including, but not limited to any claim or cause of action for breach of
any express or implied warranty or obligation, any act or omission or failure to act
or to perform any duty, including any claim or cause of action for negligence)
against any of Owner's officers, directors, employees, agents or representatives
(including specifically, without limitation, Construction Program Manager and
Design Consultant or any of his directors, officers, employees or representatives,
or anyone in contract with any of them); and Contractor covenants with Owner
not to sue any of the foregoing, it being acknowledged and agreed that
Contractor's sole remedy for any such claims or causes of action shall be against
Owner (or in the case of a separate contractor, against said contractor as
provided in Article 6 hereof) and that such remedy against Owner (or directly
against a separate contractor) is sufficient to fully protect the interests of
Contractor hereunder.
.3 Unless otherwise provided in the Contract Documents, any legal proceeding of
any nature brought by the Contractor against the Owner to enforce any right or
obligation under this Contract (or by Contractor against Owner, Construction
Program Manager or Design Consultant, even though such action may be in
breach of any provision hereof) arising out of any matter pertaining to this
Contract or the Work to be performed hereunder, shall be submitted for trial
before the trial court of record in and for the city or county of the state or
jurisdiction in which the Project is located; Contractor hereby waives his right to
bring and warrants that he shall not bring any such legal proceeding in the United
States District Court having jurisdiction over the situs of the Project; and
Contractor hereby waives any right he may have to bring and warrants that he
shall not bring any such legal proceeding against Owner, Construction Program
Manager or Design Consultant in any other jurisdiction, whether under any
so-called "long arm statute" or any other law which may provide for jurisdiction of
such proceedings in a court other than that agreed upon herein. The right to trial
by jury is also waived by Contractor.
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.4 Nothing herein shall be construed as limiting in any way Owner's rights or causes
of action against any person with whom Owner has a contract relating to the
Project.
1.2.12 The provisions of this Contract cannot be amended, modified, varied or waived in
any respect except as specifically provided in Subparagraph 1.1.12 hereof. The
Contractor is hereby given Notice that no person has authority to orally waive, or to orally
release the Contractor from any of the Contractor's duties or obligations under or arising
out of this Contract. Contractor waives any right he may have to claim, and hereby
agrees not to claim, that the Owner, Construction Program Manager or Design
Consultant and Contractor, or any of his employees, agents, or representatives ever
agreed orally to waive the strict requirements for amendment of this Contract as set forth
in Subparagraph 1.1.12 hereof. Any waiver, approval or consent granted by Change
Order to the Contractor shall be limited to those matters specifically and expressly stated
therein to be waived, approved or consented to and shall not relieve the Contractor of the
obligation to obtain any future waiver, approval or consent.
1.2.13 Whenever any obligation, responsibility or duty is required of Contractor, or any
right, claim or cause of action is waived under this Contract, it is understood and agreed
that the intent of this Contract is that the same obligation, responsibility or duty is
imposed upon and the same waiver of any claim or cause of action is required of and is
made by any Subcontractor, Sub-Subcontractor or Supplier, even though in some
phrases or provisions the words "Contractor," "Subcontractor" and "Sub-Subcontractor"
may be used, while in other phrases or provisions only the word "Contractor" may be
used.
1.2.14 Whenever in this Contract the words "Owner," "Construction Program Manager,"
"Design Consultant", "Contractor", "Subcontractor", "Sub-subcontractor" or "Supplier" are
used, such words shall encompass and include within their definition and meaning the
directors, officers, employees, agents and representatives of such entity.
1.3 OWNERSHIP AND USE OF DOCUMENTS
1.3.1 All Drawings, Specifications and copies thereof furnished to the Contractor shall
remain property of the Owner. They are to be used only with respect to this Project and
are not to be used on any other project. With the exception of one contract set for each
party to the Contract, all Contract Documents are to be returned or suitably accounted for
to the Owner upon request at the completion of the Work. Submission or distribution to
meet official regulatory requirements or for other purposes in connection with the Project
is not to be construed as publication in derogation of the common law copyright or other
reserved rights of the holder thereof.
1.3.2 Neither Contractor nor any Subcontractor or Supplier or other person or
organization performing or furnishing any of the Work under a direct or indirect contract
with Owner shall have or acquire any title to or ownership rights in any of the Drawings,
Specifications, or other documents (or copies of any thereof) prepared by or bearing the
seal of Design Consultant; Contractor may not reuse the Contract Documents for
extensions of the Project or for any other project without written consent of Owner.
ARTICLE 2
THE DESIGN CONSULTANT
2.1 DEFINITIONS
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2.1.1 The terms "Design Consultant", "Architect" and "Engineer" are defined in
Subparagraph 1.1.17.
2.2 SERVICES OF THE DESIGN CONSULTANT
2.2.1 The Design Consultant will provide certain services as hereinafter described.
2.2.2 Subject to the limitations of Subparagraph 2.2.4, the Design Consultant will visit
the site at intervals appropriate to the stage of construction to familiarize himself
generally with the progress and quality of the Work and to determine in general if the
Work is proceeding in accordance with the Contract Documents. The Design Consultant
will not be required to make exhaustive or continuous on-site inspections to check the
quality or quantity of the Work but shall make as many inspections as may reasonably be
necessary to fulfill his obligations to the Owner. On the basis of such on-site
observations, the Design Consultant shall endeavor to guard the Owner against defects
and deficiencies in the Work of the Contractor.
2.2.3 The Design Consultant will render written field reports to the Construction
Program Manager in the form required by the Construction Program Manager relating to
the periodic visits and inspections of the Project made as required under Subparagraph
2.2.2.
2.2.4 The Design Consultant will not be responsible for and will not have control or
charge of construction means, methods, techniques, sequences or procedures, or for
safety precautions and programs in connection with the Work. Design Consultant will not
be responsible for the Contractor's failure to carry out the Work in accordance with the
Contract Documents. The Design Consultant will not be responsible for or have control
or charge over any of the acts or omissions of the Contractor, Subcontractors, or any of
his agents or employees, or any other persons performing any of the Work.
2.2.5 The Design Consultant and all other representatives of Owner, including testing
agencies and government agencies with jurisdictional interests, shall at all times have
access to the Work wherever and whenever it is in preparation or progress. The
Contractor shall provide safe facilities for such access.
2.2.6 As required, the Design Consultant will, within a reasonable time, render to and
through the Construction Program Manager written clarifications or interpretations
concerning the design or other technical aspects of the Work or the Contract Documents.
2.2.7 All communications, correspondence, submittals, or documents exchanged
between the Design Consultant and the Contractor in connection with the Project shall be
through or in the manner prescribed by the Construction Program Manager or the
Contract Documents.
2.2.8 Should errors, omissions, or conflicts in the Drawings, Specifications, or other
Contract Documents prepared by the Design Consultant be discovered, the Design
Consultant will prepare such amendments or supplementary documents and provide
consultation as may be required by the Construction Program Manager.
2.2.9 All interpretations and decisions of the Design Consultant shall be consistent with
the intent of, and reasonably inferable from the Contract Documents.
2.2.10 The Design Consultant's decisions concerning matters of artistic effect are final, if
consistent with the intent of the Contract Documents.
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2.2.11 If the Design Consultant observes any Work that does not conform to the
Contract Documents, Design Consultant shall promptly make an oral and written report of
all such observation to the Construction Program Manager.
2.2.12 When required by the Owner or Construction Program Manager, Design
Consultant will prepare and submit to the Construction Program Manager lists, including
Punch Lists, of those portions of the Contractor's Work which are not in conformance with
the Contract Documents. The Construction Program Manager will transmit such lists to
the Contractor for correction or completion thereof.
2.2.13 The Design Consultant has authority to disapprove, condemn or reject Work on
behalf of the Owner when, in his opinion, the Work does not conform to the Contract
Documents. Whenever in the Design Consultant's reasonable opinion it is considered
necessary or advisable for the proper implementation of the intent of the Contract
Documents, the Design Consultant has authority to require special inspection or testing
of the Work in accordance with the provisions of the Contract Documents, whether or not
such Work be then fabricated, installed or completed. However, neither the Design
Consultant's authority to act under this Subparagraph 2.2.13, nor any decision made by
the Design Consultant in good faith either to exercise or not to exercise such authority
shall give rise to any duty or responsibility of the Design Consultant to the Contractor, any
Subcontractor, any of his agents, or employees, or any other person performing any of
the Work.
2.2.14 The Construction Program Manager will establish with the Design Consultant
procedures to be followed for review and processing of all Shop Drawings, catalog
submittals, project reports, test reports, maintenance manuals, and other necessary
documentation, as well as requests for changes and applications for extensions of time.
2.2.15 Design Consultant will review with reasonable promptness Contractor's
submittals such as Shop Drawings, Product Data, Samples, and Contractor's requests for
interpretations or clarifications, but Design Consultant's review and response will be only
for conformance with the design concept of the Project and for general compliance with
the information given in the Contract Documents; such review shall not extend to means,
method, techniques, sequence, or procedures of construction (except where a specific
means, method, technique, sequence, or procedure of construction is indicated in or
required by the Contract Documents) or to safety precautions or programs incident
thereto.
2.2.15.1 Design Consultant shall have a reasonable time to review all such submittals as set forth
in Subparagraph 2.2.15. Contractor's failure to initially transmit submittals, or to provide
corrections thereto, additional information or product data, or new samples as may be
required, in an orderly and timely manner, shall not impose upon Owner, Construction
Program Manager or Design Consultant any responsibility or obligation to limit,
accelerate or otherwise modify the normal and customary review process or the timing
thereof.
2.2.16 The Design Consultant will promptly prepare information for Change Orders
when requested by the Construction Program Manager.
2.2.17 The Design Consultant and the Construction Program Manager will conduct
observations to determine the dates of Substantial Completion and Final Completion, and
will jointly issue a Final Certificate for Payment.
2.2.18 The Design Consultant will prepare a set of reproducible Record Drawings
showing significant changes in the Work made during the construction process. Such
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Record Drawings will be based on neatly and clearly marked-up prints, Drawings, or
other data furnished by the Contractor. Design Consultant may rely upon the accuracy of
such information as furnished by the Contractor.
2.2.19 As requested by Owner or Construction Program Manager, Design Consultant
will provide to the Owner assistance in the original operation of any equipment or system
such as initial start-up, testing, adjusting or balancing.
2.2.20 The Design Consultant, as appropriate, will be consulted by the Construction
Program Manager regarding Contractors Application for Payment.
2.2.21 If Owner terminates the employment of the Design Consultant, Owner may
unilaterally designate a new Design Consultant. The status of the new Design
Consultant under the Contract Documents shall be the same as that of the former Design
Consultant.
ARTICLE 3
OWNER
3.1 DEFINITIONS
3.1.1 The Owner is defined in Subparagraph 1.1.31 hereof.
3.1.2 The Construction Program Manager is defined in Subparagraph 1.1.10.
3.2 CONSTRUCTION PROGRAM MANAGER
3.2.1 Heery International, Inc. (herein referred to as the Construction Program
Manager) will be the Owner's exclusive representative and agent to the Contractor with
respect to the Work and Project during construction and until the issuance of the final
Certificate for Payment. The Owner's communications with the Contractor and the
Design Consultant shall be exclusively through the Construction Program Manager, who
will have full authority to act on behalf of the Owner with regard to all aspects of the
Project except that the Owner must approve all Change Orders and payments to the
Contractor. All of the Contractor's communications to the Owner or to the Design
Consultant shall be exclusively through the Construction Program Manager. All of the
Construction Program Manager's actions with regard to this Project will be as an agent
and representative of the Owner.
3.2.2 The Construction Program Manager is not authorized to revoke, alter, change,
relax, or release any requirements of the Contract, nor is he authorized to approve or
accept any portion of the Work not executed in accordance with, nor to issue instructions
contrary to, the Contract Documents.
3.3 INFORMATION, SERVICES AND RIGHTS OF THE OWNER
3.3.1 The Owner, through the Construction Program Manager, will provide
administration of the Contract as hereinafter described.
3.3.2 The Owner and the Construction Program Manager shall at all times have
access to the Work whenever and wherever it is in preparation or progress. The
Contractor shall provide safe facilities for such access.
3.3.3 The Owner and the Construction Program Manager shall not be responsible for
or have control or charge of the construction means, methods, techniques, sequences, or
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procedures, or safety precautions and programs in connection with the Work, and will not
be responsible for the Contractor's failure to carry out the Work in accordance with the
Contract Documents. Neither the Owner, the Construction Program Manager nor the
Design Consultant will be responsible for the acts or omissions of the Contractor, any
Subcontractors, any Sub-subcontractors, any of his agents or employees, or any other
persons performing any of the Work.
3.3.4 The Construction Program Manager has authority on behalf of the Owner to
condemn or reject Work when, in his opinion, the Work does not conform to the Contract
Documents. Whenever in the Construction Program Manager's reasonable opinion it is
considered necessary or advisable for the proper implementation of the intent of the
Contract Documents, the Construction Program Manager has authority to require special
inspection or testing of the Work whether or not such Work be then fabricated, installed,
or completed. However, neither the Construction Program Manager's authority to act
under this Subparagraph 3.3.4, nor any decision made by the Construction Program
Manager in good faith either to exercise or not to exercise such authority shall give rise to
any duty or responsibility of the Construction Program Manager to the Contractor, any
Subcontractor, any of his agents, or employees, or any other person performing any of
the Work.
3.3.5 The Construction Program Manager shall have the authority and discretion to
call, schedule, and conduct job meetings to be attended by the Contractor,
representatives of his Subcontractors, and the Design Consultant, to discuss such
matters as procedures, progress, problems, and scheduling.
3.3.6 The Construction Program Manager will establish procedures to be followed for
processing all Shop Drawings, Product Data, Samples, other Submittals, project reports,
documentation, test reports, and maintenance manuals.
3.3.7 The Construction Program Manager will review all requests for Changes and
shall process Change Orders, as appropriate, including applications for extension of the
Contract Time or Specific Dates.
3.3.8 The Owner and the Construction Program Manager, will not be responsible for
the failure of the Contractor to plan, schedule, and execute the Work in accordance with
the Construction Schedule or the failure of the Contractor to complete the Work or
applicable portions thereof by the Specific Dates and within the Contract Time, or the
failure of the Contractor to schedule and coordinate the Work of his own trades,
Subcontractors, Sub-subcontractors or Suppliers, or to coordinate and cooperate with
other separate contractors.
3.3.9 The Construction Program Manager will review, and after his approval thereof,
will process all Applications for Payment, and will consult with the Design Consultant as
appropriate relating thereto.
3.3.10 When requested by the Contractor, the Owner shall furnish surveys in his
possession describing the physical characteristics, legal limitations and utility locations
for the Project site. Contractor shall carefully review this data in coordination with the
other Contract Documents. The Owner does not warrant the accuracy or completeness
of such surveys or other data.
3.3.11 Unless otherwise provided in the Contract Documents, Owner shall secure and
pay for necessary easements required for permanent structures or for permanent
changes in existing facilities and for rights-of-way and easements for access thereto and
for such other lands which are designated in the Contract Documents for the use of
Contractor. Contractor shall, at no additional cost to the Owner, provide for all additional
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lands and access thereto that may be required for temporary construction facilities or
storage of materials and equipment at Contractor's expense.
3.3.12 Information or services under the Owner's control shall be furnished by the
Owner with reasonable promptness to avoid unreasonable delay in the orderly progress
of the Work.
3.3.13 Owner will furnish, at no cost to the Contractor, all Drawings and Specifications
reasonably necessary for the execution of the Work. Owner, Design Consultant and
Construction Program Manager will not provide Contractor with any sepias of the
Drawings. No partial sets of the Contact Documents will be furnished to Contractor.
3.3.14 Construction Program Manager will issue with reasonable promptness after
written request from Contractor such written clarifications or interpretations of the
requirements of the Contract Documents (in the form of Drawings provided by Design
Consultant or otherwise) as Construction Program Manager or Design Consultant may
deem necessary, which clarifications or interpretations shall be consistent with or
reasonably inferable from the overall intent of the Contract Documents.
3.4 DIFFERING SITE CONDITIONS
3.4.1 Contractor shall inspect the Project site prior to bidding the Work and again
immediately prior to commencing the Work. Contractor is responsible for determining all
physical, subsurface and other conditions which may affect the Work, pursuant to
Subparagraph 4.22.1. Contractor shall have full responsibility for reviewing and checking
all such data and information; for locating all Underground Facilities or Utilities shown,
indicated in the Contract Documents, or actually existing; for coordination of the Work
with the owners of such Underground Facilities or Utilities during construction; and for the
safety and protection thereof as provided in Article 10 and repairing any damage thereto
resulting from the Work, the cost of which will be considered as having been included in
the Contract Sum.
3.4.2 The Drawings show conditions as they are believed to exist, but it is not intended
or to be inferred that the conditions as shown thereon constitute a representation by or on
behalf of the Owner, Construction Program Manager or Design Consultant that such
conditions actually exist. 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, Construction Program Manager, or
Design Consultant by the owners of such Underground Facilities or by others. Owner,
Construction Program Manager, and Design Consultant shall not be responsible for the
accuracy or completeness of any such information or data.
3.4.2.1 Upon the signing by Contractor of a required acknowledgment and release form,
as set forth in Subparagraph 3.4.2.3, Owner will make available for the Contractor's
information and review, at the Owner's offices, or at such other location as the
Construction Program Manager may indicate, certain boring logs, geological, soils and
other reports, surveys, utility locations and analyses pertaining to the Project site of which
the Owner is aware and has in his possession. Any reports, surveys and analyses
provided by Owner are for the Contractor's information only, and his accuracy and
completeness are not guaranteed or warranted by the Owner, the Construction Program
Manager or the Design Consultant, and such reports are not adopted by reference into,
nor are they part of the Contract Documents. For example, without limitation, copies of
boring logs which may be provided to Contractor are only intended to reflect conditions at
the specific location of the borings and do not necessarily reflect site conditions at other
locations. If Contractor obtains the foregoing reports and other data as specifically stated
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herein without the signing of the required acknowledgement and release form, as set
forth in Subparagraph 3.4.2.3, it is understood and agreed that Contractor, by obtaining
said information or data, agrees with and shall be bound by the provisions of
Subparagraph 3.4.2.3; the failure of the Owner or his employees or agents to require the
signing of the acknowledgement and release shall not constitute a waiver or modification
by the Owner of this Paragraph 3.4.2.1 or any of the provisions hereof.
3.4.2.2 Notwithstanding any factual statement, conclusion, or any other technical or
nontechnical language or recommendations contained in such reports as set forth in
Subparagraph 3.4.2.1, the Contractor assumes full responsibility for inspection of the site
and determination of the character, quality and quantity of any soil, surface or subsurface
conditions that may be encountered or which may affect the Work, and for the means and
methods of construction that he employs when performing the Work.
3.4.2.3 In consideration of the receipt of any of the information or data as set forth in
Subparagraph 3.4.2.1, Contractor agrees to the following acknowledgement and release,
and shall further evidence and confirm this agreement and understanding by executing a
document providing as follows (it being understood and agreed that the execution of such
document is not a condition precedent to the effectiveness of this release): Contractor
hereby acknowledges receipt of copies of certain boring logs, geotechnical, soils and
other reports, surveys and analyses relating to the Project from the Owner thereof. In
consideration for the receipt of such information, Contractor releases the Owner,
Construction Program Manager and Design Consultant from any responsibility or
obligation as to the accuracy or completeness of such data or information and hereby
waives any claim or cause of action which Contractor may have against any of them, or
which may subsequently arise, because of any assumptions made by Contractor based
upon such data or documents, or because the Contractor's reliance upon the accuracy
thereof, or because of any conclusions Contractor may derive therefrom.
3.4.3 If Contractor believes that any physical or subsurface condition uncovered or
revealed at the site differs materially from that indicated, reflected, or referred to in the
Contract Documents, Contractor, after becoming aware thereof and before performing
any Work in connection therewith or disturbing the condition thereof (except in an
emergency as permitted by Paragraph 10.3), shall promptly notify Owner and
Construction Program Manager in writing of said condition.
3.4.3.1 Construction Program Manager and Design Consultant 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
Construction Program Manager's and Design Consultant's findings and conclusions.
During such interim, Contractor shall be responsible for the safety and protection of such
Underground Facility as provided in Article 10.
3.4.3.2 If an Underground Facility or Utility is uncovered or revealed at or contiguous to
the site which was not as shown or indicated in the Contract Documents or records of the
owner of the Underground Facility or Utility, Contractor shall give written Notice thereof to
the owner of such Underground Facility or Utility in addition to Owner and Construction
Program Manager.
3.4.3.3 If Construction Program Manager and Design Consultant conclude that there is a
material difference from what is indicated in the Contract Documents or that because of
newly discovered conditions a Change in the Contract Documents is required, a Change
Order will be issued as provided in Article 12 to reflect and document the consequences
of the difference.
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3.4.4 Consistent with the provisions of this Paragraph 3.4 and Paragraph 12.6 hereof,
the Owner may order minor Changes in the Work because of such differing site or
physical conditions.
3.4.4.1 Except as otherwise provided specifically in this Subparagraph 3.4.4.1,
Contractor shall not be entitled to any increase in the Contract Sum or the extension of
any Specific Date or the Contract Time because of any subsurface, physical or concealed
condition differing from that indicated in the Drawings, whether or not the condition or
difference is latent or material; or because the condition encountered was unknown to
Contractor or was of an unusual nature, differing materially from those ordinarily
encountered or generally recognized as inhering in work of the character provided for in
this Contract, except when (l) the Owner orders a Change in the Work under Article 12
hereof because of such conditions; (2) Contractor has fully complied with the
requirements of this Paragraph 3.4; and (3) the Contractor is otherwise entitled to such
adjustments under Article 8, Article 12 or any of the other provisions of the Contract
Documents. However, nothing in this Subparagraph 3.4.4.1 is intended to, or shall it be
construed to modify or limit the requirements and provisions of this Paragraph 3.4, nor
shall Contractor be entitled to any Change in the Work solely because Contractor
modified the sequence, method or manner of his performance of the Work because of
such conditions (whether such modifications by Contractor were made solely at
Contractor's option or in his discretion or were reasonably ordered or directed by Owner
or the Construction Program Manager).
3.5 OWNER'S RIGHT TO STOP OR TO SUSPEND THE WORK
3.5.1 If the Contractor fails to correct defective Work as required by Paragraph 4.7, or
fails to carry out the Work or to supply a sufficient amount of skilled labor, or suitable
materials or equipment in accordance with the Contract Documents, or fails to furnish or
perform the Work in such a way that assures the Construction Program Manager that the
completed Work will conform to the Contract Documents, the Construction Program
Manager by a written order may order the Contractor to stop the Work, or any portion
thereof, until the cause for such order has been eliminated.
3.5.2 Construction Program Manager shall have the authority to suspend the Work, in
whole or in part, for such periods and such reasons as he may deem necessary or
desirable, including without limitation: unsuitable weather; other conditions considered
unfavorable for the suitable prosecution of the Work; or other conditions considered
adverse to the best interests of the Owner. Provided, however, this right of the
Construction Program Manager to suspend the Work, or to stop the Work on behalf of the
Owner under Subparagraph 3.5.1, shall not give rise to a duty on the part of the Owner or
Construction Program Manager to exercise this right for the benefit of the Contractor or
any other person or entity.
3.5.3 The Construction Program Manager shall give Contractor Notice of any such
suspension. The Contractor shall comply immediately with such orders of the
Construction Program Manager and shall not resume the Work until so ordered in writing
by the Construction Program Manager. No suspension of the Work under Subparagraph
3.5.1 which is due to the fault of the Contractor shall be the basis of a claim by the
Contractor for any increase in the Contract Sum or for any other damages, losses, costs
or expenses whatsoever, or any extension of time relating thereto, all of which claims the
Contractor hereby expressly waives. If the Work is suspended because of a Notice of
suspension issued pursuant to Subparagraph 3.5.2 hereof, the Contractor shall be
entitled to (1) an extension of the Contract Time not to exceed the length of time that the
Work was suspended, and (2) his direct costs, if any, which, in the opinion of the
Construction Program Manager, arise solely because of the Notice of suspension,
provided that the claim for a time extension is submitted and authorized in accordance
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with Paragraph 8.3 and written Notice of the claim is submitted by Contractor in
accordance with Subparagraph 7.7.2.4 hereof and other requirements of the Contract
Documents, and provided further that the suspension is not due to an act or omission of
the Contractor or any other person or organization for whose acts or omissions the
Contractor may be liable.
3.5.4 In the event of a suspension of the Work, the Contractor will, and will cause his
Subcontractors, Sub-subcontractors and Suppliers to, carefully protect his (and their)
materials and work against damage or injury from the weather and any other cause and
will maintain completed and uncompleted portions of the Work as required by the
Contract Documents. If, in the opinion of the Construction Program Manager, any work
or material is damaged or injured by reason of failure on the part of the Contractor or any
of his Subcontractors, Sub-subcontractors or Suppliers to protect same, such work and
materials shall be removed and replaced at the expense of the Contractor.
3.6 OWNER'S RIGHT TO CARRY OUT THE WORK AND DIRECT OVERTIME
3.6.1 If the Contractor defaults or neglects to carry out the Work in accordance with the
Contract Documents and fails within seven (7) days after receipt of written Notice from
the Construction Program Manager, or within such other time as required in a written
Notice issued by the Construction Program Manager, to commence and continue
correction, with diligence and promptness, of such default or neglect, including but not
limited to the removal and replacement of rejected Work as required by the Construction
Program Manager or Design Consultant, the Owner may, without prejudice to any other
remedy Owner may have, make good such deficiencies.
3.6.1.1 Contractor shall allow Owner, Construction Program Manager and Design
Consultant such access to the site as may be necessary to enable Owner to exercise the
rights and remedies under this Paragraph 3.6. All costs of Owner in exercising such
rights and remedies will be charged against Contractor in a reasonable amount approved
by Construction Program Manager. A Change Order will be issued incorporating the
necessary revisions in the Contract Documents. Owner shall be entitled to an
appropriate decrease in the Contract Price. If the parties are unable to agree as to the
amount thereof, Owner may withhold from compensation otherwise due Contractor such
amount as is, in the opinion of the Construction Program Manager, sufficient to protect
the Owner's interests. Such costs will include, but not be limited to, fees and charges of
Design Consultant, the Construction Program Manager, attorneys, and other
professionals, all court costs, and all costs of repair or replacement of work of others
destroyed or damaged by correction, removal, or replacement of Contractor's defective
Work.
3.6.1.2 Contractor shall not be allowed an extension of the Contract Time because of
any delay in performance of the Work attributable to the exercise by Owner of Owner's
rights and remedies hereunder.
3.6.2 The Owner may, in his sole discretion and for any reason, require Contractor to
accelerate the schedule of performance by providing overtime, Saturday, Sunday or
holiday work, or by having all or any Subcontractors or Sub-subcontractors designated by
Owner provide overtime, Saturday, Sunday or holiday work.
3.6.2.1 In the event of overtime, Saturday, Sunday or holiday work by the Contractor's
own forces or by a Subcontractor pursuant to this Subparagraph 3.6.2, Owner shall
reimburse the Contractor for the direct costs to the Contractor of the premium for all labor
utilized by the Contractor in such overtime, Saturday, Sunday or holiday work (but not for
the straight time costs of such labor or for any overtime or related costs arising because
of any order of the Owner or Construction Program Manager pursuant to Subparagraph
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3.6.1 or Paragraphs 4.12, 13.10 or 13.11 hereof), together with any Social Security and
State or Federal unemployment insurance taxes in connection with such premium.
However, no overhead, supervision costs, commissions, profit or other costs and
expenses shall be payable in connection therewith.
3.6.2.2 The obligations of the Owner as set forth in this Subparagraph 3.6.2. shall be the
sole and exclusive obligations of the Owner on account of overtime, Saturday, Sunday
and holiday work ordered pursuant to this Subparagraph 3.6.2; provided, however, the
Owner shall have no obligation to make payments on account thereof unless: (1)
Contractor shall submit to Construction Program Manager, for the Construction Program
Manager's review and approval, duly authenticated time records, evidencing the hours of
overtime, Saturday, Sunday or holiday work performed pursuant to this Subparagraph
3.6.2 by the end of the day on which performed; and (2) Contractor shall include with his
request for reimbursement a duplicate of each of the foregoing time records and such
other substantiation of costs reimbursable hereunder as the Owner may require.
3.6.3 Neither the Owner, the Construction Program Manager, the Design Consultant
nor his officers, agents, assigns or employees shall in any way be liable or accountable to
Contractor or his surety for any reasonable method by which the Work or any portion
thereof, performed by the Owner or by separate contractors pursuant to Paragraph 3.6, is
accomplished or for the reasonable price paid therefor. Notwithstanding the Owner's
right to carry out a portion of the Work, maintenance and protection of the Work remains
the Contractor's and surety's responsibility as provided for in the Performance Bond and
Guarantee of Contractor.
3.7 RIGHT TO AUDIT AND PRESERVATION OF RECORDS
3.7.1 The Contractor shall maintain books, business records, project documents and
data, accounts of all costs relating to the Project and Contractor's home office or jobsite
overhead, in accordance with generally accepted accounting principles and practice.
These records shall be retained and preserved by Contractor in a safe place for a
minimum period of five (5) years after Final Completion of the Work, or such longer
period as may be required by applicable laws or regulations. The Owner, the
Construction Program Manager, or his authorized representatives shall have the right to
audit the books, records and accounts of the Contractor under any of the following
conditions:
.1 If the Contract is terminated for any reason in accordance with the provisions of
these Contract Documents;
.2 In the event of a disagreement between the Contractor and the Owner
concerning the amount due Contractor under the terms of this Contract;
.3 If such data is necessary, in the opinion of Owner or Construction Program
Manager, to check or substantiate any amounts invoiced or paid which are
required to reflect the costs of the Contractor, or the Contractor's efficiency or
effectiveness under this Contract, or in connection with extras, changes, claims,
additions, backcharges, or other, as may be provided for in this Contract;
.4 If it becomes necessary to determine the Owner's rights and the Contractor's
obligations under this Contract or to ascertain facts relative to any claim against
the Contractor which may result in a charge against the Owner; or
.5 To determine any difference in cost occasioned by a substitution permitted under
Paragraph 4.14 hereof.
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3.7.2 The Owner or the Construction Project Manager shall have unlimited, reasonable
access during normal working hours to the Contractor's books and records.
3.7.3 Unless otherwise provided by applicable statute, the Contractor, from the
effective date of final payment or termination hereunder, shall preserve and make
available to the Owner at all reasonable times at the office of the Contractor but without
direct charge to the Owner, all Contractor's books, records, documents, photographs,
microfilm, or other authentic reproductions thereof, or other evidence bearing on the
costs and expenses and performance of the Contractor under this Contract or the Work
hereunder.
3.7.4 The Owner will make all payments required of it under this Contract subject to
audit, under circumstances stated above, which audit may be performed at the Owner's
option, either during the Contract Time period or during the record retention time period
required herein. Regardless of authorization, approval or acceptance, signatures or
letters which are given by the Owner and are part of the Owner's control systems or are
requested by the Contractor, the payments made under this Contract for any Work
performed on a time and materials or cost-plus basis shall not constitute a waiver of the
Owner's right to audit, nor shall payments thereof constitute a waiver or agreement by the
Owner that it accepts as correct the billings, invoices or other charges on which the
payments were based.
3.7.5 If any audit by the Owner discloses an underpayment by the Owner for any work
performed on a time and materials or cost-plus basis, the Owner shall have the duty to
pay any amounts found by the audit to be owed to the Contractor. If such audit discloses
an overpayment, the Contractor shall have the obligation to reimburse the Owner for the
amount of the overpayment and all costs associated with said audit. Interest shall be
payable to the appropriate party in case of an underpayment or overpayment, solely for
Work performed on a time and materials or cost-plus basis, at the rate of ten percent
(10%) per annum from the date of such underpayment or overpayment until fully paid.
The obligation of the Contractor to make reimbursement hereunder shall not terminate
except as provided by law. The Owner may pursue all of his legal or equitable remedies
even though it has made all or part of the payments required by this Contract.
3.7.6 The Contractor shall include this "Right to Audit and Preservation of Records"
clause contained in this Paragraph 3.7 in all subcontracts issued by him and he shall
require same to be inserted by all lower tier Subcontractors in their subcontracts, for any
portion of the work. Should Contractor fail to include this clause in any such contract or
lower tier Contract, or otherwise fail to protect Owner's rights hereunder, Contractor shall
be liable to Owner for all costs, expenses and attorney's fees which Owner may have to
incur in order to obtain an audit or inspection of or the restoration of records which would
have otherwise been available to Owner from said persons under this clause. Such audit
may be conducted by the Owner, the Construction Program Manager or his authorized
representative.
ARTICLE 4
CONTRACTOR
4.1 DEFINITIONS
4.1.1 The Contractor is defined in Subparagraph 1.1.15 hereof.
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4.1.2 This entire Contract is not one of agency by the Contractor for Owner but one in
which Contractor is engaged independently in the business of providing the services and
performing the Work herein described as an independent contractor.
4.2 REVIEW AND MAINTENANCE OF CONTRACT DOCUMENTS
4.2.1 Contractor is required to carefully study and compare the Contract Documents
and to report to the Owner through the Construction Program Manager any error,
inconsistency, omission, ambiguity, discrepancy, conflict or variation he may discover as
pursuant to Paragraph 1.2 hereof.
4.2.2 Contractor shall do no Work without Contract Documents and, when required,
approved Shop Drawings, Product Data, or Samples for portions of the Work, and
required inspections of the Work.
4.2.3 The Contractor shall maintain in a safe place at the site, one record copy of all
Drawings, Specifications, Addenda, Written Amendments, Change Orders, Written
Interpretations and Clarifications issued pursuant to the Contract Documents, in good
order and marked currently to record all changes made during construction, and
approved Shop Drawings, Product Data and Samples. Contractor warrants the accuracy
of such information or data. These shall be available to the Construction Program
Manager and Design Consultant during the performance of the Work, and shall be
delivered to the Construction Program Manager for the Owner upon Final Completion.
4.3 SUPERVISION AND CONSTRUCTION PROCEDURES
4.3.1 The Contractor shall not commence Work on site or off site, or store materials or
equipment at the Project site, until a written Notice to Proceed is issued or until the
Contractor otherwise receives the Construction Program Manager's written consent so to
do. Under no circumstances shall Contractor have the right to perform Work on the
Project site until Contractor has complied with all requirements of the Contract
Documents which are a precondition for so doing, including, but not limited to the
requirements for Bonds and Certificates of Insurance under Subparagraph 7.4.3, and
permits. Contractor's inability, failure or refusal to comply with such requirements shall
not be justification for any extension in the Contract Time or Specific Dates or for any
claim for additional compensation.
4.3.2 The Contractor shall supervise and direct the Work, competently and efficiently,
devoting such attention thereto and applying such skills and expertise as may be
necessary to perform the Work in accordance with the Contract Documents. The
Contractor has the unique responsibility of being the supervisor, manager, overseer,
coordinator and expeditor of his employees and the Work and that of his Subcontractors,
Sub-subcontractors and Suppliers and of the total construction process, including all of its
parts, in accordance with this Contract and applicable law. In executing the duties
incurred by these responsibilities, the Contractor shall provide sufficient executive and
supervisory field staff to enable efficient and expeditious handling of these matters.
There shall be at least one Project Manager assigned full-time to the Work by Contractor
as well as the field staff required by Subparagraph 4.3.2.2. The Project Manager shall
attend each progress meeting at the Project site.
4.3.2.1 Contractor shall provide a management chart and a list of personnel which shall
comprise the superintending staff. All references to the Superintendent elsewhere in the
Contract Documents shall mean the superintending staff.
4.3.2.2 Contractor shall employ and designate in writing a competent Superintendent
and necessary assistants who shall be in attendance at the Project site full time during
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the progress of the Work and who shall be satisfactory to the Owner and the Construction
Program Manager. The Project Manager and/or the Superintendent shall represent the
Contractor and all communications given to either shall be binding upon Contractor.
4.3.2.3 Except as provided in Subparagraph 4.12.5, the Superintendent shall be in
attendance at the Project site not less than eight hours per day, five days per week,
unless the Project is closed down due to a general strike or conditions beyond the control
of the Contractor, until termination of the Contract in accordance with the Contract
Documents. It is understood that such Superintendent shall be continued in that capacity
for the duration of the Project, unless he proves to be unsatisfactory to the Contractor,
Owner or Construction Program Manager or ceases to be on the Contractor's payroll,
unless the Owner otherwise agrees. The Superintendent shall be assigned exclusively to
the Project for this Contract and shall not be employed as Superintendent, or in any other
capacity, for work performed by Contractor under any other contract with Owner or on
any other project for or by Contractor or any other entity during the time of performance
of the Work.
4.3.3 Contractor shall be solely responsible for and have control over all construction
means, methods, techniques, sequences and procedures and for coordinating all
portions of the Work under the Contract.
4.3.4 The Contractor shall be responsible to the Owner for the acts and omissions of
his employees, Subcontractors and Sub-subcontractors, suppliers, their agents and
employees, and other persons performing any of the Work and for their compliance with
each and every requirement of the Contract Documents, in the same manner as if they
were directly employed by the Contractor.
4.3.5 The Contractor shall not be relieved of any of his obligations required by the
Contract Documents either by the acts or failures to act of the Owner, the Design
Consultant or the Construction Program Manager in their administration of the Contract,
or by inspections, tests or approvals (or the lack thereof) required or performed under the
Contract Documents by persons other than the Contractor.
4.3.6 Notwithstanding the fact that a dispute, controversy or other question may arise
between the parties hereto relating to the execution or progress of the Work, the
interpretation of the Contract Documents, the payment of any monies, the delivery of any
materials, or any other matter whatsoever, the Contractor shall not be relieved of his
obligations under the Contract Documents because of the pending dispute, controversy
or other issue.
4.3.7 Before starting a section of Work, the Contractor shall carefully examine, by
whatever means are reasonably necessary, all preparatory work that has been executed
to receive his Work to ensure that his Work and adjacent, related work will finish to
proper and required standards for quality, contours, planes, and levels.
4.3.8 The Contractor understands and agrees that the Owner, Construction Program
Manager and Design Consultant will not be responsible for and do not have control or
charge of construction means, methods, techniques, sequences or procedures, or for
safety precautions, and programs in connection with the Work, and they will not be
responsible for the Contractor's failure to carry out the Work in accordance with the
Contract Documents. The Owner, Construction Program Manager and the Design
Consultant will not be responsible for or have control or charge over the acts or
omissions of the Contractor, Subcontractors, or any of their agents or employees, or any
other persons performing any of the Work.
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4.3.9 Contractor shall not employ any plant, equipment, materials, methods or persons
to which the Owner, Construction Program Manager or Design Consultant object, and
shall not remove any portion of the Work or stored materials from the site of the Work
without consent of the Construction Program Manager.
4.3.10 Unless otherwise specified in the Contract Documents, Contractor shall provide
engineering surveys to establish reference points for construction which in Contractor's
judgment are necessary to enable Contractor to proceed with the Work. Contractor shall
be responsible for laying out the Work (unless otherwise specified in the Contract
Documents), shall protect and preserve the established reference points, and shall make
no change or relocations without the prior written approval of the Construction Program
Manager. Contractor shall report to Construction Program Manager whenever any
reference point is lost or destroyed or requires relocation because of necessary changes
in grades or locations, and shall be responsible for the accurate replacement or
relocation of such reference points by professionally qualified personnel at no additional
cost to the Owner.
4.3.11 Contractor shall prepare and submit to the Owner on a daily basis (for each day
worked), a daily report, in a form satisfactory to the Construction Program Manager. The
Contractor's daily report shall be signed by Contractor's Superintendent. Contractor shall
cause his Subcontractors and Sub-subcontractors to prepare similar daily reports, which
Contractor shall submit daily to the Owner with Contractor's report. Such daily reports
shall include the following:
.1 Weather and temperature, including any adverse effect of same on job progress;
.2 Safety problems of any kind, including any adverse effect of same on job
progress;
.3 Progress of the quality control program of Contractor;
.4 Number and trades of all workers on the Project for which Contractor is
responsible, including a breakdown for each Subcontractor and
Sub-subcontractor;
.5 Major equipment on the Project site for which the Contractor and his
Subcontractors and Sub-subcontractors are responsible, with an indication as to
whether the equipment is in use or idle and at what location;
.6 A general description of the Work being performed by Contractor and each
Subcontractor and Sub-subcontractor, the location of the Work performed and
the quantity of Work actually accomplished for the day; and
.7 A statement by Contractor as to whether or not the Work is progressing as
scheduled and if not, the reasons why it is not.
4.3.11.1 Contractor acknowledges and agrees that the daily reports of Contractor and his
Subcontractors and Sub-subcontractors are not intended to, nor shall they, constitute
Notice to Owner or to the Construction Program Manager or Design Consultant as
required by the Contract Documents.
4.4 CONTRACTOR REPRESENTATIONS AND WARRANTIES AS TO PERFORMANCE
4.4.1 By entering into this Contract with the Owner, the Contractor represents and
warrants the following, together with all other representations and warranties in the
Contract Documents, upon which Owner relied in signing the Agreement:
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.1 That Contractor is experienced in and competent to perform the type of work
required and is able to furnish the plant, materials, supplies or equipment to be
so performed or furnished by him and has the personnel and resources
necessary to carry out all requirements of the Contract Documents;
.2 That Contractor is financially solvent, able to pay his debts as they mature, and
possessed of sufficient working capital to initiate and complete the Work required
under the Contract;
.3 That Contractor is familiar with all laws, codes, ordinances, permits, regulations
and orders of any public authority having jurisdiction of the Project, which may in
any way affect the cost, progress or performance of the Work or those employed
therein, including but not limited to any special laws or regulations relating to the
Work or any part thereof;
.4 That Contractor's temporary and permanent portions of the Work will be
satisfactorily constructed and fit for use for its intended purpose, and that such
construction will not injure any person or damage any property;
.5 That Contractor has carefully examined the Contract Documents and has visited
the site of the Work and that through his own investigations, he has made himself
fully familiar with: (1) the nature and location of the Work; (2) the character,
quality and quantity of surface and subsurface materials likely to be encountered,
that may in any manner affect cost, progress or the performance of the Work
including, but not limited to, all structures and obstructions on or at the project
site, both natural and man-made; (3) the character of equipment and other
facilities needed for the performance of the Work; (4) the general and local
conditions that may in any manner affect cost, progress or the performance of
the Work, including without limitation its climatic conditions, the availability and
cost of labor and the availability and cost of materials, tools and equipment; (5)
the quality and quantity of all materials, supplies, tools, equipment, labor and
professional services necessary to complete the Work required by the Contract
Documents; and (6) all other matters or things which could in any manner affect
the performance of the Work; and has studied and carefully correlated all of the
foregoing with the requirements of the Contract Documents;
.6 That Contractor will fully comply with all requirements of the Contract
Documents;
.7 That Contractor will perform the Work consistent with good workmanship, normal
and customary business practices, and in the most expeditious and economical
manner consistent with the best interests of the Owner;
.8 That Contractor will furnish efficient business administration and experienced
superintendence and an adequate supply of workmen, equipment, tools and
materials at all times;
.9 That Contractor has carefully reviewed the Work required and that he will plan
and execute the Work in a normal and orderly sequence so as to ensure
completion of the Work in accordance with the Contract Documents; and that he
has considered, and has made allowance in his planning, scheduling and
estimates for normal and reasonably foreseeable inclement weather at the
Project locale (including but not limited to rainfall, snow, flooding, poor soil
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conditions due to weather, and the like), labor and other delays, interruptions and
disruptions of the Work;
.10 That Contractor will complete the Work within the Contract Time and all portions
thereof in accordance with the Specific Date thereof in this Contract;
.11 That his Contract price is based upon all of the labor, materials, systems and
equipment required by the Contract Documents, without exception;
.12 That Contractor has satisfied himself as to the feasibility and correctness of the
Contract Documents for the construction of the Work;
.13 That Contractor is aware that Owner may award separate contracts for other
portions or parts of the Project; and that he has taken into account in his
estimating and bidding of this Contract and in the planning and scheduling the
Work hereunder: (1) the project site conditions normally inhering to a multi-prime
contractual agreement, including, but not limited to: the additional project site
supervision, scheduling and coordination this may require; the potential for
congestion of work areas, interference of trades and subcontractors of the
separate contractors; and the potential for delays and disruptions to Contractor's
work which may reduce Contractor's productivity when compared to other
methods of contracting; (2) that the responsibility is placed upon Contractor by
the Contract Documents to cooperate with and timely and effectively coordinate
with the separate contractors; (3) that the Owner has imposed upon each of the
separate contractors, including Contractor herein, the responsibility to plan,
schedule and coordinate their Work with the work of the other separate
contractors and that the Owner is relying upon each to fulfill this responsibility
independent of and without expectation or assumption of assistance from Owner
or the Construction Program Manager regarding such coordination and
scheduling;
.14 That in his careful review and analysis of the Contract Documents he is aware
and has allowed for in his estimating and bidding of the project for the
responsibilities and obligations placed upon Contractor by the Contract
Documents and the limitations contained therein relating to claims for time
extensions and other claims against Owner, Construction Program Manager and
Design Consultant; and has also carefully and fully assessed and considered
Contractor's potential for liability to separate contractors as well as Owner for
damages relating to the Work of Contractor under the terms thereof; and
.15 That Contractor is aware that Owner has the sole discretion, under Paragraph
9.3 hereof, as to whether or not any retainage under this Contract will be reduced
or any monies paid for materials or equipment not incorporated in the Work but
delivered and suitably stored at the site; and that Contractor, in his financial
planning for the Work, has not anticipated any release or reduction in retainage
until final payment under this Contract or any payment for materials or equipment
until they are incorporated into the Work.
4.5 LABOR AND MATERIALS
4.5.1 Unless otherwise provided in the Contract Documents, the Contractor shall
provide and pay for all labor, materials, equipment, supplies, tools, appliances,
construction equipment and machinery, water, heat, fuel, power, light, telephone, sanitary
facilities, temporary facilities, transportation, and other facilities and services necessary
or proper for or incidental to the furnishing, performance testing, start up and completion
of the Work required by and in accordance with the Contract Documents and any
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applicable code or statute, whether specifically required by the Contract Documents or
whether their provision may reasonably be inferred as necessary to produce the intended
results, whether temporary or permanent and whether or not incorporated or to be
incorporated in the Work.
4.5.2 The Contractor shall at all times enforce strict discipline and good order among
his employees and shall not employ on the Work any unfit person or anyone not skilled in
the task assigned to him. The Owner or Construction Program Manager may, by Notice
in writing, require the Contractor to remove from the Work any employee the Owner
deems incompetent, careless or otherwise objectionable.
4.5.3 The Contractor shall be responsible for ensuring that the Work is completed in a
skillful and workmanlike manner. Contractor shall provide all of the necessary,
competent and suitably qualified personnel to perform the Work as required by the
Contract Documents, including, but not limited to, quality control functions.
4.5.4 The Contractor shall perform with his own forces, which are in the direct
employment of the Contractor's organization, at least that percentage of the Work, if any,
specified in the Contract Documents. The Contractor shall submit to the Construction
Program Manager within thirty (30) calendar days after award of the Contract for the
Work, a designation of the Work to be performed by the Contractor with his own forces.
The remaining percentage of the Work (to be performed under subcontracts) shall be
calculated by adding the amounts of all subcontracts and dividing this sum by the total
amount of the Contract.
4.5.5 All equipment, apparatus, and/or devices of any kind to be incorporated into the
Work that are shown or indicated on the Drawings or called for in the Specifications or
required for the completion of the Work shall be entirely satisfactory to the Design
Consultant regarding operations, capacity and/or performance. No approval, either
written or verbal, of any drawings, descriptive data or Samples of such equipment,
apparatus, and/or device shall relieve the Contractor of his responsibility to turn over the
same in good working order for its intended purpose at the completion of the Work. Any
equipment, apparatus and/or device not fulfilling these requirements shall be removed
and replaced by proper and acceptable equipment, etc. or put in good working order
satisfactory to the Design Consultant without additional cost to the Owner.
4.5.6 Except in connection with the safety or protection of persons or the Work or
property at the site or adjacent thereto, and except as otherwise indicated in the Contract
Documents, all Work at the site shall be performed during regular working hours, and
Contractor will permit overtime work or the performance of Work on Saturday, Sunday, or
any legal holiday only with the written consent of the Construction Program Manager
given after prior written Notice by Contractor to the Construction Program Manager.
4.5.7 The Contractor shall cause all materials and equipment to be delivered to the
Project site in a manner which will assure the timely progress and completion of the Work
but will not encumber the project site unreasonably. The Contractor shall, if necessary to
fulfill this requirement, cause any or all materials and equipment to be manufactured in
advance, to be warehoused either at the factory or elsewhere and/or to be relocated or
removed from the Project site at the Contractor's cost. Materials delivered to and stored
at the Project site for incorporation in the Work shall not be removed from the project site
without the consent of the Construction Program Manager.
4.5.7.1 If the Construction Program Manager requires, the Contractor shall give, or shall
require its Suppliers or the Manufacturers to give, full and accurate written information to
the Construction Program Manager on any questions concerning the kind and quality,
performance and/or delivery status of any materials and equipment, or such other
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requested data. Contractor shall obtain, if requested by the Construction Program
Manager, the written assurances of a Manufacturer that his material and/or equipment is
designed and appropriate for its intended use.
4.6 CONTRACTOR'S WARRANTY AS TO MATERIALS AND WORKMANSHIP
4.6.1 The Contractor warrants to the Owner, the Construction Program Manager, and
the Design Consultant that all materials and equipment furnished under this Contract
conform to the Contract Documents and the warranties and guarantees specified herein
and are not and will not be defective. Where no standard is specified for such
workmanship or materials, they shall be the best of their respective kinds. All Work not
conforming to these requirements, including Substitutions not properly approved and
authorized, may be considered defective. Contractor shall give the Construction Program
Manager Notice of all defective work of which Contractor is aware. If required by the
Construction Program Manager or the Design Consultant, the Contractor shall furnish
satisfactory evidence as to the kind and quality of materials and equipment.
4.6.2 The warranties set forth in this Paragraph 4.6 and elsewhere in the Contract
Documents shall survive Final Completion of the Work under Paragraph 9.10.
4.6.3 The Contractor guarantees and warrants to the Owner:
.1 That all materials and equipment furnished under this Contract will be new unless
otherwise specified, and the best of its respective kind unless otherwise
specified;
.2 That all Work will be of first-class quality and free of omissions and faults and
free of poor quality, imperfect or defective material or workmanship, and shall
fully conform with the Contract Documents and all other warranties and
guarantees specified therein;
.3 That, where required by the Contract Document, the Work shall be entirely
watertight and leakproof and shall be free of shrinkage and settlement;
.4 That the Work, including but not limited to, mechanical and electrical machines,
devices and equipment, shall be fit and fully usable for its intended and specified
purpose and shall operate satisfactorily with ordinary care;
.5 That consistent with requirements of the Contract Documents, the Work shall be
installed and oriented in such a manner as to facilitate unrestricted access for the
operation and maintenance of fixed equipment;
.6 That the Work will be free of abnormal or unusual deterioration which occurs
because of poor quality materials, workmanship or unsuitable storage; and
.7 That all materials and equipment shall be applied, installed, connected, erected,
used, cleaned, and conditioned in accordance with the instructions and
recommendations of the applicable Manufacturer or Supplier except as otherwise
provided in the Contract Documents; but no provision of any such instructions or
recommendations will be effective to assign to Owner, the Construction Program
Manager, or the Design Consultant any of their consultants, agents, or
employees, or inspectors, any duty or authority to supervise or direct the
furnishing or performance of the Work or any duty or authority to undertake any
responsibility contrary to the provisions of Article 2 or Article 3.
4.6.4 If, within one year after the Date of Final Completion of the Work or designated
portion thereof, or within one year after acceptance by the Owner of designated
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equipment, or within such longer period of time as may be prescribed by law, or as
provided elsewhere in the Contract Documents, any of the Work is found to be defective,
Contractor shall correct same within seven (7) days, or such other period as mutually
agreed, after receipt of a written Notice from the Owner to do so. The Owner shall give
such Notice to Contractor with reasonable promptness after discovery of the condition.
4.6.4.1 Nothing contained in Paragraphs 4.6 and 4.7 shall be construed as establishing a
period of limitation with respect to any other obligation which the Contractor might have
under the Contract Documents. The establishment of the time period as may be
prescribed by law or by the terms of any warranty required by the Contract Documents
relates only to the specific obligation of the Contractor to correct the Work and has no
relationship to the time within which his obligation to comply with the Contract Documents
may be sought to be enforced, nor to the time within which proceedings may be
commenced to establish the Contractor's liability with respect to his obligations other than
specifically to correct the Work.
4.6.5 If, at any time, deficiencies in the Work are discovered which are found to have
resulted from fraud or misrepresentation, or an intent or attempt to or conspiracy to
defraud the Owner, Construction Program Manager or Design Consultant by the
Contractor, any Subcontractor or Supplier, the Contractor will be liable for replacement or
correction of such Work and any damages, including all reasonable attorneys fees,
litigation expenses and costs, which Owner, Construction Program Manager or Design
Consultant has incurred related thereto, regardless of the time limit of any guarantee or
warranty.
4.7 UNCOVERING AND CORRECTION OF WORK
4.7.1 If any portion of the Work should be covered contrary to the request of the
Owner, Construction Program Manager or the Design Consultant or contrary to
requirements specifically expressed in the Contract Documents or to requirements of
applicable permits, it must, if required by the Owner, Construction Program Manager or
Design Consultant, be uncovered for observation and shall be replaced at the
Contractor's expense.
4.7.1.1 If any portion of the Work has been covered which the Design Consultant,
Construction Program Manager or the Owner has not specifically requested to observe
prior to being covered, either Design Consultant, Construction Program Manager or
Owner may request to see such Work and it shall be uncovered by the Contractor. If
such Work be found in accordance with the Contract Documents, the cost of uncovering
and replacement shall, by appropriate Change Order, be charged to the Owner. If such
Work be found not in accordance with the Contract Documents, the Contractor shall pay
such costs. If such condition was caused by a separate contractor, Contractor may
proceed solely against said separate contractor as provided in Article 6.
4.7.2 Any materials or other portions of the Work, installed, furnished or stored on site
which are not of the character or quality required by the Specifications, or which are not
in accordance with the guarantees and warranties specified in the Contract Documents,
whether observed before or after Substantial Completion, and whether or not fabricated,
installed or completed, shall be immediately removed and replaced by the Contractor to
the satisfaction of the Construction Program Manager, Design Consultant or Owner,
when notified in writing to do so by the Construction Program Manager. The Contractor
shall promptly reconstruct, replace or correct all Work so rejected and shall bear all costs
of correcting such rejected Work, including compensation for the Design Consultant's and
the Construction Program Manager's additional services made necessary thereby.
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4.7.2.1 The Contractor, unless removal is waived by the Owner, shall remove from the
Project site all portions of the Work which are defective or non-conforming, or if permitted
or required, he shall correct such Work in place at his own expense promptly after receipt
of Notice; such rejected Work shall not thereafter be tendered for acceptance unless
Contractor shall give the Construction Program Manager timely Notice that the Work
being tendered was formerly defective or was subject to a requirement for correction.
4.7.2.2 If the Contractor does not proceed with the correction of such defective or
non-conforming Work within the time fixed by written Notice from the Construction
Program Manager, the Owner may either (1) by separate contract or otherwise replace or
correct such Work and charge the Contractor the cost occasioned the Owner thereby and
remove and store the materials or equipment at the expense of the Contractor, or (2)
terminate this Contract for default as provided in Paragraph 14.3. If the Contractor does
not pay the cost of such replacement or correction and the removal and storage within
ten (10) days thereafter, the Owner may upon ten (10) additional days' written Notice sell
such Work at auction or at private sale and shall account for the net proceeds thereof,
after deducting all the costs that should have been borne by the Contractor, including
compensation for additional services of the Design Consultant and the Construction
Program Manager made necessary thereby. If such proceeds of sale do not cover all
costs which the Contractor should have borne, the difference shall be withheld from any
sums due Contractor under this Contract. If the payments then or thereafter due the
Contractor are not sufficient to cover such amount, the Contractor shall pay the difference
to the Owner.
4.7.2.3 The Contractor shall bear the cost of making good all work of the Owner or
separate contractors destroyed or damaged by such correction or removal required by
the Contract Documents.
4.7.3 If Owner elects to accept defective or non-conforming Work, he may do so rather
than require its removal and correction, in which case Owner may reduce monies
payable to Contractor in an amount which, in the opinion of the Construction Program
Manager, is fair and equitable therefor; or the Owner may elect to accept payment in
materials or services in lieu of a reduction in monies otherwise payable Contractor. If the
amount of a reduction is determined after final payment, it shall be paid to the Owner by
the Contractor.
4.8 TAXES
4.8.1 The Contractor shall pay all sales, consumer, use, excise, gross receipts, and
other similar taxes legally enacted at the time of Bid by Contractor, whether or not yet
effective, required to be paid in connection with the Work or upon materials, tools or
equipment brought to the Project site or used in the Work, and all ad-valorem or personal
property taxes levied against any tools or equipment utilized by the Contractor in the
performance of the Work, all of which shall be deemed included in the Contract Sum.
4.8.1.1 If any of the foregoing taxes are not paid by the Contractor in a timely manner,
the Owner may withhold the amount of any such taxes from any amounts otherwise due
to Contractor and submit the amount so withheld to the appropriate taxing authority on
behalf of the Contractor and credit said amount against the remaining monies due
Contractor.
4.9 PERMITS, FEES AND NOTICES
4.9.1 Except as otherwise provided in the Contract Documents, the Contractor shall
secure and pay for all permits and governmental fees, or charges, licenses and
inspections necessary for the proper execution and completion of the Work which are
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legally required at the time the bids are received. Contractor shall not be entitled to any
additional time for performance because of his failure to secure any required permits in a
timely manner.
4.9.1.1 Contractor shall pay all charges of utility owners for connections to the Work.
4.9.2 The Contractor shall give all Notices and comply with all Laws and Regulations
bearing on the performance of the Work. Except where otherwise expressly required by
applicable Laws and Regulations, neither Owner, Construction Program Manager, nor
Design Consultant shall be responsible for monitoring Contractor's compliance with any
Laws and Regulations.
4.9.3 If Contractor observes that the Specifications or Drawings or any work performed
or observed by Contractor are at variance with any Laws and Regulations, Contractor
shall give Construction Program Manager prompt written Notice thereof as required by
this Contract. Contractor shall not proceed with such work without written instructions
from the Construction Program Manager or Design Consultant in accordance with the
Contract Documents. If Contractor performs any Work or covers up or otherwise makes
inaccessible any Work, knowing or having reason to know, that it is contrary to such laws,
codes, regulations or orders, and without such Notice to Construction Program Manager,
Contractor shall bear all costs arising therefrom.
4.10 ALLOWANCES
4.10.1 It is understood that included in the Contract Price are all allowances so required
and named in the Contract Documents and Contractor shall cause the work so covered
to be done by such trades or Subcontractors or Suppliers and for such sums within the
limit of the allowances as may be acceptable to Construction Program Manager and
Owner.
4.10.2 Unless otherwise provided in the Contract Documents:
.1 These allowances shall cover the cost to the Contractor, less any applicable
trade discount, of the materials and equipment required by the allowance
delivered at the site, and all applicable taxes;
.2 The Contractor's costs for unloading and handling on the site, labor, installation
costs, overhead, profit and other expenses contemplated for the original
allowance shall be included in the Contract Sum and not in the allowance; and
.3 Whenever the cost is more than or less than the allowance, the Contract Sum
shall be adjusted accordingly by Change Order, the amount of which will
recognize changes, if any, in handling costs on the site, labor, installation costs,
overhead, profit and other expense.
4.11 CONSTRUCTION SCHEDULE
4.11.1 The Contractor shall strictly comply with Article 13 hereof.
4.11.2 Contractor covenants and warrants to Owner that Contractor will not:
.1 Misrepresent to Owner its planning, scheduling, and coordination of the Work;
.2 Utilize schedules different from those made available to the Owner and
Construction Program Manager for the direction, execution and coordination of
the Work, or which are not feasible or realistic; or
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.3 Prepare schedules, updates, revisions or reports which do not accurately reflect
Contractor's actual intent or Contractor's reasonable and actual expectations as
to: the sequences of activities; the duration of activities; the responsibility for
activities; labor availability, productivity, or efficiency; expected or reasonably
foreseeable inclement weather conditions; the value associated with an activity
or group of activities; the percentage complete of any activity or path of activities;
completion of any item of work or activity; projected actual project completion;
delays, slippages, or problems encountered or expected; Subcontractor requests
for time extensions, or delay claims of Subcontractors, and if applicable, the float
time available.
4.11.3 Contractor's failure to substantially comply with the covenants and guarantees of
Subparagraph 4.11.2 shall be a substantial and material breach of this Contract which
will permit Owner to terminate Contractor for default, or withhold payments under the
Contract Documents, and shall entitle Owner to the damages afforded for
misrepresentation or fraud by these Contract Documents or applicable law, including
attorney's fees and costs.
4.11.4 Should Contractor fail to substantially comply with the provisions of the Contract
Documents relating to scheduling and execution of the Work in accordance with the
Construction Schedule, Owner shall have the right, at its option, to direct the Construction
Program Manager to prepare schedules, reports, updates and revisions of the schedule
in accordance with the Contract Documents and to review and analyze same, in order to
allow Construction Program Manager to evaluate the progress of the Work by Contractor,
to determine whether Contractor is substantially complying with the Contract Documents,
and to direct such action of the part of the Contractor, as permitted by the Contract
Documents, as required to insure that Contractor will complete the Work within the
Specific Dates and the Contract Time. All costs and expenses and fees incurred by
Owner and Construction Program Manager in preparing the schedule hereunder shall be
withheld from monies otherwise due Contractor. If Contractor fails to substantially
comply with the scheduling and execution of the work requirements of the Contract
Documents, Contractor hereby agrees, in such instance, to comply with such schedules
as prepared by the Construction Program Manager, if any, or directions, and activity
sequences and durations as Construction Program Manager may reasonably require,
without additional cost to the Owner (subject only to cost adjustments for such changes in
the Work as Owner may direct), to insure completion of the Work, or specified portions
thereof, within the Specific Dates or the Contract Time.
4.12 RESPONSIBILITY FOR COMPLETION
4.12.1 The Contractor shall furnish such manpower, materials, facilities and equipment
and shall work such hours, including additional shifts, overtime operations and Sundays
and holidays, as may be necessary to insure completion of the Work or specified portions
thereof within the Specific Dates as set forth in the Contract Documents. If it becomes
apparent to the Construction Program Manager, that the Work, or any required portion
thereof, will not be completed by any of such dates, Contractor agrees to undertake some
or all of the following actions, at no additional cost to the Owner (including, but not limited
to, the payment by Contractor of additional costs or overtime for Construction Program
Manager and Design Consultant relating thereto, and any additional charges for
inspectors or other necessary services), in order to ensure, in the opinion of the
Construction Program Manager, that Contractor will comply with all completion
requirements:
.1 Increase manpower, materials, trades, crafts, equipment and facilities;
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.2 Increase the number of working hours per shift, shifts per working day, working
days per week, or any combination of the foregoing; and
.3 Reschedule activities to achieve maximum practical concurrency of
accomplishment of activities.
4.12.2 In undertaking the actions required under Subparagraph 4.12.1, Contractor shall
comply with the requirements for a Recovery Schedule or Schedule Revision set forth in
Article 13.
4.12.3 If the actions taken by the Contractor under Subparagraph 4.12.1 are not
satisfactory to the Construction Program Manager, the Construction Program Manager
may direct the Contractor to take any and all other actions necessary to ensure
completion within the Specific Dates and Contract Time, without additional cost to the
Owner. Contractor shall continue to assume full responsibility for his performance and
for his completion within the Specific Dates or Contract Time.
4.12.4 In the event that the Owner requires overtime, Saturday, Sunday or holiday work
by Contractor or his Subcontractor, and such requirement is not related in any way to
Contractor's responsibility under Subparagraph 4.12.1, Owner shall reimburse Contractor
in accordance with the provisions of Subparagraph 3.6.2.
4.12.5 Contractor shall require that his Superintendent and field staff be at the Project
site not less than ten hours per day, six days per week, or such longer period as may be
required, if, in the opinion of the Construction Program Manager, Contractor will not be
able complete the Work, or any designated portion thereof, by the Specific Dates therefor
unless this and other actions required by this Paragraph 4.12 are taken by Contractor.
4.12.6 The requirements of this Paragraph 4.12 do not diminish, modify or relieve
Contractor's responsibility to comply with all applicable codes, local noise ordinances, all
highway permit requirements and all other laws, regulations, rules, ordinances, permit
requirements and orders of any public authority having jurisdiction.
4.12.7 Failure of the Contractor to substantially comply with the requirements of this
Paragraph 4.12 and Article 13 hereof, may be grounds for a determination by the Owner,
pursuant to Article 14, that the Contractor is failing to prosecute the Work with such
diligence as will ensure its completion, or the designated portions thereof, within the
dates specified.
4.13 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
4.13.1 The Contractor shall review, approve and submit, with reasonable promptness (if
no specific time period is stated elsewhere in the Contract Documents), and in such a
sequence as to cause no delay in the Work or in the work of the Owner or any separate
contractor, all Shop Drawings, Product Data, Manuals, Samples or other Submittals
required by the Contract Drawings.
4.13.2 Unless otherwise directed in writing by the Construction Program Manager, or
otherwise provided in the Contract Documents, Contractor shall submit all required Shop
Drawings, Product Data, Samples and other Submittals required by the Contract
Documents, within ninety (90) days from the date of the Notice to Proceed.
4.13.2.1 Unless directed otherwise by the Construction Program Manager Contract Documents,
for standard manufactured items not requiring special shop drawings for manufacture,
Contractor shall submit at least four (4) paper and (1) electronic document (.pdf) of
manufacturer's catalog sheets showing illustrated cuts of item to be furnished, scale
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details, sizes, dimensions, performance characteristics, capacities, wiring diagrams and
controls, and all other pertinent information.
4.13.2.2 Unless otherwise directed by the Construction Program Manager, for all other Shop
Drawings, Contractor shall submit (1) electronic (.pdf) copy and at least (3) legible,
unfolded, opaque prints for each drawing. Each drawing shall have a clear space for
stamps. When the phrase "by others" appears on shop drawings, the Contractor shall
indicate on the drawing, before submittal, who is to furnish material or operations so
marked.
4.13.2.3 For use of all trades and separate contractors (if applicable), the Contractor shall provide
such number of prints as are required for proper coordination and installation of the Work.
4.13.2.4 Within forty-eight (48) hours of receiving submittals back from the Design Consultant,
Contractor shall submit (1) .pdf file and (1) paper copy to the Construction Program
Manager.
4.13.3 By approving and submitting Shop Drawings, Product Data, Manuals and
Samples, the Contractor represents that he has determined and verified all materials,
field measurements, and field construction criteria related thereto; that he has checked
and coordinated the information contained within such submittals with the requirements
of the Work, with other separate contractors, and with any other requirements of the
Contract Documents; and that the Shop Drawings are complete and accurate with
respect to quantities, dimensions, specified performance and design criteria, materials
and similar data, so as to enable the Design Consultant to properly review the
information.
.1 Parts and details not fully indicated on the Drawings shall be detailed by the
Contractor in accordance with standard engineering practice. Dimensions on the
Drawings, as well as detailed drawings themselves are subject in every case to
measurements of existing, adjacent, incorporated and completed Work, which
shall be verified by the Contractor before undertaking any work dependent on
such data. The Contractor shall adhere to any supplementary processing and
scheduling instructions pertaining to Shop Drawings which may be issued by the
Construction Program Manager.
4.13.4 Contractor shall not submit for review and approval hereunder any Shop
Drawing, Product Data, Sample or other Submittal which is in deviation with or in
variation from the requirements of the Contract Documents, without first having obtained
a Change Order therefor in accordance with the requirements of Article 12 hereof. All
responsibility and liability for any such deviations or variances which may be contained in
any Shop Drawings, Product Data, Sample or other Submittal rests upon the Contractor,
unless a Change Order is issued approving the deviation or variance.
.1 Owner has no obligation to approve any deviation or variance from the Contract
Documents, and any approval thereof is in Owner's sole discretion. Specific and
express approval of every deviation or variance is required hereunder. The
failure of Owner or the Design Consultant to reject any Shop Drawing or other
Submittal because of a deviation or variance, of which they were not aware
during the review process, does not mean the deviation or variance is approved.
Contractor shall bear all risk regarding all deviations and variances not
specifically and expressly approved hereunder.
.2 In seeking approval of a deviation or variance with the requirements of the
Contract Documents, Contractor shall request in writing and in detail any such
deviations or variances desired. Contractor shall make, at his own expense, any
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Shop Drawings, Product Data, Samples or other Submittals which reflect the
requested deviation or variance and shall direct specific attention in writing to
same. Contractor shall also submit with his request a cost proposal relating
thereto reflecting any proposed change in Contract Sum. Contractor's request
shall be reviewed by the Design Consultant and, if acceptable to Owner, a
Change Order will be issued. In this process, Contractor shall make, at his own
expense, any changes in the Shop Drawing or Submittal containing the proposed
deviation or variance as required by the Design Consultant and shall bear the
cost of any additional services performed by the Design Consultant and
Construction Program Manager relating thereto.
.3 The approval of a deviation or variance for a separate item as such will not
indicate approval by the Design Consultant or the Owner of the assembly in
which the item functions.
4.13.5 Contractor shall not be relieved from responsibility for errors or omissions in the
Shop Drawings, Product Data, Samples, Manuals or other Submittals, by the Design
Consultant's review or the Construction Program Manager's routing thereof.
4.13.6 Contractor shall make corrections required by the Design Consultant and shall
resubmit the required number of corrected copies of Shop drawings or new Product Data
or Samples. When Shop Drawings are stamped "Revise and Resubmit", the Contractor
shall correct original submittal and submit a new electronic .pdf file and opaque prints for
review. Resubmittals necessitated by required corrections shall not be cause for any
extensions to any of the Specific Dates or the Contract Time. In the event that submittals UHTXLUH PRUH WKDQ WZR UHYLHZV E\ WKH 'HVLJQ &RQVXOWDQW UHVXOWLQJ IURP &RQWUDFWRU¶V
errors or failure to coordinate the Work, the Owner reserves the right to hold the
Contractor responsible and adjust payments accordingly, for any additional services fees
related thereto and incurred by the Owner, from the Design Consultant.
4.13.7 Contractor shall direct specific attention, in writing, on resubmitted Shop
Drawings, Product Data, Samples or Manuals, to revisions other than those requested by
the Design Consultant on previous submittals.
4.13.8 Contractor acknowledges and agrees that the Shop Drawing and Submittal
approval process is not used by the Owner for ordering Changes in the Work, including
Substitutions. If during the Shop Drawing and Submittal process, the Design Consultant
makes any comments, notations or markings on the Shop Drawings, Product Data,
Samples or other submittals or revises any requirements for Products which, in the
opinion of Contractor, are not in accordance with the Contract Documents, laws,
regulations, codes or orders of any public authority having jurisdiction, or constitute a
Change in the Work, Contractor shall, within seven (7) days of receipt back of said Shop
Drawings or Submittals, notify Construction Program Manager thereof. Contractor shall
not proceed with said revisions or alleged Changes in the Work unless a Change Order is
issued in accordance with Article 12 or a clarification relating thereto is issued by Design
Consultant. If Contractor proceeds with execution of the Work without written
authorization therefor as herein provided, or if Contractor does not notify the Construction
Program Manager in accordance with the requirements of this Subparagraph 4.13.8,
Contractor shall be fully responsible for all additional costs incurred by Contractor and
shall have waived any claim for costs or a time extension relating thereto.
4.13.9 No portion of the Work requiring submission of Shop Drawings, Product Data,
Samples or Manuals shall be commenced until the submittal has been approved by the
Design Consultant as provided by Article 2. All such portions of the Work shall be in
accordance with approved submittals.
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4.13.10 Shop Drawings, Product Data and Samples shall be dated and shall bear the
name of the Project; a description of and the names of equipment, materials and items;
and complete identification of locations at which materials or equipment are to be
installed.
4.13.11 All Submittals shall be accompanied by a transmittal letter, containing the name
of the Project, transmittal date, the Contractor's name, submittal number, the number of
Shop Drawings, Product Data, Samples, or Manuals, block titles and other pertinent data.
4.13.12 Each Shop Drawing and other Submittal shall bear the Contractor's stamp or seal
stating that the Submittal has been reviewed by the Contractor and that it conforms to the
requirements of the Contract Documents.
4.13.13 Within fourteen (14) days after receiving the Design Consultant's comments and,
in any case, before the applicable portion of the Work is started, the Contractor shall
again review and coordinate the Submittal with other separate contractors working on the
Project. If Contractor has coordination problems with a separate contractor's work,
Contractor shall promptly resolve same directly with the separate contractor. If no
resolution can be reached between Contractor and the separate contractor, the
Construction Program Manager will make a determination which shall be binding upon
Contractor and the separate contractor.
4.13.14 Owner, at his discretion, may require that laboratory tests be made on any
materials submitted for incorporation in the Project. When tests are so required, the
Contractor shall deliver Samples of sufficient size and quantity, to meet testing laboratory
requirements, deliver Samples to testing laboratory and forward a letter to the Owner
advising of such delivery with a copy to the Construction Program Manager.
4.13.14.1 Contractor shall pay all expenses in connection with obtaining any laboratory testing of
any material required by the Contract Documents to be tested. Reports of testing
laboratory shall be forwarded by the laboratory; original and three (3) copies to the
Construction Program Manager and one (1) copy to Contractor.
4.13.14.2 Based upon the test report, the Owner will make the final determination as to whether or
not the tested article meets the Contract requirements. Should the tested material fail to
meet Contract requirements, the Contractor will then take immediate action to submit
other materials for test and approval which will meet the Contract requirements. Any
retesting needed to assure compliance with the Contract Documents shall not be cause
for a time extension.
4.13.15 In the case of materials for which laboratory tests are not required, Contractor
shall deliver Samples, properly labeled, to the Construction Program Manager at the
Project site. Promptly after receipt, the Construction Program Manager shall request the
Design Consultant to examine the Samples and note upon a label affixed to the sample
the Design Consultant's recommendations as to whether or not the Samples satisfy the
requirements of the Contract Documents.
4.13.16 Approved Samples shall remain on the Project site in the custody of the
Construction Program Manager for use in checking the material or equipment
incorporated in the Work.
4.14 EQUAL PRODUCTS AND SUBSTITUTIONS
4.14.1 All Substitutions and equal Products permitted by the Contract Documents must
strictly conform to the requirements of this Paragraph 4.14. No Substitutions, and no
Products which Contractor believes are "or equal," are permitted by Contractor for any
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brand, make, manufacturer, Product or form or type of construction specified or named in
the Contract Documents except as specifically provided by this Paragraph 4.14 or by
specific language in the Drawings or Specifications indicating that an equal Product will
be permitted.
4.14.1.1 Except as otherwise provided for by the provisions of any applicable laws, the Contractor
shall not have any right of appeal from the decision of the Design Consultant and Owner
rejecting any unapproved Products or materials (for example, without limitation, Products
for which Contractor has not yet secured "or equal" approval as required herein) or
Substitutions, delivered to or installed in the Work, if the Contractor fails to timely obtain
the approval for (1) the item or Product he believes to be "or equal" or (2) the Substitution
under this Paragraph 4.14.
4.14.2 Unless otherwise specifically provided in the Contract Documents (such as a
name being followed by words indicating that no equal Product is permitted), the naming
in the Contract Documents of a certain brand, make, manufacturer, Product or form or
type of construction, is intended to convey the general style, type, character and standard
of quality of the item desired and shall not be construed as limiting competition. Subject
to the provisions of this Paragraph 4.14, Contractor may, with written approval of the
Design Consultant, use any brand, make, manufacturer, Product, and form or type of
construction which, in the judgment of the Design Consultant, is at least equal to that
specified. An item may be considered equal to the item so named or described if, in the
opinion of the Design Consultant: (1) it is at least equal in quality, durability, appearance,
strength, and design; (2) it will perform at least equally the specific function imposed by
the general design for the work being contracted for or the material being purchased; (3)
it conforms substantially, even with deviations, to the detailed requirements for the item in
the specifications; and (4) it will meet dimensional limitations and fit into the space and
location for the specified item. Approval by the Design Consultant will be granted only if
the equal Product complies with all requirements of the Contract Documents for quality,
artistic effect, workmanship, economy of operation, dimensional considerations, suitability
for the purpose intended, and acceptability for use on the Project. If approved, as
provided herein, the Owner shall not be liable to Contractor for any additional cost or time
for performance, if any, arising out of or related in any way to the equal Product.
4.14.3 Subject to the requirements of this Paragraph 4.14, Substitutions are permitted
only if the Contractor submits written documentation, satisfactory to the Construction
Program Manager and approved by the Design Consultant and Owner, evidencing that:
(1) through no fault of the Contractor or any Subcontractor, the Manufacturer cannot
make scheduled delivery of the specified Product in order for the Product to be installed
within the time required to complete parts, portions, systems, components of the Work or
the Work itself by a Specific Date; (2) the brand, make, manufacturer, Product or form or
type of construction specified or named in the Contract Documents is not approved by or
in accordance with applicable laws, codes or regulations or is not compatible with
equipment, systems, Products or components otherwise specified in the Contract
Documents; or (3) the brand, make or Product specified or named in the Contract
Documents is no longer available or manufactured.
4.14.3.1 If approved, the Substitution shall be recorded in the Contract Documents by Change
Order; if unapproved, the proposed Substitution shall not become part of the Work. If
approved as provided herein, the Owner shall not be liable to Contractor for any
additional cost or time for performance, if any, arising out of or related in any way to the
Substitution unless specifically provided for in said Change Order. If the Owner is
entitled to a credit for the Substitution approved, the Change Order shall specify such
credit.
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4.14.3.2 To obtain such approval for Substitutions of makes or brands of material or Products
other than those specified in Contract Documents, the Contractor's request for approval
of any Substitution shall include: (1) complete data substantiating compliance of the
proposed Substitution with the Contract Documents; (2) Product identification including
manufacturer's name, address and phone number; (3) Manufacturer's literature showing
complete Product description, performance and test data, and all reference standards; (4)
Samples of proposed and specified materials or Products and colors for comparison
purposes; (5) name and address of similar projects on which the Product was used and
date of installation; (6) for a form or type of construction, a detailed description for the
proposed form or type of construction and drawings illustrating same; (7) itemized
comparison of the proposed Substitution with the item or form or type of construction
specified and any cost reduction which shall benefit the Owner; (8) accurate cost data on
proposed Substitution in comparison with item, Product or form or type of construction
specified; and (9) all directions, specifications, and recommendations by manufacturers
for installation, handling, storing, adjustment, operation and maintenance.
4.14.3.3 The Contractor, in submitting a request for a Substitution, warrants to the Owner as
follows: (1) he will coordinate installation of accepted Substitutions into the Work, making
all such necessary changes, including, but not limited to, any required schedule
adjustments as may be required for the Work to be complete in all respects within the
Contract Time and Specific Dates; and (2) he waives all claims for additional costs and
additional time related to Substitutions which subsequently become apparent; and he
agrees to hold the Owner harmless from claims for extra costs and time incurred by
separate contractors or his Subcontractors or Suppliers, or additional services which may
have to be performed by the Construction Program Manager and/or Design Consultant,
for Changes or extra work that may, at some later date, be determined to be necessary in
order for the Work to function in the manner intended in the Contract Documents.
4.14.3.4 The Owner or Design Consultant, through the Construction Program Manager, may
require tests, at the Contractor's expense, of all materials proposed for Substitution so
submitted to establish quality standards or to otherwise test the suitability or acceptability
of the proposed Substitution. After approval of a Substitution, if it is determined that
Contractor submitted defective information or data regarding the Substitution upon which
Owner's approval was based, that unexpected or uncontemplated extensive redesign or
rework of the Project will be needed before the Substitution will fit properly into the
existing design (or that the Substitution will not perform or function as well as the
specified item or form or type of construction for which the Substitution was requested),
the Contractor will be required to furnish the original specified item or request approval to
use another Substitution; or, in the sole discretion of the Owner, Contractor shall pay all
costs of Owner relating to such redesign or rework; the Contractor shall also pay all
costs, expenses or damages associated with or related to the unacceptability of such a
Substitution and the resultant utilization of another item; the Contractor shall not be
entitled to any additional compensation or any extension of any Specific Date under such
circumstances.
4.14.3.5 Subject to the provisions of any applicable laws, approval for Substitutions shall be at the
sole discretion of the Owner and shall be effective solely upon the issuance of a Change
Order therefor. The decision of the Owner shall be final.
4.15 USE OF SITE
4.15.1 The Contractor shall confine operations at the site (including, but not limited to
construction equipment, the storage of materials and equipment, and the activities or
tasks of workers) to areas permitted by law, ordinances, permits, easements, right-of-way
agreements and the Contract Documents. Contractor shall not unreasonably encumber
the site, in the opinion of the Owner or the Construction Program Manager, with any
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materials, equipment or trailers or block the entrances, or otherwise prevent reasonable
access to the site, other working and parking areas, completed portions of the Work
and/or properties, storage areas, or areas of other facilities that are adjacent to the
project site.
4.15.2 If the Contractor is deemed to be in violation of his responsibility under 4.15.1
and he fails or refuses to move said material, equipment or trailers within 24 hours of
notification by the Owner, through the Construction Program Manager, to so do, the
Owner shall have the right, without further Notice, to remove, at the Contractor's
expense, any material, equipment and/or trailers which the Owner deems are in violation
of Paragraph 4.15.1.
4.15.3 Contractor 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 the performance of the Work. Should any claim be made against Owner,
Construction Program Manager, or Design Consultant by any such owner or occupant
because of the performance of the Work, Contractor shall promptly attempt to settle with
such party by agreement or otherwise resolve the claim at law. Contractor shall, to the
fullest extent permitted by laws, indemnify and hold Owner, Construction Program
Manager, and Design Consultant harmless from and against all claims, damages, losses
and expenses (including, but not limited to, fees of Design Consultant, Construction
Program Manager, attorneys and other professionals, and court costs) arising directly,
indirectly, or consequentially out of any action, legal, or equitable, brought by any such
other party against Owner, Construction Program Manager, or Design Consultant to the
extent based on a claim arising out of Contractor's performance of the Work.
4.16 CUTTING AND PATCHING OF WORK
4.16.1 The Contractor shall be responsible for all cutting, fitting or patching that may be
required to complete the Work or to make its several parts fit together properly and
integrate with such other work and in accordance with the Contract Documents.
4.16.2 The Contractor shall not damage or endanger any portion of the Work or the
work of the Owner or any separate contractors by cutting, patching or otherwise altering
any work, or by excavation. The Contractor shall not cut or otherwise alter the work of
the Owner or any separate contractor except with the written consent of the Owner and of
such separate contractor. The Contractor shall not unreasonably withhold from the
Owner or any separate contractor his consent to cutting or otherwise altering the Work.
The Owner shall not be required to accept Work with a cut, splice, or patch when such
cut, splice or patch is not generally accepted practice for the particular work involved or is
otherwise unworkmanlike in the opinion of the Owner, Construction Program Manager or
Design Consultant.
4.16.3 Existing structures, buildings, Underground Facilities or Utilities, grade, streets,
curbs, walks, and the like, which are damaged or removed due to required excavations or
other construction work, shall be patched, repaired or replaced by the Contractor to
satisfaction of Construction Program Manager, Design Consultant, the owner of such
structures and facilities, and authorities having jurisdiction thereof. In the event the local
jurisdictional authorities require such repairing and patching be done with their own labor
and materials, Contractor shall abide by such regulations and pay for such work at no
additional expense to the Owner, and Contractor shall not be entitled to any additional
time for performance because thereof.
4.17 CLEANING UP
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4.17.1 The Contractor at all times shall keep the premises free from accumulation of
waste materials, rubbish and other debris caused by his operations or resulting from the
Work. At the completion of the Work and before final payment is made, Contractor shall
remove all his waste materials and rubbish from and about the Project as well as all his
tools, appliances, construction equipment, machinery and surplus materials. Contractor
is not permitted to burn or bury any waste materials, rubbish and other debris on site.
4.17.2 Contractor shall restore to original condition all property not designated for
alteration by the Contract Documents.
4.17.3 If Contractor fails to clean up during or at the completion of the Work, Owner may
do so as provided in Paragraph 6.3 and the cost thereof shall be charged to Contractor.
4.18 COMMUNICATIONS
4.18.1 The Contractor shall forward all communications, whether to the Design
Consultant or to the Owner, only through the Construction Program Manager. Similarly,
all communications to the Contractor from the Owner or the Design Consultant will flow to
the Contractor through the Construction Program Manager unless otherwise directed by
the Construction Program Manager.
4.19 ROYALTIES AND PATENTS
4.19.1 The Contractor shall pay, if applicable, all royalties and license fees incident to
the use of any invention, design, process or device which is the subject of patent rights or
copyrights held by others, all of which shall be deemed included in the Contract Sum.
The Contractor shall not unlawfully use or install any patented or copyrighted article and
shall defend, indemnify and hold the Owner, Construction Program Manager, and Design
Consultant harmless from and against all judgments, losses, costs or expenses, including
attorneys' fees, arising out of any suits or claims for infringement of any patent rights or
copyrights related thereto.
4.19.2 In the event of any injunction or legal action arising out of any such infringement
which has the effect of stopping the Work, the Owner may require the Contractor to
substitute such other articles of like kind as will make it possible to proceed with and
complete the Work within the Contract time and Specific Dates, and all costs and
expenses occasioned thereby shall be borne by the Contractor. Under such
circumstances, Contractor shall not be entitled to any time extension under this Contract
for any delay relating thereto.
4.20 INDEMNIFICATION
4.20.1 To the fullest extent permitted by law, the Contractor shall, at his sole cost and
expense, indemnify, defend, and hold harmless the Owner, the Construction Program
Manager and the Design Consultant and their agents, representatives, and employees
from and against all claims, actions, judgment, cost, liabilities, penalties, damages, losses
and expenses, including but not limited to attorneys' fees, arising out of or resulting from
the performance of the Work, provided that any such claim, action, judgment, cost,
liability, penalty, damage, loss or expense (1) is attributable to bodily injury, sickness,
disease or death, or to injury to or destruction of tangible property (other than the Work
itself) including the loss of use resulting therefrom, and (2) is caused in whole or in part
by any act or omission of the Contractor, any Subcontractor, anyone directly or indirectly
employed by any of them or anyone for whose acts any of them may be liable, regardless
of whether or not it is caused in part by a party indemnified hereunder.
4.20.2 In any and all claims against the Owner, the Construction Program Manager or
the Design Consultant or any of their agents, representatives, or employees by any
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employee of the Contractor, any Subcontractor, anyone directly or indirectly employed by
any of them or anyone for whose acts any of them may be liable, the indemnification
obligation under this Paragraph 4.20 shall not be limited in any way by any limitation on
the amount or type of damages, compensation or benefits payable by or for the
Contractor or any Subcontractor under workers' or workmen's compensation acts,
disability benefit acts or other employee benefit acts.
4.21 PERSONS AUTHORIZED TO SIGN DOCUMENTS AND MAKE DECISIONS FOR
CONTRACTOR
4.21.1 The Contractor, within five (5) days after the earlier of the date of Notice to
Proceed or the date of the Owner-Contractor Agreement, shall file with the Construction
Program Manager a list of all persons who are authorized to sign documents such as
contracts, certificates, Change Orders, pay requests and affidavits on behalf of the
Contractor and to fully bind the Contractor to all the conditions and provisions of such
documents, except that in the case of a corporation he shall file with the Construction
Program Manager a certified copy of a resolution of the Board of Directors of the
corporation in which are listed the names and titles of corporation personnel who are
authorized to sign documents on behalf of the corporation and to fully bind the
corporation to all the conditions and provisions of such documents.
4.21.2 Unless Contractor shall advise the Construction Program Manager in writing to
the contrary within five (5) days after the Effective Date of the Agreement, Owner,
Construction Program Manager and the Design Consultant shall have the right to rely
upon the authority of the Contractor's Project Manager or Superintendent on a daily basis
relating to the day-to-day administration of Contractor's Work, including, but not limited to,
the submission of scheduling data, the agreement upon action items and schedules for
the Work at job meetings and to otherwise represent and make decisions for the
Contractor and make agreements with the Owner and Construction Program Manager as
are necessary for the proper execution of Contractor's responsibilities in accordance with
the Contract Documents.
4.22 CONDITIONS AFFECTING THE WORK
4.22.1 The Contractor shall be responsible for taking all steps necessary to ascertain
the nature and location of the Work and the general and local conditions which can affect
the Work or the cost thereof, including, but not limited to the requirements of Paragraph
1.2 hereof. Failure by the Contractor to fully acquaint himself with conditions which may
affect the Work, including, but not limited to conditions relating to transportation, handling,
storage of materials, availability of labor, water, roads, weather, topographic and
subsurface conditions, other separate contractors, multi-prime contract conditions,
applicable provisions of law, and the character and availability of equipment and facilities
needed prior to and during the execution of the Work, and all other conditions which may
affect the Work of Contractor, shall not relieve the Contractor of his responsibilities under
the Contract Documents and shall not constitute a basis for an adjustment in the Contract
Sum, Specific Dates or the Contract Time under any circumstances. The Owner,
Construction Program Manager and Design Consultant assume no responsibility for any
understanding or representation about conditions affecting the Work made by any of the
Contractor's officers, employees, representatives, or agents or any of his Subcontractors
prior to the execution of the Contract, unless such understandings or representations are
expressly stated in the Contract Documents.
4.22.2 If in the execution of the Work any valuable items or materials of any kind are
discovered buried or hidden within the Work, such items or materials shall be the
property of the Owner. The Contractor shall take reasonable precautions to prevent any
persons from removing or damaging such items or materials and shall immediately upon
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discovery thereof and before removal, inform the Construction Program Manager with
such discovery and carry out, at the expense of the Contractor, the Construction Program
Manager's orders as to disposal of the same.
4.23 TESTS
4.23.1 Contractor shall give Construction Program Manager timely Notice of readiness
of the Work for all required inspections, tests, or approvals so that Construction Program
Manager, Commissioning Consultant and Design Consultant may observe same.
4.23.2 If the Contract Documents, or laws, regulations, rules or orders of any public
authority having jurisdiction, require any portion of the Work to specifically be inspected,
tested, or approved, LQFOXGLQJ2ZQHU¶V,QVSHFWLRQ&RQVXOWDQWContractor shall assume
full responsibility of coordination thereof. Contractor shall also be responsible for and
shall pay all costs associated with any investigation, inspection or testing required in
connection with Owner's or Design Consultant's acceptance of a Subcontractor, Supplier
or specific item of equipment proposed to be substututed in the Work, or of materials or
equipment submitted for approval prior to Contractor's purchase thereof for incorporation
in the Work.
.1 Unless otherwise provided in the Contract Documents, Contractor shall pay for
all utilities required for testing of installed equipment for the Work. Labor and
supervision required for facilitating such tests shall also be provided by
Contractor at no additional cost to Owner.
.2 If any of the Work that is to be inspected, tested, or approved is covered before
required tests and inspections are duly completed, the Work, or portion thereof,
must, if requested by Construction Program Manager or Design Consultant, be
uncovered for observation. Such uncovering shall be at Contractor's expense,
and Contractor shall not be entitled to any additional time for performance
therefor.
4.23.3 If the Design Consultant or the Construction Program Manager determines that
any Work requires special inspection, testing, or approval which are not within the scope
of Subparagraph 4.23.2, Construction Program Manager will instruct the Contractor to
order such special inspection, testing or approval, and the Contractor shall give Notice as
provided in Subparagraph 4.23.1. If such special inspection or testing reveals a failure of
the Work to comply (1) with the requirements of the Contract Documents, or (2) with
Laws and Regulations, Contractor shall bear all costs thereof, including compensation for
the Design Consultant's and the Construction Program Manager's additional services
made necessary by such failure, and Contractor shall not be entitled to any additional
time for performance because thereof. If such special inspection or testing reveals that
the Work is in accordance with all of the applicable requirements, Owner shall bear all
costs thereof.
4.23.4 All inspections, tests, or approvals other than those required by laws, regulations,
rules or orders of a public authority having jurisdiction, including all inspections and tests
required to establish compliance with the Contract Documents shall be performed by an
independent testing agency or organizations approved by or under contract with the
Owner. When the initial tests indicate non-compliance with the Contract Documents any
subsequent testing occasioned by non-compliance shall be performed by the same
agency and the cost thereof shall be borne by the Contractor. Representatives of the
testing agency shall have access to the Work at all times. Contractor shall provide
facilities required in order for the agency to properly perform its functions.
.1 The independent testing agency shall prepare test reports, logs, and certificates
applicable to the specific inspections and tests and deliver, within forty-eight (48)
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hours after tests and inspections have been made, the specified number of
copies to the designated parties. Certificates of inspection, testing or approval
required by public authorities shall be secured by the Contractor and promptly
delivered by him to the Construction Program Manager, in adequate time to
avoid delays in the Work or final payment therefor.
4.23.5 Contractor shall pay for and be solely responsible for inspections or testing
performed exclusively for his own convenience.
4.23.6 Neither observations by the Construction Program Manager or the Design
Consultant nor inspections, tests, or approvals by others shall relieve Contractor from
Contractor's obligations to perform the Work in accordance with all of the requirements of
the Contract Documents and applicable laws, codes, regulations, rules and orders of any
public authority having jurisdiction.
4.24 QUALITY CONTROL
4.24.1 Contractor shall establish a quality control system to perform inspections and
tests of all portions of the Work, including that of Subcontractors. Contractor's quality
control system is the means by which Contractor assures himself that the Work as being
performed, complies with the Contract Documents. While Construction Program
Manager or Design Consultant may from time to time review the Work, Contractor is the
party responsible for accurate testing and inspection to ensure that the Work satisfies all
requirements of the Contract Documents.
4.24.2 Contractor shall include activities, durations and sequences therefor within the
Construction Schedule and shall coordinate the quality control activities with all other
activities of Contractor and his Subcontractors. The quality control system shall be
adequate to cover all construction operations for the Work.
4.24.3 Contractor's superintending staff shall be used for quality control. Unless the
Construction Program Manager approves otherwise in writing, Contractor's
Superintendent will be Contractor's representative in charge of quality control,
supplemented by such additional personnel, technicians, or testing facilities as may be
reasonably necessary to ensure that the Work conforms to the Contract Documents.
4.24.4 Contractor shall submit for approval to the Construction Program Manager prior
to commencing any portion of the Work on site, a quality control plan which will include
the procedure, instructions, and reports to be used. The quality control plan shall also
include the following:
.1 the quality control organization;
.2 the number, authority, responsibility, and qualifications of personnel to be used
for quality control;
.3 methods of quality control including that of subcontractors;
.4 test methods and the frequency of testing, as appropriate or as required, for each
Product and component of the Work;
.5 identification of testing standards, method of documenting quality control
operations, inspections and testing, and report format; and
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.6 a copy of a letter of direction to the Contractor's representative responsible for
quality control, outlining duties, authority and responsibilities and signed by a
responsible officer of Contractor.
4.24.5 If Contractor fails to satisfactorily perform any required inspections and tests; to
submit timely, complete, and factual reports and test data; or otherwise comply with the
quality control provisions and requirements of the Contract Documents, and continues to
fail after seven (7) days Notice from Construction Program Manager, Owner may
terminate Contractor for default under Paragraph 14.3 hereof.
ARTICLE 5
SUBCONTRACTORS
5.1 DEFINITIONS
5.1.1 A Subcontractor is defined in Subparagraph 1.1.45.
5.1.2 A Sub-subcontractor is defined in Subparagraph 1.1.46.
5.1.3 A Material Supplier, Supplier or Vendor is defined in Subparagraph 1.1.27.
5.1.4 Whenever the word "Subcontractor" is used in the Contract Documents, it is
intended to include within the broad scope of the word, a Sub-Subcontractor or Supplier
or Vendor. Any obligation or responsibility imposed upon a Subcontractor by these
Contract Documents also is imposed upon a Sub-Subcontractor or Supplier or Vendor.
5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS
OF THE WORK
5.2.1 Contractor shall use the major Subcontractors listed by Contractor in his Form of
Proposal for the classifications of Work indicated therein, or such other Subcontractors as
may be approved by Owner prior to the Notice of Award. Unless otherwise specified in
the Contract Documents, and excepting only those major Subcontractors listed in the
Form of Proposal or approved by the Owner prior to the Notice of Award Contractor shall,
prior to awarding a subcontract, and within thirty (30) days of receipt by Contractor of the
Notice to Proceed, furnish to the Construction Program Manager in writing, the names of
the persons or entities proposed as Subcontractors for each of the principal portions or
major components of the Work. The Contractor shall also advise the Construction
Program Manager in writing of any financial interest Contractor has in any of said
Subcontractors or Sub-subcontractors or Suppliers. No Subcontractor,
Sub-subcontractor or Supplier shall be engaged if objected to by the Owner as provided
in the Contract Documents; provided, however, that as to Subcontractors not listed in the
Form of Proposal or approved by the Owner prior to the Notice of Award, if the Owner or
Construction Program Manager does not give Contractor Notice of such objection in
writing within fifteen (15) days of its receipt of such names from the Contractor, such
Subcontractor, Sub-subcontractor or Supplier shall be deemed acceptable to the Owner.
5.2.2 The Contractor understands and agrees that no contractual agreement exists for
any part of the Work under this Contract between the Owner, Construction Program
Manager or Design Consultant and any of the Contractor's Subcontractors,
Sub-subcontractors or Suppliers. Further, the Contractor understands and agrees that
he alone is responsible to the Owner for all of the Work under this Contract.
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.1 The provisions of this Article 5 shall in no way affect the liability of the Contractor
to the Owner regarding performance of all obligations by or payment to
Subcontractors, Sub-subcontractors or Suppliers. Owner approval to
subcontract or Owner's failure to object to any given Subcontractor or Supplier
shall not to any degree relieve the Contractor of his obligation to perform or have
performed to the full satisfaction of the Owner all of the Work required by this
Contract.
.2 Any review of Subcontractors, Sub-subcontractors or Suppliers by Owner,
Construction Program Manager or Design Consultant will not in any way make
Owner, Construction Program Manager or Design Consultant responsible to any
Subcontractor, Sub-subcontractor or Supplier, or responsible to Contractor
should said entity be subsequently found to be unqualified or incapable of
performing any portion of the Work, or for the actions or failures to act of any
Subcontractor, Sub-subcontractor or Supplier.
.3 Contractor shall be fully responsible to Owner, Construction Program Manager
and Design Consultant for all acts and omissions of Subcontractors,
Sub-subcontractors or Suppliers, and other persons and organizations
performing or furnishing any of the Work under a direct or indirect contract with
Contractor.
5.2.3 The Contractor shall not contract with any proposed Subcontractor,
Sub-subcontractor or Supplier against whom the Owner has given Notice of objection to
Contractor under the provisions of Subparagraph 5.2.1. Contractor shall be solely liable
for any costs or damages arising because of any Work performed or material or
equipment supplied on behalf of Contractor by a Subcontractor, Sub-subcontractor or
Supplier, to whom the Owner has objected under Subparagraph 5.2.1.
5.2.4 If the Owner or the Construction Program Manager reasonably and timely gives
Notice of objection to any proposed person or entity under Subparagraph 5.2.1, the
Contractor shall name a substitute to whom Owner or Construction Program Manager
has no reasonable objection. Owner, Construction Program Manager and Design
Consultant shall not be liable to Contractor for any claim or cause of action arising out of
said objection or substitution.
5.2.5 The Owner or Construction Program Manager shall have the right at any time to
object in writing to a Subcontractor, Sub-subcontractor or Supplier, even though same
may have been deemed acceptable under the provisions of Subparagraph 5.2.1, and to
demand a substitution therefor by Contractor. Except as provided in Subparagraph 5.2.4,
should this right to object be executed by Owner or the Construction Program Manager,
the Contract Sum shall be increased or decreased by the difference in cost occasioned
by such substitution and an appropriate Change Order shall be issued, subject to an
audit of said difference by the Owner. However, no increase in the Contract Sum shall
be allowed for any such substitution if: (1) Contractor did not act timely and responsively
in submitting names as required by Subparagraph 5.2.1; (2) Owner or Construction
Program Manager has stated said objection in writing to a specific Subcontractor,
Sub-subcontractor or Supplier before the submission by that entity of a proposal
accepted by Contractor; (3) said Subcontractor, Sub-subcontractor or Supplier, is unable
to enter into and carry out his Work under his proposed Subcontract; (4) said
Subcontractor, Sub-subcontractor or Supplier fails to comply with the experience
requirements of the Contract Documents; (5) said Subcontractor, Sub-subcontractor or
Supplier fails to comply with all licensing and registration requirements of applicable laws
and regulations; (6) the proposed Subcontractor, Sub-subcontractor or Supplier is not an
on-going business in the field of his proposed Subcontract; or (7) the proposed
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Subcontractor, Sub-subcontractor or Supplier does not have a labor force and the means
of supply compatible with the scope of the Subcontract.
5.2.6 The Contractor shall not terminate the employment of a principal Subcontractor,
Sub-Subcontractor or Supplier engaged in the Work prior to the expiration of that
subcontract without good cause shown and without Owner's prior approval. The
Contractor shall also make no substitution for any Subcontractor, Sub-subcontractor or
Supplier, person or entity previously selected if the Owner or the Construction Program
Manager makes reasonable objection to such substitution.
.1 The requirements of Subparagraph 5.2.6 are solely for the protection of Owner
and his Project. Owner, Construction Program Manager and Design Consultant
shall have no liability to Contractor or any Subcontractor, Sub-subcontractor or
Supplier for Owner's approval or failure to approve the termination of any entity
hereunder.
5.3 SUBCONTRACT RELATIONS
5.3.1 The Owner, Construction Program Manager and Design Consultant have no
responsibility to deal directly with any Subcontractor, Sub-subcontractor or Supplier.
Subcontractors, Sub-subcontractors or Suppliers shall route all communications through
Contractor.
5.3.2 All subcontracts and sub-subcontracts shall be in writing. Each subcontract, and
each sub-subcontract, shall contain a reference to this Contract and shall incorporate all
of the terms and conditions hereof to the full extent applicable to the portion of the Work
covered thereby. Each subcontract or sub-subcontract shall require each Subcontractor,
Sub-subcontractor or Supplier, to the extent of the Work to be performed by that entity, to
be bound to the Contractor by the terms of the Contract Documents and to assume
toward the Contractor all the obligations and responsibilities which the Contractor, by
these Contract Documents, assumes toward the Owner. Each Subcontractor or
Sub-subcontractor must agree, for the benefit of the Owner, to be bound by, and to
require each of his Subcontractors to be bound by, such terms and conditions to the full
extent applicable to his Work. Said agreement shall preserve and protect the rights of
the Owner under the Contract Documents with respect to the Work to be performed by
the Subcontractor so that the subcontracting thereof will not prejudice such rights, and
shall allow to the Subcontractor, unless specifically provided otherwise in the
Contractor-Subcontractor agreement, the benefit of all rights, remedies and redress
against the Contractor that the Contractor, by these Documents, has against the Owner.
.1 The Contractor shall make available to each Subcontractor, Sub-subcontractor
and Supplier, prior to the execution of the Subcontract, or Purchase Order,
copies of the Contract Documents to which the Subcontractor will be bound by
this Paragraph 5.3, and identify to the Subcontractor or Supplier any terms and
conditions of the proposed Subcontract or Purchase Order which may be at
variance with the Contract Documents. Each Subcontractor or Supplier shall
similarly make copies of such Documents available to his Sub-subcontractors
and Suppliers.
5.3.3 Each subcontract shall provide for his termination by the Contractor if, in the
opinion of the Owner or Construction Program Manager, the Subcontractor fails to
comply with the requirements of the Contract Documents. Each Subcontractor shall be
required to insert a similar provision in each of his subcontracts. In the event of any such
failure by a Subcontractor, Sub-subcontractor or Supplier to comply with the
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requirements of the Contract Documents, such Subcontractor, Sub-subcontractor or
Supplier, as the case may be, shall be removed immediately by Contractor from the Work
and shall not again be employed on the Work. Contractor shall submit the name of a
responsible Subcontractor capable of completing the applicable portion of the Work.
Owner shall not be responsible for any increased costs to the Contractor or delays
occasioned by the termination or substitution required by this Subparagraph 5.3.3.
5.3.4 Each subcontract (and each subcontract entered into pursuant to a subcontract)
shall contain insurance, indemnification and waiver provisions for the benefit of the
Owner, the Construction Program Manager, the Design Consultant and his respective
parent companies, the subsidiary, related and affiliated companies of each and the
officers, directors, agents and employees of each, as provided in the Contract
Documents. Contractor shall pay each Subcontractor a just portion of any insurance
moneys received by Contractor occasioned by losses claimed under policies issued
pursuant to Article 11.
5.3.5 Nothing in the Contract Documents shall create any obligation on the part of
Owner, Construction Program Manager, or Design Consultant to pay or to see to the
payment of any moneys due any Subcontractor, Sub-subcontractor, Supplier, or other
person or organization except as may otherwise be required by applicable laws or
regulations.
5.3.6 Contractor shall be liable to and indemnify and hold the Owner, Construction
Program Manger and Design Consultant and his officers, directors, agents and
employees harmless from all costs, expenses, fees, attorney's fees, accountant's fees,
damages and claims arising because of the failure of Contractor or any Subcontractor or
Sub-subcontractor to comply with the requirements of the Contract Documents (including
specifically, without limitation, failure to comply with the provisions of this Paragraph 5.3;
failure to incorporate all required terms and conditions hereof in any subcontracts or trade
agreements; failure to pay for labor or materials; or failure to comply with the provisions
of a union or trade agreement applicable to the Work).
5.4 QUALIFICATION SUBMITTALS
5.4.1 Specific qualification submittals may be required of Subcontractors, Installers and
Suppliers for certain critical items of the Work. Required qualification submittals are set
forth in detail in the Technical Specifications and shall be collected and submitted by the
Contractor for review and approval by Owner, Construction Program Manager and
Design Consultant at the time the Subcontractor or Supplier approval is requested. All
information required of a single Subcontractor, installer or Supplier shall be contained in a
single, complete submittal.
5.5 PREPARATORY WORK
5.5.1 Before each section of the Work is started, Contractor shall ensure that the
responsible Subcontractor or Sub-subcontractor has carefully examined all preparatory
work that has been previously executed to receive his Work. All preparatory work shall
be checked carefully, by whatever means are required, to ensure that Subcontractor's
Work and adjacent related work will finish to proper contours, planes, and levels.
Subcontractor shall promptly notify the Contractor of any defects or imperfections in
preparatory work which will, in any way, affect satisfactory completion of his Work and
Contractor shall promptly notify in writing the Construction Program Manager.
.1 Notification of the Construction Program Manager of such defects or
imperfections in preparatory work will not relieve the Contractor or Subcontractor
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of any obligations under the Contract Documents. Should Contractor, without the
authorization of the Construction Program Manager, proceed with the Work
without removal, replacement or correction of the alleged defective work or
imperfections, Contractor shall bear all responsibility for any costs or delays
relating to defects or imperfections in the Work and any rework or removal and
replacement subsequently directed by the Construction Program Manager
relating to same, including any warranty or guarantee work occasioned thereby.
5.5.2 Under no conditions shall a section of Work proceed prior to required preparatory
work having been completed, cured, dried, and otherwise made satisfactory to receive
such related work. Responsibility for timely installation of all materials rests solely with
the Contractor, who shall maintain coordination and control of the Work at all times.
5.6 PAYMENTS TO SUBCONTRACTORS
5.6.1 The Contractor shall pay the amounts due each Subcontractor or Supplier upon
receipt of payment from the Owner (unless required to do so sooner by the Construction
Program Manager, pursuant to the Contract Documents or under applicable law or
regulations). The Contractor shall also require each Subcontractor or Supplier to make
similar payments due to any of his Sub-subcontractors or Suppliers.
5.6.2 A Subcontractor may request from the Construction Program Manager
information regarding the amount paid to the Contractor for Work performed by the
Subcontractor. The providing of such information to a Subcontractor shall not, however,
establish any duty or obligation on the part of the Owner or Construction Program
Manager to make any payments directly to any Subcontractor under this Contract.
ARTICLE 6
WORK BY OWNER OR BY
SEPARATE CONTRACTORS
6.1 OWNER'S RIGHT TO PERFORM WORK AND TO AWARD SEPARATE CONTRACTS
6.1.1 The Owner reserves the right to perform work with his own forces, to have work
performed by any owner of Underground Facilities or Utilities ("utility owner"), or to award
separate contracts in connection with the Project or other work contiguous or related to
the Project site, based upon any contract terms and conditions which the Owner, in his
sole discretion, may require.
6.1.2 When separate contracts are awarded for different portions of the Project or
other work on the Project site, the term "Contractor" in the contract documents in each
case shall mean the contractor who executes each separate Owner-Contractor
Agreement.
6.2 MUTUAL RESPONSIBILITY
6.2.1 The Contractor shall afford each utility owner and separate contractor proper and
safe access to the site and reasonable opportunity for the introduction and storage of his
materials and equipment in the execution of his Work. Contractor shall properly connect
and coordinate the Work with that of the Owner, utility owners and other separate
contractors. Contractor shall store his apparatus, materials, supplies and equipment in
such orderly fashion at the site of the Work so as will not unduly or unreasonably interfere
with the progress of the Work or the work of such others.
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6.2.2 If the execution or result of any part of the Work depends upon any work of the
Owner, utility owner, or of any separate contractor, the Contractor shall, prior to
proceeding with the Work, carefully inspect and promptly give Notice in writing to the
Owner, utility owner or separate contractor, and to the Construction Program Manager, of
any delays, apparent discrepancies or defects in his Work that, in Contractor's opinion,
renders it unsuitable for such proper execution or specified result of any part of the Work.
Failure of the Contractor to so inspect and promptly report shall constitute an acceptance
by Contractor of the work of Owner, any utility owner or of any separate contractor, as fit
and proper to receive the Work, except as to latent defects which the Contractor could
not have reasonably discovered by his inspections and observations.
6.2.3 Any costs and damages caused by the defective or ill-timed Work of Contractor
or any separate contractor shall be borne by the party responsible therefor and resolved
as provided for in this Article 6. Owner, Construction Program Manager and Design
Consultant shall not be liable for any damages caused Contractor by any separate
contractor or utility owner because thereof, unless due solely to the fault of Owner,
Construction Program Manager or Design Consultant.
6.2.4 Should the Contractor cause damage to the Work or property or the on-going
operations of the Owner, or any utility owner, or to other work on the Project site
performed by any separate contractors, Contractor shall promptly remedy and be wholly
responsible for such damage.
6.2.5 Should any claim arising as a result of the performance of the Work by
Contractor or by any person or entity for whose acts Contractor is responsible, be made
by any utility owner or separate contractor against Contractor, Owner, Construction
Program Manager, Design Consultant or any other person, Contractor shall promptly
attempt to settle with such other party by agreement, or to otherwise resolve the dispute
at law with such party. Contractor shall, to the fullest extent permitted by law and
regulation, indemnify and hold Owner, Construction Program Manager, and Design
Consultant, and his officers, employees, agents and representatives harmless from and
against all such claims, damages, losses, and expenses (including, but not limited to,
fees of Design Consultant, Construction Program Manager, experts, attorneys and other
professionals, and court costs) arising directly, indirectly, or consequentially out of any
action, legal or equitable, brought by any separate contractor or utility owner against
Owner, Construction Program Manager, or Design Consultant.
6.2.5.1 Should Owner, Construction Program Manager or Design Consultant be a
defendant or third party in any legal proceeding by a separate contractor or utility owner,
or anyone having a contract with any of them, or by any party claiming an injury or
damage arising as a result of the Work or performance of Contractor, Contractor agrees,
in implementing the terms of this Subparagraph 6.2.5, as follows:
.1 Contractor shall provide and tender at his own expense the immediate defense of
same, jointly or severally if requested to do so; in so doing, Contractor will
provide within five (5) days upon request from Owner, Construction Program
Manager or Design Consultant, the name of the legal counsel proposed by
Contractor to defend such claims;
.2 For good cause shown, Owner, Construction Program Manager and Design
Consultant shall have the right to choose to defend any such claim or proceeding
in his own name with separate legal counsel chosen solely by each of them, with
the cost of such defense, including, but not limited to, all reasonable attorney's
fees, litigation expenses and costs, being paid by Contractor; and
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.3 Should any judgment be entered against Owner, Construction Program Manager
or Design Consultant in any such proceeding, or should any settlement
agreement be reached, Contractor shall satisfy and pay said judgment or
settlement amount when due.
6.2.5.2 Should Contractor refuse or fail to carry out his obligations under this
Subparagraph 6.2.5, such refusal or failure shall be a substantial and material breach of
contract which will: (1) permit Owner to terminate Contractor for default; (2) permit
Owner to withhold payments pursuant to the Contract Documents; (3) permit Owner,
Construction Program Manager and Design Consultant to undertake his own defense
and settlement of such claims and to make such disposition thereof as to them may be
satisfactory and reasonable, with Contractor being responsible for any amounts paid
thereunder; and (4) entitle Owner, Construction Program Manager and Design
Consultant, jointly and severally to all damages, afforded by these Contract Documents
or applicable law, for misrepresentation or fraud and to all damages, expenses, attorney's
fees, interest and other costs which they incur as a result of such failure or refusal.
6.2.6 In the event separate contractors are engaged on the Project, each separate
contractor (including Contractor herein) shall be responsible to the other separate
contractor(s) for damages to work, injury to any person or persons, or for any loss, cost,
claims, or damages arising out of or in connection with the work required by the contract
of each with Owner and any loss, cost, expense, or damage caused by said separate
contractor's neglect or failure to finish or satisfactorily complete his part of the Project
within the time prescribed.
6.2.7 In order to carry out the intent of this Article 6, Owner and Contractor agree that
privity of contract exists between Contractor and each separate contractor, for the
purpose of disposing of mutual liabilities or obligations between Contractor and any
separate contractor as set forth herein. Contractor agrees to accept service of process
and to sue and be sued directly by any separate contractor, in Contractor's own name, in
any litigation which may arise hereunder between Contractor and any separate
contractor. It is understood and agreed that Contractor will not bring Owner, Construction
Program Manager or Design Consultant into such litigation and covenants not to sue any
of them with regard to any litigation or claims brought against Contractor by any separate
contractor.
6.2.8 Contractor shall not be entitled to an extension of time under this Contract for
delays in the Work caused solely by a separate contractor under contract with the Owner,
Contractor's sole remedy being a direct action against said separate contractor, pursuant
to this Article 6, relating to such delay. Provided, however, that Owner shall grant
Contractor an extension of time for delays caused by a separate contractor (but no
money damages therefor) if: (1) in the opinion of Construction Program Manager,
Contractor has fulfilled all of his obligations under this Article 6 and the Contract
Documents (including, but not limited to giving timely Notice to the Construction Program
Manager and the separate contractor of such delay or expected delay so as to allow the
separate contractor a sufficient opportunity to correct the condition giving rise to such
delay; and cooperation and proper coordination with the separate contractor regarding
such condition); (2) the delay would otherwise entitle Contractor to a time extension
under the provisions of Article 8 hereof and the Contract Documents; (3) Contractor has
taken, in the opinion of Construction Program Manager, appropriate steps under
Paragraph 4.12 and Subparagraph 8.3.2.1 hereof to overcome the effect of the delay
upon completion of the Work or any portion thereof by the Contract Time or Specific
Dates; and (4) the time extension will not be detrimental to the interests of the Owner.
6.3 OWNER'S RIGHT TO PERFORM DISPUTED WORK
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6.3.1 If a dispute arises between the Contractor and any separate contractors as to the
responsibility of each for cleaning up as required by the Contract Documents, for
accomplishing coordination, for doing required cutting, filling, excavating or patching as
required by the Contract Documents, or relating to any other Work, the Construction
Program Manager, in his sole discretion, shall make a determination of the responsibility
therefor, which decision shall be binding upon Contractor and all separate contractors;
and said item shall be performed as directed by the Construction Program Manager at no
additional cost to Owner. If Contractor or any separate contractor refuses to perform in
accordance with the determination of the Construction Program Manager, the Owner may
carry out such Work and charge the cost thereof to the non-performing party (parties)
responsible therefor, as the Owner or the Construction Program Manager shall determine
to be just.
6.4 COORDINATION OF THE WORK
6.4.1 By entering into this contract, Contractor acknowledges that there may be other
separate contractors on the site whose work must be coordinated with that of Contractor.
Contractor will take all necessary steps to ensure that the Work is properly scheduled
and coordinated with the work of the separate contractors. Contractor expressly warrants
and guarantees that he will cooperate with separate contractors and coordinate, as
appropriate and reasonable, the requirements for his Work with the requirements
governing the work of the separate contractors and safety programs, and will do nothing
to delay, hinder or interfere with the work of other separate contractors, utility owners, the
Owner, the Construction Program Manager or Design Consultant. Contractor also
expressly agrees that, in the event his Work is hindered, delayed, interfered with or
otherwise affected by a separate contractor or utility owner, Contractor's sole remedy will
be a direct action against the separate contractor as described in this Article 6.
Contractor expressly waives any remedy, right or cause of action against the Owner and
Construction Program Manager or Design Consultant on account of delay, hindrance,
interference or other event caused by a separate contractor or utility owner.
6.4.2 The Owner relies upon the organization, management, skill, cooperation and
efficiency of the Contractor to supervise, direct, control and manage the Work so as not
to delay Owner or any separate contractors and to deliver the Work conforming to the
Contract Documents, including, but not limited to, completion of specified portions of the
Work by the Specific Dates therefor, and completion of the Work within the Contract
Time.
6.4.3 All separate contractors rely upon the organization, management, skill,
cooperation and efficiency of Contractor to supervise, direct, control and manage the
Work, and to coordinate in a timely manner with the separate contractors so as to deliver
the Project within the scheduled time and without delay or disruption to the separate
contractors.
6.4.4 Should Contractor, by his own acts or omissions or the acts or omissions of any
person or persons in his employ or with whom he is under contract, delay, disrupt, hinder,
or interfere with the work of the Owner, any separate contractor, or utility owner, by not
cooperating with them, not properly coordinating with them in a timely manner, or by not
affording same sufficient opportunity or facility to perform his Work in a timely manner,
Contractor shall be responsible for all costs and expenses incurred by such parties due to
any such causes.
6.4.5 Before starting any portion of the Work for which preparatory or preceding work
was done by a separate contractor, Contractor shall carefully examine all such
preparatory or preceding work that has been executed to receive his Work. Contractor
shall check carefully, by whatever means are required, to ensure that his Work and
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adjacent related work will finish to proper contours, planes, and levels. Contractor shall
promptly give Notice in writing to the separate contractor or utility owner, and
Construction Program Manager, of any defects or imperfections in preparatory or
preceding work which will, in any way, affect satisfactory completion of Contractor's
Work.
6.4.5.1 Absence of such required Notice from Contractor will be construed, except in the
case of latent defects and those defects of which Contractor was not aware and could not
have discovered upon a reasonable inspection, as an acceptance by Contractor of
preparatory work performed by the separate contractor or utility owner, and a waiver by
Contractor of any claim or defense that the preparatory or preceding work of a separate
contractor was defective or imperfect, thereby resulting in defects or imperfections in
Contractor's Work.
6.4.5.2 Notification of the Construction Program Manager of such defects or
imperfections in preparatory work performed under a separate contract will not relieve the
Contractor of any obligations under the Contract Documents.
6.4.5.3 After providing the required Notice, Contractor shall provide the separate
contractor, utility owner, Construction Program Manager and the Design Consultant a
reasonable opportunity to inspect such preceding work. Contractor shall not proceed with
Contractor's follow-on work, for the section of the Work alleged to be defective or
imperfect, until receiving direction or instructions from the Construction Program
Manager, who, after consultation with the Design Consultant, shall provide such direction
promptly. In no instance is Contractor authorized to remove and replace or correct the
defective work or imperfections unless directed by Owner or Construction Program
Manager. Should Contractor proceed with his Work in the affected section without
direction or instructions from the Construction Program Manager relating to the
preparatory work, Contractor shall bear all responsibility for any defects or imperfections
in the Work and any rework or removal and replacement subsequently directed by the
Construction Program Manager relating to same, including any subsequent warranty or
guarantee work occasioned thereby.
6.4.5.4 Under no condition shall Contractor proceed with a section of the Work prior to
the preparatory work of any separate contractor or utility owner having been, where
applicable, completed, cured, dried, and otherwise made satisfactory to receive the
related Work of Contractor. Responsibility for timely installation of all materials rests
solely with Contractor, who shall maintain coordination and control of the Work at all
times.
6.4.5.5 Contractor shall bear full and sole responsibility for any defects or imperfections
arising in the Work due to his failure to comply with the requirements of this
Subparagraph 6.4.5, including the cost of repair or replacement or correction of
preparatory work on which Contractor made an untimely application of his Work.
6.4.6 Whenever Contractor receives items from another separate contractor or from
Owner for storage, erection or installation, Contractor shall give a receipt for items
delivered, and thereafter will be held solely responsible for care, storage and any
necessary replacement of the item or items received.
6.4.7 When certain items of equipment and work are indicated as "NIC" (not in
contract), or are to be furnished and installed under separate contracts, Contractor and
any separate contractor shall mutually coordinate his Work to determine any
requirements for preparatory work (including, but not limited to dimensions, sizing, stub
ups, connections, couplings, for preparation of openings, and provision of blocking and
backing) for receipt of such "NIC" work so as to provide a complete installation in
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accordance with the Contract Documents. Contractor shall properly form and otherwise
prepare his Work in a satisfactory manner to receive any "NIC" work.
ARTICLE 7
MISCELLANEOUS PROVISIONS
7.1 GOVERNING LAW
7.1.1 Unless otherwise provided in the Contract Documents, the Contract shall be
governed and construed in accordance with the law of the place where the Project is
located.
7.1.2 Each and every provision of law and clause required by law to be inserted in this
Contract shall be deemed to be inserted herein and the Contract shall be read and
enforced as though it were included herein. If through mistake or otherwise, any such
provision is not inserted or is not correctly or fully inserted, then upon the request of
either party, the Contract shall forthwith be physically amended to make such insertion.
7.1.3 If any of the provisions of this Contract shall be held invalid or unenforceable
under the law governing this Contract, then this Contract shall remain in effect without the
provisions held to be invalid or unenforceable (unless the parties otherwise agree), and
the rights and obligations of the parties shall be governed accordingly.
7.2 SUCCESSORS AND ASSIGNS
7.2.1 The Owner and the Contractor each binds himself, his partners, successors,
assigns and legal representatives to the other party hereto and to the partners,
successors, assigns and legal representatives of such other party in respect to all
covenants, agreements and obligations contained in the Contract Documents.
7.2.2 The Contractor shall not assign the Contract or sublet it as a whole without the
written consent of the Owner, or shall the Contractor assign any moneys due or to
become due to him hereunder, without the previous written consent of the Owner and the
Contractor's Surety.
7.3 PERSONAL INJURY AND PERSONAL AND REAL PROPERTY DAMAGE CLAIMS
7.3.1 Should the Contractor suffer injury or damage to person or personal property
because of any act or omission of the Owner, Construction Program Manager or Design
Consultant, or of any of his employees, agents or others for whose acts one of them may
be legally liable, claim shall be made in writing to the Construction Program Manager
within five (5) days after the first observance of such injury or damage; otherwise, the
Contractor shall have waived any and all rights he may have against the Owner, the
Construction Program Manager, the Design Consultant, or his employees,
representatives and agents for any such injury or damage.
7.3.1.1 This Subparagraph 7.3.1 is limited solely to personal injury and personal property
damage claims; this paragraph is not applicable to claims of any other nature
whatsoever, and such other claims shall be governed by other provisions of the Contract
Documents.
7.3.1.2 Nothing herein shall be construed as modifying or limiting in any way Contractor's
obligations under Paragraph 4.20 hereof.
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7.4 PERFORMANCE BOND, LABOR AND MATERIAL PAYMENT BOND AND
MAINTENANCE BOND
7.4.1 Contractor shall furnish to Owner in duplicate a Performance Bond and a Labor
and Materials Payment Bond, each in the amount at least equal to one-hundred percent
(100%) of the Contract Sum, and a Maintenance Bond covering faithful performance of
Warranty Work in the amount of ten percent (10%) of the Contract Sum. The bonds shall
be written in the form required by the Contract Documents and approved by Owner, or, if
applicable, written in the form specifically required by statute for particular Work in the
state in which the Project is located. The bonds shall be written by a surety company
licensed to do business in the state in which the Work is to be performed and who is
acceptable to the Owner. All bonds signed by an agent must be accompanied by a
certified copy of the authority to act. These Bonds shall remain in effect at least until one
year after the date when final payment becomes due and until all warranties expire under
the Maintenance Bond, except as otherwise specifically provided by law or regulation or
by the Contract Documents. Contractor shall properly and duly record any bond, if
recording thereof is required by applicable laws or regulations.
7.4.2 If the surety on any Bond furnished by Contractor is declared bankrupt or
becomes insolvent or his right to do business is terminated in any state where any part of
the Project is located or it ceases to meet the requirements of Subparagraph 7.4.1,
Contractor shall within five (5) days thereafter substitute another Bond and Surety, both
of which must be acceptable to Owner.
7.4.3 Contractor, prior to commencing the Work on site, shall deliver to Owner all
Bonds and Certificates of Insurance required by, and in full compliance with, the Contract
Documents. Owner, Construction Program Manager and Design Consultant shall not be
liable to Contractor for any costs or additional time for performance because of any delay
to the commencement of the Work on site caused by failure of Contractor to deliver the
required Bonds and Certificates of Insurance.
7.4.4 Should Contractor refuse or fail to comply with all of the requirements of this
Paragraph 7.4, such refusal or failure shall be a material and substantial breach of this
Contract, and Owner shall have the right to terminate the performance of Contractor for
default, pursuant to the provisions of Paragraph 14.3.
7.5 RIGHTS AND REMEDIES
7.5.1 The duties and obligations of the Contractor imposed by the Contract Documents
and the rights and remedies of the Owner available hereunder shall be in addition to and
not a limitation of any duties, obligations, rights and remedies otherwise imposed or
available by law or equity;
7.5.2 The failure of the Owner, the Construction Program Manager, or the Design
Consultant to insist in any one or more instances upon the strict performance of any one
or more of the provisions of this Contract, or to exercise any right contained herein or
provided by law, shall not be construed as a waiver or relinquishment of the performance
of such provision or right(s) or of the right to subsequently demand strict performance or
exercise such right(s), and the rights shall continue unchanged and remain in full force
and effect.
7.5.3 The Contractor agrees that he can be adequately compensated by money
damages or time extensions pursuant to the terms of this Contract, for any breach of this
Contract or any act or omission or breach of any duty which may be committed by
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Owner, or his employees or agents (including Construction Program Manager and
Design Consultant). Contractor therefore hereby agrees that no act, or omission of the
Owner, the Construction Program Manager or the Design Consultant, except for failure to
make progress payments as required by the Contract Documents, shall constitute a
material breach of the Contract or any other condition which would entitle Contractor to
cancel or rescind the provisions of this Contract or (unless the Owner shall so consent or
direct in writing) to suspend or abandon performance of all or any part of the Work. The
Contractor hereby waives any and all rights and remedies to which he might otherwise be
or become entitled, save only his right to money damages or any extension of time to
which he may be entitled in accordance with the Contract Documents.
7.6 ATTORNEYS' FEES AND OTHER EXPENSES
7.6.1 The Contractor hereby agrees that he will not submit, assert, litigate or otherwise
pursue any frivolous or unsubstantiated claims, or file or submit claims he has specifically
waived under the terms of the Contract Documents or for which he has made a covenant
not to sue hereunder. In the event that Contractor's claim, or any separate item of a
claim, is without substantial justification, or is filed in breach of any provision or covenant
of this Contract, Contractor shall reimburse the Owner, Construction Program Manager or
Design Consultant for all costs and expenses associated with defending such claim or
separate item, including but not limited to, attorneys' fees, audit costs, accountants' fees,
expert witness' fees, additional Construction Program Manager or Design Consultant
expenses or services, and any other costs and expenses relating thereto.
7.6.2 If the Contractor breaches any obligation under the Contract Documents or fails
to perform any requirement of the Contract Documents, Contractor shall reimburse the
Owner, Construction Program Manager and Design Consultant for all costs and
expenses incurred by them relating to such breach, including but not limited to attorneys'
fees, audit costs, accountants' fees, expert witness' fees, additional Construction
Program Manager and Design Consultant expenses, and any other costs and expenses
relating thereto.
7.6.3 If the Owner, Construction Program Manager or Design Consultant prevails in a
claim brought against the Contractor, including but not limited to, claims for fraud or
misrepresentation, overpayment, defective work, delay damages, or recovery of
termination expenses, the Contractor shall reimburse Owner, the Construction Program
Manager and Design Consultant for all costs and expenses incurred by them relating to
such claim, including but not limited to attorneys' fees, audit costs, accountants' fees,
expert witness' fees, additional Construction Program Manager and Design Consultant
expenses, and any other costs and expenses relating thereto.
7.7 NOTICE
7.7.1 Notice is defined in Subparagraph 1.1.28.
7.7.2 Contractor acknowledges and agrees that the purpose of the Notice
requirements under this Contract is: (1) to enable Owner, the Construction Program
Manager and where applicable, the Design Consultant, to fully assess and evaluate, in a
timely manner, the matter or item which is the subject of the Notice; (2) to enable Owner,
the Construction Program Manager and where applicable, the Design Consultant, to take
whatever appropriate action is required in response to such Notice; (3) to permit timely
inspections and documentation of matters which may be the subject of such Notice; (4) to
permit early resolution of problems or difficulties to which the Notice may relate; (5) to
protect the Owner from damage which may otherwise occur to Owner's work, his
interests, property, employees, on-going business or facilities or the facilities or business
of the Construction Program Manager, Design Consultant or separate contractors, which
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may be affected by the matter for which Notice is required; and (6) to enable the Owner
to mitigate his damages or those which may occur to others, including Contractor, unless
such Notice is received timely and in writing. Contractor also acknowledges and agrees
that written Notice is preferred to oral Notice or any other method of Notice and is
mandatory upon Contractor when Notice is required by the Contract Documents.
Therefore, in carrying out the purposes herein set forth, Contractor agrees as follows:
7.7.2.1 When this Contract requires written Notice, no other form of Notice will be
acceptable, nor is any other method authorized or effective;
7.7.2.2 The fact that Owner may be present or have representatives at the Project site,
or that the Construction Program Manager or Design Consultant may be represented or
present at the Project site, or the fact that the Owner, Construction Program Manager or
Design Consultant may be perceived as having actual or constructive Notice does not
constitute sufficient knowledge of or Notice of matters for which written Notice is required
by the Contract Documents. Contractor hereby waives any claim or defense he may
have that presence of the Owner, Construction Program Manager or Design Consultant
at the Project site constitutes sufficient Notice under this Contract of any matter for which
written Notice is required;
7.7.2.3 Except by Change Order, no requirement for written Notice under the Contract
Documents, can be waived orally or in any other manner by Owner, Construction
Program Manager or Design Consultant or any of his officers, directors, employees,
agents or representatives. Contractor hereby waives any claim or defense he may have
relating to any oral waiver of the written Notice requirements of this Contract;
7.7.2.4 Written Notice of alleged delays or other conditions affecting Contractor's Work
must be given within seven (7) days of the occurrence of the incident or event giving rise
to the alleged delay or condition or as soon thereafter as required by the Contract
Documents. Contractor shall not be entitled to receive any monetary compensation or
time extension as may be authorized or permitted under this Contract, for any additional
costs incurred or any delay occurring more than seven (7) days prior to the receipt by
Owner and Construction Program Manager of written Notice of the condition or item
giving rise thereto.
7.7.2.5 Contractor agrees that the fact Owner, Construction Program Manager or Design
Consultant may subsequently receive, review or negotiate a request by Contractor for a
time extension or a claim for monetary compensation, does not constitute sufficient
Notice under this Contract of the incidents or events giving rise to delays or other
conditions affecting the Work for which the time extension or compensation is requested;
and strict compliance with the written Notice requirements of this Contract is required
concerning all such events or conditions.
7.8 DISPUTE RESOLUTION
7.8.1 Design Consultant will be the initial interpreter of the technical requirements of
the Contract Documents and judge of the acceptability of the Work thereunder. In all
other instances, the Construction Program Manager shall be the initial interpreter and
judge of the requirements of the Contract Documents.
7.8.1.1 Subject to the specific provisions of Article 12 hereof relating to disputes
regarding Changes in the Work, claims and disputes of any nature whatsoever, which are
not resolved by agreement of the Owner and Contractor, will be referred, in writing,
initially by Contractor or Owner to the Construction Program Manager (with a copy to the
party against whom the claim is made), with a request for a formal decision in
accordance with this Subparagraph 7.8.1. If the matter in dispute should, in the opinion of
the Construction Program Manager, be referred to the Design Consultant for a decision in
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accordance herewith, Construction Program Manager will so refer the claim or dispute to
the Design Consultant together with all supporting data supplied by the Contractor.
Otherwise, Construction Program Manager will render his decision thereon.
7.8.1.2 Any decision rendered by the Construction Program Manager or Design
Consultant herein shall be in writing, and shall be rendered within a reasonable time after
receipt of the request therefor and the submission of all data required under this
Paragraph 7.8.
7.8.2 Written Notice of each such claim, dispute, and other matter shall be delivered by
Contractor as provided in Subparagraph 7.7.2.4. Written supporting data will be
submitted to the Construction Program Manager, within sixty (60) days after such
occurrence unless Construction Program Manager, in his sole discretion, allows an
additional period of time to ascertain or compile data in support of the claim.
7.8.2.1 The time periods set forth in this Paragraph 7.8 relate solely to the administration
of pending claims and are neither intended to, nor shall they, modify or affect any
requirements under the Contract Documents relating to written Notice and the time
required therefor or any other time requirements of this Contract.
7.8.2.2 The discretion of the Construction Program Manager to allow an additional period
of time under Subparagraph 7.8.2 for the submission of written supporting data relates
solely to the administration of pending claims and is not intended to, nor shall it be
interpreted as granting the Construction Program Manager authority to waive any written
Notice requirements under the Contract Documents.
7.8.3 When functioning as interpreter and judge under this Contract, the Construction
Program Manager or Design Consultant, as applicable, will endeavor to act impartially.
Contractor and Owner agree that Construction Program Manager and Design Consultant
will not be liable in connection with any interpretation or decision rendered in good faith in
such capacity. The rendering of a decision by Construction Program Manager or Design
Consultant, with respect to any such claim, dispute, or other matter (except any which
have been waived by the making or acceptance of final payment) is a condition
precedent to the filing by Contractor of any action at law or in equity relating to same.
Such decision shall be final and binding upon Contractor, and Contractor waives such
claim and covenants not to sue Owner, Construction Program Manager or Design
Consultant relating thereto, unless Contractor notifies the Owner in writing of Contractor's
exception to such decision within thirty (30) days of Contractor's receipt of the decision of
the Construction Program Manager or Design Consultant thereon.
7.8.4 Contractor shall continue to prosecute the Work and adhere to the approved
Construction Schedule during all disputes or disagreements with Owner. No Work shall
be delayed or postponed pending resolution of any disputes or disagreements, except as
permitted by Paragraph 14.1 or as Contractor and Owner may otherwise agree in writing.
7.8.5 Contractor agrees that compliance by Contractor with this Paragraph 7.8 shall be
a condition precedent to the filing of any legal action or suit by Contractor relating to any
claim or dispute under this Contract.
7.9 ORGANIZED LABOR AGREEMENTS
7.9.1 Contractor shall determine whether the Work or any part thereof may be subject
to, and governed by, certain union and/or trade agreements. It shall be the responsibility
of the Contractor to obtain a copy of the same from the applicable unions having
jurisdiction, to familiarize himself with the terms and conditions thereof and to comply with
all portions thereof that are applicable to the Work. In the event of an allegation that the
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Contractor or any Subcontractor or Sub-subcontractor is not complying with the terms
and conditions of such applicable portions, the Contractor shall, upon request of the
Construction Program Manager, promptly grant to the Construction Program Manager
access to his relevant books and records (or cause such Subcontractor or
Sub-subcontractor to grant to the Construction Program Manager access to his relevant
books and records). Contractor understands that any labor rates established by union
and/or trade agreements governing the Work are minimum rates and may be changed
during the period of the Contractor's performance hereunder without Notice to the
Contractor. The Owner makes no representation to the Contractor that adequate labor
will be available to the Contractor for the proper and timely performance of the Work at
the minimum rates established by said union and/or trade agreements, and the
Contractor shall have no claim against the Owner on account of additional costs or time
he may incur as a result of the unavailability of labor at said minimum rates or as a result
of changes in minimum rates under the union and/or trade agreements which may occur
during the period of the Contractor's performance hereunder.
ARTICLE 8
TIME
8.1 DEFINITIONS
8.1.1 The Contract Time is defined in Subparagraph 1.1.14 hereof. Contractor shall
complete his Work within the Specific Dates and the Contract Time.
8.1.2 The date of commencement of the Work is the date established in the Notice to
Proceed, which is defined in Subparagraph 1.1.30. If there is no Notice to Proceed, the
date of commencement shall be the date of the Owner-Contractor Agreement or such
other date as may be established therein.
8.1.3 Substantial Completion of the Work is defined in Subparagraph 1.1.47 hereof.
Only incidental corrective work and any final cleaning beyond that needed for the
Owner's full use may remain for Final Completion.
8.1.4 Final Completion of the Work is defined in Subparagraph 1.1.22 hereof.
8.1.5 Specific Dates are defined in Subparagraph 1.1.44 hereof. Contractor agrees to
complete each and every portion or component of the Work by the Specific Dates
indicated in the Special Conditions, including authorized extensions thereto pursuant to
the terms of the Contract Documents. Failure of Contractor to comply with any Specific
Date under this Contract shall constitute a material breach of this Contract by Contractor,
and the Owner shall be entitled to all of the remedies under this Contract and available at
law.
8.2 PROGRESS AND COMPLETION
8.2.1 All times, time limits, Specific Dates and the Contract Time stated in the Contract
Documents are of the essence of the Contract.
8.2.2 The Contractor shall begin the Work on the date of commencement of the Work
as defined in Subparagraph 8.1.2. He shall prosecute the Work expeditiously, with due
diligence, and employ all the resources necessary to achieve completion of the Work or
designated portions thereof within the Contract Time and the Specific Dates.
8.2.3 Contractor shall strictly comply with all of the requirements of Article 13 hereof.
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8.2.4 Contractor acknowledges and agrees that his coordination and cooperation with
the Owner, Construction Program Manager, Design Consultant and, if any, separate
contractors, is mandatory to ensure timely completion of the Work or any part thereof.
Contractor is not entitled, either expressly or impliedly under this Contract, to any relief or
compensation because of any plan or schedule of Contractor or any Subcontractor to
complete the Work or any portion thereof prior to the Contract Time or a Specific Date
thereof, unless otherwise agreed to in writing by Owner. The duties, obligations and
warranties of the Owner, Construction Program Manager and Design Consultant shall be
consistent with and applicable only to the completion of the Work by the required Specific
Dates.
8.2.5 The scheduling information submitted by Contractor, the acceptance or approval
thereof by Owner or Construction Program Manager, and the Construction Schedules
that may be established or implemented by Contractor, shall not relieve Contractor of any
of his obligations under the Contract Documents, including, but not limited to Contractor's
obligation to perform and complete the Work by the dates specified in the Contract
Documents.
8.3 DELAYS AND EXTENSIONS OF TIME
8.3.1 The Contract Time and any Specific Dates set forth in this Contract may only be
changed by a Change Order. No claim by Contractor for an extension of the Contract
Time or Specific Dates, other than those timely made as a part of any Change Order
request under Article 12, shall be valid or considered by Owner unless made in
accordance with and authorized by this Paragraph 8.3. This Paragraph 8.3 shall not
allow, nor shall it be construed as allowing, a claim for a time extension which is
otherwise disallowed by any other provision of the Contract Documents.
8.3.2 Contractor acknowledges and agrees that the only contractually mandated dates
in Contractor's Construction Schedule are the Specific Dates; that except for said dates,
the Construction Schedule is a plan or estimate for Contractor's Work which may be
revised from time to time; that the general flow of the Work and the duration and
sequence of the various activities are flexible and that same may be subject to revision
as conditions warrant or require; and that all such revisions shall be in accordance with
the requirements of Article 13 hereof and consistent with Contractor's obligations and
responsibilities to Owner and separate contractors under this Contract.
8.3.2.1 Contractor agrees that should conditions or Changes in the Work occur which
delay any portion of the Work, that Contractor will, to the extent feasible and reasonable,
take prompt and timely action, in compliance with the requirements of Article 13 hereof,
to adjust or modify the sequence of the Work and the duration of activities therefor; the
goal of such action shall be to absorb or adjust for the effect of any such condition or
Change so that no adjustment will be required to Specific Dates or the Contract Time or
so that the effect of such condition or Change upon the Construction Schedule shall be
minimized. The Owner shall pay the costs, as approved by the Construction Program
Manager, of schedulers or consultants and computer time necessary to analyze and
make adjustments in the Construction Schedule for Owner-requested changes in the
Work, unless such schedule adjustments are, in the opinion of the Construction Program
Manager, required because of the fault or negligence of Contractor. In endeavoring to
make such adjustments, Contractor shall not (if fully in compliance with the notice
requirements of this Contract, and the condition or Change is of a nature which may
justify a time extension under this Contract) waive any right to request a time extension
under this Paragraph 8.3 (unless otherwise waived by Change Order). However, should it
be determined by Construction Program Manager that such adjustments were made by
Contractor or could have reasonably been made by Contractor without an increase in the
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direct or indirect cost of labor for the affected Work or without overtime being required to
compensate therefor, Contractor shall not be entitled to monetary compensation for the
effect of such condition or Change upon the progress of the Work or for a time extension
therefor.
8.3.2.2 Owner shall reimburse Contractor for the costs incurred by Contractor in
complying with the requirements of Subparagraph 8.3.2.1 hereof, only if Owner is solely
responsible for the condition or delay for which such actions were required.
8.3.3 Contractor shall not be entitled to, and hereby waives any right or claim to an
extension of time for delays resulting from any conditions or causes unless Contractor
shall have fully complied with the requirements of the Contract Documents relating to
notice of such conditions or causes, including, without limitation, Subparagraph 7.7.2.4
hereof. Contractor acknowledges and agrees that for the purposes of determining
entitlement to a time extension, an activity will not be considered by the Construction
Program Manager to have been affected by a claimed delay unless all predecessor
activities which are shown on the current Construction Schedule were completed as of
the date of said delay and were not, therefore, restraining the completion of said activity
on said date. Circumstances and activities leading to such claim shall be indicated or
referenced in Contractor's daily report for the day(s) affected; otherwise, all such claims
are waived by the Contractor. In every such written request for a time extension,
Contractor shall provide the following information:
.1 The nature of the delay;
.2 The actual date (or estimated or anticipated date) of commencement of delay;
Contractor shall include a chronology of the events relating to the delay and a
listing of all applicable notifications made by Contractor;
.3 A general description of the activities of the Construction Schedule affected by
the delay, and/or new activities created by the delay and their relationship with
existing activities including, but not limited to the identification of specific critical
path activities affected and the dates each activity was affected;
.4 Identification of person(s) or organization(s) or event(s) responsible for the delay;
.5 Anticipated or estimated extent of the delay;
.6 Recommended action to avoid or minimize the effect of the delay; and
.7 In the case of Changes ordered in the Work, Contractor must furnish a
sub-network showing the specific Work required by the Change and the manner
in which the changed Work will be incorporated into the Construction Schedule.
8.3.4 In the event Contractor requests an extension of time, he shall comply with the
requirements of Article 13 hereof and, in addition, shall furnish such justification and
supporting evidence as the Construction Program Manager may deem necessary for a
determination of whether or not the Contractor is entitled to an extension under the
provisions of this Contract. The burden of proof to substantiate a claim for an extension of
time shall rest with the Contractor, including, but not limited to evidence that the cause
was wholly beyond the control and without the fault or negligence of Contractor or any
Subcontractor, Sub-subcontractor or Supplier.
8.3.4.1 Any determination under this Paragraph 8.3 shall be based upon (1) the criteria and
requirements set forth in the Contract Documents, including, but not limited to Article 13
hereof; (2) Contractor's Construction Schedule for the Work (updated to reflect actual
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Project status at the time the delay occurred); and (3) all data relevant thereto; provided,
however, that should the Contractor's latest update of the Construction Schedule, in the
opinion of the Construction Program Manager, not be feasible, realistic or accurate, said
schedule shall not be a consideration in the making of any determination of a time
extension request under this Paragraph 8.3.
8.3.4.2 Contractor acknowledges and agrees that actual delays (whether due to Changes or
other causes) which according to Contractor's Construction Schedule (updated to reflect
actual status of the Work when the delays occurred) do not affect the Contract Time or
Specific Dates, will not be the basis for an adjustment in the Contract Time or Specific
Dates. The Contractor acknowledges and agrees that time extensions will be granted
only to the extent that delays, for which an extension of time is given under this Contract,
exceed the loss of available positive float in the Construction Schedule, updated as of the
time the delays occurred and then only to the extent that the delays, in the opinion of the
Construction Program Manager, actually adversely affected the Work of Contractor and
were beyond the control and without the fault of Contractor.
8.3.4.3 Contractor acknowledges and agrees that a delay which may affect a Specific
Date, and for which a time extension may be authorized under this Contract for said
Specific Date, may not necessarily require a time extension of the Contract Time after
Contractor reschedules activities as required by Subparagraph 8.3.2.1. Such a
determination will be made by the Construction Program Manager on a case by case
basis.
8.3.4.4 Concurrent delays are defined as two or more delays or areas of work slippage
which are independent of one another and which, if considered individually, would each
adversely affect completion of the Work by a Specific Date. Contractor acknowledges
and agrees that the following criteria may be utilized by the Construction Program
Manager in evaluating the Contractor's entitlement to an extension of any Specific Date
when concurrent delays exist:
.1 If the current Construction Schedule, in the sole opinion of the Construction
Program Manager, indicates two or more concurrent delays, with one analyzed
by the Construction Program Manager to be the responsibility of the Owner and
the other analyzed to be the responsibility of Contractor, Contractor shall only be
entitled to a time extension (assuming he is otherwise entitled thereto under the
provisions of the Contract Documents) only if the Owner-caused delay adversely
affects the main Project critical path and if the delay is shown by the Construction
Schedule, as approved by the Construction Program Manager, to extend the
Specific Date for Final Completion of the Work by a greater amount than the
other concurrent delay which is the responsibility of Contractor. In such an
event, the amount of the time extension will only be that amount of time by which
the Owner-caused delay exceeds the Contractor-caused delay as determined by
the Construction Program Manager; or
.2 If the Construction Schedule indicates, in the opinion of the Construction
Program Manager, concurrent delays with some possibly the fault of the Owner
and some the fault of the Contractor, and if the Contractor-caused delays are
analyzed by the Construction Program Manager to be the main determining
cause of any required extension to the Specific Date for the Final Completion of
the Work, then Contractor shall not be entitled to any time extension for any of
the concurrent delays.
8.3.5 Contractor may be entitled to an extension of the Contract Time or Specific
Dates, but no increase in the Contract Sum, for delays arising from unforeseeable or
unavoidable causes or conditions which are beyond the control of and without the fault or
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negligence of Contractor, his Subcontractors, Sub-Subcontractors or Suppliers, or any of
their employees, agents, representatives or any other persons or entities providing
services or materials to Contractor, as follows:
8.3.5.1 Labor disputes and strikes (including strikes affecting transportation), based upon
the following conditions: (1) the strike directly and critically affects and delays the
progress of the Work and the achievement of a Specific Date or completion within the
Contract Time, or both; (2) the strike was not caused by the breach of any union or trade
agreement by Contractor or any Subcontractor, Sub-subcontractor or Supplier; (3) notice
of the potential for said strike was not given in the Information for Bidders, and the strike
was, in the opinion of the Construction Program Manager, unforeseeable and was not
contemplated by Contractor at the time of bid; and (4) the delay could not have been
avoided by Contractor through proper planning and coordination and the timely purchase
of materials, equipment or supplies. Under no circumstances shall an extension of the
Contract Time or a Specific Date exceed the actual number of days of said strike;
8.3.5.2 Acts of God, tornado, fire, hurricane, cyclone, blizzard, earthquake, typhoon or
flood that damage completed Work or stored materials or equipment; provided, however,
that Contractor was in full compliance with the requirements of this Contract regarding
the protection of such Work or stored items;
8.3.5.3 Abnormal inclement weather, based upon the following requirements:
.1 Contractor agrees that the Contract Time and any Specific Dates under this
Contract will not be extended due to normal inclement weather. For a time
extension to be granted for abnormal inclement weather: (1) such weather must,
in the opinion of the Construction Program Manager, actually have an adverse
effect upon the progress of Contractor's Work which is of a critical nature; and (2)
in the opinion of the Construction Program Manager, the adverse effect must not
be due to any fault or negligence of Contractor and could not have been avoided
by Contractor through proper planning, coordination and implementation of
adequate weather protection necessary to allow the Work to be continued
without adverse effect upon labor production. Contractor agrees that the fact
abnormal inclement weather may occur does not, of itself, justify any time
extension hereunder;
.2 Contractor agrees that he shall not be entitled to a time extension for normal
inclement weather which can be expected at the Project locale due to
precipitation or temperature, based upon actual data from the U. S. Department
of Commerce, National Oceanic and Atmospheric Administration (NOAA) for the
locale of the Project. Contractor acknowledges and warrants that in making his
proposal or bid and Construction Schedule for the Work, he gave due care and
consideration to this expected number of calendar days of inclement weather for
the locale of the Project and allowed therefor. During the time of performance,
should the expected number of calendar days of inclement weather for the locale
of the Project be less than originally anticipated by Contractor and Owner at the
time of contracting, those days not so affected by inclement weather shall be
utilized month for month for schedule adjustments pursuant to Subparagraph
8.3.2.1 hereof;
.3 Contractor agrees that the measure of abnormal inclement weather due to
precipitation or temperature during the period covered by this Contract shall be
the number of days in excess of those shown in the weather data referenced in
Subparagraph 8.3.5.3.2 hereof, in which precipitation exceeded .01 inch (or in
the case of snow or ice pellets, 1 inch or more), or in which the highest
temperature was 32 degrees F. or below;
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.4 No extension of time will be made for abnormal inclement weather after the
principal portions of the Work are enclosed except for site work which critically
affects the Contract Time or Specific Dates. For the purpose of this Paragraph
8.3, the term "enclosed" is defined to mean when the Work is sufficiently closed
in (exterior walls up and roof in place) so as to permit any structure, or major
portion thereof which is part of the Work, to be adequately heated so as to allow
the various trades to perform their work. The Construction Program Manager
shall determine when the structure is "enclosed" and shall issue, upon the
request of Contractor, a letter certifying the date the Work became enclosed for
the purposes hereof; and
.5 If the total calendar days lost due to inclement weather, from the start of the
Work at the Project site by Contractor until the principal portions of the Work are
enclosed, exceeds the total number of days to be expected for the same period,
a time extension, if granted, shall only be the number of calendar days needed to
equal the excess number of calendar days lost due to such abnormal inclement
weather.
8.3.5.4 Acts of the public enemy, acts of a State, Federal or local government in its sovereign
capacity, which are not the result of any acts or omissions of Contractor or any of his
Subcontractors, Sub-subcontractors or Suppliers.
8.3.6 Contractor shall, subject to the other provisions of this Paragraph 8.3 and the
Contract Documents, be entitled to a time extension (but no adjustment in the Contract
Price and no money damages for direct or indirect costs) for delays, disruptions,
hindrances, suspension of work, interference with Contractor's Work, changes in
sequence, congestion of work areas, access difficulties or other conditions adversely
affecting the Work which are caused by any act or omission of Owner, Construction
Program Manager or Design Consultant or any of their agents, employees, consultants,
or any act or omission of any testing agency employed by Owner or any representative of
any public authority having jurisdiction of the Project.
8.3.6.1 Contractor shall not be entitled to an extension of time for failure of Construction Program
Manager or the Design Consultant to review or respond in a timely manner to Contractor
Submittals or Contractor requests for information, clarifications, interpretations, or
proposed Change Orders, unless and until: (1) the time of response to such submittals
or requests exceeds the time allowed by the Contract Documents or the time allowed by
the procedures established under Subparagraph 3.3.6 of the General Conditions by the
Construction Program Manager for such items; or, if no time is so stated, until twenty (20)
days after demand is made for same by Contractor; and (2) the request is reasonable
and timely made by Contractor; and (3) in the opinion of the Construction Program
Manager, the failure to so respond timely, directly and critically affects the progress of the
Work.
8.3.7 Any time extension granted under this Paragraph 8.3 shall be included in
Contractor's latest update of the Construction Schedule and the schedule adjusted
appropriately thereby, in accordance with the requirements of Article 13 hereof.
8.3.8 No extension of time granted under this Paragraph 8.3 shall relieve the
Contractor from full responsibility for compliance with all of the requirements of the
Contract Documents, nor shall it be deemed a waiver by the Owner of his right to
terminate this Contract for default of Contractor under Paragraph 14.3 hereof.
8.3.9 No claim by Contractor for a time extension under this Contract shall be valid or
allowable if asserted after final payment.
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8.4 LIQUIDATED DAMAGES FOR DELAY
8.4.1 The damages incurred by the Owner due to the Contractor's failure to complete
the Work or portions thereof by the Contract Time or the Specific Dates including any
extensions thereof under this Contract shall be in the amount set forth in the Contract
Documents for each consecutive calendar day beyond each Specific Date (Sunday and
all holidays included) for which the Contractor shall fail to complete the Work or
designated portion thereof.
8.4.2 The amount of liquidated damages provided in this Contract is neither a penalty
nor a forfeiture and shall compensate the Owner solely for the Owner's inability to use or
otherwise have available the Work, or any portion thereof, for its intended purpose by the
Specific Dates set forth in the Contract Documents.
8.4.3 If during the course of Contractor's performance of the Work it becomes apparent
to the Construction Program Manager that Contractor will not complete the Work or
portions thereof in accordance with the Specific Dates or the Contract Time, Owner may
retain the estimated amount of liquidated damages for which Contractor will be liable to
Owner under this Contract from amounts otherwise certified as payable to Contractor
under Article 9.
ARTICLE 9
PAYMENTS AND COMPLETION
9.1 DEFINITION
9.1.1 The Contract Price or Sum is defined in Subparagraph 1.1.13.
9.2 VALUES OF CONSTRUCTION ACTIVITIES
9.2.1 As part of his preparation of his Construction Schedule in accordance with Article
13 hereof, and before his first Application for Payment, Contractor shall submit to the
Construction Program Manager a Cost Loaded Schedule with values of construction
activities; these values shall be supported by such data as, in the opinion of the
Construction Program Manager and the Owner, is reasonably necessary to substantiate
its accuracy. These values, unless objected to by the Construction Program Manager,
shall be used as a basis for the Contractor's Applications for Payment and only for this
purpose.
9.2.1.1 Contractor agrees that he will not "front end load" the values of his construction
activities but will set forth in his Cost Loaded Schedule an accurate and reasonable
amount for activities.
9.3 APPLICATIONS FOR PAYMENT
9.3.1 On or about the dates specified in the Contract Documents, Contractor shall
meet with the Construction Program Manager and submit a completed progress report in
accordance with the requirements of Article 13 hereof, supported by such data
substantiating the Contractor's right to payment as the Owner or Construction Program
Manager may require. Contractor shall also certify that he has paid all due and payable
amounts for which previous certificates for payment were issued and payments received
from the Owner.
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9.3.1.1 The submission and approval of the Construction Schedule and monthly updates
thereof as required by Article 13 hereof shall be an integral part and basic element of the
Application upon which progress payment shall be made. The Contractor shall be
entitled to progress payments only upon substantial compliance with all the requirements
of this Article 9, which compliance shall be a condition precedent to the processing of
Contractor's Applications.
9.3.2 Progress payments will be made for Work completed through the dates set forth
in the section of the Special Conditions entitled "Schedule of Progress Payments" and, if
authorized under Subparagraph 9.3.4 hereof, for materials delivered and properly stored
in accordance with the Contract Documents. No progress payments will be made after
the last date listed in the "Schedule of Progress Payments" until final payment; provided,
however, that if extensions in the Contract Time total thirty (30) days or more, there shall
be additional progress payments for each full thirty (30) days of such extensions.
9.3.3 Owner will retain ten percent (10%) of the amount of all progress payments until
the Work is finally completed and accepted and Contractor has fully complied with all
requirements of the Contract Documents, whether or not the Owner has occupied any or
all of the Work before such time. However, if the Owner, at any time after fifty percent
(50%) of the Work has been completed, finds that satisfactory progress is being made,
he may, in his sole discretion and at his sole option, authorize payment to the Contractor
in full for each Progress Payment for Work performed beyond the fifty percent (50%)
stage of completion. However, if Contractor fails, in the opinion of the Construction
Program Manager or Owner, to continue satisfactory progress of the Work thereafter,
Owner may, in his sole discretion and at his sole option, revoke his previous authorization
and recapture retention previously released or not retained as authorized by this
Subparagraph. Provided, however, that it is understood and agreed that Contractor is not
entitled to any automatic reduction in retainage under this Contract. Any reductions in
retainage or further withholding are at the sole discretion of the Owner.
9.3.4 Payments may be made by the Owner at his sole discretion, on account of
materials or equipment not incorporated in the Work but delivered and suitably stored at
the site by the Contractor. Payments for materials or equipment stored on the site shall
only be considered if Contractor submits documentation (for example, releases or paid
invoices from the seller or Supplier) to the Construction Program Manager, evidencing to
the satisfaction of the Construction Program Manager that Contractor has acquired title to
such materials or equipment, that it will be utilized as part of the Work under this Contract
and that it is satisfactorily stored, protected, and insured or that other procedures
satisfactory to the Construction Program Manager that will protect the Owner's interests
have been taken. Materials once paid for by the Owner become the property of the
Owner and may not be removed from the Project site without the Owner's written
direction or permission. Materials delivered to and stored at the Project site, but not yet
paid for by Owner, are subject to the requirements of Subparagraph 4.5.7.
9.3.5 The Contractor warrants that title to all Work (including all materials and
equipment) within the scope of an Application for Payment will pass to the Owner either
by incorporation in the construction or upon the receipt of payment by the Contractor from
Owner, whichever occurs first, free and clear of all liens, claims, security interests or
encumbrances (hereinafter referred to in this Article 9 as "liens"); and that no Work,
materials or equipment covered by Application for Payment will have been acquired by
the Contractor, or by any other person performing or furnishing any portion of the Work
for Contractor, subject to an agreement under which a security interest therein or any
other encumbrance thereon is retained by the seller or Supplier, or is otherwise imposed
thereon by Contractor or such other person.
9.4 CERTIFICATES FOR PAYMENT
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9.4.1 The Construction Program Manager will, within a reasonable time after receipt of
the properly executed Contractor's Application for Payment, issue a Certificate for
Payment to the Owner, with a copy to the Contractor, for such amount as the
Construction Program Manager determines is properly due, or notify the Contractor in
writing of his reasons for withholding a Certificate, or a portion of the progress payment
otherwise due, as provided in Subparagraph 9.6.1.
9.4.2 The signing of a Certificate for Payment will constitute a representation by the
Construction Program Manager to the Owner, based upon his observations at the site
pursuant to his agreement with the Owner, and the data comprising the Application for
Payment, that the Work has progressed to the point indicated; that, to the best of his
knowledge, information and belief, the quality of the Work is in accordance with the
Contract Documents (subject to an evaluation of the Work for conformance with the
Contract Documents upon Substantial Completion, to the results of any subsequent tests
required by or performed under the Contract Documents, to minor deviations from the
Contract Documents correctable prior to completion, and to any specific qualifications
stated in the Certificate); and that the Contractor is entitled to payment in the amount
certified. However, by signing a Certificate for Payment, the Construction Program
Manager shall not thereby be deemed to represent that he has made exhaustive or
continuous on-site inspections to check the quality or quantity of the Work or that he has
reviewed the construction means, methods, techniques, sequences or procedures of
Contractor, or that he has made any examinations to ascertain how or for what purpose
the Contractor has used the monies previously paid on account of the Contract Sum.
9.5 PROGRESS PAYMENTS
9.5.1 After a Certificate for Payment has been issued, the Owner shall make payments
in the manner and within the time provided in the Contract Documents or, if no time is
therein stated, within a reasonable time.
9.5.2 The Contractor shall promptly pay each Subcontractor, Sub-subcontractor and
Supplier performing labor or furnishing material for the Work, upon receipt of payment
from the Owner, out of the amount paid to the Contractor on account of such
Subcontractor's Work or Supplier's material or equipment, the amount to which said
Subcontractor or Supplier is entitled, reflecting the percentage actually retained by
Owner, if any, from payments to the Contractor on account of such Subcontractor's Work
or Supplier's material or equipment. The Contractor shall, by an appropriate agreement
with each Subcontractor, also require each Subcontractor to make payments to his
Sub-subcontractors and Suppliers in similar manner.
9.5.3 Notwithstanding any provision in this Contract to the contrary, Construction
Program Manager may, at his sole discretion, upon the request from any Subcontractor
or Supplier, furnish to same, if practicable, information regarding the percentages of
completion or the amounts applied for by the Contractor and the action taken thereon by
the Construction Program Manager on account of Work done by such Subcontractor or
Supplier. Owner may also have right to get information from Subcontractor regarding
how much they have been paid, how much is still owing for Work in place, etc.
9.5.4 Owner and the Construction Program Manager shall have no obligation to pay
any monies to any Subcontractor, Sub-subcontractor or Supplier. Provided, however, that
Owner shall, in his sole discretion, have the right, but no obligation, to make payments
directly to any person supplying labor, materials or equipment for the Work in lieu of
paying Contractor there for or make joint payment to any such person and the Contractor.
Any amounts so paid shall be credited against the Contract Sum. The Contractor shall
cooperate with the Owner to facilitate any such direct payment and shall provide such
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evidence as the Owner may request for purposes of determining any amount to be paid
directly, as aforesaid.
9.5.5 No Certificate for a progress payment, or any progress payment, or any partial or
entire use or occupancy of the Project by the Owner, shall constitute an acceptance of
any Work not in accordance with the Contract Documents.
9.5.6 The Contractor agrees to keep the Work and the site of the Project free and clear
of all liens related to labor and materials furnished in connection with the Work.
Furthermore, Contractor waives any right he may have to file any type of lien in
connection with the Work. Contractor shall include the requirements of this Subparagraph
in each subcontract or purchase order, the intent being to keep the Project free and clear
of all liens at all times.
9.5.6.1 If a lien of any nature is filed against the Project or Owner's property (or with
Owner in the case of a tax lien) relating in any way to the Work of Contractor, or if there
are reasonable grounds, in the opinion of the Construction Program Manager, to believe
that it is probable such a lien may be filed at any time during the progress of the Work or
within the duration of this Contract, the Owner may, in his sole discretion and at his sole
option, withhold from any payment due the Contractor a sum sufficient, in the opinion of
the Construction Program Manager, to pay all obligations and expenses necessary to
satisfy such lien or anticipated lien. The Owner may withhold such amount unless or until
Contractor, within ten (10) days after demand there for by the Construction Program
Manager, shall furnish satisfactory evidence that the indebtedness and any lien in respect
thereof has been satisfied, discharged and released of record, or that the Contractor has
legally caused such lien to be released of record pending the resolution of any dispute
between the Contractor and the person or persons filing such lien. If the Contractor shall
fail to furnish such satisfactory evidence within ten (10) days of the demand therefor, the
Owner may require Contractor's surety to bond off said lien or encumbrance; or the
Owner, in his sole discretion, may discharge such indebtedness and deduct the amount
thereof, together with any and all losses, costs, damages and attorney's fees suffered or
incurred by the Owner from any sum payable to the Contractor under the Contract
Documents, including but not limited to final payment and retained percentage. This
Subparagraph 9.5.6 shall be specifically included by Contractor in all subcontracts and
purchase orders entered into by Contractor in connection with the Work.
9.6 PAYMENTS WITHHELD
9.6.1 The Construction Program Manager may decline to certify payment and may
withhold his Certificate in whole or in part, to the extent reasonably necessary to protect
the Owner, if in his opinion he is unable to make representations to the Owner as
provided in Subparagraph 9.4.2. If the Construction Program Manager is unable to make
representations to the Owner as provided in Subparagraph 9.4.2 and to certify payment
in the amount of the Application, he shall notify the Contractor as provided in
Subparagraph 9.4.1. If the Contractor and the Construction Program Manager cannot
agree on a revised amount, the Construction Program Manager shall promptly issue a
Certificate for Payment for the amount for which he is able to make such representations
to the Owner. The Construction Program Manager may also decline to certify payment
because of subsequently discovered evidence or subsequent observations, and he may
nullify the whole or any part of any Certificate for Payment previously issued to such
extent as may be necessary in his opinion to protect the Owner from loss, because of:
.1 Defective work not remedied;
.2 Third party claims filed, whether in court, in arbitration or otherwise, or
reasonable evidence indicating probable filing of such claims;
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.3 Failure of the Contractor to make payments properly to Subcontractors or
Suppliers for labor, materials, or equipment;
.4 Reasonable evidence that the Work cannot be completed for the unpaid balance
of the Contract Sum;
.5 Damage to the Owner, Construction Program Manager, Design Consultant, a
separate contractor or utility owner;
.6 Reasonable evidence that the Work will not be completed within the Contract
Time, or within the applicable Specific Dates established in the Contract
Documents. In the event Contractor is more than fourteen (14) days behind the
latest approved Construction Schedule for the Work, Owner shall have the right,
at his sole option and in his sole discretion, to withhold all further progress
payments under this Contract until Contractor provides a Recovery Schedule or
Schedule Revision, in full compliance with the requirements of Article 13 hereof,
which is approved by the Construction Program Manager, demonstrating that the
Work, or designated portion thereof, will be completed within the Specific Dates
and the Contract Time;
.7 Failure or refusal of the Contractor to carry out the Work in accordance with or to
otherwise substantially or materially comply with the Contract Documents,
including, but not limited to, the requirements of Article 4 hereof;
.8 Liens filed or reasonable evidence that a lien may be filed for any portion of the
Work;
.9 Failure or refusal of the Contractor to properly schedule and coordinate the Work,
to provide progress schedules, reports and updates, or to otherwise substantially
comply with Article 13 hereof;
.10 Failure or refusal of the Contractor to substantially comply with the provisions of
Article 6 hereof; or
.11 Failure to submit required documents, data or submittals within the time periods
specified in the Contract Documents.
9.6.2 When the above grounds in Subparagraph 9.6.1 are removed, payment shall be
made for amounts withheld because of them.
9.7 FAILURE OF PAYMENT
9.7.1 If the Owner does not make payment to the Contractor within the time provided
for elsewhere in the Contract Documents, or if no time is stated, within a reasonable time,
after receipt of the Contractor's approved Application for Payment from the Construction
Program Manager; and if the Contractor is not responsible for such failure; and if the
Owner is otherwise not entitled under the Contract Documents or applicable law to
withhold payment, Contractor shall give Owner written Notice thereof within seven (7)
days of such failure to make payment. Should the Owner fail, within fourteen (14) days of
receipt of such Notice from the Contractor, to make payment to Contractor or to specify,
in writing, his justification for withholding or not making payment, Contractor may stop the
Work until payment of the amount owing according to the Contract Documents has been
received. In such event, the Contract Sum shall be increased by the amount of the
Contractor's reasonable costs of shut-down, delay and start-up, which shall be effected
by appropriate Change Order as provided herein. Should Owner specify to Contractor,
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within the fourteen (14) day period stated above, the basis for the Owner's refusal to
make payment, such decision of the Owner shall be final and binding upon the Contractor
unless the Contractor, within seven (7) days of the receipt of such writing from the
Owner, notifies the Construction Program Manager pursuant to Paragraph 7.8 hereof. All
disputes regarding payment shall be resolved in accordance with Paragraph 7.8.
9.8 PARTIAL UTILIZATION AND OCCUPANCY BY OWNER
9.8.1 Owner reserves the right, at his option and convenience, for Partial Utilization, as
defined in Subparagraph 1.1.32, of all or any part of the Work at any time prior to
completion of the Work, upon two (2) days written Notice to Contractor. The Owner shall
use his best efforts to prevent such Partial Utilization from interfering with the
performance of the remaining Work. Owner shall be liable to Contractor for any
reasonable additional costs incurred by Contractor solely as a result of such Partial
Utilization, unless such utilization was specifically provided for the Contract Documents or
was required because of Contractor's failure to complete the Work or any portion thereof
in accordance with the Specific Dates.
9.8.2 Partial Utilization by the Owner pursuant to Subparagraph 9.8.1 hereof shall not
constitute acceptance by Owner, Design Consultant or the Construction Program
Manager of the completed Work or any portion thereof; shall not constitute or be deemed
as acceptance of the Work so occupied as being Substantially Complete, as defined in
Subparagraph 1.1.47, or the equivalent of same; shall not relieve Contractor of his full
responsibility for warranties and for correcting defective Work and repairing the Work as
required by the Contract Documents; and shall not entitle Contractor to any increase in
the Contract Sum or any extension of any Specific Dates, except as otherwise provided
in Subparagraph 9.8.1 hereof.
9.9 SUBSTANTIAL COMPLETION
9.9.1 When the Contractor considers that the Work, or a designated portion thereof
which is acceptable to the Owner, is Substantially Complete as defined in Subparagraph
1.1.47, the Contractor shall prepare and submit to the Construction Program Manager a
list of items which in Contractor's opinion remain to be completed or corrected and shall
request in writing that the Design Consultant and the Construction Program Manager
perform a Substantial Completion inspection. The Design Consultant, with the
assistance of the Construction Program Manager, as appropriate, shall review the
Contractor's list and shall compile a separate list of items to be corrected and completed.
The failure of Construction Program Manager or Design Consultant to include any items
on such List does not alter the responsibility of the Contractor to complete all Work in
accordance with the Contract Documents. When the Design Consultant and the
Construction Program Manager, on the basis of an inspection, jointly determine that the
Work or designated portion thereof is substantially complete, they will then prepare a
Certificate of Substantial Completion which shall establish the Date of Substantial
Completion, shall state the responsibilities of the Owner and the Contractor for security,
maintenance, heat, utilities, damage to the Work, and insurance, and shall fix the time
within which the Contractor shall complete the items on the Punch List. Unless otherwise
provided in the Contract Documents or the Certificate of Substantial Completion,
warranties required by the Contract Documents shall commence on the Date of Final
Completion of the Work or designated portion thereof; for any items on the Punch List
which are not complete on the Date of Substantial Completion, warranties shall
commence upon Final Completion. The Certificate of Substantial Completion shall be
submitted to the Owner and the Contractor for their written acceptance of the
responsibilities assigned to them in such Certificate.
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9.9.2 Upon Substantial Completion of the Work or designated portion thereof and upon
application by the Contractor and certification by the Construction Program Manager and
the Design Consultant, the Owner shall make payment, reflecting adjustment in
retainage, if any, for such Work or portion thereof, as provided in the Contract
Documents. Owner, at his sole option may withhold as retainage all monies which, in the
opinion of Construction Program Manager, are necessary to ensure completion of the
Punch List or other outstanding items, including, but not limited to the settlement and
release of any outstanding liens or claims.
9.9.3 The acceptance of Substantial Completion payment shall constitute a waiver of
all claims by the Contractor except those previously made in writing and identified by the
Contractor as unsettled at the time of the Application for Payment for Substantial
Completion, and except for the retainage sums due at Final Completion.
9.9.4 The Contractor shall complete all items on the Punch List to the satisfaction of
the Design Consultant and Construction Program Manager. The Owner and the
Construction Program Manager shall have the option to correct or conclude any and all
Punch List items not completed by the Contractor within the required time from the Date
of Substantial Completion by utilizing his own forces or by hiring others. The cost of such
correction of remaining Punch List items shall be deducted from the final payment
otherwise due the Contractor. However Owner may, in his sole discretion, retain the
amount due Contractor for uncompleted Punch List items, in which case Contractor will
be relieved of his responsibility for completion of the applicable Punch List items;
provided, however, that warranties and guarantees of Contractor shall remain applicable
to such uncompleted Work, in which case the warranty or guarantee period shall
commence on the date of Final Completion in accordance with Subparagraph 9.9.1.
9.9.5 The issuance of the Certificate of Substantial Completion does not indicate final
acceptance of the project by the Owner, and the Contractor is not relieved of any
responsibility for the Work except as specifically stated in the Certificate of Substantial
Completion.
9.9.6 Should the Design Consultant and the Construction Program Manager determine
that the Work or the portion thereof designated by Contractor pursuant to Subparagraph
9.9.1 is not Substantially Complete, they shall provide the Contractor a written Notice
stating why the Work or designated portion thereof is not Substantially Complete. The
Contractor shall expeditiously complete the Work and shall re-request in writing that the
Design Consultant and the Construction Program Manger perform a Substantial
Completion inspection. Contractor shall pay Owner for all costs associated with such
re-inspection by the Construction Program Manager and Design Consultant.
9.10 FINAL COMPLETION AND FINAL PAYMENT
9.10.1 Upon receipt of all documentation required by Subparagraph 9.10.2, and of
written Notice from Contractor that the Work is ready for final inspection and acceptance,
and upon receipt of a final Application for Payment, the Design Consultant and the
Construction Program Manager will promptly make such inspection. When they find the
Work acceptable under the Contract Documents and the Contract fully performed, they
will jointly issue a final Certificate for Payment stating that to the best of their knowledge,
information and belief, and on the basis of their observations and inspections, the Work
has been completed in accordance with the terms and conditions of the Contract
Documents and that the entire balance found to be due the Contractor, and noted in said
final Certificate, is due and payable. The final Certificate for Payment will constitute a
further representation that all the conditions precedent to the Contractor's being entitled
to final payment as set forth in the Contract Documents appear to have been fulfilled.
Payment shall be made in full to the Contractor within a reasonable time of the date of
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the Final Certificate of Payment provided that the requirements of this Article 9 and all
other requirements of the Contract Documents have been fulfilled, except for an amount
mutually agreed upon for any Work remaining uncompleted for which the Owner is
entitled a credit under the Contract Documents.
9.10.2 Neither the final payment nor the remaining retained percentage shall become
due until the Work is free and clear of any and all liens and the Contractor submits to the
Construction Program Manager:
.1 An affidavit that all payrolls, bills for materials and equipment, and other
indebtedness connected with the Work for which the Owner or his property might
in any way be responsible, have been paid or otherwise satisfied;
.2 Consent of surety, if any, to final payment;
.3 If required by the Construction Program Manager, other data establishing
payment or satisfaction of all such obligations, such as receipts, releases and
waivers of liens arising out of the Contract, to the extent and in such form as may
be designated by the Construction Program Manager;
.4 All Contract Documents (except one set thereof to be retained by Contractor),
including a complete set of record documents as required by Subparagraph 4.2.3
hereof, Record Drawings, operation and maintenance manuals, required
certifications, and other Project close-out submittals required by the Contract
Documents;
.5 A written certification that:
.1 The Contractor has reviewed all of the requirements of the Contract
Documents;
.2 The Work has been inspected by the Contractor for compliance with all
requirements of the Contract Documents;
.3 The Work complies in all respects with the requirements of the Contract
Documents;
.4 All equipment and systems have been installed in accordance with the
Contract Documents and have been tested in accordance with
specification requirements and are operational;
.5 The Work is complete in all respects;
.6 Any governmental certificates required by the Contract Documents or
otherwise to evidence compliance of the Work and the Contractor with
applicable laws, ordinances, rules, codes and regulations have been
received; and
.7 The required use and occupancy permits for the Project have been
obtained.
9.10.3 If any Subcontractor or Supplier refuses to furnish a release or waiver required
by the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify
Owner against any loss. If any such lien or claim remains unsatisfied after all payments
are made, the Contractor shall refund to the Owner all moneys that the latter may be
compelled to pay in discharging such lien or claim, including all costs and reasonable
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attorneys' fees. However, the Owner may in his sole discretion withhold from the final
payment any sum that the Owner has reason to believe may be needed to satisfy any
lien, claim or threat of lien arising from the Work.
9.10.4 If, after Substantial Completion of the Work, final completion thereof is materially
delayed through no fault of the Contractor or by the issuance of Change Orders affecting
final completion, and the Construction Program Manager so confirms, the Owner shall,
upon application by the Contractor and certification by the Construction Program
Manager and the Design Consultant, and without terminating the Contract, make
payment of the balance due for that portion of the Work fully completed and accepted. If
the remaining balance for Work not fully completed or corrected is less than the retainage
stipulated in the Contract Documents, and if bonds have been furnished as provided in
Paragraph 7.4, the written consent of the surety to the payment of the balance due for
that portion of the Work fully completed and accepted shall be submitted by the
Contractor to the Construction Program Manager prior to certification of such payment.
Such payment shall be made under the terms and conditions governing final payment,
except that it shall not constitute a waiver of claims for the Work not completed.
9.10.5 The making of final payment shall constitute a waiver of all claims by the Owner
against the Contractor except those arising from:
.1 Unsettled liens, and claims against the Owner, the Construction Program
Manager, or the Design Consultant, or his employees, agents, or
representatives;
.2 Faulty, defective or non-conforming Work discovered or appearing after
Substantial or Final Completion;
.3 Failure of the Work to comply with the requirements of the Contract Documents;
.4 Terms of any warranties contained in or required by the Contract Documents;
.5 Damages incurred by the Owner resulting from lawsuits brought against the
Owner, the Construction Program Manager, the Design Consultant, or his
agents, employees or representatives because of failures or actions on the part
of the Contractor, his Subcontractors, Sub-subcontractors, Suppliers or any of his
employees, agents or representatives; or
.6 Fraud or bad faith committed by the Contractor or any Subcontractor,
Sub-subcontractor or Supplier during performance of Work but discovered by
Owner after Final Payment.
9.10.6 The acceptance of final payment shall constitute a waiver of all claims by the
Contractor except those previously made in writing and in full compliance with all
requirements of the Contract Documents, and identified by the Contractor as unsettled at
the time of the final Application for Payment.
ARTICLE 10
PROTECTION OF PERSONS AND PROPERTY
10.1 RESPONSIBILITY FOR SAFETY AND HEALTH
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10.1.1 Contractor shall be solely responsible for initiating, maintaining and supervising
all safety precautions and programs in connection with the Work. This requirement
applies continuously throughout the performance of this Contract by Contractor, until
Final Completion of the Work, and is not limited to regular working hours.
10.1.2 The Safety Program of Contractor shall include within its scope a drug and
alcohol interdiction policy. The purpose of the policy shall be to create a project site free
from any form of drug or alcohol abuse which will in turn assist in the maintenance by
Contractor of a safe working environment for all persons present on the project site. The
policy shall prohibit the possession or use of any illegal and unauthorized drugs and
alcohol on the project site by an employee or subcontractor for whom Contractor is
responsible.
10.1.3 The Owner, Construction Program Manager, Design Consultant, or his agents,
employees or representatives are not responsible for the means, methods, techniques,
sequences or procedures utilized by the Contractor, or for safety precautions and
programs in connection with the Work. Owner, Construction Program Manager and
Design Consultant have no obligation or responsibility under this Contract to review,
approve, inspect or enforce any safety precautions and programs of Contractor.
10.1.4 Contractor agrees that the presence and work of any separate contractors or
utility owners on the Project site, and the presence of representatives of Owner,
Construction Program Manager or Design Consultant at the Project site and the activities,
duties or observations of any of them relating to the Work or Project, shall not diminish or
limit in any way Contractor's responsibilities for safety precautions and programs for the
Work, as required by this Article 10. Contractor shall cooperate and coordinate with all
separate contractors and utility owners regarding all such safety precautions and
programs.
10.1.5 Any Notice given to the Contractor by the Owner, the Construction Program
Manager or the Design Consultant of a safety or property protection violation will not: (1)
relieve the Contractor of sole and complete responsibility for the violation and the
correction thereof, or of sole liability for the consequences of said violation; (2) impose
any obligation upon Owner, Construction Program Manager or Design Consultant to
inspect or review Contractor's safety program or precautions or to enforce Contractor's
compliance with the requirements of this Article 10; and (3) impose any continuing
obligation upon Owner, Construction Program Manager or Design Consultant to provide
such Notice to Contractor or any other person or entity.
10.2 SAFETY OF PERSONS AND PROPERTY
10.2.1 The Contractor shall take all reasonable precautions for the safety of, and shall
provide all reasonable protection for persons and property. Contractor shall immediately
remedy any condition in violation of this Article 10, the Contractor's safety program or
applicable rules, codes, laws, regulations or orders of any public authority having
jurisdiction, to prevent damage, injury or loss to:
.1 All employees of Contractor or any Subcontractors, Sub-subcontractors,
Suppliers or Installers involved in the Work;
.2 All employees of any separate contractor or utility owner working on the Project
site;
.3 All other persons, including without limitation the employees, agents, guests,
visitors, invitees and licensees of the Owner, Construction Program Manager or
Design Consultant;
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.4 All the Work, materials and equipment to be incorporated therein, whether in
storage on or off the site, and under the care, custody or control of the Contractor
or any of his Subcontractors, Sub-subcontractors or Suppliers; machinery and
equipment shall be properly guarded, and all hazards shall be eliminated in
accordance with all applicable safety regulations; and
.5 Other property at the site or adjacent thereto, including trees, shrubs, lawns,
walks, pavements, roadways, structures and utilities not designated for removal,
relocation or replacement in the course of construction.
10.2.2 All Work, whether performed by Contractor, his Subcontractors,
Sub-Subcontractors or Suppliers, or anyone directly or indirectly employed by any of
them, and all equipment, appliances, machinery, materials, tools and like items
incorporated or used in the Work, shall comply with, and conform to: all applicable laws,
ordinances, rules, regulations and orders of any public authority having jurisdiction,
relating to the safety of persons and their protection against injury; and all rules,
regulations and requirements of Owner and its insurance carriers relating thereto, if any;
in the event of conflicting requirements between the foregoing, the most stringent shall
govern.
10.2.3 Contractor shall designate a responsible member of his organization at the
Project site whose duties shall be to enforce Contractor's safety programs and
precautions, to ensure compliance with this Article 10, and to prevent accidents. This
person shall be the Contractor's Superintendent unless Contractor designates someone
else in writing to the Construction Program Manager. Such person shall be acceptable to
the Construction Program Manager.
10.2.4 The Contractor shall at all times safely guard the property of Owner, Construction
Program Manager, Design Consultant, separate contractors, utility owners and other third
parties from injury or losses. He shall at all times safely guard and protect all Work and
temporary facilities and adjacent property against loss or damage from whatever cause.
All passageways, guard fences, lights and all other facilities required for protection by
applicable safety laws and regulations must be provided and maintained by Contractor.
10.2.5 The Contractor shall erect and maintain, as required by existing conditions and
progress of the Work, all reasonable safeguards for safety and protection, including, but
in no event limited to: the posting of danger signs and other warnings against hazards;
implementing safety regulations and requirements; notifying owners and users of
adjacent utilities; the furnishing and maintaining of necessary traffic control barricades
and flagman services; properly using and storing necessary explosives or other
hazardous materials, in accordance with all applicable requirements, exercising the
utmost care under the supervision of qualified personnel, and after first obtaining
permission of the public authorities and officers having jurisdiction; and maintaining
adequate quantities of both hose and operable fire extinguishers at the Project site.
10.2.6 The Contractor shall promptly remedy at his own cost and expense all damage or
loss to any property referred to in this Article 10, caused in whole or in part by the
Contractor, any Subcontractor, any Sub-subcontractor, any Supplier, or anyone directly
or indirectly employed by any of them, or by anyone for whose acts any of them may be
liable and for which the Contractor is responsible hereunder, except damage or loss
solely attributable to the acts or omissions of Owner, Construction Program Manager or
Design Consultant, and not within the control of and not because of the fault or
negligence of Contractor or any Subcontractor, Sub-subcontractor or Supplier. The
foregoing obligations of the Contractor are in addition to his obligations under Paragraph
4.20. The Contractor shall perform such restoration by underpinning, repairing,
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rebuilding, replanting, or otherwise restoring as may be required or directed by the
Construction Program Manager or Design Consultant, or shall otherwise make good such
damage in a satisfactory and acceptable manner. In case of failure on the part of the
Contractor to promptly restore such property to make good such damage, the
Construction Program Manager or Owner may, upon two (2) calendar days written
Notice, proceed to repair, rebuild or otherwise restore such property as may be
necessary and the cost thereof, or a sum which is, in the opinion of the Construction
Program Manager, sufficient to reimburse the owners of property so damaged, will be
deducted from any monies due or to become due the Contractor under this Contract.
10.2.7 Contractor is responsible for the proper packing, shipping, handling and storage
(including but not limited to shipment or storage at the proper temperature and humidity)
of all materials to be incorporated in the Work, so as to ensure the preservation of the
quality and fitness of the material for proper installation and incorporation into the Work,
as required by the Contract Documents. For example, but not by way of limitation,
Contractor shall, when necessary, place material on wooden platforms or other hard and
clean surfaces and not on the ground or place such material under cover or in an
appropriate shelter or facility. Stored materials or equipment shall be located so as to
facilitate proper inspection. Material and equipment which is delivered crated shall
remain crated until ready for installation. Lawns, grass plots or other private property
shall not be used for storage purposes without the written permission of the property
owner or lessee, unless otherwise within the terms of the easements obtained by the
Owner or Contractor as required by the Contract Documents.
10.2.8 The Contractor shall give Notice in writing at least seventy-two (72) hours before
breaking ground, to all persons and utility owners having structures or improvements in
proximity to site of the Work, separate contractors performing work in proximity thereto,
superintendents, inspectors, or others in charge of property, streets, water pipes, gas
pipes, sewer pipes, telephone cables, electric cables, railroads or otherwise, who may be
affected by the Contractor's operation. This Notice is required in order that said persons
may remove any obstruction for which they are responsible and have a representative on
site to see that their property is properly protected. Such Notice does not relieve the
Contractor of responsibility for any damages, claims, or defense of indemnification of any
and all actions against Owner, Construction Program Manager or Design Consultant
resulting from performance of such Work in connection with or arising out of this
Contract.
10.2.9 Contractor shall protect all Underground Facilities or Utilities encountered while
performing the Work, whether indicated on the Contract Drawings or not. The Contractor
shall maintain utilities in service until moved or abandoned. The Contractor shall
exercise due care when excavating around utilities and shall, at no cost to the Owner,
restore any damaged utilities to the same condition or better as existed prior to starting
the Work. The Contractor shall maintain, in service, operating utilities or other services,
even if they are shown to be abandoned on the Contract Drawings, until new facilities are
provided, tested and ready for use. Contractor shall be solely responsible for
coordination with utility owners in implementing these and all other requirements of this
Contract relating to Underground Facilities and Utilities, as defined in Subparagraph
1.1.49 hereof.
10.2.10 Contractor shall return all improvements on or about the site and adjacent
property which are not shown to be altered, removed or otherwise changed to conditions
at least equal to those which existed prior to Contractor's starting work.
10.2.11 Contractor shall protect the Work, including but not limited to, the site, stored
materials and equipment, excavations, and excavated or stockpiled soil or other material,
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intended for use in the Work. Contractor shall take all necessary precautions to prevent
or minimize damage to same or detrimental effect upon his performance or that of his
Subcontractors, Sub-subcontractors and Suppliers caused by or due to rain, snow, ice,
run-off, floods, temperature, wind, dust, sand and flying debris. For example, but not by
way of limitation, Contractor shall, when necessary, utilize temporary dikes, channels or
pumping to carry-off, divert or drain water, and shall as necessary tie-down or otherwise
secure the Work and employ appropriate covers and screens, all at no cost to Owner.
10.2.12 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.
10.2.13 The Contractor shall coordinate with all utility companies, separate contractors
and with his Subcontractors, Sub-subcontractors and Suppliers concerning the
energizing or fueling of power lines, systems, fuel lines, items of equipment, or any
portion of the Work when same initially become operative or in use, and shall give timely
Notice to all separate contractors, Subcontractors and all trades affected thereby.
10.3 EMERGENCIES
10.3.1 In any emergency affecting the safety of persons or property, the Contractor shall
act, at his discretion, to prevent threatened damage, injury or loss. The Contractor shall
notify the Owner and Construction Program Manager of the situation and of all actions
taken immediately thereafter. If, in the opinion of the Contractor, a decision is required by
the Owner, Construction Program Manager or Design Consultant regarding said
emergency and immediate action is not required, the Contractor shall notify the Owner
and Construction Program Manager. Provided, however, if any loss, damage, injury or
death occurs that could have been prevented by the Contractor's prompt and immediate
actions, the Contractor shall be fully liable for all costs, damages, claims, actions, suits,
attorney's fees and all other expenses arising therefrom or relating thereto. Any
additional compensation or extension of time claimed by the Contractor on account of
emergency work shall be determined as provided in Article 12 for Changes in the Work.
10.4 EFFECT OF SUBMISSION OF CONTRACTOR'S SAFETY PLAN
10.4.1 The Owner, Construction Program Manager and Design Consultant shall have
no responsibility or obligation to review or approve any safety plans or procedures as
may be submitted by Contractor, or to check or verify the Contractor's compliance with
any and all requirements imposed by the Contract Documents or by law, rule, regulation
or order of any public authority having jurisdiction. The receipt or filing of any safety plan
by the Owner, Construction Program Manager or Design Consultant does not constitute
acceptance of or acquiescence with or endorsement of such safety plans or procedures
of Contractor.
10.5 FAILURE OF COMPLIANCE
10.5.1 Should Contractor fail to initiate, maintain and supervise all safety precautions
and programs in connection with the Work as required by this Article 10, Owner,
Construction Program Manager and Design Consultant shall be entitled to recover from
Contractor all amounts, fines or penalties for which any of them may be liable to any
person or entity because Contractor failed to comply with the provisions of this Article 10,
including, but not limited to, all direct, indirect and consequential damages, and all
attorney's fees, costs and expenses incurred relating thereto. In addition, the Owner may
construe such failure as a material breach of this Contract and therefore may exercise all
rights and remedies, including termination in accordance with Paragraph 14.3 hereof.
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10.5.2 Nothing herein shall be construed as limiting Contractor's obligations under
Paragraph 4.20 hereof.
ARTICLE 11
INSURANCE
11.1 CONTRACTOR'S LIABILITY INSURANCE
11.1.1 The Contractor shall purchase and maintain with companies acceptable to
Owner, and who are properly licensed to do business in the state in which the Project is
located and which have an "A" policyholder's rating and a financial rating of at least Class
XI in accordance with the most current Best's Rating, such insurance as will protect
Contractor, Owner, Construction Program Manger, Design Consultant and their agents,
consultants, representatives, and employees from claims set forth below which may arise
out of or result from the Contractor's operations under the Contract, whether such
operations be by himself or by any Subcontractor, Sub-subcontractor or by anyone
directly or indirectly employed by any of them, or by anyone for whose acts any of them
may be liable:
.1 Claims under workers' or workmen's compensation, disability benefit and other
similar employee benefit acts (with Workmen's Compensation and Employer's
Liability Insurance in amounts not less than those necessary to meet the
statutory requirements of any state(s) having jurisdiction over any portion of the
Work). The Contractor will require his Subcontractors, Sub-subcontractors and
Suppliers to provide similar Workmen's Compensation Insurance for all of the
latter's employees;
.2 Claims for bodily injury, sickness or disease, or death of his employees;
.3 Claims for bodily injury, sickness or disease, or death of any person other than
his employees;
.4 Claims for damages insured by usual personal injury liability coverage which are
sustained (1) by any person as a result of an offense directly or indirectly related
to the employment of such person by the Contractor, or (2) by any other person;
.5 Claims for damages, other than to the Work itself, because of injury to or
destruction of tangible property, including loss of use resulting therefrom; and
.6 Claims for bodily injury or death of any person or property damage arising out of
the ownership, maintenance or use of any motor vehicle.
11.1.2 The insurance required by Subparagraph 11.1.1 shall be primary and
noncontributing to any insurance possessed or procured by the Owner, and shall be for
the coverages and the limits of liability not less than those set forth in the section of the
Special Conditions of this Contract entitled "Insurance", or as required by law, whichever
is greater.
11.1.3 The insurance required by Subparagraph 11.1.1 shall include "Hold Harmless"
insurance and contractual liability insurance, which shall include within its coverage the
Contractor's obligations under Paragraph 4.20.
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11.1.4 Without limiting the above, Contractor shall, at his own expense, during the term
of this Contract, purchase and maintain the insurance required by the section of the
Special Conditions to this Contract entitled "Insurance."
11.1.5 The insurance required by Subparagraph 11.1.1 shall be written for not less than
any limits of liability specified in the Contract Documents, or required by law, whichever is
greater.
11.1.6 Certificates of Insurance acceptable to the Owner shall be delivered to the Owner
or Construction Program Manager prior to commencement of the Work on site by
Contractor. These Certificates shall be on the forms required by the Contract
Documents, with no substitution or revision of the forms being allowed, and shall contain
a provision that coverages afforded under the policies will not be canceled unless at least
thirty (30) days' prior written Notice has been given to the Owner. All insurance shall be in
effect on or before the date when the Work is commenced by Contractor. All insurance
shall be maintained in full force and effect until the date of Final Completion or so long as
Contractor, or anyone for whom Contractor is responsible, is on the site, whichever is
later.
11.1.7 Owner, Construction Program Manager and Design Consultant shall be
additional insureds under any insurance purchased by Contractor under this Paragraph
11.1 and each shall receive certificates evidencing this coverage prior to the
commencement of the Work on site by Contractor.
11.2 PROPERTY INSURANCE
11.2.1 The Contractor shall purchase and at all times maintain such insurance as will
protect Contractor, Owner, Construction Program Manager, Design Consultant,
Subcontractors, Sub-subcontractors and Suppliers, and all of their representatives,
agents and employees, from loss or damage to the Work or property in the course of
construction, including all machinery, materials and supplies on the premises or in transit
thereto and intended to become a part of the finished Work and all temporary structures,
miscellaneous materials and supplies incident to the Work, and Owner's loss of use of
Owner's property due to fire or other hazards, however caused, until the date of Final
Completion or so long as Contractor, or anyone for whom Contractor is responsible, is on
the site, whichever is later. This insurance shall be in the form of "Builder's All-Risk" or
equivalent. The Contractor shall cause such policy or policies of insurance required
under this Subparagraph to be endorsed so as to provide that the insurer or insurers
waive any right of subrogation against the Owner. Any deductible provision in such
insurance shall not exceed the amount set forth in the section of the Special Conditions
of this Contract entitled "Insurance"; or if no amount is specified, the deductible shall not
exceed One Hundred Dollars ($100). Contractor shall remain solely liable for the full
amount of any item covered by such insurance, including any deductibles.
11.2.2 Any loss insured under Subparagraph 11.2.1 is to be adjusted by the insurer with
the Owner and any check made payable to the Owner as trustee for the insureds, as their
interests may appear, subject to the requirements of any applicable mortgagee clause
and of Subparagraph 11.2.5. Contractor shall pay each Subcontractor a just share of any
insurance moneys received by the Contractor, and by appropriate agreement, written
where legally required for validity, shall require each Subcontractor to make payments to
his Sub-subcontractors or Suppliers in similar manner.
11.2.3 The Owner and Contractor waive all rights against each other for damages
caused by fire or other perils to the extent covered and paid by insurance obtained
pursuant to this Paragraph 11.2, or any other property insurance applicable to the Work,
except such rights as they may have to the proceeds of such insurance held by the
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Owner as trustee. The Contractor shall require, by appropriate agreement, written where
legally required for validity, similar waivers in favor of the Owner and the Contractor by
Subcontractors and Sub-subcontractors. With respect to the waiver of rights of recovery,
the term Owner shall be deemed to include, to the extent covered by property insurance
applicable thereto, his consultants, employees, and agents and representatives including
the Construction Program Manager and Design Consultant, their officers, employees,
agents, representatives and consultants. The Contractor waives as against any separate
contractor described in Article 6 all rights for damages caused by fire or other perils in the
same manner as is provided above as against the Owner. The Owner shall require, by
appropriate written agreement, similar waivers in favor of the Contractor by any separate
contractor and his subcontractors and sub-subcontractors.
11.2.4 If required by law, the Owner as trustee shall, upon the occurrence of an insured
loss, provide a bond for the proper performance of his duties. Owner shall deposit in a
separate account any money so received, and he shall distribute it in accordance with
such agreement as the parties in interest may reach, or in accordance with a court order.
11.2.5 The Owner as trustee shall have power to adjust and settle any loss with the
insurers unless, within five (5) days after the occurrence of the loss, one of the parties in
interest shall object in writing to the Owner's exercise of this power. If such objection be
made, the matter shall be decided by a court of competent jurisdiction or as the parties in
interest otherwise agree. The Owner as trustee shall, in that case, make settlement with
the insurers in accordance with the orders of the court or as otherwise agreed by the
parties in interest.
11.2.6 If the Owner finds it necessary to partially utilize a portion or portions of the Work
prior to Substantial Completion thereof, Contractor shall obtain the consent of the
insurance company or companies providing the property insurance, by endorsement to
the policy or policies. No insurance required by this Article 11 shall be cancelled or
lapsed on account of such Partial Utilization.
11.3 EFFECT OF SUBMISSION OF CERTIFICATES
11.3.1 The Owner and Construction Program Manager shall be under no obligation to
review any Certificates of Insurance provided by the Contractor or to check or verify the
Contractor's compliance with any and all requirements regarding insurance imposed by
the Contract Documents. The Contractor is fully liable for the amounts and types of
insurance required herein and is not excused should any policy or certificate of insurance
provided by the Contractor not comply with any and all requirements regarding insurance
imposed by the Contract Documents and applicable laws or regulations.
11.4 FAILURE OF COMPLIANCE
11.4.1 Should the Contractor fail to provide and maintain in force any and all insurance,
or insurance coverage required by the Contract Documents or by law, or should a dispute
arise between Owner and any insurance company of Contractor over policy coverage or
limits of liability as required herein, the Owner, when a loss occurs, shall be entitled to
recover from the Contractor all amounts payable, as a matter of law, to Owner or any
other parties, including but not limited to the Construction Program Manager and the
Design Consultant, had the required insurance or insurance coverage been in force.
Said recovery shall include, but is not limited to interest for the loss of use of such
amounts of money, plus all attorney's fees, costs and expenses incurred in securing such
determination, and all consequential damages arising out of the failure of the Contractor
or insurance company to comply with the provisions of the Contract Documents, or any
policy required hereby, or any other requirements regarding insurance imposed by law.
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Nothing herein shall limit any damages for which Contractor is responsible as a matter of
law.
11.5 OWNER'S INSURANCE
11.5.1 The Owner, at his option, may purchase and maintain such insurance as will
insure him against any loss of use of his property due to fire or other hazards, however
caused. This Paragraph 11.5 shall not be construed as limiting in any way Contractor's
obligations under this Article 11.
ARTICLE 12
CHANGES IN THE WORK
12.1 CHANGE ORDERS
12.1.1 A Change Order is defined in Subparagraph 1.1.9 hereof.
12.1.2 The Owner may, at any time, without invalidating the Contract and without notice
to any surety, by written order designated or indicated to be a Change Order, and
executed solely by the Owner, make any Changes in the Work within the general scope
of this Contract, including, but not limited to Changes:
.1 In the Specifications or Drawings;
.2 In the sequence, method or manner of performance of the Work;
.3 In the Owner-furnished facilities, equipment, materials, services or site; or
.4 Directing acceleration in the performance of the Work;
Provided, however, that orders or directives of the Owner, Construction Program
Manager or Design Consultant which are authorized under other provisions of the
Contract Documents and which arise because of the fault or negligence of Contractor,
shall not be a Change Order under this Contract.
12.2 OWNER DIRECTED CHANGES REQUIRING AN INCREASE IN CONTRACT SUM
12.2.1 If the Change in or addition to the Work will result in an increase in the Contract
Sum, the Owner shall have the right to require the performance thereof on a lump sum
basis, a unit price basis or a time and material basis, all as hereinafter more particularly
described (the right of the Owner as aforesaid shall apply with respect to each such
Change in the Work).
12.2.2 If the Owner elects to have the Change in the Work performed on a lump sum
basis, his election shall be based on a lump sum proposal which shall be submitted by
the Contractor to the Construction Program Manager within ten (10) days of the
Contractor's receipt of a request therefor (but the Owner's request for a lump sum
proposal shall not be deemed an election by the Owner to have the Change in the Work
performed on a lump sum basis). The Contractor's proposal shall be completely and fully
itemized and segregated by labor and materials for the various components of the
Change to the Work (no aggregate labor total will be acceptable) and shall be
accompanied by signed, itemized proposals of any Subcontractors or
Sub-Subcontractors who will perform any portion of the Change in the Work, and of any
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Suppliers who will furnish materials or equipment for incorporation therein. The proposal
shall also include a listing of the scheduled activities affected by the Change, the
Contractor's statement of the additional time, if any, required to perform said Changes;
and, if a time extension is requested, a justification therefor in compliance with Article 8
and Article 13 hereof.
12.2.2.1 The portion of the proposal relating to labor, whether by the Contractor's forces or the
forces of any of his Subcontractors, may include reasonably anticipated gross wages of
job site labor, including foremen, who will be directly involved in the physical work
anticipated by the Change in the Work (for such time as they will be so involved), plus
payroll costs (including premium costs of overtime labor, if overtime is anticipated, Social
Security, insurance, Federal or State unemployment insurance taxes and fringe benefits
required by collective bargaining agreements entered into by the Contractor or any such
Subcontractor in connection with such labor) and up to fifteen percent (15%) of such
anticipated gross wages, including payroll costs, as overhead and profit for the
Contractor or any such Subcontractor, as applicable (said overhead and profit includes all
supervision except foremen).
12.2.2.2 The portion of the proposal relating to materials may include the reasonably anticipated
direct costs to the Contractor or to any of his Subcontractors of materials to be purchased
for incorporation in the Change in the Work, plus transportation and applicable sales or
use taxes and the reasonably anticipated rental costs in connection with the Change in
the Work (either actual rates or discounted local published rates), plus up to fifteen
percent (15%) as overhead and profit for the Contractor or any such Subcontractor (said
overhead and profit to include all small tools).
12.2.2.3 The lump sum proposal may include up to six percent (6%) of the amount which the
Contractor will pay to any of his Subcontractors for the Change in the Work as overhead
and profit to the Contractor. The percentages allowed by paragraphs 12.2.2.1 and
12.2.2.2 are for the entity (Contractor or Subcontractor) actually doing the physical work
of the Change.
12.2.2.4 It is understood and agreed that all markups for overhead and profit as set forth in this
Subparagraph 12.2.2 are to be computed by multiplying the percentage allowed (which
includes both overhead and profit in one markup) by the net costs. The term "net costs"
is defined as allowable costs as permitted herein for labor and materials for additions to
the Work minus costs for deletions in the Work.
12.2.2.5 If any of the items included in the lump sum proposal are covered by unit prices
contained in the Contract Documents, the Owner may, if it requires the Change in the
Work to be performed on a lump sum basis, elect to use these unit prices in lieu of the
similar items included in the lump sum proposal, in which event an appropriate revision
will be made in the lump sum amount prior to the application of any allowed overhead
and profit percentages. No overhead and profit shall be applied to these unit prices.
12.2.3 If the Owner elects to have the Change in the Work performed on a unit price
basis, his election shall be based upon a unit price proposal which shall be submitted by
the Contractor to the Construction Program Manager within ten (10) days of his request
therefor (but the Construction Program Manager's request for a unit price proposal shall
not be deemed an election by the Owner to have the Change in the Work performed on a
unit price basis). The Contractor's proposal shall itemize the quantities of each item of
the Change in the Work for which there is an applicable unit price contained in the
Contract Documents. If items are needed for which there is no unit price specified in the
Contract Documents, Contractor must propose a unit price. The quantities shall be
itemized in relation to each specific Drawing. Unit prices will be applied to net differences
of quantities of the same item. No overhead and profit shall be applied to any unit prices
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included in the Contract Documents. The proposal shall also include a listing of the
scheduled activities affected by the Change, the Contractor's statement of the additional
time, if any, required to perform said Changes; and, if a time extension is requested, a
justification therefor in compliance with Article 8 and Article 13 hereof.
12.2.4 Nothing herein contained shall preclude the Construction Program Manager from
requesting a lump sum proposal and a unit price proposal with respect to the same
Change in the Work, in which event the Contractor shall submit both.
12.2.5 In the event that the Contractor fails to submit his proposal under Subparagraphs
12.2.2 or 12.2.3 within the designated period or shorter period as required by the
Construction Program Manager, the Construction Program Manager may order the
Contractor to proceed with the Change in the Work, and the Contractor shall so proceed.
The Owner and Construction Program Manager shall thereafter determine the
reasonable cost and time to perform the Work in question. Contractor shall comply with
said determination, subject to the provisions of Paragraph 12.5.
12.2.6 If the Owner elects to have the Change in the Work performed on a time and
material basis, the Change shall be performed, whether by the Contractor's forces or the
forces of any of his Subcontractors or Sub-subcontractors, at actual cost, as defined in
Paragraph 12.7 hereof, to the entity performing the Change in the Work, plus fifteen
percent (15%) thereof as the total overhead and profit. Contractor shall be entitled to a
markup for overhead and profit in an amount of up to six percent (6%) of the amount
which Contractor will pay to any of his Subcontractors for the Change in the Work. The
Contractor shall submit to the Construction Program Manager daily time and material
tickets, that include the identification number assigned to the Change in the Work, the
location and description of the Change in the Work, the classification of labor employed
(and names and social security numbers), the materials used, the equipment rented (not
small or expendable tools) and such other evidence of cost as the Owner may require.
Contractor agrees that his failure to submit time and material tickets for a particular day
within twenty-four (24) hours thereof shall constitute a waiver by him of any claim for
labor and material costs for that day.
12.2.6.1 Contractor shall secure authentication of all time and material tickets and invoices if so
required by the Construction Program Manager. The Owner shall designate the persons
who are authorized to perform such authentication. The failure of the Contractor to
secure any required authentication shall, if the Construction Program Manager elects to
treat it as such, constitute a waiver by the Contractor of any claims for the cost of that
portion of the Change in the Work covered by a non-authenticated ticket or invoice;
provided, however, that the authentication of any such ticket or invoice, or the signing,
acknowledgment or receipt thereof by the Construction Program Manager, shall not
constitute an agreement by the Construction Program Manager that the items thereon
were reasonably required for or solely related to the Change in the Work.
12.2.6.2 Owner shall not be liable to Contractor for time and materials costs which arise or are
incurred because of the negligence of or defective or non-conforming work of Contractor
or any Subcontractor; because of Contractor's failure to properly supervise the Work or to
properly schedule or coordinate the Work; or because of Contractor's failure to comply
with any requirements of the Contract Documents.
12.2.7 Until such time as the Owner makes his election under this Paragraph 12.2,
Contractor shall submit daily time and material tickets and invoices to the Construction
Program Manager as required under Subparagraph 12.2.6 (which receipt by the
Construction Program Manager shall not be deemed an election by Owner to have the
Change performed on a time and material basis), which shall be subject to authentication
as therein provided. At such time as the Owner makes his election under this Paragraph
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12.2, an appropriate Change Order will be initiated, it being understood and agreed that
said Change Order shall be a condition precedent to any payment to the Contractor on
account of the Change in the Work; provided, however, that if the Owner elects to have
the Change in the Work performed on a time and material basis, then it may, pending
final determination of the cost, allow Contractor to include portions of the cost in his
Applications for Payment, in which event the Owner shall, upon approval of said
Applications for Payment, make payments on account thereof (such payments shall not
exceed, in the aggregate, the Owner's determination of the cost of the Change in the
Work).
12.2.8 In the event that the parties are unable to agree as to the reasonable cost and
any extension required to Specific Dates or the Contract Time, for the performance of the
Change to the Work based upon the Contractor's Proposal, and the Construction
Program Manager and Owner do not elect to have the Change performed on a time and
material basis, the Owner and Construction Program Manager shall have the discretion
to issue a Change Order directing Contractor to proceed with the performance of the
Change in the Work. The Owner and Construction Program Manager shall thereafter
make a determination of the reasonable cost and additional time, if any, necessary for
performance of the Change, based upon their own estimates and the Contractor's
submission or a combination thereof. A Change Order shall be issued for the amounts of
cost and the adjustment in any Specific Date or the Contract Time determined by the
Construction Program Manager and the Owner. This determination shall be final and
binding upon the Contractor, as provided in Subparagraph 7.8.3 hereof, unless the
Contractor, within seven (7) days of the issuance of said Change Order, submits his
written Notice to Construction Program Manager in accordance with Paragraph 7.8.
Failure of the parties to reach agreement regarding the cost and any time extension for
the Change in the Work shall not relieve the Contractor from performing the Change in
the Work promptly and expeditiously as directed by the Owner or Construction Program
Manager.
12.2.9 No overhead and profit will be paid by the Owner on account of a Change in the
Work except as specifically provided in this Paragraph 12.2. Overhead and profit, as
allowed under this Paragraph 12.2, shall be deemed to include all direct and indirect
costs and expenses which the Contractor or any of his Subcontractors may incur in the
performance of a Change in the Work and which are not otherwise specifically
recoverable by them pursuant to this Paragraph 12.2.
12.3 CHANGES REQUIRING A DECREASE IN CONTRACT SUM OR CONTRACT TIME
12.3.1 If a Change in the Work will result in a decrease in the Contract Sum, or a
decrease in the time of completion of a portion of the Work by a Specific Date or the
Contract Time, the Construction Program Manager may request a proposal from the
Contractor of the amount of such decrease for use in preparing a Change Order. The
Contractor's proposal shall be forwarded to the Construction Program Manager within ten
(10) days of his request therefor, and, if acceptable to the Owner, shall be incorporated in
the Change Order. If not acceptable to the Owner, the parties shall make every
reasonable effort to agree as to the amount of such decrease, which, as to the Contract
Sum, may be based on a lump sum properly itemized, on unit prices stated in the
Contract Documents and/or on such other basis as the parties may mutually determine.
If the parties are unable to so agree, the amount of such decrease in the Contract Sum or
the time of performance shall be the total of the estimated reduction in actual cost or time
of performance of the Work, as determined by the Construction Program Manager in his
reasonable judgment, subject to the provisions of Paragraph 12.5.
12.4 CONTRACTOR NOTICE OF CHANGE
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12.4.1 If the Contractor, or any Subcontractor, Sub-subcontractor or Supplier is of the
opinion that any event or occurrence has caused a Change in the Work, which Change
causes or will cause an increase or decrease in the cost or the time required for the
performance of any part of the Work under this Contract, including Work not affected
directly by the Change, the Contractor shall, within seven (7) days of such event or
occurrence, give the Construction Program Manager written Notice as required by this
Contract. Said Notice shall include the instructions, directions or circumstances that are
the basis of the claim. Within twenty (20) days of said event or occurrence, Contractor
shall provide the Construction Program Manager, in writing, his best estimate of all costs
alleged by Contractor to be associated with the Change and any time extension which is
required thereby.
12.4.2 Contractor agrees that his failure to comply with the requirements of
Subparagraph 12.4.1 shall constitute a waiver by Contractor of any claim for monetary
compensation or a time extension relating to any alleged Change for which Notice was
required, but not given in accordance therewith.
12.4.3 Under no circumstances shall Contractor, or any Subcontractor,
Sub-subcontractor or Supplier be entitled to any adjustment in the Contract Sum (for
costs or damages incurred) or any time extension for Changes in the Work occurring
more than seven (7) days prior to the receipt by Construction Program Manager of the
Notice required under this Paragraph 12.4.
12.5 DISPUTES REGARDING CHANGES
12.5.1 If any dispute should arise between the Owner and Contractor with respect to an
increase or decrease in the Contract Sum or in the time of completion of a portion of the
Work by a Specific Date or the Contract Time, as a result of a Change in the Work,
Contractor shall not suspend performance of a Change in the Work or the Work itself
unless otherwise so ordered by the Construction Program Manager in writing.
12.5.1.1 The Owner shall pay to the Contractor up to the Construction Program Manager's
reasonable estimated value of the Change in the Work, regardless of the dispute, if said
Changes in the Work, in the opinion of the Owner, results in an increase in the Contract
Sum; and the Owner shall have the right to decrease the Contract Sum by the
Construction Program Manager's reasonable estimated value of the Change in the Work,
regardless of the dispute, if said Change in the Work results in a decrease in the Contract
Sum.
12.5.1.2 If a Change in the Work will result in an increase or decrease in the time required for the
completion of any portion of the Work by a Specific Date or by the Contract Time, and the
parties are unable to agree as to the number of days by which the Contract Time or any
Specific Date will be adjusted, then the Owner and Construction Program Manager shall
proceed in accordance with Subparagraph 12.2.8 hereof.
12.5.2 The actions and determinations of Owner under Subparagraphs 12.5.1.1 and
12.5.1.2 shall be final and binding upon Contractor and any of his Subcontractors,
Sub-subcontractors and Suppliers, as provided in Subparagraph 7.8.3 hereof, unless
Contractor gives written Notice to the Construction Program Manager within seven (7)
days of such actions or receipt by Contractor of such determinations of the Owner and
fully complies with the requirements of the Contract Documents, including but not limited
to this Article 12 and Paragraph 7.8 hereof.
12.6 COST OF THE WORK
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12.6.1 For the sole purpose of the administration of Changes pursuant to this Article 12,
the term "Cost of the Work" means the sum of all costs necessarily incurred and paid by
Contractor in the proper performance of the Work. Except as otherwise may be agreed
to in writing by Owner, such costs shall be in amounts no higher than those prevailing in
the locality of the Project, and shall include only the following items:
12.6.1.1 Payroll costs for employees in the direct employ of Contractor in the performance of the
Work under schedules of job classifications agreed upon by Owner and Contractor.
Payroll costs for employees not employed full time on the Work shall be apportioned on
the basis of their time spent on the Work. Payroll costs shall include, but not be limited
to, salaries and wages plus the cost of fringe benefits which shall include social security
contributions, unemployment, excise and payroll taxes, workers' or workmen's
compensation, health and retirement benefits, sick leave, vacation and holiday pay
applicable thereto. Such employees may, subject to the provisions of Subparagraph
12.6.2.1, include superintendents and foremen employed full-time at the site who directly
supervise the installation of the Work (but shall not include the Project Manager or
Project Engineer). The expenses of performing Work after regular working hours, on
Saturday, Sunday, or legal holidays, shall be included in the above only to the extent
authorized in writing by Construction Program Manager;
12.6.1.2 Cost of all materials and equipment furnished and incorporated in the Work, including
costs of transportation and storage thereof, and Suppliers' field services required in
connection therewith. All cash discounts shall accrue to Contractor unless Owner
deposits funds with Contractor with which to make payments, in which case the cash
discounts shall accrue to Owner. All trade discounts, rebates, and refunds and all returns
from sale of surplus materials and equipment shall accrue to Owner, and Contractor shall
make provisions so that they may be obtained;
12.6.1.3 Payments made by Contractor to the Subcontractors for Work performed by
Subcontractors. If required by Construction Program Manager, Contractor shall obtain
competitive bids from Subcontractors acceptable to Contractor and shall deliver such
bids to Owner who will then determine, with the advice of Construction Program
Manager, which bids will be accepted. If a subcontract provides that the Subcontractor is
to be paid on the basis of Cost of the Work Plus a Fee, the Subcontractor's Cost of the
Work shall be determined in the same manner as Contractor's Cost of the Work. All
subcontracts shall be subject to the other provisions of the Contract Documents insofar
as applicable; and
12.6.1.4 Costs of special consultants (including but not limited to engineers, architects, testing
laboratories, surveyors, attorneys, and accountants) employed for services specifically
related to the Work;
12.6.1.5 Supplemental costs including the following:
.1 The proportion of necessary transportation, travel, and subsistence expenses of
Contractor's employees incurred in discharge of duties connected with the Work;
.2 Cost, including transportation and maintenance, of all materials, supplies,
equipment, machinery, appliances, office and temporary facilities at the site and
hand tools not owned by the workers, which are consumed in the performance of
the Work, and cost less market value of such items used but not consumed
which remain the property of Contractor;
.3 Rentals of all construction equipment and machinery and the parts thereof
whether rented from Contractor or others in accordance with rental agreements
approved by Owner with the advice of Construction Program Manager, and the
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costs of transportation, loading, unloading, installation, dismantling, and removal
thereof--all in accordance with terms of said rental agreements. The rental of
any such equipment, machinery and parts shall cease when the use thereof is no
longer necessary for the Work;
.4 Sales, consumer, use or similar taxes related to the Work, and for which
Contractor is liable, imposed by Laws and Regulations;
.5 Deposits lost for causes other than negligence of Contractor, any Subcontractor,
or anyone directly or indirectly employed by any of them or for whose acts any of
them may be liable, and royalty payments and fees for permits and licenses;
.6 Losses and damages (and related expenses), not compensated by insurance or
otherwise, to the Work or otherwise sustained by Contractor in connection with
the performance and furnishing of the Work (except losses and damages within
the deductible amounts of property insurance established by Owner in
accordance with the Contract Documents, provided they have resulted from
causes other than the negligence of Contractor, any Subcontractor, or anyone
directly or indirectly employed by any of them or for whose acts any of them may
be liable. Such losses shall include settlements made with the written consent
and approval of Owner. No such losses, damages, and expenses shall be
included in the Cost of the Work for the purpose of determining Contractor's Fee.
If, however, any such loss or damage requires reconstruction and Contractor is
placed in charge thereof, Contractor shall be compensated therefor by Change
Order;
.7 The cost of utilities, fuel, and sanitary facilities at the site;
.8 Minor expenses such as telegrams, long distance telephone calls, telephone
service at the site, express mail service and similar petty cash items in
connection with the Work; and
.9 Cost of premiums for additional Bonds and insurance required because of
Changes in the Work and premiums for property insurance coverage within the
limits of the deductible amounts established by Owner in accordance with the
Contract Documents.
12.6.2 The term "Cost of the Work" shall not include any of the following:
12.6.2.1 Payroll costs and other compensation of Contractor's officers, executives, principals (of a
partnership or sole proprietorships), general managers, project managers, project
engineers, architects, engineers, estimators, attorneys, auditors, accountants, purchasing
and contracting agents, expediters, timekeepers, clerks, and other personnel employed
by Contractor whether at the site or in Contractor's principal or a branch office for general
administration of the Work and not specifically included in the agreed upon schedule of
job classifications referred to in Subparagraph 12.6.1.1, are to be considered
administrative costs which are encompassed within the overhead/profit percentage
markup allowed Contractor under this Contract;
12.6.2.2 Expenses of Contractor's principal and branch offices other than Contractor's office at the
site, including, but not limited to, costs of or changes or additions to Contractor's
computer hardware or software;
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12.6.2.3 Any part of Contractor's capital expenses, including interest on Contractor's capital
employed for the Work and charges against Contractor for delinquent payments;
12.6.2.4 Cost of premiums for all Bonds and for all insurance whether or not Contractor is required
by the Contract Documents to purchase and maintains the same (except for the cost of
premiums covered by Subparagraph 12.6.1.5.9 above);
12.6.2.5 Costs due to the negligence of Contractor, any Subcontractor, Sub-Subcontractor or
Supplier or anyone directly or indirectly employed by any of them or for whose acts any of
them may be liable, including but not limited to, the correction of defective Work, disposal
of materials or equipment wrongly applied and making good any damage to property; and
12.6.2.6 Other indirect, overhead or general and administrative expenses or costs of any kind and
the costs of any item not specifically and expressly included in Paragraph 12.6.
12.7 GENERAL PROVISIONS RELATED TO CHANGES
12.7.1 For Changes in the Work, Contractor shall not be entitled to any amount for
indirect costs, including, but not limited to, so-called "impact" costs, labor inefficiency,
extended home office overhead, wage, material or other escalations beyond the prices
upon which the proposal is based and to which the parties have agreed pursuant to the
provisions of Article 12, and which the Contractor, his Subcontractors or
Sub-subcontractors or any other person may incur as a result of delays, interferences,
suspensions, changes in sequence, congestion of work areas or the like, for whatever
cause arising from the performance of any and all Changes in the Work performed under
this Contract. It is understood and agreed that the Contractor's sole and exclusive
compensation for Changes shall be recovery of his direct costs as compensable
hereunder and an extension of the Contract Time, but only in accordance with the
provisions of the Contract Documents.
12.7.2 Contractor acknowledges and agrees that it is in the interests of Owner and
Contractor to expedite the resolution of all matters relating to Changes in the Work.
Therefore, Contractor agrees as follows:
12.7.2.1 Contractor will not misrepresent to Owner, Construction Program Manger or Design
Consultant, his intentions regarding the settlement of Change Order issues;
12.7.2.2 Any Change Order issued under this Contract shall resolve all matters relating to that
Change, including, but not limited to, all claims or causes of action for costs or a time
extension which Contractor or any of his Subcontractors, Sub-subcontractors or
Suppliers have or may have relating thereto;
12.7.2.3 The sum agreed upon for any Change Order shall be inclusive of all claims for costs or
other causes of action which Contractor or any of his Subcontractors, Sub-subcontractors
or Suppliers may have relating thereto. No claim relating to or flowing from a particular
Change shall be allowed after acceptance by Contractor of the Change Order or the
sums payable thereunder relating to that Change unless Contractor has expressly and
specifically reserved such claims in the language of the Change Order itself, the costs or
claims are not specifically excluded by the terms of this Contract, and the Owner has
agreed to such reservation;
12.7.2.4 Once Owner and Contractor have agreed upon any adjustment in the Contract Price or
any adjustment in a Specific Date or the Contract Time arising because of a Change in
the Work, it is understood that said agreement is final and binding upon Contractor, and
any claims relating to the event or occurrence giving rise to the Change, or the Change
itself, shall have been fully and finally settled and shall not be subject to renegotiation or
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adjustment due to any cause whatsoever (subject only to the provisions of Paragraph
3.7); and
12.7.2.5 No claim by the Contractor hereunder shall be allowed if asserted after final payment
under this Contract.
ARTICLE 13
SCHEDULES & REPORTS (As Revised, Addendum No. 3)
13.1 DEFINITIONS
13.1.1 The following definitions apply to Article 13:
13.1.1.2 Not Used
13.1.1.3 Project Construction Schedule: The detailed CPM Construction Schedule prepared by
the Contractor for the duration of the Construction Phase of the Project.
13.1.1.4 Interim Project Construction Schedule: The detailed 90-GD\³ORRN-DKHDG´&303URMHFW
Construction Schedule prepared by the Contractor as a prelude to the Project
Construction Schedule. This Schedule is required for the Contractor to receive payment
for work performed during the first 60 days of the Project. The purpose of this schedule
is to give the Contractor adequate time to plan and schedule all of the work for the
Project, while they are mobilizing and beginning to perform work.
13.1.1.5 Master Project Schedule: A schedule prepared by the Owner to track all activities of the
entire Project.
13.1.1.6 Updated Project Construction Schedule: The Project Construction Schedule prepared
each month by the Contractor in support of their request for payment.
13.1.1.7 Revised Project Construction Schedule: The Project Construction Schedule that has
been changed by the Contractor, during the course of Construction, and approved by the
Owner. The Revised Project Construction Schedule may include changes in logic,
changes in the durations of the activities, changes in the sequencing of the work, and
fragnets.
13.1.1.8 Recovery Project Construction Schedule: The Project Construction Schedule prepared
by the Contractor to support their efforts to recover lost time during the Project.
13.1.1.9 CPM (Critical Path Method): Critical Path Method (CPM) is a system for planning,
scheduling, controlling, and monitoring progress on a Project. The CPM system uses
networks of activities interrelating time and dollars to monitor progress on Projects. CPM
uses network analysis to identify those tasks, which are on the critical path, where any
delay in the completion of these tasks will lengthen the project timescale, unless action is
taken. The system provides a means of evaluating delays and impacts caused by
changes and delays attributed to Owners and Contractors.
13.1.1.10 Critical Path: The longest continuous sequence of activities through the network
schedule that establishes the minimum overall project duration and contains no float.
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13.1.1.11 Activity: An activity is defined as any portion or element of work, action, and/or reaction
that is precisely described, readily identifiable and is a function of a logical sequential
process.
13.1.1.12 Critical Activity ± Activities on the Critical Path. They must start and finish on the planned
start and finish dates, otherwise there will be a delay in the completion of the Project.
13.1.1.13 Predecessor Activity ± an activity that must be completed before a given activity can be
started.
13.1.1.14 Successor Activity ± an activity that succeeds another activity.
13.1.1.15 Float: Any activity not on the critical path will have a certain amount of leeway or float
time associated with it. Float time is defined as the amount of time between the earliest
start date and the latest start date or between the earliest finish date and the latest finish
date of a chain of activities in Project Construction Schedule. Float Time is the amount of
time that an activity can slip past its duration without delaying the rest of the project.
13.1.1.16 Fragnet: The subdivision of a project network diagram into segments, usually
representing some form of subproject (change).
13.1.1.17 Milestone: A clearly identifiable point in a project or set of activities that commonly
denotes a reporting requirement or completion of a key component of a project.
13.1.1.18 Phasing: The process of segregating activities into a series of sequential phases.
13.1.1.19 Delay: An interruption or hindrance to planned progress.
13.2 GENERAL REQUIREMENTS
13.2.1 The Work under this Contract shall be planned, scheduled, executed, reported and
accomplished using the Critical Path Method (hereinafter referred to as CPM), in
calendar days, unless otherwise specifically provided in the Contract Documents.
13.2.2 The primary objectives of the requirements of this Article 13 are: (1) to insure adequate
planning and execution of the Work by Contractor; (2) to assist Owner and Construction
Program Manager in evaluating progress of the Work; (3) to provide for optimum
coordination by Contractor of his trades, Subcontractors and Suppliers, and of his Work
with the work or services provided by any separate contractors; (4) to permit the timely
prediction or detection of events or occurrences which may affect the timely prosecution
of the Work; and (5) to provide a mechanism or tool for use by the Owner, Construction
Program Manager and Contractor in determining and monitoring any actions of the
Contractor which may be required in order to comply with the requirements of the
Contract Documents relating to the completion of the various portions of the Work by the
Specific Dates specified in the Contract Documents.
13.2.3 Not Used.
13.2.4 Contractor is responsible for determining the sequence of activities, the time estimates of
the detailed construction activities and the means, methods, techniques and procedures
to be employed. The Construction Schedule shall represent the Contractor's best
judgment of how he will prosecute the Work in compliance with the Contract
requirements. Contractor shall ensure that the Construction Schedule is current and
accurate and is properly and timely monitored, updated and revised as Project conditions
and the Contract Documents may require.
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13.2.5 Not Used.
13.2.6 Not Used.
13.2.7 Contractor shall consult with his principal Subcontractors and Suppliers relating to the
preparation of his construction plan and Construction Schedule. Principal Subcontractors
shall receive copies of those portions of Contractor's Construction Schedule which relate
to their Work and shall be continually advised of any updates or revisions to the
Construction Schedule as the Work progresses. When Contractor submits his
Construction Schedule to the Construction Program Manager or makes any proposed
updates or revisions to such Schedule, it will be assumed by Owner and Construction
Program Manager that Contractor has consulted with and has the concurrence of his
principal Subcontractors and Suppliers. Contractor shall be solely responsible for
ensuring that all Subcontractors and Suppliers comply with the requirements of the
Construction Schedule for their portions of the Work.
13.2.9 Contractor will provide the basic data relating to activities, durations and sequences to
Construction Program Manager as part of Contractor's draft of the Construction
Schedule. This data shall reflect the Contractor's actual construction plan for the Project,
and shall fully comply with all requirements of the Contract Documents, including without
limitation, Paragraph 4.11 hereof.
13.2.9.1 When there are separate contractors working concurrently on the Project whose work
must interface or be coordinated with the Work of Contractor, Contractor shall coordinate
his activities with the activities of the separate contractors and shall, prior to the
submission of his Construction Schedule to the Construction Program Manager, obtain
written approval of his Construction Schedule by the separate contractors. If Contractor
is unable to obtain such written approval by the separate contractors after his best efforts
to do so, or if a conflict occurs that cannot be resolved by mutual agreement between
Contractor and any separate contractor, the Construction Program Manager shall make a
determination of the schedule which shall be binding upon Contractor and the separate
contractors.
13.2.10 Not Used.
13.2.11 Float time is not for the exclusive use or benefit of ether the Contractor or the Owner.
The Contractors work shall proceed according to early start dates, and the Owner shall
have the right to reserve and apportion float time according to the needs of the project.
The Contractor acknowledges and agrees that actual delays, affecting paths of activities
containing float time, will not have any affect upon contract completion times, providing
that the actual delay does not exceed the float time associated with those activities.
13.2.12 Owner will provide the services of the Construction Program Manager at no cost to the
Contractor, for the basic drafting and computerization of Contractor's data for
Contractor's initial Construction Schedule, in accordance with the requirements of this
Contract, provided Contractor's data is submitted in a form or format acceptable to
Construction Program Manager. For any additional services performed by Construction
Program Manager for Contractor, the Contractor will pay the Owner for the cost of such
services.
13.2.13 To carry out the intent of this Article 13, Contractor agrees that the orientation session, as
described in Subparagraph 13.3.3, the provision of drafting and computerization services
by Owner, through the Construction Program Manager, and the reasonable exercise of
any rights under this Article 13 by the Construction Program Manager shall not be
grounds for any claim by Contractor or any of his Subcontractors or Sub-subcontractors
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of alleged interference, lack of cooperation, delay, disruption, negligence or hindrance by
Owner or Construction Program Manager, and Contractor covenants not to sue therefor.
13.2.14 It is understood and agreed by the Contractor that the Construction Schedule is to
represent Contractor's best plan and estimate for the Work; however, Contractor
acknowledges that the Interim Project Construction Schedule and the Project
Construction Schedule may have to be revised from time-to-time as progress proceeds.
Contractor further acknowledges and agrees that the Owner and Construction Program
Manager do not guarantee that: (1) Contractor can start work activities on the "early start"
or "late start" dates or complete work activities on the "early finish" or "late finish" dates
shown in the schedule, or as same may be updated or revised; (2) Contractor can
proceed at all times in the sequence established by the Construction Schedule, or that
Contractor can rely upon the utilization of only the resources and manpower he initially
plans for the performance of the Work; (3) Contractor's Construction Schedule will not
have to be modified in order to obtain the agreement of any separate contractors to the
schedule; or (4) Contractor's Construction Schedule will not have to be modified or
changed by direction of the Construction Program Manager as provided in this Article 13.
Any changes, modifications or adjustments made by Contractor to the Construction
Schedule shall be in full compliance with all requirements of the Contract Documents. If
the Contractor's Interim Project Construction Schedule and the Project Construction
Schedule indicates that the Owner or a separate Contractor is to perform an activity by a
specific date, or within a certain duration, the Owner or any separate Contractor under
contract with Owner shall not be bound to that date or duration unless the Owner H[SUHVVO\ DQG VSHFLILFDOO\ DJUHHV LQ ZULWLQJ WR VDPH WKH 2ZQHU¶V RYHUDOO UHYLHZ DQG
approval or acceptance of the Interim Project Construction Schedule and the Project
Construction Schedule does not constitute an agreement to specific dates, durations or
sequences for activities of the Owner or any separate Contractor.
13.2.15 The Contractor acknowledges and agrees that his Construction Schedule must be
flexible in order to accommodate and allow for his coordination with the operations of the
Owner and the work of separate contractors relating to the Project. The Construction
Program Manager will review the Contractor's Construction Schedule for compatibility
with Owner operations and the work of separate contractors. Contractor agrees to hold
meetings with the Owner and separate contractors to resolve any conflicts between
Contractor's Construction Schedule and the operations of the Owner or work of separate
contractors. Contractor agrees to fully cooperate with Owner and separate contractors to
resolve such conflicts and to revise his Construction Schedule as reasonably required.
13.2.16 In order to maintain the orderly progress of the Work performed on the Project, the
Construction Program Manager shall have the right to determine, in his sole discretion,
the priority between the Work performed by Contractor and the work of any separate
contractors or Owner's operations; this decision shall be final and binding upon
Contractor and shall not be a cause for extra compensation or an extension of time,
except where an extension of time is granted because of a delay for which Contractor is
otherwise entitled to an extension under the Contract Documents. Provided, however,
that this right shall not be exercised by the Construction Program Manager unless: (1) the
determination is necessary, in the opinion of the Construction Program Manager,
because of project conditions; and (2) Contractor and any separate contractors cannot
otherwise agree upon such priority of schedule for their work. Provided, further, that
nothing herein shall be construed as relieving the Contractor of his obligation to
cooperate and coordinate with any separate contractors on the Project.
13.2.17 If Contractor's Construction Schedule indicates that Owner or a separate contractor is to
complete an activity or perform certain preceding work by a particular date, or within a
certain duration, Owner and Construction Program Manager, or any separate contractor
shall not be bound to said date or duration unless Owner expressly and specifically
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agrees in writing to same. The review and approval or acceptance by Owner,
Construction Program Manager or Design Consultant of the Construction Schedule or
any other schedule or plan of construction of Contractor, does not constitute an
agreement by Owner, Construction Program Manager or Design Consultant of any start
or finish date in the schedule or specific durations or sequences for activities of the
Owner or any separate contractor; provided, however, that nothing herein shall be
construed as modifying or changing, or excusing the performance of Contractor of
required portions of the Work by the Specific Dates as set forth in the Contract
Documents.
13.2.18 The Specific Dates set forth in the Contract Documents and defined in Subparagraph
1.1.44 hereof, represent only the major items of Work and may include interface dates
with the operations of the Owner, the work of separate contractors or others. Specific
Dates are Contract requirements and are of the essence to this Contract and to the
coordination of the Work by Contractor. Specific Dates represent the latest allowable start
or completion time for those portions of the Work to which each Specific Date relates.
The Specific Dates are not intended to be a complete listing of all Work under this
Contract or of all interfaces with work performed by other separate contractors, the
Owner or others. Contractor shall determine the time requirements for all such interfaces
and shall be responsible for planning, scheduling and coordinating the Work in order to
complete in accordance with those requirements.
13.2.19 It is understood and agreed that should Construction Program Manager provide
Contractor, at Contractor's request, with any services, advice or counsel relating to the
scheduling or coordination of the Work or any other matter that: (1) Owner and
Construction Program Manager shall not be liable to Contractor for any errors, omissions,
negligence or deficiencies which may in any way occur because of same; (2) such
services, advice or counsel are provided solely as aids in the development by Contractor
of a representation of Contractor's actual construction plan and schedule in accordance
with the requirements of the Contract Documents, and Owner and Construction Program
Manager shall not be liable to Contractor should Contractor rely on such services, advice
or counsel to his detriment; (3) such services, advice or counsel shall not relieve
Contractor of any responsibility under Article 4 hereof for all construction means,
methods, techniques, sequences and procedures and for planning, scheduling and
coordinating all portions of the Work; and (4) any services provided by the Construction
Program Manager or the lack or alleged untimeliness thereof will not in any way take the
place of or relieve the Contractor of full responsibility for compliance with all requirements
of the Contract Documents, including, but not limited to the obligation to complete the
Work within the Specific Dates stated elsewhere in Contract Documents.
13.2.20 Approval or acceptance by the Owner or Construction Program Manager of the
Contractor's Construction Schedule, or any revisions or updates thereto, is advisory only
and shall not relieve the Contractor of the responsibility for accomplishing each portion of
the Work within each and every applicable Specific Date. Omissions and errors in the
approved or accepted Construction Schedule, or any revisions or updates shall not
excuse performance which is not in compliance with the Contract. Approval by the
Owner or Construction Program Manager in no way makes the Owner, Construction
Program Manager or Design Consultant an insurer of the reliability, accuracy or feasibility
of the Construction Schedule nor liable for time or cost overruns flowing from such
omissions or errors. It is understood and agreed that Contractor cannot rely upon any
informal or constructive acquiescence or approval of the Construction Schedule by
Owner or Construction Program Manager; absent a specific agreement in writing, signed
by the Owner, Contractor is on notice that no representative, agent or employee of
Owner or Construction Program Manager or Design Consultant has any right or power to
agree to any schedule commitment or obligation on the part of Owner or Construction
Program Manager except as set forth expressly in the Contract Documents.
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13.2.21 Should Contractor intend or plan to complete the Work, or any portion thereof, earlier
than any applicable Specific Date or the Contract Time, Contractor shall give timely and
reasonable Notice of this fact to Construction Program Manager. Owner shall have the
sole discretion to agree to or reject such early completion plan by Contractor. Owner,
Construction Program Manager and Design Consultant shall have no duty or obligation to
agree to, or to cooperate with Contractor regarding any early completion plan or proposal
by Contractor and shall not be liable for any damages of Contractor because of the
rejection by Owner of said plan.
13.2.22 Unless otherwise specifically provided in the Contract Documents, Contractor
acknowledges that Owner, Construction Program Manager and Design Consultant have
contemplated in their planning and initial scheduling of the Project, and in their budgeting
for professional services, that the Work will be performed on a 5-day work week basis,
utilizing a single 8-hour shift per day. Owner and Construction Program Manager shall
have the sole discretion of approving or rejecting a variance in the work week, number of
shifts, or shift length. Unless otherwise agreed by Owner or the Construction Program
Manager, Contractor shall bear the cost of, and pay the Owner, for additional staff and
supervisory personnel, including but not limited to the services of Construction Program
Manager and the Design Consultant, and inspectors of any public authority having
jurisdiction of the Work, necessary to support any variance in the contemplated work
week, number of shifts or shift length.
13.3 POST AWARD ACTIVITIES
13.3.1 Upon receipt by Contractor of the Notice to Proceed, and until the Construction Schedule
is approved by Construction Program Manager, Contractor shall proceed with his Work in
accordance with the Provisional Preliminary Network of Contractor which was included as
part of the Contractor's bid.
13.3.2 Immediately after Notice to Proceed, the Contractor shall begin the preparation of his
Interim Project Construction Schedule and the Project Construction Schedule. The
Contractor shall assemble, with the assistance of his Subcontractors and Suppliers,
information regarding the project that includes but is not limited to:
13.3.2.1 A detailed Interim Project Construction Schedule or Project Construction Schedule that
represents the Contractor's best judgment of how he shall prosecute and complete the
work in compliance with the Contract Milestone Dates and any Specific Dates stipulated
in the Contract. The level of detail required in the Contractor's schedule should generally
be a function of the complexity of the work
13.3.2.2 The identity and duration of all activities to be included in this Interim Project Construction
Schedule and the Project Construction Schedule. Activities shall meet the following
criteria:
13.3.2.2.1 Activity descriptions shall be clear and concise. The beginning and end to each activity
shall be readily verifiable.
13.3.2.2.2 Responsibility for each activity shall be identified with a single performing organization.
13.3.2.2.3 Resource requirements (labor by craft, commodity type, equipment, services, etc.) shall
be required for each activity, as applicable.
13.3.2.2.4 The cost component for each activity shall be provided. The sum of all of cost
components, of all of the activities, shall equal the contract price.
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13.3.2.2.5 The level of detail of the Network shall be such that no activity shall have a duration
longer than fourteen (14) calendar days, except for procurement and General Conditions
Activities or except at the discretion of the Owner.
13.3.2.2.6 Activity relationships shall be designated as Finish-to-Start only.
13.3.2.2.7 Identify phasing and location of activities as required.
13.3.2.3 The identity of long lead items and delivery dates of all major pieces of equipment or
materials.
13.3.2.4 The identity of any potential problems or constraints related to the implementation of the
Interim Project Construction Schedule and/or the Project Construction Schedule.
13.3.2.5 The Owner will be available, during normal working hours, to consult with the Contractor
if questions arise while the Contractor assembles the information required for the Interim
Project Construction Schedule and/or the Project Construction Schedule.
13.3.3 Orientation Session: Contractor shall, upon notification from the Construction Program
Manager, attend an orientation session relating to the Schedules and Reports
requirements for this Project. This orientation meeting is designed to assist the
Contractor in planning his Work and in developing his Construction Schedule. This
session will normally be held within three (3) days after the date of the Notice to Proceed
or the Notice of Award of Contract by Owner (whichever occurs first) and will be
conducted by the Construction Program Manager. Contractor shall arrange for his
project manager and superintendent(s), major Subcontractors and Suppliers, and any
scheduling consultants that he may employ, to attend the orientation session.
13.3.3.1 Among other things, the Construction Program Manager will review: the objectives of the
Schedules and Reports requirements; the procedures and requirements for the
preparation of the Construction Schedule by Contractor; how the requirements of the
Contract Documents will be monitored and enforced by the Construction Program
Manager; long-lead items and time requirements for Work by Subcontractors will be
identified. It is understood and agreed that the Construction Program Manager has no
authority to waive any requirements of the Contract Documents at this orientation
meeting, and all requirements of the Contract Documents remain applicable to
Contractor's Work whether or not discussed at this session.
13.3.3.2 Should Contractor or his principal Subcontractors and Suppliers fail or refuse to attend
this orientation session, Owner shall have the right to terminate Contractor for default
pursuant to the provisions of Article 14.
13.3.4 The Contractor shall, within fourteen (14) calendar days following receipt of the Notice to
Proceed, submit to the Owner an Interim Project Construction Schedule, in Critical Path
Method format (or CPM), for his construction/erection scope of work for the first 90-days
of the Project, compatible in Primavera P3 format. The Owner will review the
Contractor's Interim Project Construction Schedule to determine if it is consistent with the
Contract Documents.. The Contractor shall, within sixty (60) calendar days following the
receipt of the Notice-to-Proceed, submit to the Owner the Project Construction Schedule
in the same format indicated above. The Owner will review the Contractor's Project
Construction Schedule to determine if it meets the specific requirements of the required
Date of Substantial Completion. The form of submittal for the Interim Project Construction
Schedule and the Project Construction Schedule including logic diagrams is as follows:
13.3.4.1 The Contractor shall submit to the Owner a computer disk in Primavera P3 or compatible
format of his proposed contract activities. The Interim Project Construction Schedule and
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the Project Construction Schedule shall consist of a network diagram with activity GHVFULSWLRQVDQGGXUDWLRQVDQGVXSSRUWLQJGDWDWKDWZLOOH[SODLQWKH&RQWUDFWRU¶VSODQQLQJ
of the work and provide cost allocation and resource estimates for each activity.
13.3.4.2 The network diagram shall show:
13.3.4.2.1 The order and interdependencies of the Contractors activities and the major points of
interface or interrelation with the activities of others, including Specific Dates for
completion.
13.3.4.2.2 Conformance with and identification of the specified mandatory Milestone dates, if any,
specified in the Contract Documents.
13.3.4.2.3 The description and quantity of work by activity.
13.3.4.2.4 For all equipment and materials fabricated or supplied for this Project, the network shall
show a sequence of activities including:
13.3.4.2.4.1 Procurement
13.3.4.2.4.2 Engineering and Preparation of Submittals
13.3.4.2.4.3 Approval of Submittals
13.3.4.2.4.4 Fabrication/Manufacturing
13.3.4.2.4.5 Delivery
13.3.4.2.4.6 Erection/installation
13.3.4.2.5 Delivery of Owner-furnished material and equipment.
13.3.4.2.6 Critical Path (or Paths).
13.3.4.2.7 Training of Owner personnel on Equipment
13.3.4.2.8 Testing and Commissioning of equipment and materials.
13.3.4.2.9 A complete detailed sequence of operations of the work within the time limits specified in
the contract.
13.3.5 The Interim Project Construction Schedule and the Project Construction Schedule shall
indicate an early completion date for the project that is no later than the project's required
completion date. All activity duration's shall be given in calendar days. The Interim
Project Construction Schedule and the Project Construction Schedule shall also indicate
each of the following:
13.3.5.1 Interfaces with the work of outside Contractors and Consultants, e.g., Commissioning
Authority. utilities, power, and with any separate Contractor.
13.3.5.2 Detailed description of the activity along with the coding and phasing, if applicable.
13.3.5.3 Estimated duration time for each activity.
13.3.5.4 Early start date for each activity.
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13.3.5.5 Late start date for each activity.
13.3.5.6 Early finish date for each activity.
13.3.5.7 Late finish date for each activity.
13.3.5.8 Float available for each path of activities containing float.
13.3.5.9 Identification of all critical path activities in the mathematical analysis.
13.3.5.10 The critical path for the project, with said path of activities being clearly and easily
recognizable on the time-scaled network diagram.
13.3.5.11 The relationship between all non-critical activities and activities on the critical path shall
be clearly shown on the network diagram.
13.3.5.12 The dollar value of each activity.
13.3.5.13 The responsibility code for the Contractor or Subcontractor performing each activity or
portion thereof.
13.3.5.14 For each activity, the identification of all predecessor and successor activities.
13.3.5.15 For each activity, the number of man-hours required to compete each activity.
13.4 REVIEW OF INTERIM CONSTRUCTION PROJECT SCHEDULE AND THE
CONSTRUCTION SCHEDULE
13.4.1 The Owner will review the Contractor's Interim Construction Project Schedule and the
Construction Project Schedule, including logic diagrams and computer-generated
mathematical analysis, for compatibility with the Contract Documents. If required, a
meeting will be held between the Owner and Contractor to resolve any conflicts between
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Schedule and the Contract Documents. The Contractor shall revise his schedule as
required by the Owner to support the Contract Documents and shall submit his revised
schedule to the Owner within fourteen (14) days.
13.4.2 Within fourteen (14) calendar days following acceptance of the Interim Project
Construction Schedule or the Project Construction Schedule, the Contractor will provide
two (2) copies of the Contractor's Interim Project Construction Schedule or the Project
Construction Schedule and a computer listing of all network activities, and an electronic
file copy on a disk (3-´IORSS\]LS-disk, or CD) to the Owner. The Owner shall review
the Interim Project Construction Schedule or the Project Construction Schedule, and after
the Owner agrees that it conforms to the Contract Documents, the Contractor's Interim
Project Construction Schedule or the Project Construction Schedule will be used to
monitor progress of the work and support requests for payment.
13.5 DRAFT OF CONSTRUCTION SCHEDULE
13.5.1 Within fifteen (15) days of the orientation session, (even though Contractor may not have
completed Subcontractor negotiations and executed subcontracts) the Contractor, in
consultation with the Construction Program Manager, shall complete a draft of his
time-scaled network graphic.
13.5.1.1 Except for procurement requirements, Contractor shall differentiate activities of the
schedule so that no single activity shown has a duration longer than fourteen (14)
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calendar days, unless the Construction Program Manager, in his sole discretion, shall
approve a longer duration for certain activities.
13.5.1.2 The Construction Schedule shall represent the Contractor's best judgment and intended
plan for completion of the Work in compliance with Specific Dates listed in the Contract
Documents and the Contract Time. The Construction Schedule shall take into account all
foreseeable activities to be accomplished by any separate contractors, and interface
dates with utility owners, the Owner's operations and others. The Construction Schedule
shall anticipate all necessary manpower and resources to accomplish the activities within
the durations set forth in the Construction's Schedule.
13.5.2 Construction Program Manager shall have the right to require the Contractor to modify
any Contractor data or any portion of the Contractor's Construction Schedule or
Recovery Schedule, as herein required, with Contractor bearing the expense thereof,
which the Construction Program Manager reasonably determines to be: (1) impracticable;
(2) based upon erroneous calculations or estimates; (3) unreasonable; (4) not in
compliance with Paragraph 4.11 of the General Conditions; (5) required in order to
ensure proper coordination by Contractor of the Work of his Subcontractors and with the
work or services being provided by any separate contractors; (6) necessary to avoid
undue interference with the Owner's operations or those of any utility owners or adjoining
property owners; (7) necessary to ensure completion of the Work by the Specific Dates
set forth in the Contract Documents; (8) required in order for Contractor to comply with
the requirements of Paragraph 4.12 hereof or any other requirements of the Contract
Documents or (9) not in accordance with the Contractor's actual operations.
13.5.3 The Construction Program Manager will be available during normal working hours to
consult with the Contractor should questions arise while the Contractor assembles the
information required for the Construction Schedule. The reasonable costs for the
Construction Program Manager's time for this consultation will be paid for by the Owner.
13.6 CONSTRUCTION SCHEDULE
13.6.1 The Owner will develop and maintain the Master Project Schedule, of which the
Contractor's Interim Project Construction Schedule or the Project Construction Schedule
will be made a part. This Master Project Schedule will be in precedence format and will EHFRPSXWHUJHQHUDWHGDQGXSGDWHGDQGZLWKWKHLQFOXVLRQRIWKH&RQWUDFWRU¶VDSSURYHG
Interim Project Construction Schedule or the Project Construction Schedule will be the
controlling schedule document utilized for managing overall project progress.
13.6.2 Within fourteen (14) days after receipt of the Construction Schedule draft, based on the
data submitted by the Contractor, the Construction Program Manager will provide the
Contractor with a draft of time-scaled graphic network of activities and computer listing of
all activities included in the Construction Schedule. The graphic representation and
computer printouts shall be carefully reviewed by the Contractor. Any additions and/or
deletions to these documents that are desired by the Contractor are to be brought to the
attention of the Construction Program Manager within five (5) days. The Construction
Program Manager shall, if consistent with the requirements of the Contract Documents,
incorporate the Contractor's revisions and shall deliver the completed Construction
Schedule and computer reports to the Contractor within seven (7) days.
13.6.3 Contractor shall submit, as a part of the data submitted to the Construction Program
Manager, a narrative report indicating anticipated allocation by Contractor of the following
resources and work shifts for each activity which he proposes to be utilized on the
Project: (1) labor resources; (2) equipment resources; (3) whether he proposes the Work
to be performed on single, double or triple shifts, and whether it is to be done on a 4-, 5-,
6- or 7-day work week basis; (4) construction logic and a summary of the sequence of the
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work; and (5) an explanation of the coding and/or phasing used. Contractor agrees to
pay costs required by Subparagraph 13.2.22 if Owner specifically agrees to proceed with
Contractor's proposed plan.
13.6.4 Approval by the Owner of the Contractors Interim Project Construction Schedule or the
Project Construction Schedule is advisory only and shall not relieve the Contractor of the
responsibility for accomplishing the Work within each and every Contract-required
Milestone and Completion date. Omissions and errors in the approved Interim Project
Construction Schedule or the Project Construction Schedule shall not excuse
performance that is not in compliance with the contract. Approval by the Owner in no
way makes them an insurer of the Interim Project Construction ScheGXOH¶VRUWKH3URMHFW&RQVWUXFWLRQ 6FKHGXOH¶V VXFFHVV QRU VKDOO LW PDNH WKH 2ZQHU OLDEOH IRU WLPH RU FRVW
overruns from its shortcomings. The Owner hereby disclaims any obligation or liability by
reason of Owner approval of or acquiescence to the Interim Project Construction
Schedule or the Project Construction Schedule.
13.6.5 The Contractor shall include in the Project Construction Schedule all procurement related
activities that lead to the delivery of materials to the site in a timely manner. Upon written
approval by the Owner, these activities may be submitted as a separate Off-Site Activities
Schedule, properly correlated to the Project Construction Schedule. The schedule of off-
site activities shall include, but is not limited to, the following:
13.6.5.1 Dates for submittals, ordering, manufacturing, or fabricating, and delivery of equipment and
materials. Long lead items requiring more than one month between ordering and delivery
to site shall be clearly noted.
13.6.5.2 All significant activities to be performed by the Contractor during the fabrication and HUHFWLRQLQVWDOODWLRQLQD&RQWUDFWRU¶VSODQWRURQDMREVLWHLQFOXGLQJPDWHULDOVHTXLSPHQW
purchasing.
13.6.5.3 7KH&RQWUDFWRU¶VGUDZLQJVDQGVXEPLWWDOVWREHSUHSDUHGDQGVXEPLWWHGWRWKe Owner.
13.6.6 The Contractor shall be solely responsible for expediting the delivery of all material they
intend to furnish, so that the construction progress shall be maintained according to the
current schedule for the Work as approved by the Owner.
13.6.7 The Contractor shall advise the Owner, in writing, whenever they anticipate that the
delivery date of any material and/or equipment furnished by the Contractor for installation
will be later than the delivery date shown on the schedule, subject to schedule updates.
13.6.8 Submittals, equipment orders and similar items are to be treated as schedule activities,
and shall be given appropriate activity numbers.
13.6.9 The Contractor, in developing his Off-Site and procurement schedules, will confirm and
verify that the off-site activities do not control the Critical path of on-site activities.
13.7 CONSTRUCTION SCHEDULE CONTENT
13.7.1 The Construction Schedule shall consist of a time-scaled, detailed network
graphic representation of all activities which are part of the Contractor's construction plan
and an accompanying computerized mathematical analysis of these activities. The
graphic network shall include, but not be limited to, the following information: (1) Project
name; (2) activities of completed Work ready for use by next trade, Owner, etc; (3)
activities relating to different areas of responsibility, such as subcontracted Work which is
distinctly separate from that being done by the Contractor directly; (4) different categories
of Work as distinguished by craft or crew requirements; (5) different categories of Work
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as distinguished by equipment requirements; (6) different categories of Work as
distinguished by materials; (7) distinct and identifiable subdivisions of Work such as
structural slabs, beams, columns; (8) locations of Work within the Project that
necessitates different times or crews to perform; (9) outage schedules for existing utility
services that will be interrupted during the performance of the Work; (10) acquisition
and installation of equipment and materials supplies and/or installed by the Owner or
separate contractors; (11) material to be stored on site; and (12) Specific Dates.
13.7.2 For all major equipment and materials to be fabricated or supplied for the Project,
the Construction Schedule shall show a sequence of activities including: (1) preparation
of shop drawings and sample submissions; (2) a reasonable time for review of shop
drawings and samples or such time as specified in the Contract Documents; (3) shop
fabrication, delivery, and storage; (4) erection or installation; and (5) testing of equipment
and materials.
13.7.3 The Construction Schedule shall include late completion dates for the Work that
are no later than the required Specific Dates. The time-scaled graphic network shall be
drawn based upon the early start dates of activities shown on the graphic.
13.7.4 All activity durations shall be given in calendar days.
13.8 CONTRACTOR APPROVAL AND CERTIFICATION
13.8.1 Approval by Contractor of the drafting and computerization of the Construction
Schedule and of schedule revisions, shall be signified by the Contractor by execution of
the following certification for each separate Construction Schedule or schedule revision.
If Contractor submits a Construction Schedule or schedule revision without the execution
of a document containing the following certification, Contractor nevertheless agrees that
the certification is binding upon Contractor for each separate Construction Schedule or
schedule revision proposed by Contractor:
"The undersigned Contractor hereby certifies that the proposed schedule revision to the
Construction Schedule which is comprised of the graphic network of activities displayed
on the sheets dated ____________ and of the computerized mathematical reports dated
___________ is Contractor's schedule revision to the Construction Schedule as required
by the Contract Documents; and that said schedule revision is a true and accurate
representation of his plan to complete the Work, including all Change Orders that are in
the Contractor's possession as of the foregoing date, and fully complies with the
requirements of the Contract Documents, including, but not limited to Article 13 and
Paragraph 4.11 of the General Conditions. The Contractor further certifies that he will
prosecute the Work in accordance with this schedule revision, subject to any change
therein which is implemented in accordance with the Contract Documents; the
undersigned acknowledges that this schedule revision shall be the instrument by which
progress of the Work shall be monitored, and together with the dollar value assigned to
each activity, shall be the basis of monthly payments in accordance with the Contract
Documents; and the undersigned certifies that he has met and coordinated with and
obtained the approval of said Schedule revision by all separate contractors that are
affected thereby and has complied with all other requirements of the Contract Documents
relating to coordination of said Schedule with separate contractors; the undersigned
further acknowledges that Owner and the Construction Program Manager are under no
obligation to accept or approve Contractor's proposed schedule revision unless same is
in complete accordance with the Contract Documents."
13.9 UPDATING OF CONSTRUCTION SCHEDULE/ PROGRESS REPORTS
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13.9.1 Every month the Contractor will provide a Preliminary Computer Generated Update
Report for the Owner and Contractor to use to determine the percent complete and
remaining duration of all activities. The data approved in this report shall be used, by the
Contractor, to update the Project Construction Schedule. This report shall be submitted a
minimum of seven (7) calendar days prior to the date of submission of the application for
payments. The Contractor's Project Manager and/or Superintendent, and the Owner
VKDOOPHHWDWWKHMREVLWHIRUWKHSXUSRVHRIUHYLHZLQJWKH&RQWUDFWRU¶VUHSRUWRIDFWXDO
progress, and obtaining from the Contractor (following his meeting with all concerned
Subcontractors and suppliers) up-to-date and accurate progress data.
13.9.2 Every month the Contractor will provide Final Computer Generated Updated Cost and
Schedule Reports based on the Preliminary Computer Generated Update Report. These
Computer Reports will reflect the progress of the Project in respect to both cost and time.
The Owner will use these Final Reports as the basis for determining the progress
payments to the Contractor.
13.9.3 On or about the dates specified in the Contract Documents, Contractor shall arrange for
his project manager and Superintendent to meet at Project site with the Construction
Program Manager to review Contractor's report of actual progress, prepared by
Contractor; said report shall set forth up-to-date and accurate progress data and shall be
based upon Contractor's best judgment; and said report shall be prepared by Contractor
in consultation with all principal Subcontractors and Suppliers as required by
Subparagraph 13.2.7.
13.9.4 The progress report of Contractor shall show the activities, or portions of activities,
completed during the reporting period, the actual start and finish dates for these activities,
remaining durations and/or estimated completion dates for activities currently in progress.
13.9.5 The Construction Program Manager will produce a computerized update work sheet for
the Contractor to complete as a part of this process.
13.9.6 Contractor shall submit a narrative report with the updated progress analysis which shall
include, but not be limited to, a description of problem areas, current and anticipated
delaying factors and their impact, explanations of corrective actions taken or planned,
any newly planned activities or changes in sequence, and proposed logic for a Recovery
Schedule, if required, as further described herein. The report shall also include: (1) a
narrative describing actual Work accomplished during the reporting period; (2) a list of
major construction equipment used on the Project during the reporting period and any
construction equipment idle during the reporting period; (3) the total number of men by
craft actually engaged in the Work during the reporting period, with such total stated
separately as to office, supervisory, and field personnel; (4) a manpower and equipment
forecast for the succeeding thirty (30) days, stating the total number of men by craft, and
separately stating such total as to office, supervisory and field personnel; (5) a list of
Contractor-supplied materials and equipment, indicating current availability and
anticipated jobsite delivery dates; and (6) changes or additions to Contractor's
supervisory personnel since the preceding progress report.
13.9.7 The Construction Program Manager will provide initial computer reports and Final
Monthly Update Reports thereafter, in accordance with the following minimum information
for each activity sorted by activity number, by remaining float (from the least to the most),
and by late start date, in chronological order:
13.9.7.1 Schedule Reports: Initial and subsequent Schedule Reports will contain the following
minimum information for each activity: (1) activity number, activity codes, description and
estimated duration in days; (2) early and late start dates (or Actual if in Progress or
Completed); (3) early and late finish dates (or Actual if in Progress or Completed); (3)
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percentage of each activity completed as of the previous report (Proposed Current % of
Activity Completed); (4) remaining duration as of Previous Report; (5) proposed current
remaining duration; (6) remaining float/days behind schedule; and (7) responsibility for
activity.
13.9.7.1.1 Actual start and finish dates shall be indicated for each activity, as appropriate. Dummies
and completed activities will be omitted from remaining Float and Late Start Sorts.
13.9.7.2 Cost Reports: Initial and subsequent Cost Reports will include the following information
for each activity, sorted by trade activity: (1) activity number, code, and description; (2)
percentage of value of Work in place against total value; (3) total cost of each activity; (4)
value of Work in place since last report; (5) value of Work in place to date; (6) value of
uncompleted Work since last report; and (7) value of uncompleted work. The information
provided in this report will be used to support the pay application submitted by the
Contractor.
13.9.7.2.1 As part of the updating process, the Construction Program Manager's computer will
calculate, based upon progress data provided by Contractor and agreed to by the
Construction Program Manager, the value of Work done for each activity based on
percentage complete for each activity less that amount previously paid for past
percentages completed. Summation of all values of each activity less the appropriate
percent of retainage shall be the amount payable to the Contractor, provided that
Contractor has complied with all requirements of the Contract Documents.
13.9.8 All updated Preliminary and Final Monthly Reports will be distributed to the Owner as
follows: (1) 1- Paper Copy; and (2) 1- Electronic Copy (3-´Iloppy, zip-disk, or CD)
13.9.9 The Contractor shall also submit a narrative report with the Preliminary and Final Monthly
Reports which shall Include, but not be limited to, a description of problem areas, current
and anticipated delaying factors and their impact, an explanation of corrective action
taken, any newly planned activities, and any proposed logic revisions for a Recovery
Schedule (pursuant to 2.02 of this section). The narrative report shall also include:
13.9.9.1 A description of the actual work accomplished during the reporting period
13.9.9.2 A list of major equipment delivered and/or installed during the reporting period.
13.9.9.3 A list of the total number of workers and hours spent by craft actually engaged in the
work during the reporting period, with such total stated separately as to office,
supervisory, and craft personnel.
13.9.9.4 A list of major equipment remaining to be delivered to the Project Site including the
current availability and anticipated jobsite delivery date.
13.9.9.5 Changes or additions to Contractor's supervisory personnel since the preceding progress
report.
13.9.10 In addition to the above, the Contractor may be required to submit from time to time the
following reports:
13.9.10.1 Critical Items Report: The Contractor shall submit periodically to the Owner a Critical
Items Report identifying items by cause and impact that are, or will, seriously affect the
Contractor's progress or ability to perform work in accordance with the current Contractor
Construction Schedule.
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13.9.10.2 Such reports shall be furnished in sufficient detail to define the cause and potential
impact of any actual or anticipated changes in material or equipment deliveries
(Contractor or owner-furnished manpower, availability, weather conditions, or other items
critical to maintaining the schedule.
13.9.11 Application for Payment: Contractor's monthly Application for Payment will be included
with each Cost Report. Except as provided in Subparagraph 13.11.1, Contractor
understands and agrees that the submission and approval of progress updates and the
receipt of progress reports are an integral part and basic element of the Applications for
Payment; and that Contractor will not be entitled to any progress payment under this
Contract unless Contractor has fully complied with the requirements of this Article 13 and
Article 9 hereof.
13.9.12 Contractor shall be solely responsible for expediting the delivery of all materials and
equipment to be furnished by him so that the progress of construction shall be maintained
according to the currently approved Construction Schedule for the Work. Contractor shall
notify the Construction Program Manager in writing, and in a timely and reasonable
manner, whenever Contractor determines or anticipates that the delivery date of any
material or equipment to be furnished by Contractor will be later than the delivery date
indicated by the Construction Schedule, or required consistent with the completion
requirements of this Contract, subject to schedule updates as herein provided.
13.9.13 Contractor shall ensure that the critical path runs through on-site activities and
that off-site activities do not control the critical path of the Construction Schedule.
13.10 INITIAL PROGRESS PAYMENT
13.10.1 The completed Construction Schedule will be required for each Application for Payment.
However, one initial provisional progress payment may be payable in the sole discretion
of the Construction Program Manager if he determines the Contractor is complying with
this Article 13 during the development of the Construction Schedule as required herein.
However, no more than one Application for Payment will be approved until all of the
requirements of this Article 13 have been met.
13.11 NETWORK REVISIONS
13.11.1 Should the Contractor, after approval of the Initial Project Construction Schedule, desire
to change his plan of Construction, he shall submit his requested revisions to the Owner
along with a written statement of the revisions including a description of the logic for
rescheduling the work, methods of maintaining adherence to intermediate milestones and
Specific Dates and the reasons for the revisions. The Contractor shall revise his Project
Construction Schedule to include the effect of Changes, acts of God or other conditions
or events that have affected the network. If the requested changes are acceptable to the
Owner, the Contractor will incorporate them into the Project Construction Schedule,, in
the next reporting period.
13.11.2 When the Owner orders changes by Change Order which have the potential to impact
the Milestone Dates as set forth in the General and Supplemental Conditions, or as
determined elsewhere in the contract documents, the Contractor shall prepare a Network
(fragnet) and provide it to the Owner for concurrence or revision as the Owner deems
necessary. After the network has been mutually agreed upon, the Contractor will
incorporate it into the Project Construction Schedule. Change Order logic will affect only
those activities and performance dates directly concerned. Adjustments in scheduled
intermediate Completion Dates or for the Contract as a whole, will be considered only to
the extent that there is insufficient remaining float to absorb these changes.
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13.11.3 Any change to the approved Project Construction Schedule must be approved in writing
by the Owner.
13.11.4 Neither the updating or revision of the Project Construction Schedule nor the submission,
updating, change or revision of any report or schedule submitted to the Owner by the
Contractor under this Section nor the Owner's review or concurrence of any such report
or schedule shall have the effect of amending or modifying, in any way, the Contract
Time, any Contract Completion Date, or Contract Milestone Dates or of modifying or
limiting in any way the Contractors obligations under this Contract.
13.12 RECOVERY SCHEDULE
13.12.1 Should the updated Construction Schedule, at any time during Contractor's performance,
show, in the sole opinion of the Construction Program Manager that the Contractor is
fourteen (14) or more days behind schedule for any Specific Date, or in the opinion of the
Owner are in jeopardy, or should Contractor be required to undertake actions under
Paragraph 4.12 hereof, the Contractor shall prepare and submit to the Owner a
supplementary Recovery Schedule at no additional cost to the Owner (unless the Owner
is solely responsible for the event or occurrence which has caused the schedule
slippage), in a form and detail appropriate to the need, explaining and displaying how
Contractor intends to reschedule his Work in order to regain compliance with the Project
Construction Schedule during the immediate subsequent pay period.
13.12.2 The Contractor and Owner shall do the following after determination of the requirement of
a Recovery Schedule:
13.12.2.1 Within three (3) calendar days, the Contractor shall meet with the Owner to present and
review a draft version of the Recovery Schedule. The Recovery Schedule shall represent
the Contractors best judgment as to how he shall reorganize his work so that he may
return to the completion dates indicated in the Project Construction Schedule within the
immediate subsequent pay period.
13.12.2.2 If the Contractor believes that all of the time can be recovered during the subsequent pay
period the Contractor will be permitted to prepare a Recovery Schedule as set forth
below. However, if the Contractor believes it will take more than thirty (30) days to
recover all of the lost time, he shall prepare and submit a request for revision to the
Construction Schedule and comply with all of the requirements of a Schedule Revision as
set forth in this Article 13.
13.12.2.3 The Contractor shall prepare and submit to the Construction Program Manager a
one-month maximum duration Recovery Schedule, incorporating best available
information from Subcontractors and others which will permit return to Construction
Schedule at the earliest possible time. The Contractor shall prepare a Recovery
Schedule to same level of detail as the Construction Schedule for a maximum duration of
one month that shall coincide with the pay period. This Recovery Schedule shall be
prepared in coordination with other separate contractors on the Project.
13.12.2.4 Within two (2) days after submission of Recovery Schedule to the Construction Program
Manager, the Contractor shall participate in a conference with the Construction Program
Manager to review and evaluate the Recovery Schedule. Within two (2) days of
conference, the Contractor shall submit the revisions necessitated by the review for the
Construction Program Manager's review and approval. The Contractor shall use the
approved Recovery Schedule in planning, organizing, directing, coordinating, performing
and executing the Work (including all activities of Subcontractors, equipment vendors and
suppliers) for its one (1) month duration, to return to the Project Construction Schedule.
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13.12.2.5 Contractor shall confer continuously with the Construction Program Manager to assess
the effectiveness of the Recovery Schedule and five (5)-calendar days prior to the
expiration of the Recovery Schedule, the Owner and the Contractor will meet at the job
site for the normal monthly update and to determine the effectiveness of the Recovery
Schedule and to determine whether the Contractor has regained compliance with the
Project Construction Schedule. As a result of this conference and at the direction of the
Owner and the Construction Program Manager, one of the following will happen:
.1 If the Owner and Construction Program Manager determines the Contractor is
still behind schedule, the Construction Program Manager will direct the
Contractor (at the Contractors expense) to prepare a Schedule Revision and
comply with all of the requirements of a Schedule Revision as stated herein and
the other requirements of the Contract Documents; provided, however, that
nothing herein shall limit in any way the rights and remedies of the Owner and
Construction Program Manager as provided elsewhere in the Contract
Documents; or
.2 If the Construction Program Manager determines the Contractor has successfully
complied with provisions of the Recovery Schedule, the Construction Program
Manager will direct the Contractor to return to the use of the approved
Construction Schedule.
13.13 SCHEDULE REVISIONS
13.13.1 Should Contractor desire to or be otherwise required under the Contract
Documents to make modifications or changes in his method of operation, his sequence of
Work or the durations of the activities in his Construction Schedule, he shall do so in
accordance with the requirements of this Article 13 and the Contract Documents.
Revisions to the approved Construction Schedule must be approved in writing by the
Construction Program Manager.
13.13.2 Contractor shall submit requests for revisions to the Construction Schedule to the
Construction Program Manager, together with written rationale for revisions and
description of logic for rescheduling work and maintaining the Specific Dates listed in the
Contract Documents. Proposed revisions acceptable to the Construction Program
Manager and Owner will be incorporated into next update of Construction Schedule.
Contractor shall pay the Owner for costs incurred by the Construction Program Manager
for the revisions.
13.13.3 If there are separate contractors on the Project, prior to the submission by the
Contractor of his proposed schedule revisions, he shall meet with and gain written
approval of the separate contractors to make the revisions which shall be evidenced by
the signatures of said separate contractors on the proposed schedule revisions. If
accepted by the Construction Program Manager and Owner the revisions shall be binding
upon Contractor and all separate contractors on the Project.
13.13.4 In submitting any proposed schedule revisions to the Construction Program
Manager, Contractor shall submit therewith the following certification:
13.14 FLOAT TIME
13.14.1 Float or slack time associated with one chain of activities is defined as amount of
time between earliest start date and latest start date or between earliest finish date and
latest finish date for such activities, as calculated as part of the Construction Schedule.
Float or slack time shown on the Construction Schedule is not for exclusive use or benefit
of either the Owner or the Contractor and is available for use by either of them according
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to whichever first needs the use or benefit of the float to facilitate the effective use of
available resources and to minimize the impact of Project problems, delays or Changes
in the Work which may arise during performance. Contractor specifically agrees that float
time may be used by the Owner or Construction Program Manager in conjunction with
their review activities or to resolve Project problems. Contractor agrees that there will be
no basis for any modification of the Specific Dates or an extension of the Contract Time,
or a claim for additional compensation as a result of any Project problem, Change Order
or delay which only results in the loss of available positive float on the Construction
Schedule.
13.14.2 Float time shown on the Construction Schedule shall not be used arbitrarily by
Contractor in a manner which, in the opinion of the Construction Program Manager,
unnecessarily delays separate contractors from proceeding with their work in a way
which is detrimental to the interests of the Owner. If Contractor refuses to perform Work
which is available and necessary to be performed in order to not delay any separate
contractors, the Owner may, regardless of the float shown on the Construction Schedule
to be available for the path of activities which encompasses said Work, terminate the
Contractor for default pursuant to Paragraph 14.3 hereof.
13.15 REQUESTED TIME ADJUSTMENT SCHEDULE
13.15.1 The Updated Project Construction Schedule submitted by Contractor shall not show a
completion date later than the Contract Time, subject to any time extensions approved by
Owner; provided, however, that if the Contractor believes he is entitled to an extension of
the Contract Time under the Contract Documents, the Contractor shall submit to the
Owner, with each progress payment update, a separate schedule analysis (entitled
³5HTXHVWHG 7LPH $GMXVWPHQW 6FKHGXOH LQGLFDWLQJ VXJJHVWHG DGMXVWPHQWV LQ WKH
Contract Time which should, in the opinion of Contractor, be made In accordance with
the contract Documents by time extension, due to changes, delays or conditions
occurring during the past month or previously, or which are expected or contemplated by
Contractor (whether such conditions are excusable under the Contract or are alleged to
be due to Contractor or Owner fault), this separate schedule, if submitted, shall be time-
scaled utilizing a computer generated and computer drawn network analysis schedule,
unless otherwise approved by the Owner and shall be accompanied or preceded by a
formal time extension request as required by the Contract and a detailed narrative
justifying the time extension requested.
The network analysis should include all of the related activities that have led the
Contractor to believe that they have been delayed. The Requested Time Adjustment
Schedule should indicate where the delay began and ended, and where activities could
not start because of the delay. If a delay occurred, but the schedule indicates that the
predecessor activity could not have begun due to some other delay, then this would not
be a cause for requesting a time extension for that particular instance. If a delay
occurred, and some of the successor work was able to start, then this would be
considered a partial delay, which may or may not be a cause for a time extension.
13.15.2 The time extension request shall include schedule forecasts that predict the actual
Project Completion Date, and any separable portions thereof specified by the Owner plus
a forecast of the actual achievement of any milestones listed in the Contract Agreement.
13.15.3 To the extent any time extension requests are pending at the time of any update in the &RQVWUXFWLRQ 6FKHGXOH WKH ³5HTXHVWHG 7LPH $GMXVWPHQW 6Fhedule" shall also be
updated each month, to reflect any adjustments made by Contractor in the logic,
sequence or duration of any activities In the Instruction Schedule, or any time extensions
previously granted by Owner, and to reflect actual or expected progress, in order that the
Attachment number 1
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GENERAL CONDITIONS
General Conditions of the Contract for Construction
00 72 00-107
³5HTXHVWHG 7LPH $GMXVWPHQW 6FKHGXOH´ VKDOO FOHDUO\ DQG DFFXUDWHO\ UHIOHFW WKH&RQWUDFWRU¶VDFWXDOLQWHQWLRQDQGSURSRVHGWLPHDGMXVWPHQWVDVRIWKHODWHVWXSGDWH
13.15.4 The Owner shall have no obligation to consider any time extension request unless the
requirements of the Contract Documents, and specifically, but not limited to these
requirements, are complied with; and the Owner shall not be responsible or liable to
Contractor for any constructive acceleration due to failure of the Owner to grant time
extensions under the Contract Documents should the Contractor fail to substantially
comply with the submission requirements and the justification requirements of this &RQWUDFWIRUWLPHH[WHQVLRQUHTXHVWV7KH&RQWUDFWRU¶VIDLOXre to perform in accordance
with the Project Construction Schedule shall not be excused, nor be chargeable to the 2ZQHUEHFDXVHWKH&RQWUDFWRUKDVVXEPLWWHGWLPHH[WHQVLRQUHTXHVWVRUWKH³5HTXHVWHG
7LPH$GMXVWPHQW6FKHGXOH´
13.16 COORDINATION
13.16.1 Not Used
13.16.2 Not Used.
13.16.3 The failure of the Owner-furnished equipment and materials to arrive as scheduled, or the
failure of other Construction Contractors to meet their schedule, shall not be justification
for an extension of time, except where such failure causes, in the opinion of the Owner,
an unreasonable delay In the Contractors work, in which case the provisions of the
General Conditions regarding extensions of time and extra work shall apply.
13.16.4 The Contractor shall keep himself, and his Subcontractors, advised at all times during the
course of the work regarding the delivery status of the Owner-furnished equipment and
materials and of the progress of construction work being performed under separate
contracts.
13.16.5 The Owner will, upon written request by the Contractor, furnish information that may be
available to the Owner.
13.17 CONTRACTOR'S ORGANIZATION
13.171 Contractor shall maintain as part of his organization, or hire a Subcontractor with, a
competent staff of sufficient size who are knowledgeable in the use, application of
Scheduling Application and implementation of CPM as required by the Contract
Documents. It shall be the responsibility of this staff to prepare input information for the
Project Construction Schedule, monitor progress, provide input for updating and revising
logic diagrams when necessary and otherwise assist the Contractor in fulfilling his
obligations hereunder.
13.18 CONTRACTOR COVENANTS AND GUARANTEES
13.18.1 The Contractor covenants and guarantees that the Contractor will not:
13.18.1.1 Misrepresent to the Owner its planning scheduling or execution of the work.
13.18.1.2 Utilize schedules materially different from those made available by the Contractor to the
Owner or any Subcontractor or separate the Contractors for the directions execution and
coordination of the Work, or which are not feasible or realistic.
13.18.1.3 Prepare schedules, updates, revisions or reports for the work which do not accurately
reflect the actual intent or reasonable and actual expectations of Contractor and its
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GENERAL CONDITIONS
General Conditions of the Contract for Construction
00 72 00-108
Subcontractor as to: (1) the sequences of activities; (2) the duration of activities; (3) the
responsibility of activities; (4) resources availability; (5) labor availability or efficiency; (6)
foreseeable weather conditions; (7) the value associated with the activity; (8) the
percentage complete of any activity; (9) completion of any item of work or activity; (10)
SURMHFW PLOHVWRQH FRPSOHWLRQ GHOD\V VOLSSDJH¶V RU SUREOHPV HQFRXQWHUHG RU
expected; (12) subcontractor requests for time extensions or delay claims of
Subcontractors; and (13) if applicable, the float time available.
13.18.2 7KH &RQWUDFWRU¶V IDLOXUH WR VXEVWDQWLDOO\ FRPSO\ ZLWK WKH IRUHJRLQJ FRYHQDQW DQG
guarantee shall be a substantial and material breach of contract which will permit the
Owner to terminate the Contract for default, or withhold payments under the Contract
Documents, and shall entitle the Owner to the damages afforded for misrepresentation or
fraud by these Contract documents or applicable law.
13.18.3 Should the Contractor fail to substantially comply with the provisions of the Contract
documents relating to planning and scheduling the work by the Project Construction
Schedule, and the Owner shall have the right, at their option, to retain the services of
scheduling consultants or experts (including attorneys if necessary, in their opinion) to
prepare a schedule in accordance with the Contract Documents and to review and
analyze same, in order to allow the Owner to evaluate the program of the Work by the
Contractor, to determine whether the Contractor is substantially complying with the
contract Documents, and to direct such action on the part of the Contractor, as permitted
by the Contract Documents, as required to ensure, undeUWKH2ZQHU¶VVFKHGXOHSUHSDUHG
hereunder, that the Contractor will comply with such schedule. All costs incurred by the
Owner in preparing the schedule hereunder shall be charged to the Contractor's account,
If the Contractor fails to substantially comply with the scheduling and execution of the
work requirements of the Contract Documents, the Contractor hereby agrees, in such
instance, to comply with such schedules, as the Owner, develops, or directions, and
DFWLYLW\ VHTXHQFHV DQG GXUDWLRQ¶V DV WKH 2ZQHU may reasonably require, without
additional cost to the Owner (subject only to cost adjustments for such changes in the
work as the Owner may direct), to ensure completion within the Contract Time.
13.19 DEFAULT
13.19.1 Failure of the Contractor to substantially comply with the requirements of this Article 13
shall constitute a default by Contractor of his obligations under this Contract sufficient for
termination of Contractor under Paragraph 14.3 of this Contract.
ARTICLE 14
TERMINATION OF THE WORK
14.1 TERMINATION DUE TO WORK STOPPAGE
14.1.1 If the Work is stopped for a period of one hundred twenty (120) days or more
under an order of any court or other public authority having jurisdiction, or as a result of
an act of government, such as a declaration of a national emergency making materials
unavailable, and the Work stoppage is not due in any way to any act or fault of Contractor
or a Subcontractor or his agents or employees or any other persons performing any of
the Work under a contract with the Contractor, then the Owner or Contractor may, upon
seven (7) days' written Notice to the other party, terminate the Work. In such case,
Contractor may recover from the Owner payment, on a quantum merit basis, for all Work
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GENERAL CONDITIONS
General Conditions of the Contract for Construction
00 72 00-109
executed to the date of termination. The Contractor shall not be entitled to collect and
hereby expressly waives, any profit on Work not performed and any damages related to
that portion of the Contract which has been terminated.
14.2 TERMINATION FOR CONVENIENCE OF THE OWNER
14.2.1 The Owner may, at any time upon ten (10) days' written Notice to the Contractor
and Contractor's surety, which Notice shall specify that portion of the Work to be
terminated and the date said termination is to take effect, terminate (without prejudice to
any right or remedy of the Owner) the whole or any portion of the Work for the
convenience of the Owner. The Contractor's sole remedy, in the event of such
termination, will be the allowable termination costs permitted by Paragraph 14.4.
14.3 DEFAULT TERMINATION
14.3.1 The Owner may, upon ten (10) days' written Notice to the Contractor, terminate
(without prejudice to any right or remedy of the Owner and Contractor's Surety, or any
subsequent buyer of any portion of the Work) the Work of Contractor and his right to
proceed either as to the whole or any portion of the Work required by the Contract
Documents; and Owner may take possession of the Work and complete the Work by
contract or otherwise in any one of the following circumstances:
.1 If the Contractor refuses or fails to prosecute the Work or any separable part
thereof with such diligence as will ensure the completion of the Work by the
Specific Dates or within the Contract Time;
.2 If the Contractor is in material default in carrying out any provisions of the
Contract for a cause within his control;
.3 If the Contractor fails to supply a sufficient number of properly skilled workmen or
proper equipment or materials that will ensure timely completion of the Work, or
any portion thereof by any Specific Date;
.4 If the Contractor fails to make prompt payment to Subcontractors or
Sub-Subcontractors or to Suppliers for materials or labor, unless he otherwise
provides the Owner satisfactory evidence that payment is not legally due;
.5 If the insolvency, bankruptcy or financial condition of Contractor will hinder or
impede the Contractor's fulfillment of all contractual obligations, including
completion by the Specific Dates and the Contract Time;
.6 If the Contractor disregards laws, permits, ordinances, codes, rules, regulations
or orders of any public authority having jurisdiction, or fails to follow the
instructions of the Owner or Construction Program Manager;
.7 If the Contractor refuses or fails to properly schedule, plan, coordinate and
execute the Work as specified herein, so as to perform the Work within the
Specific Dates or Contract Time, or to provide scheduling or related information,
revisions and updates as required by Article 13 and the Contract Documents; or
.8 If the Contractor substantially or materially violates any provision of the Contract
Documents.
14.3.2 The right of the Contractor to proceed shall not be so terminated under this
Paragraph 14.3 because of any delays in the completion of the Work due to
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General Conditions of the Contract for Construction
00 72 00-110
unforeseeable causes beyond the control and without the fault or negligence of the
Contractor or his Subcontractors as specifically set forth in Subparagraph 8.3.5 hereof.
14.3.3 If, after the Contractor has been terminated for default pursuant to Paragraph
14.3, it is determined by Construction Program Manager that none of the circumstances
set forth in Subparagraph 14.3.1 exist, then such termination shall be considered a
termination for convenience pursuant to Paragraph 14.2. In such case, the Contractor's
sole remedy will be the costs permitted by Paragraph 14.4.
14.3.4 If the Owner so terminates the employment of the Contractor, the Contractor
shall not be entitled to receive any further payment until the Work is finished by
Contractor's surety or others. If the unpaid balance of the compensation to be paid to the
Contractor hereunder shall exceed the expense of so completing the Work (including
additional compensation for managerial, administrative and inspection services, or for the
Construction Program Manager or Design Consultant, and any damages for delay), such
excess shall be paid to the Contractor.
14.3.5 If such expenses shall exceed the unpaid balance, the Contractor and his surety
shall be liable to the Owner for such excess. If the right of the Contractor to proceed with
the Work is partially or fully terminated, the Owner may take possession of and utilize in
completing the Work such materials, appliances, supplies, plant and equipment as may
be on the site of the terminated portion of the Work and necessary for the completion of
the Work. If the Owner does not fully terminate the right of the Contractor to proceed, the
Contractor shall continue to perform the part of the Work that is not terminated.
14.4 ALLOWABLE TERMINATION COSTS
14.4.1 If the Owner terminates the whole or any portion of the Work pursuant to
Paragraph 14.2 then the Owner shall only be liable to the Contractor for those amounts
payable to the Contractor in accordance with Subparagraph 14.4.2, plus a markup of up
to ten percent (10%) for profit and overhead on the actual fully accounted costs
recovered under Subparagraph 14.4.2; provided, however, that if the Construction
Program Manager determines that Contractor would have sustained a loss on the entire
Contract had it been completed, no markup shall be included or allowed hereunder and
an appropriate adjustment shall be made reducing the amount of the settlement to reflect
the indicated rate of loss.
14.4.1.1 After receipt of a Notice of Termination, the Contractor shall submit to the Owner his
termination claim, in the form and with certification prescribed by the Owner. Such claim
shall be submitted promptly but in no event later than ninety (90) days from the effective
date of termination, unless extensions are granted in writing by the Owner upon request
by the Contractor; any request by Contractor for an extension shall be made in writing
within such ninety (90) day period or any authorized extension thereof. However, if the
Owner determines that the facts justify such action, he may, in his sole discretion, receive
and evaluate any such termination claim at any time after such ninety (90) day period or
any extension thereof. Upon failure of the Contractor to submit his termination claim
within the time allowed, the Owner and Construction Program Manager may determine,
on the basis of information available to them, the amount, if any, due to the Contractor by
reason of the termination shall be binding on Contractor as to the full and total costs due
Contractor under this Article 14.
14.4.1.2 The Construction Program Manager shall: (1) update the Contractor's last Application for
Payment to the date of termination and determine the percentage complete for each item
of the Work so terminated; (2) determine the amount earned by Contractor pursuant to
the Cost Loaded Schedule based upon the percentage complete for each item; and (3)
certify to the Owner the amounts due Contractor pursuant to the Contract Documents.
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General Conditions of the Contract for Construction
00 72 00-111
14.4.2 If the Owner terminates the whole or any portion of the Work pursuant to
Paragraph 14.2, the Owner shall pay the Contractor the amounts determined by the
Construction Program Manager as follows:
.1 An amount for supplies, services, or property accepted by the Owner pursuant to
Subparagraph 14.5.1.6 or sold pursuant to Subparagraph 14.5.1.7 and not
heretofore paid for by Owner, and to the extent provided in the Contract such
amount shall be equivalent to the aggregate price for such supplies or services
computed in accordance with the price or prices specified in the Contract,
appropriately adjusted for any saving of freight or other charges and any savings
or benefit obtained by Contractor should Contractor acquire same under
Subparagraph 14.5.1.7; and
.2 The total of: (1) The amount certified by the Construction Program Manager
pursuant to Subparagraph 14.4.1.2, but exclusive of any costs attributable to
supplies or services paid or to be paid for under Subparagraphs 14.4.2.1 or
14.4.2.2; (2) The cost of settling and paying claims arising out of the termination
of Work under subcontracts or orders, pursuant to Subparagraph 14.5.1.5, which
are properly chargeable to the terminated portion of the Work (exclusive of
amounts paid by Owner or payable on account of completed items of equipment
delivered or services furnished by Subcontractors or Suppliers prior to the
effective date of the Notice of termination), which amounts shall be included in
the costs payable under (1) above; and (3) The reasonable costs of settlement,
including accounting, legal, clerical and other expenses reasonably necessary for
the preparation of settlement claims and supporting data with respect to the
terminated portion of the Work and for the termination and settlement of
subcontracts and purchase orders thereunder, together with reasonable storage,
transportation and other costs incurred in connection with the protection or
disposition of property allocatable to the Contract.
.3 However, the Owner will not be liable to the Contractor or any of his
Subcontractors, Sub-subcontractors or Suppliers for any costs associated with
termination if the subcontract or purchase order of the party seeking
compensation does not include the proper termination clauses.
14.4.3 In arriving at any amount due the Contractor pursuant to Paragraph 14.4. there
shall be deducted the following:
.1 All amounts paid to Contractor under this Contract to the date of termination or
thereafter;
.2 Any claim which the Owner, Construction Program Manager, Design Consultant,
utility owner or separate contractor may have against the Contractor;
.3 Such amount as the Construction Program Manager determines to be necessary
to protect the Owner against loss because of outstanding or potential liens or
claims;
.4 The agreed price for, or the proceeds of sale of, any materials, supplies or other
things acquired by the Contractor or sold, pursuant to the provisions of
Subparagraph 14.5.1.7, and not otherwise recovered by or credited to the
Owner; and
.5 Any amount which the Owner may withhold or which is otherwise payable or due
Owner pursuant to the Contract Documents.
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GENERAL CONDITIONS
General Conditions of the Contract for Construction
00 72 00-112
14.4.4 The total sum to be paid to the Contractor under this Paragraph 14.4 shall not
exceed the Contract Sum as reduced by the amount of payments otherwise made or to
be made for Work not terminated and as otherwise permitted by this Contract. Except for
normal spoilage, and except to the extent that the Owner shall have otherwise expressly
assumed the risk of loss, there shall be excluded from the amounts payable to the
Contractor, as provided in Subparagraph 14.4.2, the fair value, as determined by the
Construction Program Manager, of property which is destroyed, lost, stolen or damaged
so as to become undeliverable to the Owner, or to a buyer pursuant to Subparagraph
14.5.1.7.
14.4.5 If the Owner terminates the whole or any part of the Work pursuant to Paragraph
14.3, then the Owner may procure, upon such terms and in such manner as the
Construction Program Manager may deem appropriate, supplies or services similar to
those so terminated, and the Contractor shall be liable to the Owner for any excess costs
for such similar supplies or services. The Contractor shall continue the performance of
the Contract to the extent not terminated hereunder.
14.5 GENERAL TERMINATION PROVISIONS
14.5.1 After receipt of a Notice of termination from the Owner, pursuant to Paragraph
14.2 or 14.3, and except as otherwise directed by the Construction Program Manager,
the Contractor shall:
.1 Stop Work under the Contract on that date and to the extent specified in the
Notice of termination;
.2 Place no further purchase orders or enter into any subcontracts for materials,
services or facilities, except as may be necessary for completion of such portion
of the Work under the Contract as is not terminated;
.3 Terminate all purchase orders and subcontracts to the extent that they relate to
the performance of Work terminated by the Notice of termination;
.4 At the option of the Owner and the Construction Program Manager, assign to the
Owner in the manner, at the times and to the extent directed by the Construction
Program Manager, all rights in purchase orders and subcontracts;
.5 Settle all outstanding liabilities and all claims arising out of such termination or
orders and subcontracts, with the approval or ratification of the Construction
Program Manager, to the extent he may require, which approval or ratification
shall be final for all the purposes of this Article 14;
.6 Transfer title and deliver to the entity or entities designated by the Owner, in the
manner, at the times and to the extent directed by the Construction Program
Manager to the extent specifically produced or specifically acquired by the
Contractor for the performance of such portion of the Work as had been
terminated, the following: (1) The fabricated or unfabricated parts of the Work in
process, partially completed supplies and equipment, materials, parts, tools, dies,
jigs and other fixtures, completed Work, supplies and other material produced as
part of, or acquired in connection with the performance of the Work terminated by
the Notice of termination; and (2) The completed or partially completed plans,
drawings, information, releases, manuals and other property related to the Work
and which, if the Contract had been completed, would have been required to be
furnished to the Owner;
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General Conditions of the Contract for Construction
00 72 00-113
.7 Use his best efforts to sell, in the manner, at the times, to the extent and at the
price or prices directed or authorized by the Construction Program Manager, any
property of the types referred to in Subparagraph 14.5.1.6; provided, however,
that the Contractor: (1) Shall not be required to extend credit to any buyer; and
(2) May acquire any such property under the conditions prescribed by and at a
price or prices approved by the Construction Program Manager; and provided
further that the proceeds of any such transfer or disposition shall be applied in
reduction or any payments to be made by the Owner to the Contractor under the
Contract or shall otherwise be credited to the Contract Sum covered by the
Contract or paid in such other manner as the Construction Program Manager
may direct;
.8 Complete performance of such part of the Work as shall not have been
terminated by the Notice of termination; and
.9 Take such action as may be necessary, or as the Construction Program Manager
may direct, for the protection and preservation of the property related to the
Contract which is in the possession of the Contractor and in which the Owner has
or may acquire an interest.
14.5.2 The Contractor shall, from the effective date of termination, preserve and make
available to the Owner, at all reasonable times at the office of the Contractor, but without
cost to the Owner, all his books, records, documents and other evidence bearing on the
costs and expenses of the Contractor under this Contract as required by Paragraph 3.7
hereof.
14.5.3 If the termination, pursuant to Paragraph 14.2, is partial, the Contractor may file
with the Construction Program Manager a claim for a Change Order, to the extent he
believes a Change has occurred in the continued portion of the Work (the portion not
terminated by the Notice of termination) as a result of said termination. Any claim by the
Contractor for a Change Order under this Subparagraph 14.5.3 must be completely
itemized and asserted in writing within ninety (90) days from the effective date of the
Notice of termination; otherwise said claim is waived by Contractor.
14.5.4 The Contractor shall refund to the Owner any amounts paid by the Owner to the
Contractor in excess of amounts reimbursable under Paragraph 14.4.
14.5.5 The Owner may, at his option and at the Contractor's expense, have costs
claimed to be reimbursable under Paragraph 14.4 audited and certified by independent
certified public accountants selected by the Owner.
14.5.6 The Contractor shall be entitled to only those damages and that relief from
termination by the Owner as specifically provided in this Article 14.
14.5.7 Contractor shall include termination clauses identical to this Article 14 in each of
his subcontracts and his principal Purchase Orders.
14.5.8 Termination of all or any portion of Contractor's Work does not terminate this
Contract, but only Contractor's performance thereunder for the Work terminated.
Contractor shall remain liable to Owner for all obligations, responsibilities, duties and
warranties not extinguished as a result of said termination pursuant to the Contract
Documents or by operation of law.
END OF GENERAL CONDITIONS
Attachment number 1
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SUPPLEMENTAL CONDITIONS
Supplemental Conditions of the Contract for Construction
00 73 00-1
SUPPLEMENTAL CONDITIONS
1.01 INTERRUPTION OF UTILITIES
A. Work shall be scheduled to avoid, as much as possible, interference with the normal
operation of the building(s). Preservation of power at the detention center is vital.
The Contractor shall give written notice to the Owner at least ten (10) calendar days
in advance of all dates on which he wishes to interrupt power, phones, gas or water
service for greater than 1 hour. Upon receipt of the request, the Owner will review
the request and submit a written response, identifying acceptable date(s) and
time(s). Power shall not be interrupted without a written response from the Owner,
specifically approving the temporary outage, at the designated time and for the
designated duration. The Owner reserves the right to disallow any and all power
outages.
B. 7KH&RQWUDFWRUGRHVQRWUHTXLUHWKH2ZQHU¶VSHUPLVVLRQWRLQWHUUXSWXWLOLWLHVLn the
event of an emergency affecting the safety of property, health or life.
1.02 PROTECTION OF EXISTING PROPERTY
A. Protection of Roadways, Sidewalks, and Property Surfaces:
1. The Contractor shall repair and clean roadway, sidewalk and property
surfaces located outside constructions limits free of dirt and mud where
caused by conveyance of construction and demolition materials, equipment
and personnel to and from the construction site. Contractor shall notify the
Owner for his review of a written schedule, by which the Contractor shall
perform corrective and clean-up work. Work shall be done at no additional
expense to the Owner.
2. The Contractor shall be responsible for damage to property and persons that
result from work inside and outside the construction limits. The Contractor
shall promptly correct damages that create health, safety or property danger.
1.03 DETENTION CENTER OPERATIONS
A. The existing detention center must be kept physically secure at all times, and
all work impacting existing security fencing and other detention/security
systems must QRWFRPSURPLVHRUGHFUHDVHWKHIDFLOLW\¶VVHFXULW\V\VWHPV
Security shall be maintained continuously operational and unimpaired 24
hours a day, 7 days a week. Any Work potentially impacting the facility
security shall not be undertaken without written consent of the Owner. Owner
shall be notified, in writing, at least 72 hours prior to any such proposed
Work.
B. 7KHQDPHVDQGDGGUHVVHVRIDOORI&RQWUDFWRU¶VHPSOR\HHVDQG
6XEFRQWUDFWRU¶VHPSOR\HHVPXVWEHVXEPLWWHGWR2Zner in advance of
performing any Work at the jobsite. The Owner will screen them and reserves
the right to disallow any worker, at the time of screening or later, than is
deemed to be a security risk.
Attachment number 1
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SUPPLEMENTAL CONDITIONS
Supplemental Conditions of the Contract for Construction
00 73 00-2
C. :RUNHU¶VVKDOOQRWFRPHLQWRFRQWDFWZLWKQRUFRQYHUVH with detention center
prisoners.
D. :RUNHU¶VHQWHULQJVHFXUHDUHDVZLOOEHVXEMHFWWRSDWGRZQVDQGLQVSHFWLRQV
of their belongings.
1.04 TRASH DISPOSAL
A. The Contractor shall avoid trash accumulation and shall remove same from
the site at the close of each working day. All building material and trash shall
EHGLVSRVHGRIRIIWKH2ZQHU¶VSURSHUW\
B. Burning of material on the site will not be permitted.
1.05 DRAWINGS
A. Except where dimensions are shown, the drawings are diagrammatic and
shall not be scaled. Exact location of fixtures, apparatus, and piping shall be
determined by dimensions on the site.
1.06 DEMOLITION
A. $OOPDWHULDOVLQGLFDWHGWREHUHPRYHGVKDOOEHGLVSRVHGRIRIIWKH2ZQHU¶V
properly, In accordance with all laws and regulations.
B. The use of explosives will not be permitted unless prior written permission
from the Owner has been obtained.
C. The amount of dust resulting from the operations shall be controlled to
prevent the spread of dust to avoid cleaning of a nuisance in the surrounding
area.
D. Proposed procedures for the accomplishment of demolition work shall be
submitted in writing to the Owner for approval. Procedures shall provide for
safe conduct of the work, careful removal and disposition of materials,
protection of property which is to remain undisturbed and coordination with
other work in progress. Submittal shall include a detailed description of the
methods and equipment to be used for each operation, and the sequence of
operations.
1.07 PROTECTION
A. Protection of personnel: Utilize safety barricades where the safety of
pedestrians and/or vehicle drivers are endangered by the work area. safety
barricades shall be used.
1.08 VEHICLE PARKING REGULATIONS
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SUPPLEMENTAL CONDITIONS
Supplemental Conditions of the Contract for Construction
00 73 00-3
A. Designated Parking Areas: The Contractor must park all vehicles inside the
designated construction area. The Contractor is responsible for transporting
his employees to and from the job site from off site staging areas.
1.09 STREET ADDRESS
A. For purposes of utility work, the street address of this project is:
1941 Phinizy Road, Augusta, GA 30906
1.10 SITE LIMITATIONS
A. &RQVWUXFWLRQDQGVWDJLQJDUHOLPLWHGWRWKHDUHDVZLWKLQWKH³/LPLWVRI)HQFHG&RQVWUXFWLRQ$UHD´LQGLFDWHGRQWKHGUDZLQJV
1.11 ACCESS TO SITE BY PERSONNEL OF OWNER
A. The Contractor agrees that mechanics, electricians, and maintenance
personnel of the Owner may enter onto the site during the progress of the
work for the purpose of maintaining existing facilities, and for the purpose of
taking emergency measures necessary to preserve life of property. The
Contractor shall have the right to exclude from the site any mechanic or
maintenance personnel who undertakes to enter without a hard hat or who
violates any of the safety regulations imposed by the U.S. Department of
Labor, OSHA, by the Contractor, by law, or by the State Commissioner of
Labor.
1.12 CODE AND STANDARDS
A. The Codes and Standards referred to are minimum standards. Where the
requirements of these specifications and the accompanying drawings exceed
those of the Codes and Standards, the drawings and specifications shall be
followed.
1.13 WEB BASED PROJECT MANAGEMENT/COMMUNICATIONS SYSTEM
a. The Contractor, Construction Program Manager and Design Consultant shall
XWLOL]HWKHSURMHFW¶V,QWHUQHW:HE-based project management communication
system (PMCCS) to manage and facilitate project organization and
communication. Use of this system, which will be administered by the Construction
Program Manager, will not replace or change any contractual responsibilities of the
construction team members.
b. $VDPLQLPXP&RQWUDFWRU¶V Superintendent and Project Manager shall have
access to the Internet and an Internet e-mail address in order to communicate with
various project team members via the PMCCS. The Contractor is encouraged to
make the PMCCS available to primary subcontractors. The Contractor shall
provide, within 5 calendar days of Notice to Proceed, the names of companies and
contacts, positions, mailing addresses and e-mail addresses to the Construction
Program Manager.
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SUPPLEMENTAL CONDITIONS
Supplemental Conditions of the Contract for Construction
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c. All costs for the temporary licenses to use the PMCCS database for the
Contractor, Subcontractors and his/her consultants shall be paid by the Contractor.
The Contactor shall include an allowance of $1000 per person per year, for such
licensing, and $1000 per company for training.
d. The following documents, as a minimum shall be generated and distributed via
the PMCCS:
i. Requests For Interpretation (RFI¶V)
ii. AUFKLWHFW¶VSXSSOHPHQWDO,QIRUPDWLRQ $6,¶V
iii. 5HTXHVWVIRU4XRWDWLRQ 5)4¶V
iv. &KDQJH2UGHU3URSRVDOV &23¶V
v. Change Orders
vi. Submittal Log
vii. Daily Reports
viii. Meeting minutes and agendas
ix. Applications for Payment
x. Project schedules
1.14 COMMISSIONING CONSULTANT
A. The Owner has contracted with a Commissioning Consultant, who will be
performing professional building commissioning services for the Project. The
Contractor will be required to coordinate the Work and cooperate with the
&RPPLVVLRQLQJ&RQVXOWDQW¶VHIIRUWV7KHVFRSHRIFRPPLVVLRQLQJVHUYLFHVLV
described in Section 01 91 13, and in the Technical Specifications.
1.15 SPECIAL INSPECTIONS
A. The Owner will contract with a Special Inspections and Construction
Materials Testing firm to provide those services, as specified in the Contract
Documents.
1.16 DOCUMENTS REQUIRED PRIOR TO FINAL PAYMENT
A. The following documents required prior to final payment, shall be delivered by the
Contractor to the Owner, in the quantities indicated prior to final inspection of
work:
1. Non-Influence Affidavit, 4 copies
2. Statutory Affidavit, 4 copies
3. Written notice of readiness for final inspection
4. Operating and Maintenance Data and Instructions
B. Submittals as required by Section 01 70 00, Project Closeout.
1.17 LIQUIDATED DAMAGES
A. Kitchen: The Webster Detention serves three hot meals a day (every day) to inmates, all
prepared from the central kitchen. During kitchen renovation work, preparation of meals
will be suspended, during which time an outside vendor will be hired to provide meals.
The net cost of this service is projected to be $3000 per day. Jail Administration has
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SUPPLEMENTAL CONDITIONS
Supplemental Conditions of the Contract for Construction
00 73 00-5
budgeted a 30 (consecutive) day suspension of kitchen operations. The Contractor will
be assessed liquidated damages of $3000 per day for each calendar day in excess of 30
days, during which the kitchen is not Substantially Complete, as deemed by the Architect.
B. Balance of Project: In order to avoid liquidated damages, the overall project shall be
Substantially Complete within 665 calendar days of the Notice to Proceed date.
Liquidated damages in the amount of $2000 per day will be assessed for each calendar
day in excess of 665 days. The 665 days shall include built-in inclement weather days as
noted herein.
1.18 INCLEMENT WEATHER DAYS
A. For the purposes of preparing project schedules, planning the Work, and achieving the
Date of Substantial Completion, the ContractRUVKDOOLQFOXGHD³QRUPDO´QXPEHURI
Inclement Weather Days, until such time as the buildings become enclosed. Inclement
Weather Days are defined as any day, Monday though Friday, where the amount of rain,
DVPHDVXUHGDW$XJXVWD¶V$LUSRUW %XVK)LHOG H[Feeds .10 inches in 24 hours; or the
temperature fails to climb above 40 degrees F, in a 24-KRXUSHULRG$³QRUPDO´QXPEHULV
defined as the following, as determined by analysis of historical meteorological data for
Augusta Georgia:
January 9 days February 8 days
March 6 days April 5 days
May 4 days June 3 days
July 3 days August 3 days
September 2 days October 3 days
November 4 days December 8 days
END OF SUPPLEMENTAL CONDITIONS
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Item # 2
Public Safety Committee Meeting
10/27/2008 12:15 PM
Transfer of 911 Unreserved Funds – Logging Recorder
Department:Augusta 9-1-1 Center
Caption:Motion to approve a request for transfer of funds from 9-1-1 Fund Balance
Unreserved to 2008 9-1-1 Operating Budget for purchase of a replacement
Logging Recorder.
Background:The current logging recorder system was purchased from Dictaphone
Recording Systems in 2002. In 2004, Nice Recording Systems bought out
the Public Safety Sector Recording Systems of Dictaphone, which includes
the system the 9-1-1 Center is using. Nice Recording Systems has been
maintaining the recorder for the last few years; however, they will not
continue to support it after this year. This logging recorder system is
mandated equipment for a 9-1-1 System, and is also a standard of NFPA
(National Fire Protection Association) and is part of the fire rating system
for insurance purposes. The recordings are also subpoenaed regularly by
State Court, Superior Court and Civil Court, as well as other entities and as
such considered evidence in various types of cases.
Analysis:: It is necessary that the system be fully operational and dependable which is
not the case with the current recorder. We have had to replace two hard
drives recently; a workstation interface; and various other components. The
current maintenance contract and SMA for the system is expired and a one
year extension of this agreement would cost 1/3 to 1/2 the cost of a new
system. The best approach is to bid for a new logging recorder system and
related maintenance agreements keeping in mind that the first year
maintenance should be covered by purchase of the new equipment. Bid
specifications have already been drafted for submission to the Procurement
Department with the caveat that no commitment will be made until proper
approval is given by the Augusta-Richmond County Commission.
Financial Impact:The cost for replacement of the logging recorder should not exceed $80,000
and the 9-1-1 Fund Balance Unreserved has more than substantial funds to
cover this cost.
Alternatives:
Recommendation:Approve the transfer of $80,000 for the logging recorder system.
Funds are Available in
the Following
Accounts:
Funds are available in the 9-1-1 Fund Balance Unreserved.Cover Memo
Item # 3
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Cover Memo
Item # 3
Public Safety Committee Meeting
10/27/2008 12:15 PM
Transfer of 911 Unreserved Funds – Monitors
Department:Augusta 9-1-1 Center
Caption:Motion to approve the transfer of 911 Unreserved Funds to 2008 Operating
Budget for purchase of computer monitors.
Background:The current computer monitors at each console position have been in use
since 2004. They were part of an upgrade of the workstations at the Center
during this time and a transition from CRT type monitors to flat screen
monitors. In 2006 the Central Processing Units (CPU’s) in use at each
console was replaced due to the intense use in a 24/7 environment, however,
there was not a need to replace the monitors at that time. Recently several
monitors have quit working and not covered by any service or maintenance
plan that would allow for replacement.
Analysis:Information Technology recommended that the Center replace the monitors
on the current workstations due to their age and hours of use. Eleven (11)
consoles have three (3) monitors each and two (2) workstations have four
(4) monitors each for a total of forty-one (41) monitors. While this was not
an anticipated replacement budgeted item in the 2008 Budget, it is necessary
to replace these monitors to ensure consistent and uninterrupted 9-1-1
service.
Financial Impact:The cost for replacement of these monitors is $18,450.00 and the 9-1-1 Fund
Balance Unreserved has funds available to cover this cost.
Alternatives:
Recommendation:Approve the transfer of $18,450 from the 9-1-1 Fund Balance for the
monitors.
Funds are Available in
the Following
Accounts:
Funds are available in the 9-1-1 Fund Balance Unreserved.
REVIEWED AND APPROVED BY:
Finance.
Law.
Administrator.
Cover Memo
Item # 4
Cover Memo
Item # 4