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HomeMy WebLinkAbout21-11Resolution No. 21-11 RESOLUTION AUTHORIZING EXECUTION OF AN AGREEMENT WITH METROPOLITAN PUMP COMPANY, A DIVISION OF METROPOLITAN INDUSTRIES, INC. FOR THE HOPPS ROAD SANITARY LIFT STATION CONTROLLER UPGRADE BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that pursuant to Elgin Municipal Code Section 5.02.020B(9) the City Council hereby finds that an exception to the requirements of the procurement ordinance is necessary and in the best interest of the city; and BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that Richard G. Kozal, City Manager, and Kimberly A. Dewis, City Clerk, be and are hereby authorized and directed to execute an Agreement on behalf of the City of Elgin with Metropolitan Pump Company, a Division of Metropolitan Industries, Inc., for the Hopps Road sanitary lift station controller upgrade, a copy of which is attached hereto and made a part hereof by reference. s/ David J. Kai}tain _ David J. Kaptain, Mayor Presented: January 27, 2021 Adopted: January 27, 2021 Omnibus Vote: Yeas: 8 Nays: 0 Abstain: 1 Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT THIS AGREEMENT is dated this 27th day of _January. _ , 2021, by and between the City of Elgin, an Illinois Municipal Corporation (herein called "City") and Metropolitan Pump Company, a Division of Metropolitan Industries, Inc., an Illinois corporation, (herein called "Contractor"), a corporation with a principal place of business at 37 Forestwood Drive, Romeoville, Illinois 60446. WHEREAS, the City has requested and Contractor has provided a proposal dated November 5, 2020, consisting of one (1) page for a construction agreement to provide for one customized LMSII Level Controller Upgrade, attached hereto and made a part hereof as Attachment A ("Contractor's Proposal"); and WHEREAS, the City's City Council has determined that it to be in the best interests of the City to award the contract to the Contractor for the LMS II Level Controller Upgrade (hereinafter referred to as the "Work"). NOW, THEREFORE, in consideration of the mutual promises and covenants herein, the sufficiency of which is hereby acknowledged, the parties hereto hereby agree as follows: Article 1. Work. Contractor shall complete the Work as specified in the Contract Documents. The Work is generally described as follows: This project will generally be comprised of Complete modification of one (1) LMSII Level Controller Upgrade to the Hopps Road Sanitary Lift Station Controller. The scope of work is summarized in Contractor's Proposal and includes modifying the existing control panel to include the LMS II Level Controller, all necessary wiring, programming as required for this Quadraplex system, memory module, input and output modules, serial Null -Modern cable, terminal blocks. Article 2. City Representative. There is no non-party consulting Engineer for the Work. The City's Water Director shall act as City's representative and shall assume and provide such duties and obligations of the Engineer to the extent provided in the Contract Documents. Article 3. Work Completion, Liquidated Damages, Delays and Damages. 3.1. Work Completion. The Work shall be completed as provided in the Contract Documents. Substantial completion shall be within 110 business days of written Notice to Proceed. Final Completion shall be within 120 business days of written Notice to Proceed. In the event of any conflict between these dates and dates elsewhere in the Contract Documents, these dates shall prevail. Time is of the essence of this Agreement. 3.2. Liquidated Damages. The City and Contractor agree that as reasonable liquidated damages for delay (but not as a penalty) Contractor shall pay City $500 for each day beyond the time specified for Substantial Completion in the Contract Documents. After Substantial Completion, if Contractor shall neglect, refuse, or fail to complete the remaining Work within the times specified in the Contract Documents (hereinafter referred to as "Contract Times") or any proper extension thereof granted by City, Contractor shall pay City $500 for each day beyond the time for Final Completion. Contractor agrees and acknowledges that such liquidated damages constitute a reasonable estimate of City's actual damages. Such liquidated damages shall constitute City's sole recourse for and shall constitute full satisfaction of City's actual damages resulting from Contractor's delay. Contractor further acknowledges and agrees that in the event any provisions in any of the Contract Documents conflict with the provisions of this paragraph or otherwise provide for damages resulting from Contractor's delay, the provisions of this paragraph shall control, and such conflicting provisions and any Contract Documents shall not constitute, and shall not be construed as, a basis by which to render the provisions of this paragraph unenforceable. 3.3. Delays and Damages. In the event Contractor is delayed in the prosecution and completion of the Work or achievement of any Contract Times because of any delays caused by City, Contractor shall have no claim against City for damages or contract adjustment other than an extension of the Contract Times as provided herein and the waiving of liquidated damages during the period occasioned by the delay. Article 4. Contract Price. City shall pay Contractor $29,436 as indicated in the Contractor's Proposal for completion of the Work in accordance with the Contract Documents. Article 5. Payments. 5.1. Payments. City shall make payments on the basis of Contractor's Applications for Payment as recommended by Engineer, in conformance with the City's accounts payable schedule. All payments shall be based on the progress of the Work measured by the schedules provided in the Contract Documents. Notwithstanding anything to the contrary in any Contract Documents, City shall be entitled to withhold any payments pending the submission of partial or full waivers of lien and/or certifications verifying the receipt of payment for all work performed by all subcontractors up to the date of Contractor's application for partial or final payment in City's sole discretion. City shall further be entitled to make such payments directly to any subcontractors as may be necessary to obtain such lien waivers and/or certifications. In the event City makes any such payments directly to any subcontractors, the amount of such payments shall be deducted from the total amount due to Contractor pursuant to this Agreement; and Contractor shall provide a written release to City in the amount of any such payments upon ten (10) days written demand. Concurrent with all applications for payment, Contractor shall provide City with a sworn certification of all work performed as to performance, quality and completeness by all subcontractors and amounts paid to all subcontractors as of the date of application. 5.2. Retainage. City may withhold, from all payments prior to Substantial Completion, an amount equal to up to ten percent (101/6) of work completed, at City's sole discretion. Upon 2 Substantial Completion, City may release a portion of the retainage to Contractor, retaining at all times an amount sufficient to cover the cost of the Work remaining to be completed, at City's sole discretion. The time for payment of any retainage from City to Contractor shall be at City's sole discretion. Such payment shall not be unreasonably withheld. 5.3. Final Payment. The City shall not be required to make final payment prior to completion and acceptance of the Work by the City. Article 6. Contract Documents. There are no Contract Documents other than those listed below. The Contract Documents which comprise the entire agreement between City and Contractor concerning the Work and which are incorporated herein consist of the following: a. This Agreement. b. Contractor's Proposal, attached hereto as Attachment A. c. General Conditions, based upon EJCDC No. 1910-8 (1996 Edition) as modified by the City of Elgin, Illinois, attached hereto as Attachment B. d. Supplementary Conditions Regarding Insurance, attached hereto as Attachment C. e. Schedule for the Work, attached hereto as Attachment D. f. City Forms attached hereto as Attachment E. g. Certificates of Insurance. h. Bonds i. Notice to Proceed. j. Any subsequent Written Amendments to any documents listed above and other documents amending, modifying or supplementing the Contract Documents, which may be delivered or issued after the Effective Date of the Agreement and are not attached hereto. This Agreement and the Contract Documents listed above comprise the sole and exclusive Agreement between the parties hereto. There are no other agreements between the parties hereto, either oral, written, or implied, and neither this Agreement nor any Contract Documents shall be modified or amended without the written consent of the authorized representatives of the parties hereto. The Contractor will provide all required bonds within 21 days of the date of this Agreement. Failure to do so will constitute a breach of this Agreement. Article 7. Prevailing Wage. The parties agree and acknowledge that this Agreement calls for the construction of a "public work" within the meaning of the Illinois Prevailing Wage Act, 820 ILCS 130/.01, et seq., as amended. The Prevailing Wage Act requires contractors and subcontractors to pay laborers, workers, and mechanics performing services on public works projects no less than the current "prevailing rate of wages" (hourly cash wages plus amount for fringe benefits) in the county where the work is performed. The Illinois Department of Labor publishes the prevailing wage rates on its website at httl,:Hiabor.ill inois.Yov/. The Illinois Department of Labor revises the prevailing wage rates and the contractor/subcontractor has an obligation to check the Illinois Department of Labor's website for revisions to prevailing wage rates. All contractors and subcontractors rendering services under this Agreement shall comply with all requirements of the Prevailing Wage Act and current prevailing wage rates as provided on the Illinois Department of Labor's website as may be amended, including but not limited to, all wage requirements and notice and record keeping duties. Article 8. Affirmative Action. The Contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, national origin, age, ancestry, order of protection status, familial status, marital status, physical or mental disability, military status, sexual orientation, or unfavorable discharge from military service which would not interfere with the efficient performance of the job in question. Contractor shall take affirmative action to comply with the provisions of Elgin Municipal Code Section 5.02.040 and will require any subcontractor to submit to the City a written commitment to comply with those provisions. Contractor shall distribute copies ofthis commitment to all persons who participate in recruitment, screening, referral and selection of job applicants and prospective subcontractors. Contractor agrees that the provisions of Section 5.02.040 of the Elgin Municipal Code, 1976, as amended, is hereby incorporated by reference, as if set out verbatim. Article 9. Miscellaneous. a. Terms used in this Agreement shall have the meanings indicated in the General Conditions. b. No assignment or delegation by a parry hereto of any rights under, obligations or interests in the Contract Documents shall be binding on another party hereto without the written consent of the party sought to be bound; and specifically but without limitation moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law); and unless specifically stated to the contrary in any written consent to an assignment, no assignment shall release or discharge the assignor from any duty or responsibility under the Contract Documents. c. City and Contractor each binds itself, its partners, successors, employees, assigns, and agents to the other party hereto, its partners, successors, employees, assigns, and agents in respect of all covenants, agreements, and obligations contained in the Contract Documents. d. The business address of Contractor is hereby designated as the place to which all notices, letters, and other communication to Contractor shall be mailed or delivered. The address of City is hereby designated as the place to which all notices, letters, and other communication to the City shall be mailed or delivered. Such notices, letters and other communications shall be directed to the City's General Services Manager. Either party may change its address at any time by an instrument in writing delivered to the other party. 4 e. The terms and provisions of this Agreement shall be severable. In the event any of the terms or provisions of this Agreement shall be deemed to be void or otherwise unenforceable for any reason, the remainder of this Agreement shall remain in full force and effect. f. This Agreement shall be subject to and governed by the laws of the State of Illinois. Venue for the resolution of any disputes and the enforcement of any rights arising out of or in connection with the Agreement shall be in the Circuit Court of Kane County, Illinois. Contractor agrees that service by first class U.S. mail to 327 Forestwood Drive, Romeoville, Illinois 60446 shall constitute effective service. Both parties hereto waive any rights to a jury. g. This Agreement shall not be construed so as to create a partnership, joint venture, employment or agency relationship between the parties hereto except as may be specifically provided for herein. h. In the event of any conflict between any of the terms or provisions of this Agreement and any other Contract Documents, the terms and provisions of this Agreement shall control. i. Indemnification. To the fullest extent permitted by law, Contractor agrees to and shall indemnify, defend and hold harmless the City, the Engineer, Engineer's consultants and the officers, employees, boards and commissions of each and any of them from and against any and all claims, suits, judgments, costs, attorneys' fees, damages or any and all other relief or liability arising out of or resulting from or through, or alleged to arise out of, any acts or negligent acts or omissions of Contractor or Contractor's officers, employees, agents or subcontractors in the performance of this Agreement, or arising out of or in connection with litigation based on any mechanic's lien or other claims, suits, judgments and/or demands for damages by subcontractors. In the event of any action against the City, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of City's choosing. In the event and to the extent that any legal work is performed by City's in-house legal counsel pursuant to the provisions of this section, City shall be reimbursed by Contractor for such legal work at the rate of $200 per hour, which rate Contractor hereby agrees and acknowledges to be a reasonable rate for such in-house attorneys' fees. The provisions of this paragraph shall survive any expiration and/or termination of this Agreement. j. Compliance with Laws. Notwithstanding any other provision of this Contract it is expressly agreed and understood that in connection with the performance of this Contract that the Contractor shall comply with all applicable Federal, State, City and other requirements of law, including, but not limited to, any application requirements regarding prevailing wages, minimum wage, workplace safety and legal status of employees. Contractor shall also at its expense secure all permits and licenses, pay all charges and fees and give all notices necessary and incident to the due and lawful prosecution of the work, and/or the products and/or services to be provided for in this W Contract. The City shall have the right to audit any records in the possession or control of the Contractor to determine Contractor's compliance with the provisions of this section. In the event the City proceeds with such an audit the Contractor shall make available to the City the Contractor's relevant records at no cost to the City. City shall pay any and all costs associated with any such audit. Without limiting the foregoing, Contractor hereby certifies, represents and warrants to the City that all Contractor's employees and/or agents who will be providing products and/or services with respect to this Contract shall be legally authorized to work in the United States. k. No Interest. Contractor hereby waives any and all claims to interest on money claimed to be due pursuant to this Agreement, and all such rights to interest to which it may otherwise be entitled pursuant to law, including, but not limited to, pursuant to the Local Government Prompt Payment Act (50 ILCS 505/1, et seq.), as amended, or the Illinois Interest Act (815 ILCS 205/1, et seq.), as amended. 1. Limitation of Actions. Contractor agrees that any cause of action, lawsuit or other legal claim by the Contractor arising out of this Agreement must be filed within one year of the date the alleged cause of action, lawsuit or other legal claim arose or the same will be time barred and waived and released by the Contractor. in. Registration. Contractor hereby warrants and represents that it is registered with the Illinois Secretary of State's Office or has been incorporated in the State of Illinois; and such entity further hereby warrants and represents that it is in good standing in the state of its incorporation or organization. n. Counterparts and Execution. This Agreement may be executed in counterparts, each of which shall be an original and all of which shall constitute one and the same Agreement. For the purposes of executing this Agreement, any signed copy of this Agreement transmitted by fax machine or e-mail shall be treated in all manners and respects as an original document. The signature of any party on a copy of this Agreement transmitted by fax machine or e-mail shall be considered for these purposes as an original signature and shall have the same legal effect as an original signature. Any such faxed or e-mailed copy of this Agreement shall be considered to have the same binding legal effect as an original document. At the request of either party any fax or e-mail copy of this Agreement shall be re -executed by the parties in an original form. No party to this Agreement shall raise the use of fax machine or e-mail as a defense to this Agreement and shall forever waive such defense. SIGNATURE PAGE TO FOLLOW 2 IN WITNESS WHEREOF, City and Contractor have signed this Agreement. This Agreement shall be effective on januuy 27 , 2021. METROPOLITAN PUMP COMPANY: CI of Elgin C/ le By: Zrohn R. Vm1herl d-r. By: Title: P(nt G in4 Title: City Manager Address for giving notices: Address for giving notices: N L_-�YDed4u . ju,5 Yr)e5, .. L, City of Elgin A r e5 'oo Arive 150 Dexter Court m(eyilk— �%L wyf & Elgin, Illinois 60120 Attn: 3Pj9U hhoMft Attn: General Services Manager FEIN AT•T: Z City Clerk FALegal DeptlAgreementlMetropolitan Pump Co. -Construction Agr-11-9-20.docx VA WEIF-_ 'FL0PP4210LITAN ATTACHMENT A PUMP C OAArPA. NY A Division of METROPOLfTAN INDUSTRIES, INC. 37 FORESTWOOD DRIVE - ROMEOVILLE, IL - 60446-1343 (815) 886-9200 - FAX (815) 886-4573 www.metropolitanind.com TO: Mr. Dave Wroble / Eric Weiss City of Elgin wreble d0citvofeloin.ona Eric Weiss <weiss_e@clltyofelgin.org> We are pleased to provide a QUOTE on the following equipment _ I1. e s IT-MUF• • Page 1 of 1 PROJECT BIDS DUE: ENGINEER: for the subject project. QUOTAIII ON Otterscreek Hopps Rd Elgin, Illinois ASAP N/A Furnish Qty (1) Customized Quadraplex LMS II Level Controller - Including; Programmable Logic Controller, 10" Color Operator Interface, (2) Submersible Transducer with 100' of Cable. We would modify the existing control panel to include the LMS II Level Controller, all necessay wiring, programming as required for this Quadraplex system, memory module, input and out put modules, serial Null -Modem cable, terminal blocks (Payment / Performance bond fee is included in the amount listed below) Total Price For Complete Modification is: $29,436.00 Refer to attachment for Preliminary Schedule. NOTE: -This quotation is based upon information provided by the City that all existing and necessary conduits for the LMS II Level Controller Upgrade are available and re -usable. Our quotation does not include any replacement conduit or additional conduit work. -This quotation is based upon information provided by the City that all existing power / pump control components are operational and available for reuse. Our quotation does not include replacement of any power I pump control components. -The City will be required to have personnel available to man the station daily while upgrade equipment is being installed. It is anticipated that the station will be able to be placed back into automatic operation each night, however, unforeseen circumstances may require City staff to continue manual operation into overtime hours. Any City personnel wages for overtime hours will be the responsibility of the City. - Float Switches are NOT included within this proposal. -Start up and training included. -Existing radio and scada communications not included and will be provided by others. TERMS: Near d1yrslr mtae t nvoicce. Invo c's are payable In full when due, with no retainage allowed. THIS CIDOTATION, SUBJECTTO THE CONDITIONS ON THE REVERSE SIDE HEREOF MAYBE ACCEPTED ONLY BY SIGNING ONE COPY OF THIS QUOTATION AND RETURNING ITTO METROPOLITAN PUMP CO NOT LATER THAN THE DATE INDICATED ON THE FACE HEREOF AFTER WHICH THIS QUOTATIONS IS VOID. THIS QUOTATION AFTER ACCEPTANCE BY BUYER MAY BE CANCELLED BY EITHER PARTY WITH NO PENALTY ONLY IF ENGINEER FAILS TO APPROVE SELLERS APPROVAL BROCHURE Accepted Firm: By: Title: City of EI in Quotation No: Submitted: Void after: Prepared By: KT102620MNrev.1 11/19/2020 30 dmiys _ Ken Turnquist STANDARD CONDITIONS OF SALE (Domestic Shipments) 1. TERMS Standard terns are net thirty days from date of invoice. Products are sold F.O.B. City unless otherwise stated. 2. DELIVERIES The company shall be under no liability for failure to make deliveries where such failure to delver may be due to fires, strikes, accidents, car shortage, action of any State, Federal or local governments or other causes beyond its reasonable control. 3. GUARANTEES RATED OUTPUT The Company guarantees that the apparatus manufactured by it will deliver successfully its output as indicated on the nameplate, provided such apparatus is properly installed and maintained, correctly lubricated, operated under normal conditions and with competent supervision. REPLACEMENT OF DEFECTIVE MATERIAL Any parts which show faulty workmanship or material will be repaired or replaced without charge. F.O.B, City, provided such defects develop under normal and proper use within three months after date of shipment and provided Purchaser shall give notice in writing to the Company and a chance to inspect such defects before repairing or aftering the product in any way. The correction of such defects by repair or replacement by the Company shall constitute a fulfillment of its obligation to the Purchaser. NON -LIABILITY FOR LOSS OR DAMAGE The Company will not be responsible for or liable for any loss or damage resulting from improper storage or handling by City prior to placing the apparatus in service and will not assume any responsibility, expense or liability for repairs made outside its works without proper written consent of the company. The Company will not be responsible or liable for any damage or loss resulting from installation or operation in any manner not complying with installation or operating instructions or drawings or with the ratings marked thereon. 4. CHANGES In the event the Purchaser finds it necessary to make changes in the work to be performed hereunder, it may do so only by written order. If such changes cause an increase or decrease in the amount due for apparatus sold hereunder, or in the time required for completion of resulting order, an equitable adjustment shall be made and the order shall be modified accordingly. 5. TERMINATION in the event Purchaser, for any reason in its discretion, desires to effect cancellation of sales or services sold hereunder, notice shall be given in writing to the Company. The Company shall thereupon, as directed, cease work and deliver to the Purchaser all completed and partially completed articles and materials and work in process. The Purchase shall pay the Company the following: (a) The price provided in the order for all articles or materials which have been completed prior to termination. (b) Actual expenditures made by the Company In connection with the incompleted portion of the order, including reasonable cancellation charges paid by the Company for which it may be liable on account of commitments made under the order. fi. DEFERRED DELIVERIES Deferred deliveries are subject to Company's approval. Should the Purchaser for good and sufficient cause desire that we hold up or defer deliveries until some later day, same shall be acceptable an the following conditions only: (a) Deferment period is not to exceed sixty days, at the end of which time, If no release is given, Company reserves the night to render invoice and make shipment of the completed portion of order to destination specified in Purchaser's order, or to warehouse such apparatus at Purchaser's expense. 7. PATENTS The company certifies that to the best of its knowledge the apparatus sold hereunder does not infringe any Letters Patent granted to others by the United States of America or by any country foreign thereto. 8. PAYMENTS If, in the judgment of the Company, the financial condition of the Purchaser at any times does not justify continuance of the production or shipment on the terms of payment specified, the Company may require full or partial payment in advance. Pro rate payments shall become due as shipments are made. If shipments are delayed by the Purchaser, payments shall become due from when the Company is prepared to make shipment If manufacture is delayed by the Purchaser, payment shall be made based on the contract price and the percentage of completion. Apparatus held for the Purchaser shall be at the risk and expense of the Purchaser, 9. FEDERAL AND STATE LAWS The Company, to the best of its knowledge, is complying with The Fair Labor Standards Act, Public Contracts Act and all other applicable State and Federal Laws, and the orders and regulations issued thereunder. 10. GENERAL No statement, recommendation or assistance made or offered by Company through its representatives to the purchaser or his representatives In connection with the use of any product sold by us shall be or constitute a waiver by Company of any of the provisions hereof or change the purchaser's liability as herein defined. Seller represents that with respect to the production of the articles and/or the performance of the services covered by this proposal, it has fully complied with Section 12 (a) of the Fair Labor Standards Act of 1938, as amended. ATTACHMENT B STANDARD , GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT These General Conditions are based upon the EJCDC No.1910-8 (1996 Edition) and have been modified by the City of Elgin Illinois. 00-700-1 Copyright 01996 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314 American Consulting Engineers Council 1015 15th Street N.W., Washington, DC 20005 American Society of Civil Engineers 345 East 47th Street, New York, NY 10017 00-700-2 TABLE OF CONTENTS Page ARTICLE1 - DEFINITIONS AND TERMINOLOGY..................................................................................................................... 6 1.01 Defined Terms.................................................................................................................................................................. 6 1.02 Terminology..................................................................................................................................................................... 8 ARTICLE2 - PRELIMINARY MATTERS........................................................................................................................................ 9 2.01 Delivery of Bonds............................................................................................................................................................. 9 2.02 Copies of Documents....................................................................................................................................................... 9 2.03 Commencement of Contract Times; Notice to Proceed.................................................................................................. 9 2.04 Starting the Work............................................................................................................................................................. 9 2.05 Before Starting Construction........................................................................................................................................... 9 2.06 Preconsiruction Conference............................................................................................................................................ 9 2.07 Initial Acceptance of Schedules.....................................................................................................................................10 ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE............................................................................10 3.01 Intent...............................................................................................................................................................................10 3.02 Reference Standards......................................................................................................................................................10 3.03 Reporting and Resolving Discrepancies.......................................................................................................................10 3.04 Amending and Supplementing Contract Documents....................................................................................................10 3.05 Reuse of Documents.......................................................................................................................................................10 ARTICLE 4 - AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; REFERENCE POINTS ...... 11 4.01 Availability of Lands ......................................................................................................................................................11 4.02 Subsurface and Physical Conditions.............................................................................................................................11 4.03 Differing Subsurface or Physical Conditions..............................................................................................................11 4.04 Underground Facilities..................................................................................................................................................12 4.05 Reference Points.............................................................................................................................................................12 4.06 Hazardous Environmental Condition at Site................................................................................................................13 ARTICLE5 - BONDS AND INSURANCE.....................................................................................................................................13 5.01 Performance, Payment, and Other Bonds................................................................................................................13 5.02 Licensed Sureties and Insurers.......................................................................................................................................14 5.03 Certificates of Insurance ....................... I... .... I................................................................................................................. 14 5.04 CONTRACTOR'S Liability Insurance ........................................................... ............................. I ........ ............. 14 5.05 Contractor's Property Insurance.......................................................................................15 ........ 5.06 Waiver of Rights.............................................................................................................................................................15 5.07 Acceptance of Bonds and Insurance; Option to Replace.............................................................................................15 5.08 Partial Utilization, Acknowledgment of Property Insurer...................................................................I........................16 ARTICLE 6 - CONTRACTORS RESPONSIBILITIES...................................................................................................................16 6.01 Supervision and Superintendence.................................................................................................................................16 6.02 Labor, Working Hours..................................................................................................................................................16 6.03 Services, Materials, and Equipment..............................................................................................................................16 6.04 Progress Schedule..........................................................................................................................................................16 6.05 Substitutes and Or-Equals.............................................................................................................................................17 6.06 Concerning Subcontractors, Suppliers, and Others...................................................................................................18 6.07 Patent Fees and Royalties..............................................................................................................................................18 6.08 Permits............................................................................................................................................................................19 6.09 Laws and Regulations....................................................................................................................................................19 6.10 Taxes...............................................................................................................................................................................19 6.11 Use of Site and Other Areas..........................................................................................................................................19 6.12 Record Documents.........................................................................................................................................................20 6.13 Safety and Protection..................................................................................................................................................... 20 6.14 Safety Representative..................................................................................................................................................... 20 6.15 Hazard Communication Programs............................................................................................................................... 20 00-700-3 6.16 Emergencies................................................................................................................................................................... 20 6.17 Shop Drawings and Samples.........................................................................................................................................20 6.18 Continuing the Work......................................................................................................................................................22 6.19 CONTRACTORS General Warranty and Guarantee.................................................................................................... 22 6.20 Indemnification .............................................................................................................................................................. 22 ARTICLE7 - OTHER WORK..........................................................................................................................................................23 7.01 Related Work at Site....................................................................................................................................................... 23 7.02 Coordination..................................................................................................................................................................23 ARTICLE8 - OWNERS RESPONSIBILITIES...............................................................................................................................23 8.01 Communications to Contractor..................................................................................................................................... 23 ARTICLE 9 - ENGINEER'S STATUS DURING CONSTRUCTION............................................................................................24 9.01 OWNERS Representative............................................................................................................................................... 24 9.02 Visits to Site.................................................................................................................................................................... 24 9.03 Project Representative................................................................................................................................................... 24 9.04 Clarifications and Interpretations................................................................................................................................. 25 9.05 Authorized Variations in Work......................................................................................................................................25 9.06 Rejecting Defective Work...............................................................................................................................................25 9.07 Determinations for Unit Price Work.............................................................................................................................25 9.08 Decisions on Requirements of Contract Documents and Acceptability of Work........................................................25 9.09 Limitations on ENGINEERS Authority and Responsibilities........................................................................................25 ARTICLE10 - CHANGES IN THE WORK; CLAIMS................................................................................................................... 26 10.01 Authorized Changes in the Work..............................................................................................................................26 10.02 Unauthorized Changes in the Work ................ ...... .......................................................... ...............26 10.03 Execution of Change Orders.....................................................„........................................................... ....... 26 10.04 Notification to Surety.......................................................................................................................................26 10.05 Claims and Disputes................................................................................................................................................. 26 ARTICLE 11 - COST OF THE WORK; CASH ALLOWANCES; UNIT PRICE WORK.............................................................27 11.01 Cost of the Work........................................................................................................................................................27 11.02 Cash Allowances.......................................................................................................................................................28 11.03 Unit Price Work..................................................................................................................................................•......29 ARTICLE 12 - CHANGE OF CONTRACT PRICE; CHANGE OF CONTRACT TIMES...........................................................29 12.01 Change of Contract Price.........................................................................................................................................29 12.02 Change of Contract Times........................................................................................................................................30 12.03 Delays Beyond CONTRACTORS Control................................................................................................................ 30 12.04 Delays Within CONTRACTORS Control.................................................................................................................. 30 12.05 Delays Beyond OWNERS and CONTRACTORS Control........................................................................................ 30 12.06 Delay Damages......................................................................................................................................................... 30 ARTICLE 13 - TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK... 30 13.01 Notice of Defects ....................................................................................................................................................... 30 13.02 Access to Work.......................................................................................................................................................... 30 13.03 ................................. Tests and Inspections............................................................................................................... 31 13.04 Uncovering Work...................................................................................................................................................... 31 13.05 OWNER May Stop the Work.....................................................................................................................................31 13.06 Correction or Removal of Defective Work............................................................................................................... 31 13.07 Correction Period..................................................................................................................................................... 31 13.08 Acceptance of Defective Work.................................................................................................................................. 32 13.09 OWNER May Correct Defective Work..................................................................................................................... 32 ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION..................................................................................... 33 14.01 Schedule of Values................................................................................................................................................ 33 14.02 Progress Payments.................................................................................................................................................... 33 14.03 CONTRACTORS Warranty of Title.......................................................................................................................... 34 14.04 Substantial Completion.............................................................................................................................................34 14.05 Partial Utilization......................................................................................................................................................35 00-700-4 14.06 Final Inspection.........................................................................................................................................................35 14.07 Final Payment..........................................................................................................................................................35 14.08 Waiver of Claims....................................................................................................................................................... 36 ARTICLE15 - TERMINATION.......................................................................................................................................................36 15.01 OWNER May Terminate for Cause..........................................................................................................................36 15.02 OWNER May Terminate For Convenience.............................................................................................................. 36 ARTICLE16 - DISPUTE RESOLUTION........................................................................................................................................ 37 16.01 Methods and Procedures..........................................................................................................................................37 ARTICLE17 - MISCELLANEOUS.................................................................................................................................................37 17.01 Giving Notice............................................................................................................................................................. 37 17.02 Computation of Times............................................................................................................................................... 37 17.03 Cumulative Remedies................................................................................................................................................ 37 17.04 Survival of Obligations.............................................................................................................................................37 17.05 Controlling Law.................................................................................................................:..................................I... 37 17.06 Professional Fees and Court Costs Included...........................................................................................................37 17.07 Prevailing Wage Rates..............................................................................................................................................37 00-700-5 GENERAL CONDITIONS ARTICLE 1 - DEFINITIONS AND TERMINOLOGY 1.01 Defined Terms A. Wherever used in the Contract Documents and printed with initial or all capital letters, the terms listed below shall have the meanings indicated which are applicable to both the singular and plural thereof. 1. Addenda --Written or graphic instruments issued prior to the opening ofBids which clarify, correct, or change the Bidding Requirements or the Contract Documents. 2. Agreement --The written instrument which is evidence of the agreement between OWNER and CONTRACTOR covering the Work. 3. Application for Payment --The form acceptable to ENGINEER which is to be used by CONTRACTOR during the course of the Work in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 4. Asbestos --Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 5. Bid --The offer or proposal of a bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 6. Bidding Documents --The Bidding Requirements and the proposed Contract Documents (including all Addenda issued prior to receipt of Bids). 7. Bidding Requirements --The Advertisement or Invitation to Bid, Instructions to Bidders, Bid security form, if any, and the Bid form with any supplements. 8. Bonds --Performance and payment bonds and other instruments of security. 9. Change Order --a change in a contract term other than as specifically provided in the contract which authorizes or necessitates any increase or decrease in the cost of the contract or the time of completion by thirty (30) days or more. 00-700-6 10. Claim --A demand or assertion by OWNER or CONTRACTOR seeking an adjustment of Contract Price or Contract Times, or both, or other relief with respect to the terms ofthe Contract. A demand for money or services by a third party is not a Claim. 11. Contract --The entire and integrated written agreement between the OWNER and CONTRACTOR concerning the Work. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral. 12. Contract Documents --The Contract Documents establish the rights and obligations ofthe parties and include the Agreement, Addenda (which pertain to the Contract Documents), CONTRACTOR's Bid (including documentation accompanying the Bid and any post Bid documentation submitted prior to the Notice ofAward), the Notice to Proceed, the Bonds, Certificates ofInsurance, these General Conditions, the Supplementary Conditions, the Specifications and the Drawings as the same are more specifically identified in the Agreement, together with all Written Amendments, Change Orders, Work Change Directives, Field Orders, and ENGINEER's written interpretations and clarifications issued on or after the Effective Date ofthe Agreement. Approved Shop Drawings and the reports and drawings of subsurface and physical conditions are not Contract Documents. Only printed or hard copies of the items listed in this paragraph are Contract Documents. Files in electronic media format of text, data, graphics, and the like that may be furnished by OWNER to CONTRACTOR are not Contract Documents. 13. Contract Price --The moneys payable by OWNER to CONTRACTOR for completion of the Work in accordance with the Contract Documents as stated in the Agreement (subject to the provisions of paragraph 11.03 in the case of Unit Price Work). 14. Contract Times --The number of days or the dates stated in the Agreement to: (i) achieve Substantial Completion; and (ii) complete the Work so that it is ready for final payment as evidenced by ENGINEER's written recommendation of final payment. 15. CONTRACTOR —The individual or entity with whom OWNER has entered into the Agreement. 16. Cost of the Work --See paragraph 11.01.A for definition. 17. Drawings or Plans --That part of the Contract Documents prepared or approved by ENGINEER which graphically shows the scope, extent, and character of the Work to be performed by CONTRACTOR. Shop Drawings and other CONTRACTOR submittals are not Drawings as so defined. 18. Effective Date of the Agreement --The date indicated in the Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 19. ENGINEER --The individual or entity named as such in the Agreement. 20. ENGINEER's Consultant --An individual or entity having a contract with ENGINEER to furnish services as ENGINEER's independent professional associate or consultant with respect to the Project and who is identified as such in the Supplementary Conditions. 21, Field Order --A written order issued by ENGINEER which requires minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 22. General Requirements --Sections of Division 1 of the Specifications. The General Requirements pertain to all sections of the Specifications. 23. Hazardous Environmental Condition --The presence at the Site of Asbestos, PCBs, Petroleum, Hazardous Waste, or Radioactive Material in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 24. Hazardous Waste --The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 25. Laws and Regulations; Laws or Regulations —Any and all applicable laws, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 26. Liens --Charges, security interests, or encumbrances upon Project fixnds, real property, or personal property. 27. Milestone --A principal event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work. 28. Reserved 29. Notice to Proceed --A written notice given by OWNER to CONTRACTOR fixing the date on which the 00-700-7 Contract Times shall commence to run and on which CONTRACTOR shall start to perform the Work under the Contract Documents. 30. OWNER --The City of Elgin 31. Partial Utilization --Use by OWNER of a substantially completed part of the Work for the purpose for which it is intended (or a related purpose) prior to Substantial Completion of all the Work. 32. PCBs --Polychlorinated biphenyls. 33. Petroleum --Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non -Hazardous Waste and crude oils. 34. Project --The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part, as may be indicated elsewhere in the Contract Documents. 35. Project Manual --The bound documentary information prepared for bidding and constructing the Work. A listing of the contents of the Project Manual, which may be bound in one or more volumes, is contained in the table(s) of contents. 36. Radioactive Material --Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 37. Resident Project Representative —The authorized representative of ENGINEER who may be assigned to the Site or any part thereof. 38. Samples --Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work shall be judged. 39. Shop Drawings --All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for CONTRACTOR and submitted by CONTRACTOR to illustrate some portion of the Work. 40. Site --Lands or areas indicated in the Contract Documents as being furnished by OWNER upon which the Work is to be performed, including rights -of -way and easements for access thereto, and such other lands furnished by OWNER which are designated for the use of CONTRACTOR. 41. Specifications --That part of the Contract Documents consisting of written technical descriptions of materials, equipment, systems, standards, and workmanship as applied to the Work and certain administrative details applicable thereto. 42. Subcontractor --An individual or entity having a direct contract with CONTRACTOR or with any other Subcontractor for the performance of a part of the Work at the Site. 43. Substantial Completion --The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of ENGINEER, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 44. Supplementary Conditions --That part of the Contract Documents which amends or supplements these General Conditions. 45. Supplier --A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with CONTRACTOR or with any Subcontractor to famish materials or equipment to be incorporated in the Work by CONTRACTOR or any Subcontractor. 46. Underground Facilities --All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems. 47. Unit Price Work --Work to be paid for on the basis of unit prices. 48. Work --The entire completed construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents. 49. Work Change Directive --A written statement to CONTRACTOR issued on or after the Effective Date ofthe Agreement and signed by OWNER ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive shall not change the Contract Price or the Contract Times but is evidence that the parties expect that the change ordered or documented by a Work Change Directive shall be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 50. WritienAmendment--Awrittenstatementmodifying the Contract Documents, signed by OWNER and CONTRACTOR on or after the Effective Date of the Agreement and normally dealing with the non -engineering or nontechnical rather than strictly construction -related aspects of the Contract Documents. 1.02 Terminology 00-700-8 A. Intent of Certain Terms or Adjectives 1. Whenever in the Contract Documents the terms "as allowed," "as approved," or terms of like effect or import are used, or the adjectives `reasonable," "suitable," "acceptable," "proper," "satisfactory," or adjectives of like effect or import are used to describe an action or determination of ENGINEER as to the Work, it is intended that such action or determination shall be solely to evaluate, in general, the completed Work for compliance with the requirements of and information in the Contract Documents and conformance with the design concept of the completed Project as a functioning whole as shown or indicated in the Contract Documents (unless there is a specific statement indicating otherwise). The use of any such term or adjective shall not be effective to assign to ENGINEER any duty or authority to supervise or direct the performance ofthe Work or any duty or authority to undertake responsibility contrary to the provisions of paragraph 9.10 or any other provision of the Contract Documents. B. Day 1. The word "day" shall constitute a calendar dayof24 hours measured from midnight to the next midnight. C. Defective 1. The word "defective," when modifying the word "Work," refers to Work that is unsatisfactory, faulty, or deficient in that it does not conform to the Contract Documents or does not meet the requirements of any inspection, reference standard, test, or approval referred to in the Contract Documents, or has been damaged prior to ENGINEER's recommendation of final payment (unless responsibility for the protection thereofhas been assumed by OWNER at Substantial Completion in accordance with paragraph 14.04 or 14.05). D. Furnish, Install, Perform, Provide 1. The word "furnish," when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition. 2. The word `install," when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use. 3. The words "perform" or "provide," when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use. 4. When "famish," "install," "perform," or "provide" is not used in connection with services, materials, or equipment in a context clearly requiring an obligation of CONTRACTOR, "provide" is implied. E. Unless stated otherwise in the Contract Documents, words or phrases which have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. ARTICLE 2 - PRELIMINARY MATTERS 2.01 Delivery of Bonds Proceed. A Notice to Proceed may be given at any time within 30 days after the Effective Date of the Agreement. 2.04 Starting the Work A. CONTRACTOR shall start to perform the Work on the date when the Contract Times commence to run. No Work shall be done at the Site prior to the date on which the Contract Times commence to run. 2.05 Before Starting Construction A. CONTRACTOR's Review of Contract Documents: Before undertaking each part of the Work, CONTRACTOR shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements. CONTRACTOR shall promptly report in writing to ENGINEER any conflict, error, ambiguity, or discrepancy which CONTRACTOR may discover and shall obtain a written interpretation or clarification from ENGINEER before proceeding with any Work affected thereby; however, CONTRACTOR shall not be liable to OWNER or ENGINEER for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless CONTRACTOR knew or reasonably should have known thereof. B. Preliminary Schedules: Within ten days after the Effective Date of the Agreement (unless otherwise specified in the General Requirements), CONTRACTOR shall submit to ENGINEER for its timely review: 1. a preliminary progress schedule indicating the times (numbers of days or dates) for starting and completing the various stages of the Work, including any Milestones specified in the Contract Documents; _ 2. a preliminary schedule of Shop Drawing and Sample submittals which shall list each required submittal and the times for submitting, reviewing, and processing such submittal; and A. When CONTRACTOR delivers the executed Agreements to OWNER, CONTRACTOR shall also deliver to OWNER such Bonds and certificates of insurance as CONTRACTOR may be required to furnish. 2.02 Copies of Documents A. OWNER shall furnish to CONTRACTOR up to ten copies of the Contract Documents. Additional copies shall be furnished upon request at the cost of reproduction. 2.03 Commencement of Contract Times; Notice to Proceed A. The Contract Times shall commence to run on the thirtieth day after the Effective Date of the Agreement or, if a Notice to Proceed is given, on the day indicated in the Notice to 3. a preliminary schedule ofvalues for all ofthe Work which includes quantities and prices of items which when added together equal the Contract Price and subdivides the Work into component parts in sufficient detail to serve as the basis for progress payments during performance ofthe Work. Such prices shall include an appropriate amount ofoverhead and profit applicable to each item of Work. 2.06 Preconstruction Conference A. Within 10 days after the date of delivery of the Project Schedules referenced herein but before any Work at the Site is started, a conference attended byCONTRACTOR, ENGINEER, the OWNER and others as appropriate shall be held to establish a working understanding among the parties as to the Work and to discuss the schedules referred to in paragraph 2.05.13, 00-700-9 procedures for handling Shop Drawings and other submittals, processing Applications for Payment, and maintaining required records. 2.07 Initial Acceptance of Schedules: reserved ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.01 Intent A. The Contract Documents are complementary; what is called for by one is as binding as if called for by all. B. Any applicable labor, documentation, services, materials, or equipment that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the intended result shall be provided whether or not specifically called for at no additional cost to OWNER. C. Clarifications and interpretations of the Contract Documents shall be issued by ENGINEER as provided in Article 9. 3.02 Reference Standards A. Standards, Specifications, Codes, Laws, and Regulations 1. Reference to standards, specifications, manuals, or codes of any technical society, organization, or association, or to Laws or Regulations, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Laws or Regulations in effect at the time of opening of Bids, except as may be otherwise specifically stated in the Contract Documents. 2. No provision of any such standard, specification, manual or code, or any instruction of a Supplier shall be effective to change the duties or responsibilities ofOWNER, CONTRACTOR, or ENGINEER, or any of their subcontractors, consultants, agents, or employees from those set forth in the Contract Documents, nor shall any such provision or instruction be effective to assign to OWNER, ENGINEER, or any of ENGINEER's Consultants, agents, or employees any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents. 3.03 Reporting and Resolving Discrepancies A. Reporting Discrepancies 1. If, during the performance of the Work, CONTRACTOR discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents or between the Contract Documents and any provision of any Law or Regulation applicable to the performance of the Work or of any standard, specification, manual or code, or of any instruction of any Supplier, CONTRACTOR shall report it to ENGINEER in writing within three business days. CONTRACTOR shall not proceed with the Work affected thereby (except in an emergency as required by paragraph 6.16.A) until an amendment or supplement to the Contract Documents has been issued by OWNER or ENGINEER as provided for herein. B. Resolving Discrepancies 1. Except as maybe otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity, or discrepancy between the provisions of the Contract Documents and: a. the provisions of any standard, specification, manual, code, or instruction (whether or not specifically incorporated by reference in the Contract Documents); provided however, that any conflict between the provisions ofthe Contract Documents and any Laws or Regulations applicable to the performance ofthe Work shall be resolved in favor of the Laws or Regulations. 3.04 Amending and Supplementing Contract Documents A. The Contract Documents maybe amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof in one or more of the following ways: (i) a Written Amendment; (ii) a Change Order; or (iii) a Work Change Directive. B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized, by one or more ofthe following ways: (i) a Field Order; (ii) ENGINEER's approval of a Shop Drawing or Sample; or (iii) ENGINEER's written interpretation or clarification. 3.05 Reuse of Documents A. CONTRACTOR and any Subcontractor or Supplier or other individual or entity performing or furnishing any of the Work: (i) shall not have or acquire any title to or ownership rights in any ofthe Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of ENGINEER or ENGINEER's Consultant, including electronic media editions; and (H) shall not reuse any of such Drawings, Specifications, other documents, or copies thercofon extensions of the Project or any other project without written consent of OWNER and ENGINEER and specific written ratification by 00-700-10 ENGINEER. This prohibition shall survive final payment, completion, and acceptance of the Work, or termination or completion of the Contract. Nothing herein shall preclude CONTRACTOR from retaining copies of the Contract Documents for record purposes. ARTICLE 4 - AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; REFERENCE POINTS 4.01 Availability of Lands A. OWNER shall furnish reasonable access to the Site. OWNER shall notify CONTRACTOR of any encumbrances or restrictions not of general application but specifically related to use of the Site with which CONTRACTOR must comply in performing the Work. OWNER shall obtain in a timely manner and pay for easements for permanent structures or permanent changes in existing facilities. B. CONTRACTOR shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment. 4.02 Subsurface and Physical Conditions A. Reports and Drawings: The Supplementary Conditions identify: 1. those reports of explorations and tests ofsubsurface conditions at or contiguous to the Site that ENGINEER has used in preparing the Contract Documents; and 2. those drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) that ENGINEER has used in preparing the Contract Documents. B. Limited Reliance by CONTRACTOR on Technical Data Authorised.- CONTRACTOR may rely upon the general accuracy of the "technical data" contained in such reports and drawings, but such reports and drawings are not Contract Documents. Such "technical data" is identified in the Supplementary Conditions. Except for such reliance on such "technical data," CONTRACTOR may not rely upon or make any Claim against OWNER, ENGINEER, or any of ENGINEER's Consultants with respect to: 1. the completeness of such reports and drawings for CONTRACTOR's purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by CONTRACTOR, and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions, and information contained in such reports or shown or indicated in such drawings; or 3. any CONTRACTOR interpretation ofor conclusion drawn from any "technical data" or any such other data, interpretations, opinions, or information. 4.03 Differing Subsurface or Physical Conditions A. Notice: If CONTRACTOR believes that any subsurface or physical condition at or contiguous to the Site that is uncovered or revealed either: 1. is of such a nature as to establish that any "technical data" on which CONTRACTOR is entitled to rely as provided in paragraph 4.02 is materially inaccurate; or 2. is of such a nature as to require a change in the Contract Documents; or 3. differs materially from that shown or indicated in the Contract Documents; or 4. is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents; then CONTRACTOR shall, promptly after becoming aware thereof and before further disturbing the subsurface or physical conditions or performing any Work in connection therewith (except in an emergency as required by paragraph 6.16.A), notify OWNER and ENGINEER in writing about such condition. CONTRACTOR shall not further disturb such condition or perform any Work in connection therewith (except as aforesaid) until receipt of written order to do so. B. ENGINEER's Review: After receipt ofwritten notice as required by paragraph 4.03A, ENGINEER shall promptly review the pertinent condition, determine the necessity of OWNER's obtaining additional exploration or tests with respect thereto, and advise OWNER in writing (with a copy to CONTRACTOR) of ENGINEER's findings and conclusions. 00-700-11 C. Possible Price and Times Adjustments 1. The Contract Price or the Contract Times, or both, shall be equitably adjusted, in the form of a Change Order, to the extent that the existence of such differing subsurface or physical condition causes an increase or decrease in CONTRACTOR's cost of, or time required for, performance of the Work; subject, however, to the following: a. such condition must meet any one or more of the categories described in paragraph 4.03.A; and b. with respect to Work that is paid for on a Unit Price Basis, any adjustment in Contract Price shall be subject to the provisions of paragraphs 9.08 and 11.03. 2. CONTRACTOR shall not be entitled to any adjustment in the Contract Price or Contract Times if: a. CONTRACTOR knew ofthe existenceofsuch conditions at the time CONTRACTOR made a final commitment to OWNER in respect of Contract Price and Contract Times by the submission of a Bid or becoming bound under a negotiated contract; or b. the existence of such condition could reasonably have been discovered or revealed as a result of any examination, investigation, exploration, test, or study of the Site and contiguous areas required by the Bidding Requirements or Contract Documents to be conducted by or for CONTRACTOR prior to CONTRACTOR's making such final commitment; or c. CONTRACTOR failed to give the written notice promptly and as required by paragraph 4.03.A. d. CONTRACTOR represents he has made a reasonable inspection of the construction site and hereby voluntarily waives the incorporation ofthe provisions of 30 ILCS 557/1 et seq. and represents that the negotiated contract price is the sole consideration for the construction of the improvement described in this contract. Further, OWNER shall not be liable to CONTRACTOR for any amount of money over the negotiated contract price. 3. OWNER, ENGINEER, and ENGINEER's Consultants shall not be liable to CONTRACTOR for any claims, costs, losses, or damages (including but not limitedto all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by CONTRACTOR on or in connection with any other project or anticipated project. 4.04 Underground Facilities A. Shown or Indicated: Any information and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or contiguous to the Site is based on information and data furnished to OWNER or ENGINEER by the owners of such Underground Facilities, including OWNER, or by others. Unless it is otherwise expressly provided in the Supplementary Conditions: 1. OWNER and ENGINEER shall not be responsible for the accuracy or completeness of any such information or data; and 2. the cost of all of the following shall be included in the Contract Price, and CONTRACTOR shall have full responsibility for: a. reviewing and checking all such information and data, b. locating all Underground Facilities shown or indicated in the Contract Documents, c. coordination of the Work with the owners of such Underground Facilities, including OWNER, during construction, and d. the safety and protection of all such Underground Facilities and repairing any damage thereto resulting from the Work. B. Not Shown or Indicated l . If an Underground Facility is uncovered or revealed at or contiguous to the Site which was not shown or indicated, or not shown or indicated with reasonable accuracy in the Contract Documents, CONTRACTOR shall, promptly after becoming aware thereof and before further disturbing conditions affected thereby or performing any Work in connection therewith (except in an emergency as required by paragraph 6.16.A), identify the owner of such Underground Facility and give written notice to that owner and to OWNER and ENGINEER. ENGINEER shall promptly review the Underground Facility and determine the extent, if any, to which a change is required in the Contract Documents to reflect and document the consequences of the existence or location of the Underground Facility. During such time, CONTRACTOR shall be responsible for the safety and protection of such Underground Facility. 2. If ENGINEER concludes that a change in the Contract Documents is required, a Work Change Directive or a Change Order may be issued at OWNER'S discretion to reflect and document such consequences. C. The provisions of paragraphs 4.02, 4.03, and 4.04 shall not apply to a Hazardous Environmental Condition uncovered or revealed at the Site. 4.05 Reference Points A. OWNER shall provide land surveys necessary to establish right of way, easements and property lines. ENGINEER shall provide base lines, benchmarks and reference points which in ENGINEER'S judgment are necessary to enable CONTRACTOR to proceed with the Work. CONTRACTOR 00-700-12 shall provide all stakes, markers, labor and assistance required by ENGINEER. CONTRACTOR shall be responsible for laying out the Work, shall protect and preserve the established reference points and property monuments, and shall make no changes or relocations without the prior written approval of OWNER. CONTRACTOR shall report to ENGINEER whenever any reference point or property monument is lost or destroyed or requires relocation because ofnecessarychanges in grades or locations, and shall be responsible and pay for the accurate replacement or relocation of such reference points or property monuments by professionally qualified personnel. 4.06 Hazardous Environmental Condition at Site A. Reports and Drawings, Reference is made to the Supplementary Conditions for the identification of those reports and drawings relating to a Hazardous Environmental Condition identified at the Site, if any, that have been utilized by the ENGINEER in the preparation of the Contract Documents. B. Limited Reliance by CONTRACTOR on Technical Data Authorised: CONTRACTOR may rely upon the general accuracy of the "technical data" contained in such reports and drawings, but such reports and drawings are not Contract Documents. Such "technical data" is identified in the Supplementary Conditions. Except for such reliance on such "technical data," CONTRACTOR may not rely upon or make any Claim against OWNER, ENGINEER or any of ENGINEER's Consultants with respect to: 1. the completeness of such reports and drawings for CONTRACTOR's purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by CONTRACTOR and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings; or 3. any CONTRACTOR interpretation ofor conclusion drawn from any "technical data" or any such other data, interpretations, opinions or information. C. CONTRACTOR shall not be responsible for any Hazardous Environmental Condition uncovered or revealed at the Site which was not shown or indicated in Drawings or Specifications or identified in the Contract Documents to be within the scope of the Work. CONTRACTOR shall be responsible for a Hazardous Environmental Condition created with any materials brought to the Site by CONTRACTOR, Subcontractors, Suppliers, or anyone else for whom CONTRACTOR is responsible. D. If CONTRACTOR encounters a Hazardous Environmental Condition or if CONTRACTOR or anyone for whom the CONTRACTOR is responsible creates a Hazardous Environmental Condition, CONTRACTOR shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such condition and in any area affected thereby (except in an emergency as required by paragraph 6.16); and (iii) notify OWNER and ENGINEER (and promptly thereafter confirm such notice in writing (and promptly thereafter confirm such notice in writing). OWNER shall promptly consult with ENGINEER concerning the necessity for OWNERto retain a qualified expert to evaluate such condition or take corrective action if any. E. CONTRACTOR shall not be required to resume Work in connection with such condition or in any affected area until after OWNER has obtained any required permits related thereto and delivered to CONTRACTOR written notice: (i) specifying that such condition and any affected area is or has been rendered safe for the resumption of Work; or (ii) specifying any special conditions under which such Work may be resumed safely. F. If after receipt of such written notice CONTRACTOR does not agree to resume such Work or does not agree to resume such Work under such special conditions, then OWNER may order the portion of the Work that is in the area affected by such condition to be deleted from the Work. OWNER shall be entitled to deduct the cost of such Work from the Contract Price. G. To the fullest extent permitted by Laws and Regulations, CONTRACTOR shall indemnify and hold harmless OWNER, ENGINEER, ENGINEER's Consultants, and the officers, directors, partners, employees, agents, other consultants, and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to a Hazardous Environmental Condition created by CONTRACTOR or by anyone fur whom CONTRACTOR is responsible. Nothing in this paragraph shall obligate CONTRACTOR to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence. ARTICLE 5 - BONDS AND INSURANCE 5.01 Performance, Payment, and Other Bonds A. CONTRACTOR shall furnish performance andpayment Bonds, each in an amount at least equal to the Contract Price as security for the faithful performance and payment of all CONTRACTOR's obligations under the Contract Documents. These Bonds shall remain in effect at least until one year after the date when final payment becomes due, except as provided otherwise by Laws or Regulations or by the ContractDocuments. 00-700-13 CONTRACTOR shall also furnish such other Bonds as are required by the Contract Documents. B. All Bonds shall be in the form prescribed by the Contract Documents except as provided otherwise by Laws or Regulations, and shall be executed by such sureties as are named in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as published in Circular 570 (amended) by the Financial Management Service, Surety Bond Branch, U.S. Department of the Treasury or as mayotherwise be acceptable to OWNER at OWNER'S discretion. All Bonds signed by an agent must be accompanied by a certified copy of such agent's authority to act. C. Ifthe surety on any Bond furnished by CONTRACTOR is declared bankrupt or becomes insolvent or its 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 paragraph 5.0I.B, CONTRACTOR shall within 20 days thereafter substitute another Bond and surety, both of which shall comply with the requirements of paragraphs 5.0I .B and 5.02. 5.02 Licensed Sureties and Insurers A. All Bonds and insurance required by the Contract Documents to be purchased and maintained by OWNER or CONTRACTOR shall be obtained from surety or insurance companies that are duly licensed or authorized in the state of Illinois to issue Bonds or insurance policies for the limits and coverages so required. Such surety and insurance companies shall also meet such additional requirements and qualifications as may be provided in the Supplementary Conditions. 5.03 Certificates of Insurance A. CONTRACTOR shall deliver to OWNER, with copies to each additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance requested by OWNER or any other additional insured) which CONTRACTOR is required to purchase and maintain. OWNER shall deliver to CONTRACTOR, with copies to each additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance requested by CONTRACTOR or any other additional insured) which OWNER is required to purchase and maintain. B. Such insurance shall apply as primary insurance with respect to any other insurance or self-insurance program afforded to the City of Elgin. There shall be no endorsement or modification of such insurance to make it excess over other available insurance, and alternatively, ifthe insurance states that it is excess or pro rata, it shall be endorsed to be primary with respect to the City of Elgin. C. The policies to be purchased and maintained shall be furnished by insurers with A.M. Best Company rating of at least A- (Excellent) and a financial size category of VIII or greater. 5.04 CONTR.4CTOR's Liability Insurance A. CONTRACTOR shall purchase and maintain such liability and other insurance as is appropriate for the Work being performed and as shall provide protection from claims set forth below which may arise out of or result from CONTRACTOR's performance of the Work and CONTRACTOR's other obligations under the Contract Documents, whether it is to be performed by CONTRACTOR, any Subcontractor or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable: 1. claims under workers' compensation, disability benefits, and other similar employee benefit acts; 2. claims for damages because of bodily injury, occupational sickness or disease, or death of CONTRACTOR's employees; 3. claims for damages because of bodily injury, sickness or disease, or death of any person other than CONTRACTOR's employees; 4. claims for damages insured by reasonably available personal injury liability coverage which are sustained: (i) by any person as a result of an offense directly or indirectly related to the employment of such person by CONTRACTOR, or (ii) by any other person for any other reason; 5. claims for damages, other than to the Work itself, because of injury to or destruction of tangible property wherever located, including loss of use resulting therefrom; and 6, claims for damages because of bodily injury or death of any person or property damage arising out of the ownership, maintenance or use of any motor vehicle. B. The policies of insurance so required by this paragraph 5.04 to be purchased and maintained shall: 00-700-14 1. with respect to insurance required by paragraphs 5.04.A.3 through 5.04.A.6 inclusive, include as additional insureds (subject to any customary exclusion in respect of professional liability) OWNER, ENGINEER, ENGINEER's Consultants, and any other individuals or entities identified in the Supplementary Conditions, all of whom shall be listed as additional insureds, and include coverage for the respective officers, directors, partners, employees, agents, and other consultants and subcontractors of each and any of all such additional insureds, and the insurance afforded to these additional insureds shall provide primary coverage for all claims covered thereby; 2. include at least the specific coverages and be written for not less than the limits of liability provided in the Supplementary Conditions or required by Laws or Regulations, whichever is greater; 3. include completed operations insurance; 4. include contractual liability insurance covering CONTRACTOR's indemnity obligations under paragraphs 6.07, 6.11, and 6.20; 5. contain a provision or endorsement that the coverage afforded shall not be canceled, materially changed or renewal refused until at least thirty days prior written notice has been given to OWNER and CONTRACTOR and to each other additional insured identified in the Supplementary Conditions to whom a certificate ofmsurance has been issued (and the certificates of insurance furnished by the CONTRACTOR pursuant to paragraph 5.03 shall so provide); 6. remain in effect at least until final payment and at all times thereafter when CONTRACTOR may be correcting, removing, or replacing defective Work in accordance with paragraph 13.07; and 7. with respect to completed operations insurance, and any insurance coverage written on a claims -made basis, remain in effect for at least two years after final payment (and CONTRACTOR shall furnish OWNER and each other additional insured identified in the Supplementary Conditions, to whom a certificate of insurance has been issued, evidence satisfactory to OWNER and any such additional insured of continuation of such insurance at final payment and one year thereafter). 5.05 Contractor's Property Insurance A. Contractor shall purchase and maintain property insurance coverage for the Work at each site in the amount of the full replacement cost thereof. This insurance shall: 1. include the interests of Owner, Contractor, Subcontractors, Engineer, and Engineer's Consultants, each of whom is deemed to have an insurable interest and shall be listed as a named insured; 2. be written on a Builder's Risk "all-risk" or open peril or special causes of loss policy form that shall at least include insurance for physical loss or damage to the Work, temporary buildings, falsework, Work in transit including ocean transit, and Work in storage at each project site or at another location acceptable to Owner, and shall insure against at least the following perils: fire, Iightning, extended coverage, theft, vandalism and malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcementofLaws and Regulations, water damage, flood, and damage caused by frost and freezing; 3. include expenses incurred in the repair or replacement of any insured property (including, but not limited to, fees and charges of engineers and architects); and 4. be maintained in effect until final payment is made unless otherwise agreed to in writing by Owner, Contractor, and Engineer, with 30 days' written notice to each other insured. 5.06 Waiver of Rights A. OWNER and CONTRACTOR intend that all policies purchased in accordance with paragraph 5.05 shall protect OWNER, CONTRACTOR, Subcontractors, ENGINEER, ENGINEER's Consultants, and all other individuals or entities identified in the Supplementary Conditions to be listed as insureds or additional insureds (and the officers, directors, partners, employees, agents, and other consultants and subcontractors of each and any of them) in such policies and shall provide primary coverage for all losses and damages caused by the perils or causes of loss covered thereby. All such policies shall contain provisions to the effect that in the event of payment of any loss or damage the insurers shall have no rights of recovery against any of the insureds or additional insureds thereunder. OWNER and CONTRACTOR waive all rights against each other and their respective officers, directors, partners, employees, agents, and other consultants and subcontractors of each and any of them for all losses and damages caused by, arising out of or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work; and, in addition, waive all such rights against Subcontractors, ENGINEER, ENGINEER's Consultants, and all other individuals or entities identified in the Supplementary Conditions to be listed as insureds or additional insureds (and the officers, directors, partners, employees, agents, and other consultants and subcontractors of each and any of them) under such policies for losses and damages so caused. None ofthe above waivers shall extend to the rights that any party making such waiver may have to the proceeds of insurance held by OWNER as trustee or otherwise payable under any policy so issued. 5.07 Acceptance of Bonds and Insurance; Option to Replace 00-700-15 A. Ifeither OWNER or CONTRACTOR has any objection to the coverage afforded by or other provisions of the Bonds or insurance required to be purchased and maintained by the other party in accordance with Article 5 on the basis of non-conformance with the Contract Documents, the objecting party shall so notify the other party in writing within 10 days after receipt of the certificates (or other evidence requested) required by paragraph 2.05.C. OWNER and CONTRACTOR shall each provide to the other such additional information in respect of insurance provided as the other may reasonably request. If either party does not purchase or maintain all of the Bonds and insurance required of such party by the Contract Documents, such party shall notify the other party in writing of such failure to purchase prior to the start ofthe Work, or of such failure to maintain prior to any change in the required coverage. Without prejudice to any other right or remedy, the other party may elect to obtain equivalent Bonds or insurance to protect such other party's interests at the expense of the party who was required to provide such coverage, and a Change Order shall be issued to adjust the Contract Price accordingly. 5.8 Partial Utilization, Acknowledgment of Property Insurer A. If OWNER finds it necessary to occupy or use a portion or portions ofthe Work prior to Substantial Completion ofall the Work as provided in paragraph l 4.05, no such use or occupancy shall commence before the insurers providing the property insurance pursuant to paragraph 5.05 have acknowledged notice thereof and in writing effected any changes in coverage necessitated thereby. The insurers providing the property insurance shall consent by endorsement on the policy or policies, but the property insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy. ARTICLE 6 - CONTRACTOR'S RESPONSIBILITIES 6.01 Supervision and Superintendence A. CONTRACTOR shall supervise, inspect, and direct the Work competently and efficiently, devoting such attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance with the Contract Documents. CONTRACTOR shall be solely responsible for the means, methods, techniques, sequences, and procedures ofconstruction, but CONTRACTOR shall not be responsible for the negligence of OWNER or ENGINEER in the design or specification of a specific means, method, technique, sequence, or procedure of construction which is shown or indicated in and expressly required by the Contract Documents. CONTRACTOR shall be responsible to see that the completed Work complies accurately with the Contract Documents. B. At all times during the progress of the Work, CONTRACTOR shall assign a competent resident superintendent thereto who shall not be replaced without written notice to OWNER and ENGINEER. The superintendent shall be CONTRACTOR's representative at the Site and shall have authority to act on behalf of CONTRACTOR. All communications given to or received from the superintendent shall be binding on CONTRACTOR. 6.02 Labor, Working Hours A. CONTRACTOR shall provide competent, suitably qualified personnel to survey, lay out, and construct the Work as required by the Contract Documents. CONTRACTOR shall at all times maintain good discipline and order at the Site. B. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site shall be performed during regular working hours, and CONTRACTOR shall not permit overtime work or the performance of Work on Saturday, Sunday, or any legal holiday without OWNER's written consent (which shall not be unreasonably withheld) given after prior written notice to ENGINEER or except as may otherwise by specifically provided by the Contract Documents. 6.03 Services, Materials, and Equipment A. Unless otherwise specified in the General Requirements, CONTRACTOR shall provide and assume at CONTRACTOR'S cost, full responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities and incidentals necessary for the performance, testing, start-up, and completion of the Work. B. All materials and equipment incorporated into the Work shall be as specified or, if not specified, shall be of good quality and new, except as otherwise provided in the Contract Documents. All warranties and guarantees specifically called for by the Specifications shall expressly run to the benefit of OWNER. If required by ENGINEER, CONTRACTOR shall furnish satisfactory evidence (including reports ofrequiredtests) as to the source, kind, and quality of materials and equipment. All materials and equipment shall be stored, applied, installed, connected, erected, protected, used, cleaned, and conditioned in accordance with instructions of the applicable Supplier, except as otherwise may be provided in the Contract Documents. 6.04 Progress Schedule A. CONTRACTOR shall adhere to the progress schedule established in accordance with the Contract Documents as may be adjusted from time to time as provided below. 00-700-16 1. CONTRACTOR shall submit to ENGINEER for acceptance (to the extent indicated in the Contract Documents) any proposed adjustments in the progress schedule that shall not result in changing the Contract Times (or Milestones). Such adjustments shall conform generallyto the progress schedule then in effect and additionally shall comply with any provisions of the General Requirements applicable thereto. 2. Proposed adjustments in the progress schedule that shall change the Contract Times (or Milestones) shall be submitted in accordance with the requirements ofArticle 12. Such adjustments may only be made by a Change Order or Written Amendment in accordance with Article 12. 6.05 Substitutes and "Or -Equals" A. Whenever an item ofmaterial or equipment is specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier, the specification or description is intended to establish the type, function; appearance, and quality required. Unless the specification or description contains or is followed by words reading that no like, equivalent, or "or -equal" item or no substitution is permitted, other items of material or equipment or material or equipment of other Suppliers may be submitted to ENGINEER for review under the circumstances described below. 1. The procedure for review by ENGINEER for "or equal" or substitute items shall be as set forth in below, as supplemented in the General Requirements and as ENGINEER may decide is appropriate under the circumstances. 2. CONTRACTOR shall first make written application to ENGINEER for review of a proposed substitute item of material or equipment that CONTRACTOR seeks to famish or use. The application shall certify that the proposed substitute item shall perform adequately the functions and achieve the results called for by the general design, be similar in substance to that specified, and be suited to the same use as that specified. The application shall state the extent, if any, to which the use of the proposed substitute item shall prejudice CONTRACTOR's achievement of Substantial Completion on time, whether or not use of the proposed substitute item in the Work shall require a change in any of the Contract Documents (or in the provisions of any other direct contract with OWNER for work on the Project) to adapt the design to the proposed substitute item and whether or not incorporation or use of the proposed substitute item in connection with the Work is subject to payment of any license fee or royalty. All variations of the proposed substitute item from that specified shall be identified in the application, and available engineering, sales, maintenance, repair, and replacement services shall be indicated. The application shall also contain an itemized estimate of all costs or credits that shall result directly or indirectly from use of such substitute item, including costs of redesign and claims of other contractors affected by any resulting change, all of which shall be considered by ENGINEER in evaluating the proposed substitute item. ENGINEER may require CONTRACTORto furnish additional dataaboutthe proposed substitute item. B. Substitute Construction Methods or Procedures: If a specific means, method, technique, sequence, or procedure of construction is shown or indicated in and expressly required by the Contract Documents, CONTRACTOR may famish or utilize a substitute means, method, technique, sequence, or procedure of construction approved by ENGINEER. CONTRACTOR shall submit sufficient information to allow ENGINEER, in ENGINEER's sole discretion, to determine that the substitute proposed is equivalent to that expressly called for by the Contract Documents. The procedure for review by ENGINEER shall be substantially similar to that provided in subparagraph 6.05.A.2. C. Engineer's Evaluation: ENGINEER shall be allowed a reasonable time within which to evaluate each proposal or submittal made pursuant to paragraphs 6.05.A and 6.05.B. ENGINEER shall be the sole judge of acceptability. No "or -equal" or substitute shall be ordered, installed or utilized until ENGINEER's review is complete, which shall be evidenced by either a Change Order for a substitute or an approved Shop Drawing for an "or equal." ENGINEER shall advise CONTRACTOR in writing of any negative determination. D. Special Guarantee: OWNER may require CONTRACTOR to furnish at CONTRACTOR's expense a special performance guarantee or other surety with respeetto any substitute. E. ENGINEER's Cost Reimbursement: ENGINEERshall record time required by ENGINEER and ENGINEER's Consultants in evaluating substitute proposed or submitted by CONTRACTOR pursuant to paragraphs 6.05.A.2 and 6.05.13 and in making changes in the Contract Documents (or in the provisions of any other direct contract with OWNER for work on the Project) occasioned thereby. Whether or not ENGINEER approves a substitute item so proposed or submitted by CONTRACTOR, CONTRACTOR shall reimburse OWNER for the charges of ENGINEER and ENGINEER's Consultants for evaluating each such proposed substitute. F. CONTRACTOR's Expense: CONTRACTOR shall provide all data in support of any proposed substitute or "or -equal" at CONTRACTOR's expense. 00-700-17 6.06 Concerning Subcontractors, Suppliers, and Others A. CONTRACTOR shall not employ any Subcontractor, Supplier, or other individual or entity (includingthose acceptable to OWNER as indicated in paragraph 6.06.13), whether initially or as a replacement, against whom OWNER may have reasonable objection. CONTRACTOR shall not be required to employ any Subcontractor, Supplier, or other individual or entity to furnish or perform any of the Work against whom CONTRACTOR has reasonable objection. Any person employed by CONTRACTOR or Subcontractors who does not perform his work in a proper and skillful manner, or who is intemperate, disorderly, or otherwise objectionable, shall, at the written request of OWNER, be forthwith removed from the project site and shall not be employed again in any portion ofthe Work without written consent of OWNER. B. If the Supplementary Conditions require the identity of certain Subcontractors, Suppliers, or other individuals orentities to be submitted to OWNER in advance for acceptance by OWNER by a specified date prior to the Effective Date of the Agreement, and if CONTRACTOR has submitted a list thereof in accordance with the Supplementary Conditions, OWNER's acceptance (either in writing or by failing to make written objection thereto by the date indicated for acceptance or objection in the Bidding Documents or the Contract Documents) of any such Subcontractor, Supplier, or other individual or entity so identified may be revoked on the basis ofreasonable objection after due investigation. CONTRACTOR shall submit an acceptable replacement for the rejected Subcontractor, Supplier, or other individual or entity, and the Contract Price shall be adjusted by the dilFerence in the cost occasioned by such replacement, and an appropriate Change Order shall be issued or Written Amendment signed. No acceptance by OWNER of any such Subcontractor, Supplier, or other individual or entity, whether initially or as a replacement, shall constitute or be construed as a waiver of any right of OWNER or ENGINEER to reject defective Work. C. CONTRACTOR shall be fully responsible to OWNER and ENGINEER for all acts and omissions of the Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work just as CONTRACTOR is responsible for CONTRACTOR's own acts and omissions. Nothing in the Contract Documents shall create for the benefit of any such Subcontractor, Supplier, or other individual or entity any contractual relationship between OWNER or ENGINEER and any such Subcontractor, Supplier or other individual or entity, nor shall it create any obligation on the part of OWNER or ENGINEER to pay or to see to the payment of any moneys due any such Subcontractor, Supplier, or other individual or entity except as may otherwise berequired by Laws and Regulations. D. CONTRACTOR shall be solely responsible for scheduling and coordinating the Work of Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract with CONTRACTOR. E. CONTRACTOR shall require all Subcontractors, Suppliers, and such other individuals or entities performing or furnishing any of the Work to communicate with ENGINEER through CONTRACTOR. F. The divisions and sections ofthe Specifications and the identifications of any Drawings shall not control CONTRACTOR in dividing the Work among Subcontractors or Suppliers or delineating the Work to be performed by any specific trade. G. All Work performed for CONTRACTOR by a Subcontractor or Supplier shall be pursuant to an appropriate agreement between CONTRACTOR and the Subcontractor or Supplier which specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the Contract Documents for the benefit of OWNER and ENGINEER. Whenever any such agreement is with a Subcontractor or Supplier who is listed as an additional insured on the property insurance provided in paragraph 5.05, the agreement between the CONTRACTOR and the Subcontractor or Supplier shall contain provisions whereby the Subcontractor or Supplier waives all rights against OWNER, CONTRACTOR, ENGINEER, ENGINEER's Consultants, and all other individuals or entities identified in the Supplementary Conditions to be listed as insureds or additional insureds (and the officers, directors, partners, employees, agents, and other consultants and subcontractors of each and any of them) for all losses and damages caused by, arising out of, relating to, or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work. If the insurers on any such policies require separate waiver forms to be signed by any Subcontractor or Supplier, CONTRACTOR shall obtain the same. 6.07 Patent Fees and Royalties A. CONTRACTOR shall pay all license fees and royalties and assume all costs incident to the use in the performance ofthe Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance ofthe Work and if to the actual knowledge of OWNER or ENGINEER its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by OWNER in the Contract Documents. To the fullest extent permitted by Laws and Regulations, CONTRACTOR shall indemnify and hold harmless OWNER, ENGINEER, ENGINEER's Consultants, and the officers, directors, partners, employees or agents, and other consultants of 00-700-18 each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Contract Documents. 6.08 Permits A. Unless otherwise provided in the Supplementary Conditions, CONTRACTOR shall obtain and pay for all construction permits and licenses. OWNER shall assist CONTRACTOR, when necessary, in obtaining such permits and licenses. CONTRACTOR shall pay all governmental charges and inspection fees necessary for the prosecution of the Work which are applicable at the time of opening of Bids. CONTRACTOR shall pay all charges of utility owners for connections to the Work. 6.09 Laws and Regulations A. CONTRACTOR shall give all notices and comply with all Laws and Regulations applicable to the performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, neither OWNER nor ENGINEER shall be responsible for monitoring CONTRACTOR's compliance with any Laws or Regulations. B. If CONTRACTOR performs any Work knowing or having reason to know that it is contrary to Laws or Regulations, CONTRACTOR shall bear all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such Work; however, it shall not be CONTRACTOR's primary responsibility to make certain that the Specifications and Drawings are in accordance with Laws and Regulations, but this shall not relieve CONTRACTOR of CONTRACTOR's obligations under paragraph 3.03. C. Changes in Laws or Regulations not known at the time of opening of Bids (or, on the Effective Date of the Agreement if there were no Bids) having an effect on the cost or time of performance ofthe Work may be the subject of an adjustment in Contract Price or Contract Times. If OWNER and CONTRACTOR are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefor as provided in paragraph 10.05. 6.10 Taxes A. CONTRACTOR shall pay all sales, consumer, use, and other similar taxes required to be paid by CONTRACTOR in accordance with the Laws and Regulations of the place of the Project which are applicable during the performance of the Work. 6.11 Use of Site and Other Areas A. Limitation on Use of Site and Other Areas 1. CONTRACTOR shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Laws and Regulations, and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. CONTRACTOR shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof or of any adjacent land or areas resulting from the performance of the Work. 2. Should any claim be made by any such owner or occupant because of the performance of the Work, CONTRACTOR shall promptly settle with such other party by negotiation or otherwise resolve the claim as provided by law. 3. To the fullest extent permitted by Laws and Regulations, CONTRACTOR shall indemnify and hold harmless OWNER, ENGINEER, ENGINEER's Consultant, and the officers, directors, partners, employees, agents, and other consultants of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or other dispute resolution costs) arising out of or relating to any claim or action, legal or equitable, brought by any such owner or occupant against OWNER, ENGINEER, or any other party indemnified hereunder to the extent caused by or based upon CONTRACTOR's performance of the Work. CONTRACTOR shall to the greatest extent allowable by law, hold harmless and indemnify OWNER from and against any and all suits, causes of action, and any and all liability of any nature arising out of or in connection with CONTRACTOR's negligent or illegal failuretocomplywith any law or regulation, including but not limited to any claim for injunctive relief or for any attorney's fees incurred thereof. B. Removal of Debris During Performance of the Work. - During the progress of the Work CONTRACTOR shall keep the Site and other areas free from accumulations ofwaste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall conform to applicable Laws and Regulations. 00-700-19 C. Cleaning: Prior to Substantial Completion ofthe Work CONTRACTOR shall clean the Site and make it ready for utilization by OWNER. At the completion of the Work CONTRACTOR shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents. D. Loading Structures: CONTRACTOR shall not load nor permit any part of any structure to be loaded in any manner that shall endanger the structure, nor shall CONTRACTOR subject any part of the Work or adjacent property to stresses or pressures that shall endanger it. 6.12 Record Documents A. CONTRACTOR shall maintain in a safe place atthe Site one record copy of all Drawings, Specifications, Addenda, Written Amendments, Change Orders, Work Change Directives, Field Orders, and written interpretations and clarifications in good order and annotated to show changes made during construction. These record documents together with all approved Samples and a counterpart of all approved Shop Drawings shall be available to ENGINEER and OWNER for reference. Upon completion of the Work, these record documents, Samples, and Shop Drawings shall be delivered to ENGINEER for OWNER. 6.13 Safety and Protection A. CONTRACTOR shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. CONTRACTOR shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 1. all persons on the Site or who may be affected by the Work; 2, all the Work and materials and equipment to be Incorporated therein, whether in storage on or off the Site; and 3. other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities, and Underground Facilities not designated for removal, relocation, or replacement in the course of construction. B. CONTRACTOR shall comply with all applicable Laws and Regulations relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. CONTRACTOR shall notify owners of adjacent property and of Underground Facilities and other utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property. All damage, injury, or loss to any property referred to in paragraph 6.13.A.2 or 6.13.A.3 caused, directly or indirectly, in whole or in part, by CONTRACTOR, any Subcontractor, Supplier, or any other individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, shall be remedied by CONTRACTOR (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of OWNER or ENGINEER or ENGINEER's Consultant, or anyone employed by any of them, or anyone for whose acts any of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of CONTRACTOR or any Subcontractor, Supplier, or other individual or entity directly or indirectly employed by any ofthem). CONTRACTOR's duties and responsibilities for safety and for protection of the Work shall continue until such time as all the Work is completed and ENGINEER has issued a notice to OWNER and CONTRACTOR in accordance with paragraph 14.07.13 thatthe Work is acceptable (except as otherwise expressly provided in connection with Substantial Completion). 6.14 Safety Representative A. CONTRACTOR shall designate a qualified and experienced safety representative at the Site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs. 6.15 Hasard Communication Programs A. CONTRACTOR shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Laws and Regulations. 6.16 Emergencies A. In emergencies affecting the safety or protection of persons or the Work or property at the Site or adjacent thereto, CONTRACTOR is obligated to act to prevent threatened damage, injury, or loss. CONTRACTOR shall give ENGINEER prompt written notice if CONTRACTOR believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby or are required as a result thereof. If ENGINEER determines that a change in the Contract Documents is required because of the action taken by CONTRACTOR in response to such an emergency, a Work Change Directive or Change Order shall be issued. 6.17 Shop Drawings and Samples A. CONTRACTOR shall submit Shop Drawings to ENGINEER for review and approval in accordance with the 00-700-20 acceptable schedule of Shop Drawings and Sample submittals. All submittals shall be identified as ENGINEER may require and in the number of copies specified in the General Requirements. The data shown on the Shop Drawings shall be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show ENGINEER the services, materials, and equipment CONTRACTOR proposes to provide and to enable ENGINEER to review the information. B. CONTRACTOR shall also submit Samples to ENGINEER for review and approval in accordance with the acceptable schedule of Shop Drawings and Sample submittals. Each Sample shall be identified clearly as to material, Supplier, pertinent data such as catalog numbers, and the use for which intended and otherwise as ENGINEER may require to enable ENGINEER to review the submittal for the limited purposes required by paragraph 6.17.E. The numbers of each Sample to be submitted shall be as specified in the Specifications. C. Where a Shop Drawing or Sample is required by the Contract Documents or the schedule of Shop Drawings and Sample submittals acceptable to ENGINEER as required by paragraph 2.07, any related Work performed prior to ENGINEER's review and approval of the pertinent submittal shall be at the sole expense and responsibility of CONTRACTOR. D. Submittal Procedures 1. Before submitting each Shop Drawing or Sample, CONTRACTOR shall have determined and verified: a. all field measurements, quantities, dimensions, specified performance criteria, installation requirements, materials, catalog numbers, and similar informationwith respect thereto; b. all materials with respect to intended use, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance ofthe Work; c. all information relative to means, methods, techniques, sequences, and procedures of construction and safety precautions and programs incident thereto; and d. CONTRACTOR shall also have reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents. 2. Each submittal shall bear a stamp or specific written indication that CONTRACTOR has satisfied CONTRACTOR's obligations under the Contract Documents with respect to CONTRACTOR's review and approval of that submittal. 00-700-21 3. At the time of each submittal, CONTRACTOR shall give ENGINEER specific written notice of such variations, if any, that the Shop Drawing or Sample submitted may have from the requirements of the Contract Documents, such notice to be in a written communication separate from the submittal; and, in addition, shall cause a specific notation to be made on each Shop Drawing and Sample submitted to ENGINEER for review and approval of each such variation. E. ENGINEER's Review 1. ENGINEER shall timely review and approve Shop Drawings and Samples in accordance with the schedule of Shop Drawings and Sample submittals acceptable to ENGINEER. ENGINEER's review and approval shall be only to determine ifthe items covered by the submittals shall, after installation or incorporation in the Work, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. 2. ENGINEER's review and approval shall not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such shall not indicate approval ofthe assembly in which the item functions. 3. ENGINEER's review and approval of Shop Drawings or Samples shall not relieve CONTRACTOR from responsibility for any variation from the requirements ofthe Contract Documents unless CONTRACTOR has in writing called ENGINEER's attention to each such variation at the time of each submittal as required by paragraph 6.17.D.3 and ENGINEER has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample approval; nor shall any approval by ENGINEER relieve CONTRACTOR from responsibility for complying with the requirements of the Contract Documents. F. Resubmittal Procedures 1. CONTRACTOR shall make corrections required by ENGINEER and shall return the required number of corrected copies of Shop Drawings and submit as required new Samples for review and approval. CONTRACTOR shall direct specific attention in writing to revisions other than the corrections called for by ENGINEER on previous submittals. 6.18 Continuing the Work A. CONTRACTOR shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with OWNER. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as permitted by the Contract Documents or as OWNER and CONTRACTOR may otherwise agree in writing. 6.19 CONTRACTOR's General Warranty and Guarantee A. CONTRACTOR warrants and guarantees to OWNER, ENGINEER, and ENGINEER's Consultants that all Work shall be in accordance with the Contract Documents and shall not be defective. CONTRACTOR's warranty and guarantee hereunder excludes defects or damage caused by: 1. abuse, modification, or improper maintenance or operation by persons other than CONTRACTOR, Subcontractors, Suppliers, or any other individual or entity for whom CONTRACTOR is responsible; or 2. normal wear and tear under normal usage. This warranty shall guarantee all work for a period ofthree years from the date of acceptance of the Work and final acceptance by the OWNER, except for equipment, motors, electrical controls and other mechanical devices that shall be guaranteed for a period of two years from the date or acceptance and use of each item of equipment by OWNER unless a different guarantee period of time is specified under other parts of the Contract Documents. B. CONTRACTOR's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. None ofthe following shall constitute an acceptance of Work that is not in accordance with the Contract Documents or a release of CONTRACTOR'S obligation to perform the Work in accordance with the Contract Documents: 1, observations by ENGINEER; 2. recommendation by ENGINEER or payment by OWNER of any progress or final payment; 3. the issuance of a certificate of Substantial Completion by ENGINEER or any payment related thereto by OWNER; 4. use or occupancy of the Work or any part thereofby OWNER; 5. any acceptance by OWNER or any failure to do so; 6. any review and approval of a Shop Drawing or Sample submittal or the issuance of a notice of acceptability by ENGINEER; 7. any inspection, test, or approval by others; or 8. any correction of defective Work by OWNER. 6.20 Indemnification A. Indemnification. To the fullest extent permitted bylaw, Contractor agrees to and shall indemnify, defend and hold harmless the Owner, the Engineer, Engineer's consultants and the officers, employees, boards and commissions ofeach and any of them from and against any and all claims, suits, judgments, costs, attorneys' fees, damages or any and all other relief or liability arising out of or resulting from or through, or alleged to arise out of, any acts or negligent acts or omissions of Contractor or Contractor's officers, employees, agents or subcontractors in the performance of this agreement, or arising out of or in connection with litigation based on any mechanic's lien or other claims, suits, judgments and/or demands for damages by subcontractors. In the event of any action against the Owner, its officers, employees, agents, boards or commissions covered by the foregoing duty to indemnify, defend and hold harmless, such action shall be defended by legal counsel of Owner's choosing. In the event and to the extent that any legal work is performed by Owner's in-house legal counsel pursuant to the provisions ofthis section, Owner shall be reimbursed by Contractor for such legal work at the rate of $200 per hour, which rate Contractor hereby agrees and acknowledges to be a reasonable rate for such in- house attorneys' fees. The provisions of this paragraph shall survive any expiration and/or termination of this agreement. B. Contractor &ccification Indemnification. To the fullest extent permitted by law, and notwithstanding anything to the contrary in any specifications, plans or Contract Documents, Contractor hereby warrants and represents that it has thoroughly and carefully reviewed all specifications, plans and Contract Documents; and Contractor hereby waives, releases, indemnifies and agrees to hold harmless Owner, Engineer, Engineer's consultants, and any and all other entities which may have contributed or been involved in or with the preparation or drafting of any plans, specifications or Contract Documents, and the officers, employees, boards and commissions ofeach and any of them from and against any and all claims, suits, judgments, costs, attorneys' fees, damages or any and all other relief or liability arising out of or resulting from or through, or alleged to arise out of or through, ambiguities, errors or conflicts in such specifications, plans or Contract Documents. Contractor hereby agrees and acknowledges that any such claims, suits, judgments, costs, attorneys' fees, damages or any and all other relief or liability shall inherently and per se be based upon and result from Contractor's negligent acts or omissions in failing to detect any such errors, ambiguities or conflicts. The provisions of this paragraph shall survive any expiration and/or termination ofthis 00-700-22 agreement. ARTICLE 7 - OTHER WORK 7.01 Related Work at Site A. OWNER may perform other work related to the Project at the Site or let other direct contracts therefor, or have other work performed by utility owners. If such other work is not noted in the Contract Documents, then: 1. written notice thereof shall be given to CONTRACTOR prior to starting any such other work; and 2. if OWNER and CONTRACTOR are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times that should be allowed as a result of such other work, a Claim may be made therefor as provided in paragraph 10.05. B. CONTRACTOR shall afford each other contractor who is a party to any contract or work as provided in the paragraph above and each utility owner (and OWNER, if OWNER is performing the other work with OWNER's employees) proper and safe access to the Site and a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such other work and shall properly coordinate the Work with theirs. Unless otherwise provided in the Contract Documents, CONTRACTOR shall do all cutting, fitting, and patching ofthe Work that maybe required to properly connector otherwise make its several parts come together and properly integrate with such other work. CONTRACTOR shall not endanger any work ofothers by cutting, excavating, orothemise altering their work and shall only cut or alter their work with the written consent of ENGINEER, OWNER and the others whose work may be affected. C. If the proper execution or results of any part of CONTRACTOR's Work depends upon work performed by others under this Article 7, CONTRACTOR shall inspect such other work and promptly report to ENGINEER in writing any delays, defects, or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of CONTRACTOR's Work. CONTRACTOR's failure to so report shall constitute an acceptance of such other work by CONTRACTOR as fit and proper for integration with CONTRACTOR's Work except for latent defects and deficiencies in such other work. 7.02 Coordination A. if OWNER intends to contract with others for the performance of other work on the Project at the Site, the following shall be set forth in Supplementary Conditions: 1. the individual or entity who shall have authority and responsibility for coordination of the activities among the various contractors shall be identified; 2. the specific matters to be covered by such authority and responsibility shall be itemized; and 3. the extent ofsuch authority and responsibilities shall be provided. B. Unless otherwise provided in the Supplementary Conditions, OWNER shall have sole authority and responsibility for such coordination. ARTICLE 8 - OWNER'S RESPONSIBILITIES 8.01 Communications to Contractor A. Except as otherwise provided in these General Conditions, OWNER shall issue all communications to CONTRACTOR through ENGINEER. B. Requirements to Provide Documents. To the extent they are available, the OWNER shall furnish surveys describing physical characteristics, legal limitations, and utility locations for the site of the Project, and a legal description of the Site. The OWNER shall obtain and pay for necessary approvals, easements, assessments, and charges which are customarily secured prior to the execution of the Contract. The OWNER shall furnish information or services required of the OWNER hereunder with reasonable promptness after receipt from the CONTRACTOR of a written request for such information or services. The OWNER shall provide the CONTRACTOR, at no charge, such copies of the Project Manual as are reasonably necessary for the execution of the Work. C. OWNER's Right to Perform Construction and to Award Separate Contracts. The OWNER reserves the right to perform construction or operations at the Site with its own forces or others. If the CONTRACTOR claims that a delay or additional cost is involved because of such action by the OWNER, the CONTRACTOR shall make such Claim as provided elsewhere in the Contract Documents. When the separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate OWNER -Contractor Agreement. 00-700-23 The OWNER shall provide for coordination ofthe activities of the OWNERSs own forces and of each separate contractor with the Work ofthe CONTRACTOR, who shall cooperate with them. The CONTRACTOR shall afford each other person access to the Site and shall properly coordinate its Work with that ofthe persons performing other work. The CONTRACTOR shall participate with other separate contractors and the OWNER in reviewing their construction schedules when directed to do so. The CONTRACTOR shall make any revisions to the construction schedules deemed necessary after ajoint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the CONTRACTOR, separate contractors, and the OWNER until subsequently revised. D. Limitations on the OWNER's Responsibilities. The OWNER shall not supervise, direct, or have control or authority over, nor be responsible for the CONTRACTOR'S means, methods, techniques, sequences, or procedures ofconstructionor the safety precautions and programs incident thereto, or for any failure of the CONTRACTOR to comply with laws, codes and regulations applicable to the furnishing or performance of the Work. The OWNER will not be responsible for the CONTRACTOR'S failure to perform or furnish the Work in accordance with the Contract Documents. The OWNER is not responsible for the acts or omissions ofthe CONTRACTOR, any Subcontractor, Supplier, or anyone for whose acts the CONTRACTOR, any Subcontractor or Suppliers may be liable. The OWNER' authority to review any of the CONTRACTOR's progress schedules, or its decision to raise or not to raise any objections about such schedules shall not impose on the OWNER any responsibility for the timing, planning, scheduling, or execution ofthe Work, nor in any way give rise to any duty or responsibility on the part ofthe OWNER to exercise this authority for the benefit of the CONTRACTOR, any Subcontractor or Supplier or any other party. The OWNER s decision to raise or not to raise objections with regard to any aspects of the CONTRACTOR's insurance shall in no way give rise to any duty or responsibility on the part ofthe OWNER to or for the benefit ofthe CONTRACTOR, any Subcontractor, any Supplier, or any other party. E. ReservationofRights. The OWNER reserves the right to correct at any time any error in arty progress payment that may have been made. Should defective Work be discovered subsequent to final payment, the OWNER reserves the right to make a claim and recover all costs and professional fees associated therewith, including the cost of removing and/or replacing the defective Work. F. Waivers. All waivers by the OWNER are valid only to the extent that they are signed by the OWNER. Any such waivers pertain only to the specific matter contained in the waiver and not to any similar, subsequent matters. ARTICLE 9 - ENGINEER'S STATUS DURING CONSTRUCTION 9.01 OWNER'S Representative A. ENGINEER shall be OWNER's representative during the construction period. The duties and responsibilities and the limitations of authority ofENGINEER as OWNER's representative during construction are set forth in the Contract Documents and shall not be changed without written consent of OWNER and ENGINEER. 9.02 Visits to Site A. ENGINEER shall make visits to the Site at intervals appropriate to the various stages of construction as ENGINEER reasonably deems necessary in order to observe the progress that has been made and the quality of the various aspects of CONTRACTOR's executed Work. Based on information obtained during such visits and observations, ENGINEER, shall determine, in general, if the Work is proceeding in accordance with the Contract Documents. ENGINEER shall not be required to make exhaustive or continuous inspections on the Site to check the quality or quantity of the Work. On the basis of such visits and observations, ENGINEER shall keep OWNER informed ofthe progress of the Work and shall use its best efforts to guard OWNER against defective Work. B. ENGINEER's visits and observations are subject to all the limitations on ENGINEER's authority and responsibility set forth herein, and particularly, but without limitation, during or as a result of ENGINEER's visits or observations of CONTRACTOR's Work ENGINEER shall not supervise, direct, control, or have authority over or be responsible for CONTRACTOR's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of CONTRACTOR to comply with Laws and Regulations applicable to the performance of the Work. 9.03 Project Representative A. If OWNER and ENGINEER agree, ENGINEER shall furnish a Resident Project Representative to assist ENGINEER in providing more extensive observation of the Work. The responsibilities and authority and limitations thereon of any such Resident Project Representative and assistants shall be as provided in paragraph 9.10 and in the Supplementary Conditions. If OWNER designates another representative or agent to represent OWNER at the Site who is not ENGINEER's Consultant, agent or employee, the 00-700-24 responsibilities and authority and limitations thereon of such other individual or entity shall be as provided in the Supplementary Conditions. 9.04 Clarifications and Interpretations A. ENGINEER shall issue with reasonable promptness such written clarifications or interpretations of the requirements of the Contract Documents as ENGINEER may determine necessary, which shall be consistent with the intent of and reasonably inferable from the Contract Documents. Such written clarifications and interpretations shall be binding on OWNER and CONTRACTOR. 9.05 Authorised variations in Work A. ENGINEER may authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Times and are compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. These may be accomplished by a Field Order and shall be binding on CONTRACTOR, who shall perform the Work involved promptly. 9.06 Rejecting Defective Work A. ENGINEER shall have authority to disapprove or reject Work which ENGINEER believes to be defective, or that ENGINEER believes shall not produce a completed Project that conforms to the Contract Documents or that shall prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. ENGINEER shall also have authority to require special inspection or testing of the Work as provided herein whether or not the Work is fabricated, installed, or completed. 9.07 Determinations for Unit Price Work A. ENGINEER shall determine the actual quantities and classifications of Unit Price Work performed by CONTRACTOR. ENGINEER shall review with CONTRACTOR the ENGINEER's preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). ENGINEER's written decision thereon shall be final and binding (except as modified by ENGINEER to reflect changed factual conditions or more accurate data) upon OWNER and CONTRACTOR, subject to the provisions of paragraph 10.05. 9.08 Decisions on Requirements of Contract Documents and Acceptability of Work A. ENGINEER shall be the initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the Work thereunder. Claims, disputes and other matters relating to the acceptability of the Work, the quantities and classifications of Unit Price Work, the interpretation of the requirements of the Contract Documents pertaining to the performance of the Work, and Claims seeking changes in the Contract Price or Contract Times shall be referred initially to ENGINEER in writing, in accordance with the provisions of paragraph 10.05, with a request for a formal decision. B. When functioning as provided under paragraph 9.07, ENGINEER shall not show partiality to OWNER or CONTRACTOR and shall not be liable in connection with any interpretation or decision rendered in good faith in such capacity. The rendering of a decision by ENGINEER pursuant to this paragraph 9.08 with respect to any such Claim, dispute, or other matter shall be a condition precedent to any exercise by OWNER or CONTRACTOR of such rights or remedies as either may otherwise have under the Contract Documents or by Laws or Regulations in respect ofany such Claim, dispute, or other matter. 9.09 Limitations on ENGINEER's Authority and Responsibilities A. Neither ENGINEER's authority or responsibility under this Article 9 or under any other provision of the Contract Documents nor any decision made by ENGINEER in good faith either to exercise or not exercise such authority or responsibility or the undertaking, exercise, or performance ofany authority or responsibility by ENGINEER shall create, impose, or give rise to any duty in contract, tort, or otherwise owed by ENGINEER to CONTRACTOR, any Subcontractor, any Supplier, any other individual or entity, or to any surety for or employee or agent of any of them. B. ENGINEER shall not supervise, direct, control, or have authority over or be responsible for CONTRACTOR's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of CONTRACTOR to comply with Laws and Regulations applicable to the performance ofthe Work. ENGINEER shall not be responsible for CONTRACTOR's failure to perform the Work in accordance with the Contract Documents. C. ENGINEER shall not be responsible for the acts or omissions of CONTRACTOR or of any Subcontractor, any Supplier, or of any other individual or entity performing any of the Work. D. ENGINEER's review ofthe final Application for Payment and accompanying documentation and all maintenance and operating instructions, schedules, guarantees, Bonds, certificates of inspection, tests and approvals, and other documentation required to be delivered by paragraph 14.07.A shall be to determine that their content complies with the requirements of, and in the case of certificates of inspections, 00-700-25 tests, and approvals that the results certified indicate compliance with, the Contract Documents. E. The limitations upon authority and responsibility set forth in this paragraph 9.09 shall also apply to ENGINEER's Consultants, Resident ProjectRepresentative, and assistants. ARTICLE 10 - CHANGES IN THE WORK; CLAIMS 10.01 Authorised Changes in the Work A. Without invalidating the Agreement and without notice to any surety, OWNER may, at any time or from time to time, order additions, deletions, or revisions in the Work by a Written Amendment, a Change Order, or a Work Change Directive. Upon receipt of any such document, CONTRACTOR shall promptly proceed with the Work involved which shall be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided). B. If OWNER and CONTRACTOR are unable to agree on entitlement to, or on the amount or extent, if any, of an adjustment in the Contract Price or Contract Times, or both, that should be allowed as a result of a Work Change Directive, a Claim may be made therefor as provided in paragraph 10.05. 10.02 Unauthorised Changes in the Work A. CONTRACTOR shall not be entitled to an increase in the Contract Price or an extension of the Contract Times with respect to any work performed that is not required by the Contract Documents as amended, modified, or supplemented as provided in paragraph 3.04, except in the case of an emergency as provided in paragraph 6.16 or in the case of uncovering Work as provided in paragraph 13.04.B. 10.03 Execution of Change Orders A. OWNER and CONTRACTOR shall execute appropriate Change Orders recommended by ENGINEER (or Written Amendments) covering: 1. changes in the Work which are: (i) required by law (ii) ordered by OWNER pursuant to paragraph 10.0LA, (iii) required because of acceptance of defective Work under paragraph 13.08.A or OWNER's correction of defective Work under paragraph 13.09, (iv) agreed to by the parties; 2. changes in the Contract Price or Contract Times which are agreed to by the parties, including anyundisputed sum or amount of time for Work actually performed in accordance with a Work Change Directive; and 3. changes in the Contract Price or Contract Times which embody the substance of any written decision rendered by ENGINEER pursuant to paragraph 10.05; provided that, in lieu of executing any such Change Order, an appeal may be taken from any such decision in accordance with the provisions ofthe Contract Documents and applicable Laws and Regulations, but during any such appeal, CONTRACTOR shall carry on the Work and adhere to the progress schedule as provided in paragraph 6.18.A. 10.04 Notification to Surety A. If notice of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Price or Contract Times) is required by the provisions of any Bond to be given to a surety, the giving of any such notice shall be CONTRACTOR's responsibility. The amount of each applicable Bond shall be adjusted to reflect the effect of any such change. 10.05 Claims and Disputes A. Notice: Written notice stating the general nature of each Claim, dispute, or other matter shall be delivered by the claimant to ENGINEER and the other party to the Contract promptly (but in no event later than 30 days) after the start ofthe event giving rise thereto. Notice of the amount or extent of the Claim, dispute, or other matter with supporting data shall be delivered to the ENGINEER and the other party to the Contract within 60 days after the start of such event (unless ENGINEER allows additional time for claimant to submit additional or more accurate data in support of such Claim, dispute, or other matter). A Claim for an adjustment in Contract Price shall be prepared in accordance with the provisions of paragraph 12.0I I.B. A Claim for an adjustment in Contract Time shall be prepared in accordance with the provisions of Article 12. Each Claim shall be accompanied by claimant's written statement that the adjustment claimed is the entire adjustmentto which the claimant believes it is entitled as a result of said event. The opposing party shall submit any response to ENGINEER and the claimant within 30 days after receipt of the claimant's last submittal (unless ENGINEER allows additional time). B. ENGINEER's Decision: ENGINEER shall render a formal decision in writing within 30 days after receiptofthe last submittal of the claimant or the last submittal of the opposing party, if any. ENGINEER's written decision on such Claim, dispute, or other matter shall be final and binding upon OWNER and CONTRACTOR unless: 00-700-26 1. an appeal from ENGINEER's decision is taken within the time limits and in accordance with the dispute resolution procedures set forth in Article 16; or 2. ifno such dispute resolution procedures have been set forth in Article 16, a written notice of intention to appeal from ENGINEER's written decision is delivered by OWNER or CONTRACTOR to the other and to ENGINEER within 30 days after the date of such decision, and a formal proceeding is instituted by the appealing party in a forum of competent jurisdiction within 60 days after the date of such decision or within 60 days after Substantial Completion, whichever is later (unless otherwise agreed in writing by OWNER and CONTRACTOR), to exercise such rights or remedies as the appealing party may have with respect to such Claim, dispute, or other matter in accordance with applicable Laws and Regulations. C. If ENGINEER does not render a formal decision in writing within the time stated in paragraph 10.05.13, a decision denying the Claim in its entirety shall be deemed to have been issued 31 days after receipt of the last submittal the claimant or the last submittal of the opposing party, if any. D. No Claim for an adjustment in Contract Price or Contract Times (or Milestones) shall be valid if not submitted in accordance with this paragraph 10.05. ARTICLE 11 - COST OF THE WORK; CASH ALLOWANCES; UNIT PRICE WORK 11.01 Cost of the Work A. Costs Included: The term Cost ofthe Work means the sum of all costs necessarily incurred and paid by CONTRACTOR in the proper performance ofthe Work. When the value of any Work covered by a Change Order or when a Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, the costs to be reimbursed to CONTRACTOR shall be only those additional or incremental costs required because of the change in the Work or because of the event giving rise to the CIaim. 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, shall include only the following items, and shall not include any ofthe costs itemized in paragraph 11.0I.B. 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. Such employees shall include without limitation superintendents, foremen, and other personnel employed full time at the Site. Payroll costs for employees not employed full time on the Work shall be apportioned on the basis of their time spent on 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' compensation, health and 00-700-27 retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. The expenses ofperfomting Work outside of regular working hours, on Saturday, Sunday, or legal holidays, shall be included in the above to the extent authorized by OWNER. 2. Cost of all materials and equipment furnished and incorporated in the Work, including costs oftransportation 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 returns from sale of surplus materials and equipment shall accrue to OWNER, and CONTRACTOR shall make provisions so that they may be obtained. 3. Payments made by CONTRACTOR to Subcontractors for Work performed by Subcontractors. If required by OWNER, CONTRACTOR shall obtain competitive bids from subcontractors acceptable to OWNER and CONTRACTOR and shall deliver such bids to OWNER, who shall then determine, with the advice of ENGINEER, which bids, if any, shall be acceptable. If any subcontract provides that the Subcontractor is to be paid on the basis ofCost ofthe Work plus a fee, the Subcontractor's Cost of the Work and fee shall be determined in the same manner as CONTRACTOR's Cost ofthe Work and fee as provided in this paragraph 11.01. 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. 5. Supplemental costs including the following: a. The proportion of necessary transportation, travel, and subsistence expenses of CONTRACTOR's employees incurred in discharge of duties connected with the Work. b. 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. c. Rentals of all construction equipment and machinery, and the parts thereof whether rented from CONTRACTOR or others in accordance with rental agreements approved by OWNER with the advice of ENGINEER, and the costs oftransportation, loading, unloading, assembly, dismantling, and removal thereof. All such costs shall be in accordance with the terms of said rental agreements. The rental of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the Work. d. Sales, consumer, use, and other similar taxes related to the Work, and for which CONTRACTOR is liable, imposed by Laws and Regulations. e. 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. f. Losses and damages (and related expenses) caused by damage to the Work, not compensated by insurance or otherwise, sustained by CONTRACTOR in connection with the performance of the Work (except losses and damages within the deductible amounts of property insurance established in accordance with paragraph 5.05), provided such losses and damages 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. g. The cost of utilities, fuel, and sanitary facilities at the Site. h. Minor expenses such as telegrams, long distance telephone calls, telephone service at the Site, expressage, and similar petty cash items in connection with the Work. i. When the Cost of the Work is used to determine the value of a Change Order or of a Claim, the cost of premiums for additional Bonds and insurance required because ofthe changes in the Work or caused by the event giving rise to the Claim. j. When all the Work is performed on the basis of cost-plus, the costs of premiums for all Bonds and insurance CONTRACTOR is required by the Contract Documents to purchase and maintain. B. Costs Excluded: The term Cost of the Work shall not include any of the following items: 1. Payroll costs and other compensation of CONTRACTOR's officers, executives, principals (of partnerships and sole proprietorships), general managers, engineers, architects, 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 branch office for general administration ofthe Work and not specifically included in the agreed upon schedule of job classifications referredto in paragraph 11.0I.A.I or specifically covered by paragraph 11.01.A.4, all ofwhich are to be considered administrative costs covered by the CONTRACTOR's fee. 2. Expenses of CONTRACTOR's principal and branch offices other than CONTRACTOR's office at the Site. 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. 4. Costs due to the negligence of CONTRACTOR, any Subcontractor, or anyone directly or indirectly employed by any ofthem or for whose acts any of them may be liable, including but not limited to, the correction of defective Work, disposal ofmaterials or equipment wrongly supplied, and making good any damage to property. 5. Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in paragraphs 11.0LA and 11.01.B. C. CONTRACTOR's Fee: When all the Work is performed on the basis of cost-plus, CONTRACTOR's fee shall be determined as set forth in the Agreement. When the value of any Work covered by a Change Order or when a Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, CONTRACTOR's fee shall be determined as set forth in paragraph 12.0I.C. D. Documentation: Whenever the Cost of the Work for any purpose is to be determined pursuant to paragraphs 11.01 A and 11.013, CONTRACTOR shall establish and maintain records thereof in accordance with generally accepted accounting practices and submit in a form acceptable to ENGINEER an itemized cost breakdown together with supporting data. 11.02 Cash Allowances A. It is understood that CONTRACTOR has included in the Contract Price all allowances so named in the Contract Documents and shall cause the Work so coveredtobeperformed for such sums as may be acceptable to OWNER and ENGINEER. CONTRACTOR agrees that: 00-700-28 1. the allowances include the cost to CONTRACTOR (less any applicable trade discounts) of materials and equipment required by the allowances to be delivered at the Site, and all applicable taxes; and ARTICLE 12 - CHANGE OF CONTRACT PRICE; CHANGE OF CONTRACT TIMES 12.01 Change of Contract Price 2. CONTRACTOR's costs for unloading and A. The Contract Price may only be changed by a Change handling on the Site, labor, installation costs, overhead, Order or by a Written Amendment. Any Claim for an adjustment profit, and other expenses contemplated for the allowances in the Contract Price shall be based on written notice submitted have been included in the Contract Price and not in the by the party making the Claim to the ENGINEER and the other allowances, and no demand for additional payment on party to the Contract in accordance with the provisions of account of any of the foregoing shall be valid. paragraph 10.05. B. Prior to final payment, an appropriate Change Order shall be issued as recommended by ENGINEER to reflect actual amounts due CONTRACTOR on account of Work covered by allowances, and the Contract Price shall be correspondingly adjusted. 11.03 Unit Price Work A. Where the Contract Documents provide that all or part ofhe Work is to be Unit Price Work, initially the Contract Price shall be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Agreement. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and classifications of Unit Price Work performed by CONTRACTOR shall be made by ENGINEER subject to the provisions of paragraph 9.09. B. Each unit price shall be deemed to include an amount considered by CONTRACTOR to be adequate to cover CONTRACTOR's overhead and profit for each separately identified item. C. OWNER or CONTRACTOR may make a Claim for an adjustment in the Contract Price in accordance with paragraph 10.05 if. 1. the quantity of any item of Unit Price Work performed by CONTRACTOR differs materially and significantly from the estimated quantity of such item indicated in the Agreement; and 2. there is no corresponding adjustment with respect any other item of Work; and 3. if CONTRACTOR believes that CONTRACTOR is entitled to an increase in Contract Price as a result of having incurred additional expense or OWNER believes that OWNER is entitled to a decrease in Contract Price B. The value of any Work covered by a Change Order or of any Claim for an adjustment in the Contract Price shall be determined as follows: 1. where the Work involved is covered by unit prices contained in the Contract Documents, by application of such unit prices to the quantities of the items involved (subject to the provisions of paragraph 11.03 ); or 2. where the Work involved is not covered by unit prices contained in the Contract Documents, by a mutually agreed lump sum; or 3. where the Work involved is not covered by unit prices contained in the Contract Documents and agreement to a lump sum is not reached under paragraph 12.01.B.2, on the basis of the Cost of the Work (determined as provided in paragraph 11.01) plus a CONTRACTOR's fee for overhead and profit (determined as provided in paragraph 12.01.C). C. CONTRACTOR's Fee: The CONTRACTOR's fee for overhead and profit shall be determined as follows: 00-700-29 1. a mutually acceptable fixed fee; or 2. if a fixed fee is not agreed upon, then a fee based on the following percentages of the various portions of the Cost of the Work: a. for costs incurred under paragraphs 11.0l.A.1 and 11.0l .A.2, the CONTRACTOR's fee shall be 15 percent, b. for costs incurred under paragraph 1 1.01A.3, the CONTRACTOR's fee shall be five percent; c. where one or more tiers of subcontracts are on the basis of Cost of the Work plus a fee and no fixed fee is agreed upon, the intent of paragraph 12.01.C.2.a is that the Subcontractor who actually performs the Work, at whatever tier, shall be paid a fee of 15 percent of the costs incurred by such Subcontractor under paragraphs I1.01.A.I and 11.0I.A.2 and that any higher tier Subcontractor and CONTRACTOR shall each be paid a fee of five percent of the amount paid to the next lower tier Subcontractor; d. no fee shall be payable on the basis of costs itemized under paragraphs 11.01.A.4, 11.01.A.5, and 11.0I.B; e. the amount of credit to be allowed by CONTRACTOR to OWNER for any change which results in a net decrease in cost shall be the amount of the actual net decrease in cost plus a deduction in CONTRACTOR's fee by an amount equal to five percent of such net decrease; and f. when both additions and credits are involved in any one change, the adjustment in CONTRACTOR's fee shall be computed on the basis of the net change in accordance with paragraphs 12.01.C.2.a through 12.0I .C.2.e, inclusive. 12.02 Change of Contract Times A. The Contract Times (or Milestones) may only be changed by a Change Order or by a Written Amendment. Any Claim for an adjustment in the Contract Times (or Milestones) shall be based on written notice submitted by the party making the claim to the ENGINEER and the other party to the Contract in accordance with the provisions of paragraph 10.05. B. Any adjustment of the Contract Times (or Milestones) covered by a Change Order or ofany Claim for an adjustment in the Contract Times (or Milestones) shall be determined in accordance with the provisions of this Article 12. 12.03 Delays Beyond CONTRACTOR's Control A. Where CONTRACTOR is prevcnted from completing any part ofthe Work within the Contract Times (or Milestones) due to delay beyond the control of CONTRACTOR, the Contract Times (or Milestones) shall be extended in an amount equal to the time lost due to such delay if a Claim is made therefor as provided in paragraph 12.02.A. Delays beyond the control of CONTRACTOR shall include, but not be limited to, acts or neglect by OWNER, acts or neglect of utility owners or other contractors performing other work as contemplated by Article 7, fires, floods, epidemics, abnormal weather conditions, or acts of God. 12.04 Delays Within CONTRACTOR's Control A. The Contract Times (or Milestones) shall not be extended due to delays within the control of CONTRACTOR. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of CONTRACTOR. 12.05 Delays Beyond OWNER's and CONTRACTOR's Control A. Where CONTRACTOR is prevented from completing any part of the Work within the Contract Times (or Milestones) due to delay beyond the control of both OWNER and CONTRACTOR, an extension of the Contract Times (or Milestones) in an amount equal to the time lost due to such delay shall be CONTRACTOR's sole and exclusive remedy for such delay. 12.06 Delay Damages A. In no event shall OWNER or ENGINEER be liable to CONTRACTOR, any Subcontractor, any Supplier, or any other person or organization, or to any surety for or employee or agent of any of them, for damages arising out of or resulting from: 1. delays caused by or within the control of CONTRACTOR; or 2. delays beyond the control of both OWNER and CONTRACTOR including but not limited to fires, floods, epidemics, abnormal weather conditions, acts of God, or acts or neglect by utility owners or other contractors performing other work as contemplated by Article 7. B. Nothing in this paragraph 12.06 bars a change in Contract Price pursuant to this Article 12 to compensate CONTRACTOR due to delay, interference, or disruption directly attributable to actions or inactions of OWNER or anyone for whom OWNER is responsible. ARTICLE 13 - TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 13.01 Notice of Defects A. Prompt notice ofall defective Work ofwhich OWNER or ENGINEER has actual knowledge shall be given to CONTRACTOR. All defective Work may be rejected, corrected, or accepted as provided in this Article 13. 13.02 Access to Work A. OWNER, ENGINEER, ENGINEER's Consultants, other representatives and personnel of OWNER, independent testing laboratories, and governmental agencies with jurisdictional interests shall have accessto the Site andthe Work at reasonable times for their observation, inspecting, and testing. CONTRACTOR shall provide them proper and safe conditions for such access and advise them of CONTRACTOR's Site safety 00-700-30 procedures and programs so that they may comply therewith as applicable. 13.03 Tests and Inspections A. CONTRACTOR shall give ENGINEER timely notice of readiness of the Work for all required inspections, tests, or approvals and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. B. OWNER shall employ and pay for the services of an independent testing laboratory to perform all inspections, tests, or approvals required by the Contract Documents except: 1. for inspections, tests, or approvals covered by paragraphs 13.03.0 and 13.03.13 below; 2. that costs incurred in connection with tests or inspections conducted pursuant to paragraph 13.04.13 shall be paid as provided in said paragraph 13.04.13; and 3. as otherwise specifically provided in the Contract Documents. C. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) specifically to be inspected, tested, or approved by an employee or other representative of such public body, CONTRACTOR shall assume full responsibility for arranging and obtaining such inspections, tests, or approvals, pay all costs in connection therewith, and furnish ENGINEER the required certificates of inspection or approval. D. CONTRACTOR shall be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests, or approvals required for OWNER's and ENGINEER's acceptance of materials or equipment to be incorporated in the Work; or acceptance of materials, mix designs, or equipment submitted for approval prior to CONTRACTOR's purchase thereof for incorporation in the Work. Such inspections, tests, or approvals shall be performed by organizations acceptable to OWNER and ENGINEER. E. If any Work (or the work of others) that is to be inspected, tested, or approved is covered by CONTRACTOR without written concurrence of ENGINEER, it must, ifrequested by ENGINEER, be uncovered for observation. F. Uncovering Work as provided in paragraph 13.03.E shall be at CONTRACTOR's expense unless CONTRACTOR has given ENGINEER timely notice of CONTRACTOR's intention to cover the same and ENGINEER has not acted with reasonable promptness in response to such notice. 13.04 Uncovering Work A. If any Work is covered contrary to the written request of ENGINEER, it must, if requested by ENGINEER, be uncovered for ENGINEER's observation and replaced at CONTRACTOR's expense. B. If ENGINEER considers it necessary or advisable that covered Work be observed by ENGINEER or inspected or tested by others, CONTRACTOR, at ENGINEER's request, shall uncover, expose, or otherwise make available for observation, inspection, or testing as ENGINEER may require, that portion of the Work in question, furnishing all necessary labor, material, and equipment. If it is found that such Work is defective, CONTRACTOR shall pay all Claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such uncovering, exposure, observation, inspection, and testing, and of satisfactory replacement or reconstruction (including but not limited to all costs of repair or replacement ofwork ofothers); and 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 make a Claim therefor as provided in paragraph 10.05 or as may otherwise be provided by law. 13.05 OWNER May Stop the Work A. If the Work is defective, or CONTRACTOR fails to supply sufficient skilled workers or suitable materials or equipment, or fails to perform the Work in such a way that the completed Work shall conform to the Contract Documents, OWNER may order CONTRACTOR to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of OWNER to stop the Work shall not give rise to any duty on the part of OWNER to exercise this right for the benefit of CONTRACTOR, any Subcontractor, any Supplier, any other individual or entity, or any surety for, or employee or agent of any of them. 13.06 Correction or Removal of Defective Work A. CONTRACTOR shall correct all defective Work, whether or not fabricated, installed, or completed, or, ifthe Work has been rejected by ENGINEER, remove it from the Project and replace it with Work that is not defective. CONTRACTOR shall pay all Claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or removal (including but not limited to all costs of repair or replacement of work of others). 00-700-31 13.07 Correction Period A. If within three years after the date of Substantial Completion (except for equipment, motors, electrical controls and other mechanical devices which are guaranteed for a period of two years from the date of acceptance and use ofeach item of equipment by OWNER pursuant to Section 6.19(A) herein), or such longer period of time as may be prescribed by Laws or Regulations or by the terms of any applicable special guarantee required by the Contract Documents or by any specific provision ofthe Contract Documents, any Work is found to be defective, or if the repair of any damages to the land or areas made available for CONTRACTOR's use by OWNER or permitted by Laws and Regulations as contemplated in paragraph 6.1 LA is found to be defective, CONTRACTOR shall promptly, without cost to OWNER and in accordance with OWNER's written instructions: (1) repair such defective land or areas, or (ii) correct such defective Work or, if the defective Work has been rejected by OWNER, remove it from the Project and replace it with Work that is not defective, and (iii) satisfactorily correct or repair or remove and replace any damage to other Work, to the work of others or other land or areas resulting therefrom. If CONTRACTOR does not promptly comply with the terms of such instructions, or in an emergency where delay would cause serious risk of loss or damage, OWNER may have the defective Work corrected or repaired or may have the rejected Work removed and replaced, and all Claims, costs, Iosses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or repair or such removal and replacement (including but not limited to all costs of repair or replacement of work of others) shall be paid by CONTRACTOR. B. In special circumstances where a particular item of equipment is placed in continuous service before Substantial Completion of all the Work, the correction period for that item may start to run from an earlier date if so provided in the Specifications or by Written Amendment. C. Where defective Work (and damage to other Work resulting therefrom) has been corrected or removed and replaced under this paragraph 13.07, the correction period hereunder with respect to such Work shall be extended for an additional period of one year after such correction or removal and replacement has been satisfactorily completed. D. CONTRACTOR's obligations under this paragraph 13.07 are in addition to any other obligation or warranty. The provisions of this paragraph 13.07 shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitation or repose. 13.08 Acceptance of Defective Work A. If, instead of requiring correction or removal and replacement of defective Work, OWNER (and, prior to ENGINEER's recommendation offinal payment, ENGINEER) prefers to accept it, OWNER may do so. CONTRACTOR shall pay all Claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to O WNEW s evaluation of and determination to accept such defective Work (such costs to be approved by ENGINEER as to reasonableness) and the diminished value ofthe Work to the extent not otherwise paid by CONTRACTOR pursuant to this sentence. If any such acceptance occurs prior to ENGINEER's recommendation of final payment, a Change Order shall be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and OWNER shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work so accepted. If the parties are unable to agree as to the amount thereof, OWNER may make a Claim therefor as provided in paragraph 10.05. If the acceptance occurs after such recommendation, an appropriate amount shall be paid by CONTRACTOR to OWNER. 13.09 OWNER May Correct Defective Work A. If CONTRACTOR fails within a reasonable time after written notice from ENGINEER to correct defective Work or to remove and replace rejected Work as required by ENGINEER in accordance with paragraph 13.06.A, or if CONTRACTOR fails to perform the Work in accordance with the Contract Documents, or if CONTRACTOR fails to comply with any other provision ofthe Contract Documents, OWNER may, after seven days written notice to CONTRACTOR, correct and remedy any such deficiency. B. In exercising the rights and remedies under this paragraph, OWNER shall proceed expeditiously. In connection with such corrective and remedial action, OWNER may exclude CONTRACTOR from all or part ofthe Site, take possession of all or part ofthe Work and suspend CONTRACTOR's services related thereto, take possession of CONTRACTOR's tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which OWNER has paid CONTRACTOR but which are stored elsewhere. CONTRACTOR shall allow OWNER, OWNER's representatives, agents and employees, OWNER's other contractors, and ENGINEER and ENGINEER's Consultants access to the Site to enable OWNER to exercise the rights and remedies under this paragraph. C. All Claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by OWNER in exercising the rights and remedies under this paragraph 13.09 shall be charged against CONTRACTOR, and a Change Order shall be issued incorporating the necessary revisions in the Contract Documents with respect to the Work. Such claims, 00-700-32 costs, losses and damages shall include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of CONTRACTOR's defective Work. D. CONTRACTOR shall not be allowed an extension of the Contract Times (or Milestones) because of any delay in the performance of the Work attributable to the exercise by OWNER of O WNER's rights and remedies underthis paragraph 13.09. ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION 14.01 Schedule of Yalues A. The schedule of values established as provided in paragraph 2.07.A shall serve as the basis for progress payments and shall be incorporated into a form of Application for Payment acceptable to ENGINEER. Progress payments on account of Unit Price Work shall be based on the number of units completed. B. CONTRACTOR shall submit revisions to the initial schedule of progress payments whenever actual outlays for the Work vary beyond -5 percent and +10 percent from the schedule, as determined by ENGINEER. 14.02 Progress Payments A. Applications for Payments 1. At least 20 days before the date established for each progress payment (but not more often than once a month), CONTRACTOR shall submit to ENGINEER for review an Application for Payment filled out and signed by CONTRACTOR covering the Work completed as of the date of the Application and accompanied by such supporting documentation as is required by the Contract Documents. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the Site or at another location agreed to in writing, the Application for Payment shall also be accompanied by a bill of sale, invoice, or other documentation warranting that OWNER has received the materials and equipment free and clear of all Liens and evidence that the materials and equipment are covered by appropriate property insurance or other arrangements to protect OWNER's interest therein, all of which must be satisfactory to OWNER. 2. Beginning with the second Application for Payment, each Application shall include an affidavit of 00-700-33 CONTRACTOR stating that all previous progress payments received on account of the Work have been applied on account to discharge CONTRACTOR's legitimate obligations associated with prior Applications for Payment. 3. The amount of retainage with respect to progress payments shall be as stipulated in the Agreement. B. Review of Applications 1. ENGINEER shall, within 10 days after receipt of each Application for Payment, either indicate in writing a recommendation of payment and present the Application to OWNER or return the Application to CONTRACTOR indicating in writing ENGINEER's reasons for refusing to recommend payment. In the latter case, CONTRACTOR may make the necessary corrections and resubmit the Application. 2. ENGINEER's recommendation of any payment requested in an Application for Payment shall constitute a representation by ENGINEER to OWNER, based on ENGINEER's observations on the Site of the executed Work as an experienced and qualified design professional and on ENGINEER's review of the Application for Payment and the accompanying data and schedules, that to the best of ENGINEER's knowledge, information and belief. a. the Work has progressed to the point indicated; b. the quality of the Work is generally in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents, to a final determination of quantities and classifications for Unit Price Work under paragraph 9.08, and to any other qualifications stated in the recommendation); and c. the conditions precedent to CONTRACTOR's being entitled to such payment appear to have been fulfilled in so far as it is ENGINEER's responsibility to observe the Work. 3. By recommending any such payment ENGINEER shall not thereby be deemed to have represented that: (i) inspections made to check the quality or the quantity ofthe Work as it has been performed have been exhaustive, extended to every aspect of the Work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to ENGINEER in the Contract Documents; or (ii) that there may not be other matters or issues between the parties that might entitle CONTRACTOR to be paid additionally by OWNER or entitle OWNER to withhold payment to CONTRACTOR. 4. ENGINEER may refuse to recommend the whole or any part of any payment if, in ENGINEER's opinion, it would be incorrect to make the representations to OWNER referred to in paragraph 14.02.13.2. ENGINEER may also refuse to recommend any such payment or, because of subsequently discovered evidence or the results of subsequent inspections or tests, revise or revoke any such payment recommendation previously made, to such extent as may be necessary in ENGINEER's opinion to protect OWNER from loss because: a. the Work is defective, or completed Work has been damaged, requiring correction or replacement; b. the Contract Price has been reduced by Written Amendment or Change Orders; c. OWNER has been required to correct defective Work or complete Work in accordance with paragraph 13.09; or d. ENGINEER has actual knowledge of the occurrence of any of the events enumerated in paragraph 15.02.A. C. Payment Becomes Due 1. Within 30 days after presentation of the Application for Payment to OWNER with ENGINEER's recommendation, the amount recommended shall (subject to the provisions of paragraph 14.02.13) become due, and when due shall be paid by OWNER to CONTRACTOR. D. Reduction in Payment 1. OWNER may refuse to make payment of the full amount recommended by ENGINEER because: a. claims have been made against OWNER on account of CONTRACTOR's performance or furnishing ofthe Work; b. Liens have been filed in connection with the Work; c. there are other items entitling OWNER to a set-offagainst the amount recommended, including, but not limited to, the failure of Contractor to provide any lien waivers and/or certifications which may be required by Owner or as a result of Owner's payments to subcontractors pursuant to the provisions of the Contract Documents; or d. OWNER has actual knowledge of the occurrence of any of the events enumerated in paragraphs 14.02.B.5.a through 14.02.B.5.c or paragraph 15.02.A. 14.03 CONTRACTOR's Warranty of Title A. CONTRACTOR warrants and guarantees that title to all Work, materials, and equipment covered by any Application for Payment, whether incorporated in the Project or not, shall pass to OWNER no later than the time ofpayment free and clear of all Liens. 14.04 Substantial Completion A. When CONTRACTOR considers the entire Work ready for its intended use CONTRACTOR shall notify OWNER and ENGINEER in writing that the entire Work is substantially complete (except for items specifically listed by CONTRACTOR as incomplete) and request that ENGINEER issue a certificate of Substantial Completion. Promptly thereafter, OWNER, CONTRACTOR, and ENGINEER shall make an inspection of the Work to determine the status of completion. If ENGINEER does not consider the Work substantially complete, ENGINEER shall notify CONTRACTOR in writing giving the reasons therefor. If ENGINEER considers the Work substantially complete, ENGINEER shall prepare and deliver to OWNER a tentative certificate of Substantial Completion which shall fix the date of Substantial Completion. There shall be attached to the certificate a tentative list of items to be completed or corrected before final payment. OWNER shall have fourteen days after receipt of the tentative certificate during which to make written objection to ENGINEER as to any provisions of the certificate or attached list. If, after considering such objections, ENGINEER concludes that the Work is not substantially complete, ENGINEER shall within 14 days after submission of the tentative certificate to OWNER notify CONTRACTOR in writing, stating the reasons therefor. If, after consideration of OWNER's objections, ENGINEER considers the Work substantially complete, ENGINEER shall within said 14 days execute and deliver to OWNER and CONTRACTOR a definitive and final certificate of Substantial Completion (with a revised tentative list of items to be completed or corrected) reflecting such changes from the tentative certificate as ENGINEER believes justified after consideration of any objections from OWNER. At the time of delivery of the tentative certificate of Substantial Completion ENGINEER shall deliver to OWNER and CONTRACTOR a written recommendation as to division of responsibilities pending final payment between OWNER and CONTRACTORwith respeetto security, operation, safety, and protection of the Work, maintenance, heat, utilities, insurance, and warranties and guarantees. Unless OWNER and CONTRACTOR agree otherwise in writing and so inform ENGINEER in writing prior 00-700-34 to ENGINEER's issuing the definitive and final certificate of Substantial Completion, ENGINEER's aforesaid recommendation shall be binding on OWNER and CONTRACTOR until final payment. B. OWNER shall have the right to exclude CONTRACTOR from the Site after the date of Substantial Completion, but OWNER shall allow CONTRACTOR reasonable access to complete or correct items on the tentative list. 14.05 Partial Utilisation A. Use by OWNER at OWNER's option of any substantially completed part of the Work that has specifically been identified in the Contract Documents, or which OWNER, ENGINEER, and CONTRACTOR agree constitutes a separately functioning and usable part of the Work that can be used by OWNER for its intended purpose without significant interference with CONTRACTOR's performance of the remainder of the Work, may be accomplished prior to Substantial Completion of all the Work subject to the following conditions. 1. OWNER at anytime may request CONTRACTOR in writing to permit OWNER to use any such part of the Work which OWNER believes to be ready for its intended use and substantially complete. IfCONTRACTOR agrees that such part of the Work is substantially complete, CONTRACTOR shall certify to OWNER and ENGINEER that such part of the Work is substantially complete and request ENGINEER to issue a certificate of Substantial Completion for that part of the Work. CONTRACTOR at any time may notify OWNER and ENGINEER in writing that CONTRACTOR considers any such part ofthe Work ready for its intended use and substantially complete and request ENGINEER to issue a certificate of Substantial Completion for that part of the Work. Within a reasonable time after either such request, OWNER, CONTRACTOR, and ENGINEER shall make an inspection of that part ofthe Work to determine its status of completion. IfENGINEER does not consider that part of the Work to be substantially complete, ENGINEER shall notify OWNER and CONTRACTOR in writing giving the reasons therefor. If ENGINEER considers that part of the Work to be substantially complete, the provisions of paragraph 14.04 shall apply with respect to certification of Substantial Completion of that part of the Work and the division of responsibility in respect thereof and access thereto. 2. No occupancy or separate operation of part ofthe Work may occur prior to compliance with the requirements of paragraph 5.10 regarding property insurance. 14.06 Final Inspection A. Upon written notice from CONTRACTOR that the entire Work or an agreed portion thereof is complete, ENGINEER shall promptly make a final inspection with OWNER and CONTRACTOR and shall notify CONTRACTOR in writing of all particulars in which this inspection reveals that the Work is incomplete or defective. CONTRACTOR shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies. 00-700-35 14.07 Final Payment A. Application for Payment 1. After CONTRACTOR has, in the opinion of ENGINEER, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, Bonds, certificates or other evidence of insurance certificates of inspection, marked -up record documents (as provided in paragraph 6.12), and other documents, CONTRACTOR may make application for final payment following the procedure for progress payments. 2. The final Application for Payment shall be accompanied (except as previously delivered) by: (i) all documentation called for in the Contract Documents, including but not limited to the evidence of insurance required by subparagraph 5.04.B.7; (ii) consent of the surety, if any, to final payment; and (iii) complete and legally effective releases or waivers (satisfactory to OWNER) of all Lien rights arising out of or Liens filed in connection with the Work. B. Review of Application and Acceptance 1. If, on the basis of ENGINEER's observation ofthe Work during construction and final inspection, and ENGINEER's review ofthe final Application for Payment and accompanying documentation as required by the Contract Documents, ENGINEER is satisfiedthatthe Work has been completed and CONTRACTOR's other obligations under the Contract Documents have been fulfilled, ENGINEER shall, within ten days after receipt of the final Application for Payment, indicate in writing ENGINEER's recommendation of payment and presentthe Application for Payment to OWNER for payment. At the same time ENGINEER shall also give written notice to OWNER and CONTRACTOR that the Work is acceptable subject to the provisions of paragraph 14.09. Otherwise, ENGINEER shall return the Application for Payment to CONTRACTOR, indicating in writing the reasons for refusing to recommend final payment, in which case CONTRACTOR shall make the necessary corrections and resubmit the Application for Payment. C. Payment Becomes Due 1. Thirty days after the presentation to OWNER of the Application for Payment and accompanying documentation, the amount recommended by ENGINEER shall become due and, when due, shall be paid by OWNER to CONTRACTOR. 14.08 Waiver of Claims A. The making and acceptance of final payment shall constitute: 1. a waiver of all Claims by OWNER against CONTRACTOR, except Claims arising from unsettled Liens, from defective Work appearing after final inspection pursuant to paragraph 14.06, from failure to comply with the Contract Documents or the terms of any special guarantees specified therein, or from CONTRACTOR's continuing obligations under the Contract Documents; and 2. a waiver of all Claims by CONTRACTOR against OWNER other than those previously made in writing which are still unsettled. ARTICLE 15 - TERMINATION 15.01 OWNER May Terminate for Cause A. The occurrence of any one or more of the following events shall justify termination for cause: 1. CONTRACTOR's persistent failure to perform the Work in accordance with the Contract Documents (including, but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the progress schedule established under paragraph 2.07 as adjusted from time to time pursuant to paragraph 6.04); 2. CONTRACTOR's disregard of Laws or Regulations of any public body having jurisdiction; 3. CONTRACTOR's disregard of the authority of ENGINEER; or 4. CONTRACTOR's violation in any substantial way of any provisions of the Contract Documents. B. If one or more of the events identified in paragraph 15.01.A occur, OWNER may, after giving CONTRACTOR (and the surety, if any) seven days written notice, terminate the services ofCONTRACTOR, exclude CONTRACTOR from the Site, and take possession of the Work and of all CONTRACTOR's tools, appliances, construction equipment, and machinery at the Site, and use the same to the full extent they could be used by CONTRACTOR (without liability to CONTRACTOR for trespass or conversion), incorporate in the Work all materials and equipment stored at the Site or for which OWNER has paid CONTRACTOR but which are stored elsewhere, and finish the Work as OWNER may deem expedient. In such case, CONTRACTOR shall not be entitled to receive any further payment until the Work is finished. If the unpaid balance of the Contract Price exceeds all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by OWNER arising out ofor relating to completing the Work, such excess shall be paid to CONTRACTOR. If such claims, costs, losses, and damages exceed such unpaid balance, CONTRACTOR shall pay the difference to OWNER. Such claims, costs, losses, and damages incurred by OWNER shall be reviewed by ENGINEER as to their reasonableness and, when so approved by ENGINEER, incorporated in a Change Order. When exercising any rights or remedies under this paragraph OWNER shall not be required to obtain the lowest price for the Work performed. C. Where CONTRACTOR's services have been so terminated by OWNER, the termination shall not affect any rights or remedies of OWNER against CONTRACTOR then existing or which may thereafter accrue. Any retention or payment of moneys due CONTRACTOR by OWNER shall not release CONTRACTOR from liability. 15.02 OWNER May Terminate For Convenience A. Upon seven days written noticeto CONTRACTOR and ENGINEER, OWNER may, without cause and without prejudice to any other right or remedy of OWNER, elect to terminate the Contract. In such case, CONTRACTOR shall be paid (without duplication of any items): 00-700-36 1. for completed and acceptable Work executed in accordance with the Contract Documents prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such Work; 2. for expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses; 3. for all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred in settlement of terminated contracts with Subcontractors, Suppliers, and others; and 4. for reasonable expenses directly attributable to termination. B. CONTRACTOR shall not be paid on account ofloss of anticipated profits or revenue or other economic loss arising out of or resulting from such termination. ARTICLE 16 - DISPUTE RESOLUTION 16.01 Methods and Procedures A. This Agreement shall be subject to and governed bythe laws of the State of Illinois. Venue for the resolution of any dispute or the enforcement of any rights pursuant to this Agreement shall be in the Circuit Court of Kane County. ARTICLE 17 - MISCELLANEOUS 17.01 Giving Notice A. Whenever any provision of the Contract Documents requires the giving of written notice, it shall be deemed to have been validly given if delivered in person to the individual or to a member ofthe firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. 17.02 Computation of Times A. When any period of time is referred to in the Contract Documents by days, it shall be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day shall be omitted from the computation. 17.03 Cumulative Remedies A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee, or by other provisions ofthe Contract Documents, and the provisions of this paragraph shall be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply; provided however, that the provisions of this paragraph shall not apply to any provision in the contract documents which provide for liquidated damages. Any such contract documents which make reference to liquidated damages shall have such liquidated damages apply as the sole recourse available to City for damages. 17.04 Survival of Obligations A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, shall survive final payment, completion, and acceptance ofthe Work or termination or completion of the Agreement. 17.05 Controlling Law A. This Contract is to be governed by the law of Illinois. 17.06 Professional Fees and Court Costs Included A. Whenever reference is made to Aclaims, costs, losses and damages, it shall specifically exclude all fees and charges of attorneys and all court or dispute resolution costs. 17.07 Prevailing Wage Rates A. CONTRACTOR shall comply with the attached prevailing wage rates as determined by the Illinois Department of Labor. 00-700-37 ATTACHMENT C Supnlementary Conditions Retarding Insurance Insurance Requirements: Contractor agrees to obtain, furnish, and maintain in full force and effect during the entire term of this Agreement, at its sole cost, the insurance coverages outlined herein. All of said insurance shall be written by, and secured from, companies approved to do business and issue insurance in the State of Illinois and must be rated "A" or better, in accordance with the latest edition of Besfs Insurance Guide, published by A.M. Best Company, Inc. or its equivalent. The comprehensive general liability insurance shall be endorsed to include independent contractors, contractual liability, personal injury, products/completed operations liability, broad from property damage, and cross liability and severability of interest provisions. Policies provided hereunder shall not contain XCU exclusions relating to explosion, collapse and underground property damage. All liability insurance shall be written on an occurrence basis. Automobile liability insurance should include coverage for all owned, non -owned, hired and leased vehicles. All insurance policies shall be written in the name of the contractor and such insurance shall be primary and noncontributory with any insurance or self-insurance program afforded to the City of Elgin. Comprehensive Liability General Aggregate Products Completed Operations Aggregate Personal Injury and Advertising Limit Each Occurrence Automobile Liability Combined Single Limit Umbrella Liability Each Occurrence General Aggregate Worker's Compensation Statutory Employer's Liability $2 Million $2 Million $1 Million $1 Million $1 Million $2 Million $2 Million As required by state law $1,000,000 Each Accident $1,000,000 Each Emp for Disease $1,000,000 Policy Limit for Disease The Contractor may purchase and maintain excess liability insurance in the umbrella form in order to satisfy the limits of liability required in accordance with the requirements set forth above. The comprehensive liability and umbrella policies must name the City of Elgin as additional insured. The workers' compensation policy shall include a waiver of subrogation in favor of the City. The Contractor shall be responsible for and shall bear the risk of loss and damage to any property of Contractor and any property for which it is responsible or in its care, custody, or contract, wherever located. Any insurance provided for such property shall be solely at Contractor's expense. Prior to the commencement of any work under this Agreement, Contractor shall furnish Certificates of Insurance acceptable to the City and conforming to the insurance coverage required herein. The policy cancellation notification provision will provide the City with at least thirty (30) days written notice in the event of cancellation or material change. The City reserves the right, at its sole discretion, to amend the insurance requirements contained herein. 2 ATTACHMENT D Ottercreek (Hopps Road) Sanitary Lift Station 11/19/20 Elgin, Illinois RE: Electrical Equipment Upgrades By Metropolitan Per Quotation #KT102620MN dated 11/05/20 Estimated time line for Ottercreek LS Control Upgrades. Working Day 1- Notice to Proceed Metro provides submittal info City returns approved submittals Metro procures equipment Metro finishes PLC program Program Is tested and ready for install Install "prep" work is completed INSTALLATION IS COMPLETED - Working Day 110 System field testing is completed Field training for City personnel is complete Liquidated Damages start - Working Day 120 (Note: These are referred to working days) ATTACHMENT E City of Elgin, Illinois Certification Requirements Please submit all required forms and documentation, fully completed and signed, with your proposal. No proposal will be accepted without this informs 1. To assure compliance with the City of Elgin's Affirmative Action Ordinance, all contractors and vendors. Herein referred to as "bidders", are requested to submit the following information: a. Workforce analysis using the enclosed Bidder's Employee Utilization form. b. Provide the information required in Item #3 on the employee utilization form if the answer to Question # 2 on the form is "Yes". c. Provide a written commitment outlining the steps that the bidder plans to take in the area of recruitment and promotion of minorities and females to assure equal employment opportunity. (A copy of the bidder's affirmative action plan may be submitted in lieu of this requirement.) 2. To assure compliance with the City of Elgin's Sexual Harassment Ordinance, all bidders must submit a signed sexual harassment form enclosed with the Invitation to Bid. 3. The undersigned certifies that the offerer is not delinquent in the payment of any tax administered by the Illinois Department of Revenue unless there is a pending proceeding contesting the tax. 4. The undersigned certifies that the offerer is not barred from offering on this solicitation as a result of a conviction for the violation of State law prohibiting bid -rigging or bid -rotating. 5. The successful bidder agrees that upon acceptance by the City of Elgin, the executed invitation to Bid alongwith'all instructions, conditions, and specifications attached thereto constitute a binding contract which may be enforced by the city. Signature Company Address Phone Nut Email Add FEIN No. ®°NM� City of Elgin, Illinois Sexual Harassment - - Policies and Programs Effective July 1,1993, every party to any contract with the City of Elgin and every eligible bidder is required to have written sexual harassment policies that include, at a minimum, the following information: • the illegality of sexual harassment • the definition of sexual harassment under state law • a description of sexual harassment, utilizing examples • a vendor's internal complaint process including penalties and a description of the means by which complaining parties may complain directly to management personnel other than the alleged harassing individual • the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights, and the Illinois Duman Rights Commission • directions on how to contaet the department and commission • protection against retaliation as provided by Section 6-101 of the Human Rights Act I hereby affirm that the organization which I represent has in place sexual harassment policies which include the required information set forth above, and I hereby agree to furnish the City of Elgin - Human Resources Department with a copy of these policies if they so request. Signature/Title -��— Company p / i e, Date 11-/6 .-2.020 Sexual harassment is defined as follows: "Sexual harassment" means any unwelcome sexual advances or requests for sexual favors or any conduct of a sexual nature when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual's employment, (2) submission to or rejection of such conduct by an individual is used as a basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of substantially interfering with an individual's work performance or creating an intimidating, hostile, or offensive working environment. Any questions by contracting parties or eligible bidders concerning compliance with these requirements should be directed to the City of Elgin - Human Resources Department at (847) 931- 5607. The undersigned, on behalf of the undersigned company, hereby agrees to fully indemnify and hold the City of Elgin harmless from any and all liability, loss or damage including costs of defense or claim, demands, costs of judgment against it arising from any complaint based on unlawful harassment and/or employment action, including, but not limited to termination, based on any protected category as provided by law, including, but not limited to, sexual harassment resulting from the act of any member of my organization in the performance of this contract. SignatgvT tle , company 'Yy o1i%n ju-SRF15, � Date City of Elgin, Illinois BIDDER'S EMPLOYEE UTILIZATION FORM This report is required by the City of Elgin and must be submitted before the contract can be awarded. Chapter 3.12.1000 Affirmative Action - City Contracts 1Name and Address of Bidder M Mra".`o h h��i'e4 3;1 L. Sa t o "- ve- 3:4 De cription of Project FOB CATEGGRISS Total Employees Whites Blacks Hispanics Asians or Pacific American Indians Minority (M & F) Female (All Categories) M/F M/F M/ F Islanders M/ F M/ F % % Example: Managers 18 3/ 5 3/ 2 4/ 0 Oil 0/ 0 55.6% palal 44A% (Strsl �uc�iv�ti � fz/V D% 's� y � 31�� A 'Rl� 5rryIt, e-r,-cha FFM test' ¢ /. lQ� z� r9 to /o y /U i �� n aria 0h Prudien%tipp'rt tr Yi L+- f oi'i 1►t r / 0/10 I! 0 TOTALS 1 I � �5� 17! i Sisdat f Corgpatty Offidal Titl-pfe Telephone Number Date Signed Page 2. Have you ever been awarded a bid by the City of Elgin? Yes No 3. If the answer to question #2 is Yes, please submit a copy of the Employee Utilization Form that was submitted with your last successful bid along with a fully completed copy of this form. 4. Please submit, according to the guideline provided in the attached document, a written commitment to provide equal employment opportunity. An Employee Utilization Form is required for any subcontractors. NOTE: In the event that a contractor or vendor, etc., fails to comply with the fair employment and affirmative action provisions of the City of Elgin, the City amongst other actions may cancel, terminate, or suspend the contract in whole or in part. CITY OF ELGIN, ILLINOIS RESPONSIBLE BIDDER AFFIDAVIT State of 571hflO 5 SS. County of W 11 ` ighti Vidi Yl, - . being first duly sworn, hereby deposes and states: (1) That s/he is the PlCSCdel7� of the party making the bid (the "bidder") of which this affidavit is a part thereof. (2) That the bidder has a valid federal employer tax identification number, or if an individual, a valid social security number, such number being as follows: (3) That the bidder agrees to and shall comply with the Equal Opportunity Employer provisions of Section 2000e of Chapter 21, Title 42 of the United States Code and Federal Executive Order Number 11246, as amended, by Executive Order 11375, and has and shall comply with the Equal Opportunity Employer provisions of the Elgin Municipal Code, Section 3.12.100, as amended. (4) That bidder has the insurance coverage as set forth in the bid specifications including general liability, workers' compensation, completed operations, automobile, hazardous occupations and products liability. Copies of certificates of insurance indicating such insurance coverages are attached. (5) That bidder has a written sexual harassment policy in compliance with the provisions of the Illinois Human Rights Act (775 ILCS 5/2-105(A)(4), as amended). A copy of bidder's written sexual harassment policy is attached. (6) That bidder hereby certifies that it shall comply with the provisions of the Illinois Prevailing Wage Act (820 ILCS 130/0.01 et seq., as amended). (7) That the bidder hereby certifies: [check all that apply] ■ bidder has not received any notices of violations of the Illinois Prevailing Wage Act (820 ILCS 130/0.01 et seq.) in the event any such notice has been received by bidder, a copy of any such notice is attached hereto in the event that bidder has received such a notice, any documentation demonstrating the resolution of any such notice is attached hereto ■ for each such notice received by bidder, the matter has been resolved as follows: (8) As a condition of the agreement for the project, bidder shall have in place a written substance abuse prevention program which meets or exceeds the program requirements of the Substance Abuse Prevention on Public Works Act (820 ILCS 265/1 et seq., as amended). A copy of such policy shall be provided to the city's purchasing director prior to the entry into and execution of the agreement for the project. (9) Bidder represents and warrants that it has relevant experience that indicates the necessary capacity to perform the project and adequate references verifying the quality of work performed. Relevant experience of the bidder includes the following projects: Bidder's references verifying the quality of the work performed on such projects are as follows: (10) For city construction projects (construction of new city facilities, renovation of an existing facility, or city road construction projects) over fifty thousand dollars ($50,000) bidder hereby certifies, represents and warrants that it participates in an apprentice and training programs applicable to the work to be performed on the project which are approved by and registered with the united States Department of Labor Office of Apprenticeship and Training or are a reasonable equivalent to such programs. Evidence of such participation is hereby attached: Yes _ No _ Not applicable to this project (check response which applies) (11) For city construction projects (construction of new city facilities, renovation of existing facilities or city road construction projects) bidder must demonstrate a good faith effort toward providing equal employment opportunities for persons to work as craftsperson, laborers, workers or mechanics consistent with the racial, ethnic and gender demographics of the labor force available in the Illinois Department of Employment Security Chicago -Naperville -Joliet Metropolitan Division which consists of Cook DeKalb, DuPage, Grundy, Kane, Kendall, McHenry and Will counties. The following is bidder's description of bidder's good -faith efforts toward providing such equal employment opportunities: Signature of bidder, if an individual: Signature of bidder, if a corporation: �Pemdent `ate ,},y Secretary — Signature of bidder, if a partnership: Partner {indicate General or Limited} Signature of bidder, if a limited liability company: Member or Manager Subscribed and sworn to before the this day of 20 My Commission expires: FOIL CITY PURCHASING DEPARTMENT ONLY: Attachments - Insurance certificates: Bidder's sexual harassment policy: Bidder's substance abuse prevention program: If applicable, Illinois Prevailing Wage Act violation notice(s): If applicable, documentation resolving IPWA violation notice(s): If applicable, apprenticeship and training program documentation: Page 4 ® CERTIFICATE OF LIABILITY INSURANCE DATE (MMIDD/YYYY) 12/8/2020 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(les) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER MCI' The Horton Group PHONE 10320 Orland Parkway r°'C• N9. a•u: Orland Park IL 60467 ADDRESS: C INSURED METRIND-01 INSURER B : The Travelers Inden Metropolitan Industries, Inc. 37 Forestwood Drive INSURER C: Travelers Indemnity Romeoville IL 60446 INSURER D : Travelers Property INSURER E : COVERAGE NAIC # omparry of Connecticut 25682 omparTy of America 25666 arry 25658 V Company of America 25674 COVERAGES CERTIFICATE NUMBER:841611824 REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. IOLI TT R TYPE OF INSURANCE ADDL SUBR POLICY NUMBER PM DCDNYYYI Y EFF (MMOILD1=1 LIMITS C X COMMERCIAL GENERAL LIABILITY 630-907713176-IND-20 7/31/2020 7/31/2021 EACH OCCURRENCE $1,000,000 CLAIMS -MADE OCCUR DAMAf3C'TO RENTED PREMISES Ea occurrence $ 300,000 MED EXP (Any one person) $ 5,000 PERSONAL & ADV INJURY $1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 POLICY JECOT- LOC PRODUCTS -COMPIOPAGG $2,000,000 I $ OTHER: A AUTOMOBILE LIABILITY BA-2N771584-TCT-20-14-G 7/31/2020 7/31/2021 COMBINED SINGLE LIMIT Ea accident $1,000,000 BODILY INJURY (Per person) $ X ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS BODILY INJURY (Per accident) $ X HIRED LNON-OWNED AUTOS ONLY AUTOS ONLY PROPERTY DAMAGE Per accident $ D X UMBRELLALIAB X OCCUR CUP-2J783798-20-14 7/31/2020 7/31/2021 EACH OCCURRENCE $10,000,000 AGGREGATE $10,000,000 EXCESS LIAB CLAIMS -MADE $ DIED I X I RETENTION e WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N US-8K247909-20-14-G 1 7/31/2020 7/31/2021 X PER OTH- STATUTE I . ER E.L. EACH ACCIDENT $1,000,000 ANYPROPRIETOR/PARTNER/EXECUTIVE OFFICERIMEMBER EXCLUDED9 F­N] N / A E.L. DISEASE - EA EMPLOYEE $1,000,000 (Mandatory In NH) If yes, describe under DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $ 1,000,000 C Leased and Rented Equipment I 630-907713176-IND-20 7/31/2020 7/31/2021 Limit:100,000 Ded.1,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Additional Insured with respects to general liability: City of Elgin CERTIFICATE HOLDER City of Elgin 150 Dexter Court Elgin IL 60120 CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ©1988-2015 ACORD CORPORATION. All rights reserved. ACORD 25 (2016/03) The ACORD name and logo are registered marks of ACORD