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HomeMy WebLinkAbout24-266 Resolution No. 24-266 RESOLUTION AUTHORIZING THE EXECUTION OF AN AGREEMENT WITH LAMP INCORPORATED FOR PROFESSIONAL SERVICES IN CONNECTION WITH CONSTRUCTION OF THE WING PARK GOLF CLUBHOUSE (RFP 24-057) 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 Lamp, Incorporated, for professional services in connection with construction of the Wing Park golf clubhouse(RFP 24-057), a copy of which is attached hereto and made a part hereof by reference. s/David J. Kaptain David J. Kaptain, Mayor Presented: December 4, 2024 Adopted: December 4, 2024 Omnibus Vote: Yeas: 9 Nays: 0 Attest: s/ Kimberly Dewis Kimberly Dewis, City Clerk AGREEMENT THIS AGREEMENT is made and entered as of the 4th day of December , 2024, by and between the CITY OF ELGIN,an Illinois municipal corporation(hereinafter referred to as"Owner") and Lamp Incorporated, an Illinois corporation (hereinafter referred to as"Construction Manager"). WHEREAS,the Owner desires to engage the Construction Manager to furnish certain professional services in connection with construction of the Wing Park Golf Course clubhouse project which generally includes demolition work related to the removal of the existing clubhouse and associated structures and the construction of a new clubhouse with improved amenities and outdoor storage of golf carts, hereinafter referred to as the"Project." NOW,THEREFORE,it is hereby agreed by and between the Owner and the Construction Manager that the Owner does hereby retain the Construction Manager to act for and represent it in construction matters involved in the Project,subject to the following terms and conditions and stipulations,to-wit: ARTICLE 1 All work hereunder shall be performed under the direction of the Director of Golf Operations of the Owner, herein after referred to as the"Director." ARTICLE 2 CONSTRUCTION MANAGER'S SCOPE OF SERVICES The Construction Manager shall perform the services described in this Article and the Owner's Request for Proposals,RFP#2024-57,and the Construction Manager's 91-page proposal submitted in response thereto, dated October 10, 2024. The Construction Manager shall furnish construction administration and management to perform the Project in an expeditious and economical manner consistent with the interests of the Owner. The Owner shall endeavor to promote harmony and cooperation among the Owner, Architect,Construction Manager and other persons or entities employed by the Owner for the Project. The services to be provided under Paragraphs 2.1 and 2.2 constitute the Preconstruction Phase services. 2.1 PRE-CONSTRUCTION PHASE 2.2.1 CONSULTATION The Construction Manager with the Architect shall jointly schedule and attend regular meetings with the Owner. The Construction Manager shall consult with the Owner and Architect regarding site use and improvements, and the selection of materials, building systems, and equipment. The Construction Manager shall provide recommendations on construction feasibility; actions designated to minimize adverse effects of labor or material shortages; time requirements for procurement, installation and construction completion; and factors related to construction cost including estimates of alternative designs or materials, preliminary budgets and possible economics. 2.2.2 PHASED CONSTRUCTION The Construction Manager shall make recommendations to the Owner and Architect regarding the phased issuance of Drawings and Specifications to facilitate phased construction of the Work, if such phased 1 construction is appropriate for the Project, taking into consideration such factors as economies, time of performance, availability of labor and materials, and provisions for temporary facilities. It is the intention of the parties that the provisions of this agreement shall to the extent necessary be construed to accommodate and permit such phasing and that the complete scope of work to be completed on the Project will vary until all phases of the work are bid. The Owner, Architect and Construction Manager agree to work cooperatively to create a scope of work that fits the Owner's budget. 2.2.3 SUBCONTRACTORS AND SUPPLIERS AND PROJECT PROCUREMENT The Construction Manager shall seek to develop subcontractor interest in the Project and shall furnish to • the Owner and Architect for their information a list of possible subcontractors, including suppliers who are to furnish materials or equipment fabricated to a special design, from whom proposals shall be requested for each principal portion of the Work. The Architect shall promptly reply in writing to the Construction Manager if the Architect or Owner know of any objection to such subcontractor or supplier. The receipt of such list shall not require the Owner or Architect to investigate the qualifications of proposed subcontractors or suppliers, nor shall it waive the right of the Owner or Architect later to object to or reject any proposed subcontractor or supplier. The Construction Manager shall conduct up to one(1) meeting with local firms interested in working on the Project to explain the bidding and award process and to solicit local firms to bid the project. The location and/or meeting rooms for the meetings will be furnished by the Owner. In all contracting,hiring,or employment made possible or resulting from this Agreement,there shall be no discrimination against any firm, employee or applicant for employment because of sex, age, race, color, religion, creed,national origin,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 unless based upon a bona fide occupational qualification, and this requirement shall apply, but not be limited to, employment advertising; layoff or termination; rates of pay or other forms of compensation;and selection for training, including apprenticeship. The Construction Manager will 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. The Seller will distribute copies of this commitment to all persons who participate in recruitment,screening,referral and selection of job applicants, prospective job applicants,and subcontractors. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, religion, creed, national origin,ancestry,order of protection status,familial status,age(except minimum age and retirement provisions),marital status, physical or mental disability, military status,sexual orientation,or unfavorable discharge from military service. Any violation of this provision shall be considered a violation of a material provision of this Agreement. The construction work on the Project shall be performed under subcontracts or by other appropriate agreements with the Construction Manager. Source selection for all subcontractors and suppliers shall be conducted in conformance with the City of Elgin procurement ordinance. The Construction Manager may use a prequalification process to pre-qualify bidders to determine the responsibility of prospective bidders. The Construction Manager shall obtain bids from subcontractors and from suppliers of materials or equipment fabricated to a special design for the Work from qualified bidders and,after analyzing such bids and offerors, shall deliver such bids to the Owner and Architect. The Owner shall then determine,with the advice of the Construction Manager, which bids shall be accepted. The Owner may designate specific persons or entities from whom the Construction Manager shall solicit bids. The Construction Manager shall not be required to contract with anyone to whom the Construction Manager has reasonable objection and the Owner has determined not to be a responsible or responsive bidder or offeror. The Construction Manager shall prepare Bid Packages consisting of drawings,specifications,and other information prepared by the Architect and Construction Manager that include: Invitations to Bid, Instructions to Bidders, Proposal Form, Scopes of Work, General Requirements, General Conditions and Supplementary General Conditions,sample Trade Contracts,Performance and Payment Bond Forms,Insurance Specifications,and other conditions of the contract to secure trade contractor or supplier bids for all elements of the project. Bid Packages shall be prepared and developed as the Construction Manager determines are in the best interests of the project. The form and contents of all bid packages shall be subject to the advance approval of the Owner. Bid packages shall be publicly advertised and bid openings shall be conducted as approved by the Owner and in conformance with the City of Elgin procurement ordinance. All successful bidders shall be compensated in accordance with the Illinois Prevailing Wage Act,and shall be required to comply with all federal,state and local laws, regulations,orders, and ordinances applicable to public contractors in Illinois. All successful bidders shall be required to certify that they are not barred from contracting with any unit of state or local government as a result of a violation of Section 33E-3 or 33E-4 of the Interference with Public Contracting Act,720 11,CS 5/33E-1,et. seq. No portion of the Work may be performed by the Construction Manager or its affiliates except with the Owners advance written approval. If the Construction Manager makes such a request to perform a portion of the Work which is approved by the Owner prior to the issuance of a bid package with respect to the subject portion of the Work,the Construction Manager shall submit its own sealed bid in conformance with the terms of this agreement and with the City of Elgin procurement ordinance. 2.2.4 LONG-LEAD TIME ITEMS The Construction Manager shall recommend to the Owner and Architect a schedule for procurement of long-lead time items which shall constitute part of the Work as required to meet the Project schedule. If approved by the Owner, the Construction Manager shall procure long-lead items in advance of subcontracts for the Work; provided however, any such procurements shall be conducted in conformance with the requirements of the City of Elgin procurement ordinance. The Construction Manager shall expedite the delivery of long-lead time items. 2.2.5 EXTENT OF RESPONSIBILITY The Construction Manager does not warrant or guarantee estimates and schedules except as may be included as part of the Guaranteed Maximum Price. The recommendations and advice of the Construction Manager concerning design alternatives shall be subject to the review and approval of the Owner and the Owner's professional consultants. The Owner, Architect and Construction Manager agree to work cooperatively to create a scope of work that fits the Owner's budget. The Construction Manager shall not be liable for failure to ascertain that the Drawings and Specifications are in accordance with applicable laws, statutes, ordinances, building codes, rules and regulations. However, if the Construction Manager recognizes that portions of the Drawings and Specifications are at variance therewith, the Construction Manager shall promptly notify the Architect and Owner in writing. 2.2.6 PRECONSTRUCTION PHASE KEY PERSONNEL The following Key Personnel of the Construction Manager shall participate and shall be involved in the Preconstruction Phase of the Project for the duration of Preconstruction Services. 3 NAME TITLE 1. Ian Lamp President 2. Chad Alexander Vice President,Operations 3. Tom McGrath Vice President, Estimating The Construction Manager shall not reassign or replace Preconstruction Key Personnel as identified herein without the prior approval of the Owner,which approval shall not be unreasonably withheld. Estimated and anticipated man hours included in the Construction Manager's lump sum fee for Preconstruction Services for the Construction Manager's personnel are included in Exhibit 2 to this agreement. 2.2.7 PROJECT STATUS The Construction Manager shall conduct two status sessions during the Project. One status session shall be conducted during the Preconstruction Phase and shall involve the Owner, Architect and Construction Manager. One status session shall be conducted during the Construction Phase and shall involve the Owner, Architect, Construction Manager and selected Trade Contractors. In addition, periodic Owner/Architect/Construction Manager status meetings to review the progress of the Project shall be held periodically through the Project but not less than every three(3)months. 2.3 GUARANTEED MAXIMUM PRICE PROPOSAI.AND CONTRACT TIME 2.3.1 Upon receipt of all subcontract and supplier bids for the Project, the Construction Manager shall propose a Guaranteed Maximum Price for the Owner's and Architect's review,and the Owner's acceptance, which shall be the Construction Manager's estimated Cost of the Work, the Construction Manager's contingency described in Section 2.3.2,the Project general conditions fee and the Construction Manager's Compensation described in Section 4.1.2,and other costs that are a part of the Project. 2.3.2 The Estimated Cost of the Work shall include the Construction Manager's Contingency, a sum established by the Construction Manager for the Construction Manager's exclusive use to cover costs which are properly reimbursable as a Cost of the Work but not the basis for a Change Order. The Construction Manager's Contingency shall be equal to 3.0% of the total of all subcontracts and purchase orders for the project. Savings from the awarded subcontractor or supplier contracts shall accrue and be available for use in the same manner as the Construction Manager's contingency. The Construction Manager shall report the expenditure of Construction Manager's Contingency to the Owner monthly.The Construction Manager and Owner,upon agreement,may reduce the contingency as certain milestones in the project are completed. Reductions in the contingency may be used,at the Owner's discretion,to add or enhance project elements. 2.3.3 The Construction Manager is authorized to enter into amendments to the awarded subcontractor and supplier contracts when the subject of any such amendment does not constitute a Change in the Work, is required to complete work within the scope of the Project,and its properly reimbursable as a Cost of the Work. Any such amendments to the subcontractor and supplier contracts authorized by the Construction Manager shall be applied and charged against the Construction Manager's Contingency. Any such amendments which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the Owner. In the event any such proposed amendment is not germane to the original subcontract as signed and is in an amount equal to or greater than i 0%of the original subcontract or more, the Construction Manager shall, to the extent circumstances reasonably permit,obtain bids for the additional work which is the subject of the proposed amendment pursuant to the 4 procedures as set forth in Section 2..2.3 hereof. Amendments to the awarded subcontractor and supplier contracts which constitute a Change in the Work and are not within the original scope of the Project shall be accomplished by Change Orders pursuant to Article 10 or Article 12 of the General Conditions. All Change Orders shall be authorized by the Owner pursuant to the procedures in Section 3.2 of this Agreement,and according to law. 2.3.4 BASIS OF GUARANTEEED MAXIMUM PRICE The Construction Manager shall include with the Guaranteed Maximum Price proposal a written statement of its basis,which shall include: 1. A list of the Drawings and Specifications, including all addenda thereto and the Conditions of the Contract, which were used in preparation of the Guaranteed Maximum Price proposal. 2. A list of allowances and a statement of their basis. 3. A list of the clarifications and assumptions made by the Construction Manager in the preparation of the Guaranteed Maximum Price proposal to supplement the information contained in the Drawings and Specifications. 4. The proposed Guaranteed Maximum Price, including a statement of the estimated cost organized by trade categories based upon the proposed low responsive bids for each category,allowances,contingency,general conditions of construction and other items and the fee that comprise the Guaranteed Maximum Price. 5. The Date of Substantial Completion upon which the proposed Guaranteed Maximum Price is based,and a schedule of the Construction Documents issuance data upon which the date of Substantial Completion is based. 6. A date by which the Owner must accept the Guaranteed Maximum Price. 2.3.5 The Construction Manager shall meet with the Owner and Architect to review the Guaranteed Maximum Price Proposal and the written statement of its basis. In the event that the Owner or Architect discover any inconsistencies or inaccuracies in the information presented, they shall promptly notify the Construction Manager, who shall make appropriate adjustments to the Guaranteed Maximum Price proposal, its basis or both. 2.3.6 Unless the Owner accepts the Guaranteed Maximum Price Proposal in writing on or before the date specified in the proposal for such acceptance and so notifies the Construction Manager, the Guaranteed Maximum Price proposal shall not be effective without written acceptance by the Construction Manager. 2.3.7 Prior to the Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal and issuance of a Notice to Proceed, the Construction Manager shall not incur any cost to be reimbursed as part of the Cost of the Work for Subcontractors, except as the Owner may specifically authorize in writing. 2.3.8 Upon acceptance by the Owner of the Guaranteed Maximum Price proposal, the Guaranteed Maximum Price and its basis shall be set forth in Amendments to this agreement. To the extent that the Project proceeds in phases pursuant to Subparagraph 2.2.2, such amendments shall be added to the then current Guaranteed Maximum Price, it being the intent of the parties that there be one Guaranteed 5 Maximum Price for the entire Project. The Guaranteed Maximum Price shall be subject to additions and deductions by a Change in the Work as provided in the Contract Documents and the date of Substantial Completion shall be subject to adjustment as provided in Section 8.3 of the General Conditions. 2.3.9 The Owner shall authorize and cause the Architect to revise the Drawings and Specifications to the extent necessary to reflect the agreed-upon assumptions and clarifications contained in Amendments to this agreement. Such revised Drawings and Specifications shall be furnished to the Construction Manager in accordance with schedules agreed to by the Owner,Architect and Construction Manager. The Construction Manager shall promptly notify the Architect and Owner if such revised Drawings and Specifications are inconsistent with the agreed upon assumptions and clarifications. 2.3.10 The Guaranteed Maximum Price shall include in the Cost of the Work only those taxes which are enacted at the time the Guaranteed Maximum Price is established. 2.4 CONSTRUCTION PHASE 2.4.1 GENERAL The Construction Phase of the Project or a phase thereof shall commence upon the following: 1. The Owner's acceptance of the Construction Manager's Guaranteed Maximum Price proposal for the Project or a phase thereof,and 2. The Owner's issuance of a notice to proceed and Owner's first authorization to the Construction Manager to award a subcontract for the construction of the Project or phase thereof. 2.4.2 ADMINISTRATION 2.4.2.1 The Construction Manager shall schedule and conduct weekly meetings at which the Owner, Architect, Construction Manager and appropriate Subcontractors can discuss the status of the Work. The Construction Manager shall prepare and promptly distribute meeting minutes. 2.4.2.2 The Guaranteed Maximum Price proposal shall include a schedule in accordance with the General Conditions. 2.4.2.3 The Construction Manager shall provide monthly written reports to the Owner and Architect on the progress of the entire Work. The Construction Manager shall maintain a daily log containing a record of weather, subcontractors working on the site, number of workers, Work accomplished, problems encountered and other similar relevant data as the Owner may reasonably require. The log shall be available to the Owner and Architect. 2.4.2.4 The Construction Manager shall develop a system of cost control for the Work, including regular monitoring of actual costs for activities in progress and estimates for uncompleted tasks and proposed changes. The Construction Manager shall identify variances between actual and estimated costs and report the variances to the Owner and Architect at regular intervals. 2.5 UNSAFE MATERIALS In addition to the provisions of Paragraph 4.06 of the General Conditions, if precautions are inadequate to prevent foreseeable bodily injury or death to persons resulting from a material or substance encountered 6 but not created on the site by the Construction Manager,the Construction Manager shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner and Architect in writing. The Owner, Construction Manager and Architect shall then proceed in the same manner described in Subparagraph 4.06.D of the General Conditions. The Owner shall obtain the services of a licensed laboratory, or other reasonably appropriate entity, to verify the presence or absence of the material or substance reported by the Construction Manager and, in the event such material or substance is found to be present, to verify that it has been rendered harmless. Unless otherwise required by the Contract Documents, the Owner shall furnish in writing to the Construction Manager and Architect the names and qualifications of persons or entities who are to perform tests verifying the presence or absence of such material or substance or who are to perform the task of removal or safe containment of such material or substance. The Construction Manager and Architect shall promptly reply to the Owner in writing stating whether or not either has reasonable objection to the persons or entities proposed by the Owner. If either the Construction Manager or Architect has an objection to a person or entity proposed by the Owner, the Owner shall propose another to whom the Construction Manager and Architect have no reasonable objection. 2.6 PROGRESS REPORTS 2.6.1 Time is the of the essence of this Project.The Project should be completed within eight(8) months of the date on which the relevant permit(s)are issued to begin work. 2.6.2 A preliminary project schedule for the Project shall be prepared by the Construction Manager and submitted to the Owner by December 20, 2024 in accordance with Article 2.2.3 above. Progress shall be recorded on the project schedule and submitted monthly as a component of the Status Report described in 2.6.3 below. A detailed construction schedule shall be submitted with each phase of the Guaranteed Maximum Price. 2.6.3 The Construction Manager shall submit to the Owner monthly a Status Report keyed to the Project Schedule. A brief narrative shall be provided identifying progress, findings and outstanding issues. Construction progress shall be recorded and submitted monthly as a component of the status report in 2.4.2.4. 2.7 WORK PRODUCTS All work products prepared by the Construction Manager pursuant hereto including, but not limited to, reports, photographs and recommendations shall be the property of the Owner and shall be delivered to the Owner upon request of the Manager; provided, however,that the Construction Manager may retain copies of such work products for its records. Such work products are not intended or represented to be suitable for reuse by the Owner on any extension of the Project or on any other project, and such reuse shall be at the sole risk of the Owner without liability or legal exposure by the Construction Manager. 2.8 KEY PERSONNEL The Construction Manager shall assign and maintain during the duration of the Construction Phase of the project the following key personnel: NAME POSITION I. Chad Alexander Vice President of Operations 2. Jay Schaack Project Manager 7 3. To be determined Site Superintendent The Construction Manager shall not reassign or replace key personnel as identified herein without the prior approval of the Owner,which approval shall not be unreasonably withheld. Estimated and anticipated man hours included in the Construction Manager's lump sum fee for Construction Phase Services for the Construction Manager's personnel are included in Exhibit 2 to this Agreement. In the event requested by the Owner and for good cause, the Construction Manager shall reassign or replace any key personnel as identified herein. • 2.9 COMMUNICATIONS The Construction Manager shall respond to requests from the Owner within a reasonable time,but not less than twenty-four(24)hours after receipt by the Construction Manager. ARTICLE 3 OWNER'S RESPONSIBILITIES 3.1 INFORMATION AND SERVICES 3.1.1 The Owner shall provide full information in a timely manner regarding the requirements of the Project, including a program which sets forth the Owner's objectives, constraints and criteria, including space requirements and relationships, flexibility and expandability requirements, special equipment and systems,and site requirements. 3.1.2 The Owner shall establish and update an overall budget for the Project,based on consultation with the Construction Manager and Architect, which shall include contingencies for changes in the Work and other costs which are the responsibility of the Owner. 3.1.3 STRUCTURAL AND ENVIRONMENTAL TESTS,SURVEYS AND REPORTS In the Preconstruction Phase, the Owner shall furnish the following at the Owner's expense, and the Construction Manager shall be entitled to rely upon the accuracy of any such information,reports,surveys, drawings and tests described in Sections 3.1.3.1 through 3.1.3.5,except to the extent that the Construction Manager knows of any inaccuracy. 3.1.3.1 Reports, surveys, drawings and tests concerning the conditions of the site which are required by law. 3.1.3.2 Surveys describing physical characteristics, legal limitations and utility locations for the site of the Project,and a written legal description of the site. The surveys and legal information shall include,as applicable,grades and lines of streets,alleys,pavements and adjoining property and structures; adjacent drainage; rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, boundaries and contours of the site; locations, dimensions and necessary data pertaining to existing buildings,other improvements and trees; and information concerning available utility services and lines, both public and private, above and below grade, including inverts and depths. All information on the survey shall be referenced to a project benchmark. 3.1.3.3 The services of geotechnical engineers. Such services may include but are not limited to test borings, test pits, determinations of soil bearing values, percolation tests, evaluations of hazardous 8 materials, ground corrosion and resistivity tests, including necessary operations for anticipating subsoil conditions,with reports and appropriate professional recommendations. 3.1.3.4 Structural, mechanical, chemical, air and water pollution tests, tests for hazardous materials, and other laboratory and environmental tests, inspections and reports which are required by law. 3.1.3.5 The services of other consultants when such services arc reasonably required by the scope of the Project and are requested by the Construction Manager. 3.1.4 The Owner shall only communicate with Subcontractors through the Construction Manager. 3.2 OWNER'S DESIGNATED REPRESENTATIVE The Owner's Designated Representative shall be the Director who shall have the authority to make decisions on behalf of the Owner which do not affect or change the Cost of the Work or the scope of the Project. For the purposes of this contract the Owner's City Manager shall have the authority to authorize change orders relating to the construction of the Project up to an amount of less than$25,000.00 per change order. A change order shall not be artificially or arbitrarily divided so as to be limited to an amount which may be authorized by the City Manager. Any change order of$25,000.00 or more must be authorized by the City Council of the City of Elgin. 3.3 ARCHITECT The Owner has retained an Architect to provide the Basic Services,including normal structural,mechanical and electrical engineering services,other than cost estimating services,described in the Agreement between the Owner and FGM Architects, Inc., dated March 30, 2022 including the additional services described therein if required by the Project. Such services shall be provided in accordance with time schedules agreed to by the Owner, Architect and Construction Manager. 3.4 LEGAL REQUIREMENTS The Owner shall determine and advise the Architect and Construction Manager of any special legal requirements relating specifically to the Project which differ from those generally applicable to construction in the jurisdiction of the Project. ARTICLE 4 COMPENSATION AND PAYMENTS FOR PRE-CONSTRUCTION AND CONSTRUCTION PHASE SERVICES The Owner shall compensate and make payments to the Construction Manager for Preconstruction and Construction Phase services as follows: 4.1 COMPENSATION 4.1.1 For the services described in this Agreement the Construction Manager's Compensation and Construction Manager's Fee shall be the Lump Sum of $494,055, inclusive of all fees and expenses regardless of actual time expended or actual costs incurred by the Construction Management for such services as set forth in Exhibit 2,subject to paragraphs 4.1.2 and 4.4.1. This Lump Sum is understood to include but is not limited to the following costs to support the Construction Manager on the Project: 9 tl ? F 1. Wages or salaries of the Construction Manager's supervisory and administrative personnel when stationed at the site or home office personnel performing the duties of Construction Supervisor (including Project Executive), Estimating, Scheduling, Purchasing, Accounting,Cost Control and Safety. 2. Wages and salaries of the Construction Manager's supervisory and administrative personnel engaged at factories, workshops or on the road in expediting the production or transportation of materials or equipment required for the project. 3. Costs paid or incurred by the Construction Manager for taxes, insurance, contributions, assessments, and benefits required by law or collective bargaining agreements, and for personnel not covered by such agreements the Construction Manager's standard fringe benefits, including sick leave, medical and health benefits, holidays, vacations, allowed absences and pensions. 4. Costs to support the Construction Manager on the Project consisting of the Project General Conditions construction services to be provided by the Construction Manager. 4.1.2 Compensation for Pre-Construction and Construction Phase services shall be equitably adjusted and the Guaranteed Maximum Price increased if the originally contemplated scope of services is modified. Prior to performing any such additional preconstruction or construction phase services the Construction Manager shall receive the advance approval of the Owner for such additional services by way of amendment to this Agreement. In the event such additional preconstruction or construction phase services are approved by the Owner,the Construction Manager shall receive additional compensation on an hourly basis equal to the Basic Labor Rate inclusive of all overhead (union fringe benefits, taxes, insurance and small tools) rounded up to the nearest whole dollar. The basic Labor Rate Schedule is attached as Exhibit 1. Additional reimbursable expenses shall be paid at the actual costs of additional expenses times an overhead factor of 105%(actual cost x 1.05). 4.2 PAYMENTS 4.2.1 The Owner shall make monthly payments to the Construction Manager within thirty(30)days after receipt of the Construction Manager's invoice. Said periodic payments to the Construction Manager shall not exceed the amounts shown in the following fee schedule, plus any changes,and full payment for each task shall not be made until the task is completed and accepted by the Owner. 4.3 GUARANTEED MAXIMUM PRICE 4.3.1 The Sum of the Cost of the Work including all allowances, contingencies and amendments as defined in this agreement and Article 6 of this Agreement and including the Construction Manager's Compensation and Fee are guaranteed by the Construction Manager not to exceed the Guaranteed Maximum Price set forth in the Guaranteed Maximum Price Amendment as it is amended from time to time. Such maximum sum as adjusted by approved Changes in the Work is referred to in the Contract Documents as the Guaranteed Maximum Price. The proposed estimated budget for the Project is$2,750.000. The Constructor Manager acknowledges and agrees that the budget for the Project is subject to the approval of the city council of the City of Elgin, and that in the event the Project is not approved this Agreement shall be terminated pursuant to Section 10.05 of this Agreement and the total compensation to which the Construction Manager will be entitled under this Agreement shall be in an amount not to exceed$20,000. 10 Costs which would cause the Guaranteed Maximum Price to be exceeded shall be paid by the Construction Manager without reimbursement by the Owner. 4.3.2 If, upon completion of the Project, the Actual Cost of the Work plus the Construction Manager's Fee is less than the Guaranteed Maximum Price as set forth herein and as adjusted by Change Orders and plus the amount of any reductions in contingency that have been used by the Owner to add or enhance Project elements as provided in Paragraph 2.3.2, the Construction Manager shall not be entitled to any additional compensation and the Owner shall pay the Construction Manager no additional compensation. 4.4 CHANGES IN THE WORK 4.4.1 Adjustments to the Guaranteed Maximum Price on account of changes in the work subsequent to the execution of the Guaranteed Maximum Price Amendment to this Agreement may be determined by customary and reasonable methods listed in Article 10 and Article 12 of the General Conditions. The adjustments shall include a 2.5 percent Construction Manager's fee and a 0.45 percent General Liability Insurance Fee of the cost of the changed work for that work. 4.4.2 Adjustments to subcontracts awarded with the Owner's prior consent on the basis of cost plus a fee shall be calculated in accordance with the terms of those Subcontracts. ARTICLE 5 INTENTIONALLY OMITTED ARTICLE 6 COST OF THE WORK 6.1 COSTS TO BE REIMBURSED 6.1.1 The term "Cost of the Work" shall mean costs necessarily incurred by the Construction Manager in the proper performance of the Work. Such costs shall be at rates not higher than those customarily paid at the place of the Project except with prior consent of the Owner. The Cost of the Work shall include only the items set forth in this Article 6. 6.1.2 Where, pursuant to the Contract Documents, any costs are subject to the Owner's prior approval, the Construction Manager shall obtain such approval in writing prior to incurring the cost. 6.1.3 Costs shall be at rates not higher than the standard rates paid at the place of the Project,except with prior approval of the Owner. 6.2 LABOR COSTS 1. Wages including costs for taxes, insurance, contributions, assessments and benefits required by law or collective bargaining agreements of construction workers directly employed by the Construction Manager to perform the construction of the Work at the site,the general conditions of construction or,with the Owner's agreement,at off-site workshops. 11 a ' 63 SUBCONTRACT COSTS Payments made by the Construction Manager to Subcontractors in accordance with the requirements of the subcontracts, including Payment and Performance Bonds. 6.4 COSTS OF MATERIALS AND EQUIPMENT INCORPORATED IN THE COMPLETED CONSTRUCTION 1. Costs, including transportation, of materials and equipment incorporated or to be incorporated in the completed construction. 2. Unused excess materials, if any, shall be handed over to the Owner at the completion of the Work or,at the Owner's option, shall be sold by the Construction Manager; amounts realized, if any, from such sales shall be credited to the Owner as a deduction from the Cost of the Work. 6.5 COSTS OF OTHER MATERIALS AND EQUIPMENT,TEMPORARY FACILITIES AND RELATED ITEMS ]. Costs, including transportation, installation, maintenance, dismantling and removal of materials, supplies, temporary facilities, Project vehicles, machinery, equipment, and hand tools not customarily owned by the construction workers, which are provided by the Construction Manager at the site and fully consumed in the performance of the Work;and cost less salvage value on such items if not fully consumed, whether sold to others or retained by the Construction Manager. Cost for items not fully consumed by the Construction Manager shall mean fair market value. 2. Rental charges for temporary facilities, machinery, equipment, and hand tools not customarily owned by the construction workers,which are provided by the Construction Manager at the site, whether rented from the Construction Manager or others, and costs of transportation, installation,minor repairs and replacements,dismantling and removal thereof. Rates and quantities of equipment rented shall be subject to the Owner's prior approval. 3. Costs of site maintenance and removal of debris from the site. 6.6 MISCELLANEOUS COSTS 1. That portion directly attributable to this Contract of premiums for the Construction Manager's Payment for Performance bonds, if required. 2. Sales, use or similar taxes imposed by a governmental authority which are related to the Work and for which the Construction Manager is liable. 3. Royalties and license fees paid for the use of a particular design, process or product required by the Contract Documents;the cost of defending suits or claims for infringement of patent or other intellectual property rights arising from such requirement by the Contract Documents; payments made in accordance with legal judgments against the Construction Manager resulting from such suits or claims and payments of settlements made with the Owner's consent; provided, however,that such costs of legal defenses,judgments and settlements shall not be included in the calculation of the Construction Manager's Compensation or the Guaranteed Maximum Price and provided that such royalties, fees and costs are not excluded by the last sentence of Subparagraph 6.07 of the General Conditions or other provisions of the Contract Documents. 12 4. Deposits lost for causes other than the Construction Manager's negligence or failure to fulfill a specific responsibility to the Owner set forth in this Agreement. 5. Legal, mediation and arbitration costs, other than those arising from disputes solely between the Owner and Construction Manager, reasonably incurred by the Construction Manager in the performance of the Work and with the Owner's written permission, which permission shall not be unreasonably be withheld. 6. Reproduction costs and associated postage and shipping costs. 7. Advertising expenses required to comply with public bidding laws or required for local business outreach programs. 8. Coordination of and payments to testing laboratories for tests required by the Contract Documents,except those related to nonconforming Work other than for which payment is permitted by Clause 6.8.2. 9. Fees and assessments for the building permit and other permits, licenses, and inspections for which the Construction Manager is required to pay to construct the project. 6.7 OTHER COSTS 1. Other costs incurred in the performance of the Work if and to the extent approved in advance in writing by the Owner. 6.8 EMERGENCIES AND REPAIRS TO DAMAGED OR NONCONFORMING WORK The cost of the Work shall also include costs described in Subparagraph 6.1.1 which are incurred by the Construction Manager: 1. In taking action to prevent threatened damage, injury or loss in case of an emergency affecting the safety of persons and property, as provided in Paragraph 10.3 of the General Conditions. 2. In repairing or correcting damaged or nonconforming Work executed by the Construction Manager or the Construction Manager's Subcontractors or suppliers, provided that such damaged or nonconforming Work was not caused by the negligence or failure to fulfill a specific responsibility to the Owner set forth in the Agreement of the Construction Manager or the Construction Manager's foremen,engineers or superintendents,or other supervisory,administrative or managerial personnel of the Construction Manager, or the failure of the Construction Manager's personnel to supervise adequately the Work of the Subcontractors or suppliers,and only to the extent that the cost of repair or correction is not recovered by the Construction Manager from insurance, Subcontractors or suppliers. 6.9 The costs described in Subparagraphs 6.1 through 6.8 shall be included in the Cost of the Work notwithstanding any provision of the General Conditions or other Conditions of the Contract which may require the Construction Manager to pay such costs, unless such costs are specifically excluded by the provisions of Paragraph 6.10. 13 � 4 6.10 COSTS NOT TO BE REIMBURSED 6.10.1 The Cost of the Work shall not include and the Owner shall not be required to pay for any of the following,which list shall not constitute a limitation: l. Salaries and other compensation of the Construction Manager's personnel stationed at the Construction Manager's principal office or offices other than the site office. 2. Expenses of the Construction Manager's principal office and offices other than the site office except as specifically provided for elsewhere in this Agreement. 3. Overhead and general expenses,except as may be expressly included elsewhere in this Agreement. 4. The Construction Manager's capital expenses, including interest on the Construction Manager's capital employed for the Work. 5. Rental costs of machinery and equipment,except as specifically provided for elsewhere in this Agreement. 6. Except as provided elsewhere in this Agreement, costs due to the negligence of the Construction Manager or the failure of the Construction Manager to fulfill a specific responsibility to the Owner set forth in the Agreement. 7. Except as provided in Clause 6.7.1 any cost not specifically and expressly described in Paragraphs 6.1 through 6.8. 8. Costs which would cause the Guaranteed Maximum Price to be exceeded. 6.3 ACCOUNTING RECORDS 6.3.1 The Construction Manager shall keep full and detailed accounts and exercise such controls as may be necessary for proper financial management under this Contract;the accounting and control systems shall be satisfactory to the Owner. The Owner and the Owner's accountants shall be afforded access to the Construction Manager's records, books, correspondence, instructions, drawings, receipts, subcontracts, purchase orders,vouchers,memoranda and other data relating to this Project,and the Construction Manager shall preserve these for a period of not less than three years after final payment, or for such longer period as may be required by law. 6.3.2 The Construction Manager shall maintain a schedule of values showing all awarded contract amounts, estimated amounts not yet let, contingencies, fees, allowances, estimated cost of general conditions of construction, miscellaneous expenses and other costs of the work that represent the Guaranteed Maximum Price. The schedule of values will be adjusted monthly as contracts are awarded, contract amendments approved, estimates revised, allowances used, contingencies spent or other modifications approved by the owner that do not exceed the Guaranteed Maximum Price. The schedule of values will be the basis for progress payments. 14 ARTICLE 7 CONSTRUCTION PHASE 7.1 PROGRESS PAYMENT 7.1.1 The Construction Manager shall submit invoices in a format approved by the Owner. Progress reports shall be included with all payment requests. Based upon Applications for Payment submitted to the owner by the Construction Manager and Certificates of Payment issued by the Architect, the Owner shall make progress payments on account of the Contract Sum, not to exceed the Guaranteed Maximum Price, to the Construction Manager as provided below and elsewhere in the Contract Documents. The Construction Manager shall maintain records showing actual time devoted and cost incurred. The Construction Manager shall permit the authorized representative of the Owner to inspect and audit all data and records of the Construction Manager for work done under this Agreement. The Construction Manage shall make these records available at reasonable times during the Agreement period and for three years after termination of this Agreement. 7.1.2 The period covered by each Application for Payment shall be one calendar month ending on the 15th day of each month. 7.1.3 Provided an Application for payment is received by the Owner not later than the first day of a month,the Owner shall make payment to the Construction Manager not later than thirty(30)days thereafter. 7.1.4 With each Application for Payment,the Construction Manager shall submit certified-payrolls-and any other documentation and evidence required by the Owner or Architect to demonstrate that cash disbursements already made by the Construction Manager on account of the Cost of the Work equal or exceed(1)progress payments already received by the Construction Manager; less(2)that portion of those payments attributable to the Construction Manager's Fee; plus (3) payrolls for the period covered by the present Application for Payment. 7.1.5 Each Application for Payment shall be based upon the most recent schedule of values submitted by the Construction Manager in accordance with the Contract Documents. The schedule of values shall allocate the entire Guaranteed Maximum Price among the various portions of the Work, except that the Construction Manager's Fee shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This schedule, unless objected to by the Architect;shall be used as a basis for reviewing the Construction Manager's Application for Payment. 7.1.6 Applications for payments shall be based on actual expenses incurred for each item in the schedule of values. For work items the Construction Manager controls as a reimbursable, it shall be based on the actual invoices received and payroll expended by the Construction Manager. For subcontracts that have been competitively bid, the payment request shall be based on invoices from subcontractors for work completed that have been received and approved by the Construction Manager and Architect. Costs submitted by subcontractors shall be subject to 10% retention as described in 7.1.8. Applications for payment shall show the percentage completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage completion shall be the lesser of(1)the percentage of that portion of the Work which has actually been completed or(2) the percentage obtained by dividing (a)the expense which has actually been incurred by the Construction Manager on account of that portion of the Work for which the Construction Manager has made or intends to make actual payment prior to the next Application for Payment by(b)the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. 15 7.1.7 Subject to other provisions of the Contract Documents,the amount of each progress payment shall be computed as follows: 1. Take that portion of the Guaranteed Maximum Price properly allocable to completed Work as determined by multiplying the percentage completion of each portion of the Work by the share of the Guaranteed Maximum Price allocated to that portion of the Work in the schedule of values. 2. Pending final determination of cost to the Owner of changes in the Work, amounts not in dispute may be included as provided in the General Conditions, even though the Guaranteed Maximum Price has not yet been adjusted by Change Order. 3. Add that portion of the Guaranteed Maximum price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work or, if approved in advance by the Owner,suitably stored off the site at a location agreed upon in writing. 4. Add the Construction Manager's Fee to be paid without retention. The Construction Manager's fee shall be an amount which bears the same ratio to the Construction Manager's fixed actual fee as the Cost of Work to a reasonable estimate of the probable Cost of Work upon its completion. 5. Subtract the aggregate of previous payments made by the Owner. 6. Subtract the shortfall, if any, indicated by the Construction Manager in the documentation required by Subparagraph 7.1.4 to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by the Owner's accountants in such documentation. 7. Subtract amounts, if any, for which the Architect or Owner has withheld or nullified a request for payment as provided in the General Conditions. 7.1.8 Payments to Subcontractors shall be subject to retention of ten percent (10%). Retention to sub- contractors shall not be reduced until all punch list work is complete and close out documents for that contract have been submitted and approved. Retention may be reduced or eliminated to sub-contractors on a case by case basis as work is completed,with agreement between the Owner and Construction Manager. 7.1.9 Except with the Owner's prior approval, the Construction Manager shall not make advance payments to suppliers for materials or equipment which have not been delivered and stored at the site. 7.1.10 In taking action on the Construction Manager's Applications for Payment, the Architect shall be entitled to rely on the accuracy and completeness of the information furnished by the Construction Manager and shall not be deemed to represent that the Architect has made a detailed examination,audit or arithmetic verification of the documentation submitted in accordance with Subparagraph 7.1.4 or other supporting data;that the Architect has made exhaustive or continuous on-site inspections or that the Architect has made examinations to ascertain how or for what purposes the Construction Manager has used amounts previously paid on account of the Contract. Such examinations, audits and verifications, if required by the Owner, will be performed by the Owner's accountants acting in the sole interest of the Owner. 7.2 FINAL PAYMENT 7.2.1 Final payment shall be made by the Owner to the Construction Manager when (1)the Contract has been fully performed by the Construction Manager except for the Construction Manager's responsibility to 16 correct nonconforming Work,as provided in Subparagraph 14.07 of the General Conditions,and to satisfy other requirements, if any, which necessarily survive final payment; (2) a final Application for Payment and a final accounting for the Cost of the Work have been submitted by the Construction Manager and reviewed and approved by the Owner's accountants;and (3)a final Certificate for Payment has then been issued by the Architect. Such final payment shall be made by the Owner not more than 30 days after the issuance of the Architect's final Certificate for payment: 7.2.2 The amount of the final payment shall be calculated as follows: 1. Take the sum of the Cost of the Work substantiated by the Construction Manager's final accounting and the Construction Manager's Fee; but not more than the Guaranteed Maximum Price. 2. Subtract amounts, if any, for which the Architect withholds, in whole or in part, a final Certificate for Payment as provided in the General Conditions or other provisions of the Contract Documents. 3. Subtract the aggregate of previous payments made by the Owner. If the aggregate of previous payments made by the Owner exceeds the amount due the Construction Manager,the Construction Manager shall reimburse the difference to the Owner. 7.2.3 The Owner's accountants shall review and report in writing on the Construction Manager's final accounting within thirty(30)days after delivery of the final accounting to the Architect by the Construction Manager. Based upon such Cost of the Work as the Owner's accountants report to be substantiated by the Construction Manager's final accounting, and provided the other conditions of Subparagraph 7.2.1 have been met, the Architect shall, within seven days after receipt of the written report of the Owner's accountants either issue to the Owner a final Certificate for Payment with a copy to the Construction Manager, or notify the Construction Manager and Owner in writing of the Architect's reasons for withholding a certificate as provided in Subparagraph 9.5.1 of the General Conditions. The time periods stated in this paragraph supersede those stated in the General Conditions. 7.2.4 If the Owner's accountants report the Cost of the Work as substantiated by the Construction Manager's final accounting to be less than that claimed by the Construction Manager, the Construction Manager shall be entitled to proceed as follows without a further decision of the Architect. Unless agreed to otherwise,a demand for non-binding mediation of the disputed amount shall be made by the Construction Manager within sixty(60)days after the Construction Manager's receipt of a copy of the Architect's final Certificate for Payment. Failure to make such demand within this 60-day period shall result in the substantiated amount reported by the Owner's accountants becoming binding on the Construction Manager. Pending a final resolution of the disputed amount, the Owner shall pay the Construction Manager the amount certified in the Architect's final Certificate for Payment. 7.2.5 If, subsequent to final payment and at the Owner's request,the Construction Manager incurs costs described in Paragraph 6.1 and not excluded by Paragraph 6.2 (1)to correct nonconforming Work, or(2) arising from the resolution of disputes,the Owner shall reimburse the Construction Manager such costs and the Construction Manager's Fee, if any,related thereto on the same basis as if such costs had been incurred prior to final payment,but not in excess of the Guaranteed Maximum Price. 17 ARTICLE 8 INSURANCE AND BONDS 8.1 INSURANCE REQUIRED OF THE CONSTRUCTION MANAGER 8.1.1 During both the preconstruction phase and construction phases of the Project, the Construction Manager shall purchase from and maintain in a company or companies lawfully authorized to do business in the State of Illinois with a Best's rating of no less than A-VII such insurance as will protect the Construction Manager from claims set forth below which may arise out of or result from the Construction Manager's operations under this Agreement and for which the Construction Manager may be legally liable, whether such operations be by the Construction Manager or by a Subcontractor or by anyone directly or indirectly employed by any of them,or by anyone for whose acts any of them may be liable: 1. Claims under worker's or workmen's compensation, disability benefit and other similar employee benefit acts which are applicable to the Work to be performed; 2. Claims for damages because of bodily injury,occupational sickness or disease,or death of the Construction Manager's employees; 3. Claims for damages because of bodily injury, sickness or disease, or death of any person other than the Construction Manager's employees; 4. Claims for damages insured by usual personal injury liability coverage which are sustained (1)by a person as a result of an offense directly or indirectly related to employment of such person by the Construction Manager or(2)by another person; 5. Claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss of use resulting therefrom; 6. Claims for damages because of bodily injury,death or a person or property damage arising out of Ownership, maintenance or use of a motor vehicle; and 7. Claims involving contractual liability insurance applicable to the Construction Manager's obligations. 8.1.2 The insurance required by paragraph 8.1.1 shall be written for not less than the limits of liability specified below or required by law,as applicable. Coverage shall be maintained without interruption upon execution of this agreement until date of final payment and termination of any coverage required to be maintained after final payment. All insurance coverage shall be written on an occurrence basis. a. Commercial General Liability $2,000,000 General Aggregate Limit (other than Products- Completed Operations) $2,000,000 Products-Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Liability $1,000.000 Each Occurrence Limit $1,000,000 Fire Legal Liability 18 $10,000 Medical Expense Limit (each person) $1,000,000 Employee Benefit Liability b. Business Automobile Liability $1,000,000 Bodily Injury and Property Damage Combined Single Limit c. Excess Umbrella Liability Minimum of $20,000,000 8.1.3 The Owner shall be named as an additional insured under the insurance to be obtained by the Construction Manager pursuant to this agreement pursuant to an additional insured endorsement and shall be in a form acceptable to the Owner. This insurance shall apply as primary insurance for claims or losses due to the Construction Manager's operations with respect to any other insurance or self-insurance programs afforded to the Owner. There shall be no endorsement or modification of this insurance to make it excess over other available insurance,alternatively,if such insurance states that it is excess or pro rata, it shall be endorsed to the primary with respect to the Owner. Such insurance shall require that the Owner be notified if such insurance is to be cancelled or terminated at least thirty(30) days in advance of any such cancellation or termination. 8.1.4 The Construction Manager shall name the Architect, its agents, employees and consultants as additional insureds on its liability insurance for bodily injury,sickness,disease,or death arising out of any negligent act or omission of the Construction Manager, its agents or others for whom the Construction Manager is legally responsible. The obligations of the Construction Manager shall not extend to the liability of the Architect,the Architect's consultants and agents and employees of any of them arising out of(l)the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications, or (2) the giving of or the failure to give directions or instructions by the Architect, the Architect's consultants and agents and employees of any of them provided such giving or failure to give is the primary cause of the injury or damage. Should any of the above described policies be cancelled before the expiration date thereof,notice will be delivered in accordance with the policy provisions. 8.1.5 The Construction Manager shall obtain certificates of insurance from all trade contractors and suppliers evidencing coverage not less than that required of the Construction Manager. Limits for excess/umbrella liability shall be $5,000,000 and $2,000,000 for Trade Contractors and Suppliers respectively. The Owner shall be named as additional insured. 8.2 PERFORMANCE AND PAYMENT BONDS The Construction Manager shall require each of the Subcontractors or Suppliers to furnish bonds covering faithful performance and completion of the Subcontract and payment of obligations arising thereunder. The cost thereof shall be included in the Cost of the Work. The amount of each bond shall be equal to one hundred percent(100%)of the Subcontract Sum. If required by the Owner,the Construction Manager shall furnish bonds in a form approved by the Owner covering faithful performance and completion of the contract and payment of obligations arising from the project in an amount equal to one hundred percent(100%)of the Construction Manager's Fee and the value of any work to be self-performed by the Construction Manager.The cost of the bonds shall be reimbursed per 6.1.6.1. 19 ARTICLE 9 MISCELLANEOUS PROVISIONS 9.1 MISCELLANEOUS PROVISIONS 9.1.1 It is expressly understood that the Owner shall be directly retaining the services of an Architect/Engineer. 9.1.2 Notwithstanding anything contained herein, it is expressly understood that the Construction Manager's Project Control systems,including without limitation—estimating,scheduling,purchasing,cost reporting and project engineering systems,and all modifications,additions,or alternations thereto,are and shall remain the sole property of the Construction Manager. 9.1.3 It is expressly understood that in the event the Construction Manager incurs legal or other professional fees in the process of pursuing or defending a claim, suit or dispute with a Subcontractor or Trade Contractor directly relating to the Project, on behalf of the Owner, then such fees shall be reimbursable to the Construction Manager as a Cost of the Work pursuant to Article 6 subject,however,to the Guaranteed Maximum Price, if one is established. 9.1.4 If the Construction Manager wishes to make a claim for additional compensation as a result of action taken by the Owner or Architect,the Construction Manager shall give written notice of his claim within 15 business days after occurrence of such action. No claim for additional compensation shall be valid unless so made. Any changes in the Construction Manager's fee or the Guaranteed Maximum Price shall be valid only to the extent that such changes are included in writing signed by the Owner and the Construction Manager. 9.1.5 It is agreed and understood that the Project provides for the construction of a"public work"within the meaning of the Illinois Prevailing Wage Act. The Construction Manager shall comply with the Illinois Prevailing Wage Act, 820 1LCS 130/0.01,et seq., including,but not limited to,paying the prevailing wage as required therein for all work to be performed on the Project and requiring all contractors and subcontractors to pay the prevailing wages required therein and completing necessary documentation and reporting requirements in connection with the work to be performed pursuant to this Agreement. 9.1.6 It is agreed that any action by the Construction Manager against the City arising out of this Agreement must be filed within one(1)year after final payment. The provisions of this section shall survive any expiration,completion and/or termination of this Agreement. The Construction Manager shall include similar provisions in this Section 9.1.6 in the form acceptable to the Owner in all subcontracts and other agreements for the Project. Notwithstanding the event of any claim,or other matter in question arising out of or relating to this Agreement or the breach thereof, the Construction Manager shall carry on the Work and the Owner shall continue to make payments in accordance with this Agreement. 9.2 NO PUNITIVE DAMAGES To the fullest extent permitted by law, neither party to this agreement shall be liable to the other for any punitive damages resulting from the performance or nonperformance of the agreement notwithstanding the fault,tort(including negligence),strict liability or other basis of legal liability of the parties so released or whose liability is so limited and shall extend to the officers,directors,employees,and agents of such party. 20 9.3 OTHER PROVISIONS 9.3.1 Unless otherwise noted,the terms used in this Agreement shall have the same meaning as those in the General Conditions of the Contract for Construction,as amended. 9.3.2 EXTENT OF CONTRACT This Contract, which includes this Agreement and the other documents incorporated herein by reference, represents the entire and integrated agreement between the Owner and Construction Manager and supersedes all prior negotiations, representations or agreements, either written or oral. This Agreement may be amended only by written instrument signed by both the Owner and Construction Manager. If anything in any document incorporated into this Agreement is inconsistent with this Agreement, this Agreement shall govern. 9.3.3 OWNERSHIP AND USE OF DOCUMENTS The Drawings,Specifications and other documents prepared by the Architect,and copies thereof furnished to the Construction Manager, are the property of the Owner and are for use solely with respect to this Project. They are not to be used by the Construction Manager, Subcontractors, Sub-subcontractors or suppliers on other projects,or for additions to this Project outside the scope of the Work,without the specific written consent of the Owner and Architect. The Construction Manager, Subcontractors, Sub- subcontractors and suppliers are granted a limited license to use and reproduce applicable portions of the Drawings, Specifications, and other documents prepared by the Architect appropriate to and for use in the execution of the Work under the Contract Documents. 9.3.4 GOVERNING LAW This Agreement shall be governed by,and construed in accordance with the laws of state of Illinois. Venue for the resolution of any disputes or enforcement of any rights arising out of or in connection with this agreement shall be in the circuit court of Kane County, Illinois. Notwithstanding the foregoing,the Construction Manager hereby acknowledges and agrees that the Owner as a home rule municipality may elect to exclude the provisions of the Public Construction Contract Act (30 ILCS 557/1 et. seq., (Public Act 91-647), hereinafter referred to as the"Act") from the provisions of this agreement and from the Project in general. The Construction Manager hereby waives the incorporation of the provisions of the Act into this Agreement and any amendments hereto and to the Project and waives any and all relief and additional compensation it would be entitled to as a result of the existence of the Act. The foregoing shall not, however, be interpreted to modify any other terms of this Agreement including any provisions of this Agreement which would otherwise entitle the Construction Manager to make claims for additional compensation. The Construction Manager shall include similar provisions relating to excluding and waiving the provisions of the Act in a form acceptable to the Owner in all subcontracts and other agreements for the Project. 9.3.5 ASSIGNMENT The Owner and Construction Manager respectively bind themselves,their partners,successors,assigns and legal representatives to the other party hereto and to partners,successors,assigns and legal representatives of such other party in respect to covenants, agreements and obligations contained in the Contract Documents. 21 Neither party to the contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent,such purported assignment shall be void and without effect and that party shall nevertheless remain legally responsible for all obligations under the contract. 9.3.6 NO PERSONAL LIABILITY No official, director, officer, agent or employee of the Owner shall be charged personally or held contractually liable under any terms or provision of this Agreement or because of their execution,approval or attempted execution of this Agreement. 9.3.7 GENERAL CONDITIONS FOR THE CONSTRUCTION PHASE For the construction phase, the General Conditions shall be the Standard General Conditions of the Construction Contract based on the EJCDC No. 1910-8, 1996 Edition and modified by the City of Elgin, Illinois,attached hereto as Exhibit 3. The term"Contractor"as used in such General Conditions shall mean the Construction Manager. The term "Engineer" as used in such General Conditions shall mean the Architect. In the event of any conflict between the terms of this agreement and such General Conditions of this Agreement the terms of this Agreement shall control. 9.3.8 NONDISCRIMINATION In all contracting,hiring or employment made possible or resulting from this Agreement,there shall be no discrimination against any employee or applicant for employment because of sex, age, race, color, creed, religion, national origin, ancestry, order of protection status, familial status, marital status, physical or mental disability, military status, sexual orientation, or unfavorable discharge from military service, and this requirement shall apply to, but not be limited to, the following: employment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training, including apprenticeship. The Construction Manager will 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. The Seller will distribute copies of this commitment to all persons who participate in recruitment, screening, referral and selection of job applicants, prospective job applicants,and subcontractors. No person shall be denied or subjected to discrimination in receipt of the benefit of any services or activities made possible by or resulting from this Agreement on the grounds of sex, race, color, creed, religion, national origin, age except minimum age and retirement provisions, marital status physical or mental disability,military status,sexual orientation,or unfavorable discharge from military service.Any violation of this provision shall be considered a violation of a material provision of this Agreement. 9.3.9 NO CO-PARTNERSHIP OR AGENCY It is understood and agreed that nothing herein contained is intended or shall be construed to,in any respect, create or establish the relationship of co-partners between the Owner and the Construction Manager or as constituting the Construction Manager as the general representative or general agent of the Owner for any purpose whatsoever. 22 9.3.10 SEVERABILITY The parties intend and agreed that, if any paragraph, sub-paragraph, phrase, clause or other provision of this Agreement,or any portion thereof, shall be held to be void or otherwise unenforceable for any reason, all other portions of this Agreement shall remain in full force and effect. 9.3.11 HEADINGS The headings of the several paragraphs of this Agreement are inserted only as a matter of convenience and in no way are they intended to define, limit or describe the scope of intent of any provision of this Agreement nor shall they be construed to affect in any manner the terms and provisions hereof or the interpretation or construction thereof. 9.3.12 MODIFICATION OR AMENDMENT This agreement and its attachments constitutes the entire Agreement of the parties on the subject matter hereof and many not be changed, modified, discharged or extended except by written amendment duly executed by the parties. Each party agrees that no representations or warranties shall be binding upon the other party unless expressed in writing herein or in a duly executed amendment hereof,or change order as herein provided. 9.3.13 NEWS RELEASES The Construction Manager may not issue any news releases without prior approval from the Manager nor will the Construction Manager make public proposals developed under this Agreement without prior written approval from the Manager prior to said documentation becoming matters of public record. 9.3.14 COOPERATION WITH OTHER CONSULTANTS The Construction Manager shall cooperate with any other consultants in the Owner's employ or any work associated with the Project. • 9.3.15 INTERFERENCE WITH PUBLIC CONTRACTNG The Construction Manager certifies hereby that it is not barred from bidding on this contract as a result of violations of 720 ILCS 5/33E et seq. or any similar state or federal statute regarding bid rigging. 9.3.16 SEXUAL HARASSMENT As a condition of this contract,the Construction Manager shall have written sexual harassment policies that included, at a minimum,the following information: A. the illegality of sexual harassment; B. the definition of sexual harassment under state law; C. a description of sexual harassment utilizing examples; D. the Construction Manager's internal complaint process including penalties; E. the legal recourse, investigative and complaint process available through the Illinois Department of Human Rights,and the Illinois Human Rights Commission; F. directions on how to contact the department and commission; G. protection against retaliation as provided by Section 6-101 of the Human Rights Act(copy attached); 23 Copies of the policies must be provided to the City of Elgin and the Illinois Department of Human Rights upon request. P.A. 87-1257 9.3.17 WRITTEN COMMUNICATIONS All recommendations and other communications by the Construction Manager to the Director and to other participants which may affect cost or time of completion, shall be made or confirmed in writing. The Director may also require other recommendations and communications by the Construction Manager be made or confirmed in writing. 9.3.18 NOTICES All notices, reports and documents required under this Agreement shall be in writing and shall be electronically mailed or mailed by First Class Mail,postage prepaid, addressed as follows: As to Owner As to Construction Manager Mike Lehman, Director of Golf Operations Ian Lamp, President City of Elgin Lamp Incorporated 150 Dexter Court 460 North Grove Avenue Elgin, IL 60120 Elgin, IL 60120 E-Mail: mike.lehman@elginil.gov E-mail: ilamp@lampinc.net With a copy to: Christopher J. Beck,Corporation Counsel City of Elgin 150 Dexter Court Elgin, IL 60120 E-Mail: christopher.beck@elginil.gov 9.3.19 SUBSTANCE ABUSE PROGRAM As a condition of this Agreement, Construction Manager shall have in place a written substance abuse prevention program which meets or exceeds the program requirements in the Substance Abuse Prevention Public Works Project Act at 820 ILCS 265/1,et seq. A copy of such policy shall be provided to the Manager ' prior to the entry into and execution of this Agreement. 9.3.20 COMPLIANCE WITH LAWS Notwithstanding any other provision of this Agreement it is expressly agreed and understood that in connection with the performance of this Agreement that the Construction Manager shall comply with all applicable federal, state,city and other requirements of law, including, but not limited to, any applicable requirements regarding prevailing wages,minimum wage,workplace safety and legal status of employees. Without limiting the foregoing, Construction Manager hereby certifies, represents and warrants to the Owner that all Construction Manager's employees and/or agents who will be providing products and/or services with respect to this Agreement shall be legally authorized to work in the United States. Construction Manager 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 Agreement. Owner shall have the right to audit any records in the possession or control of the Construction Manager to determine Construction Manager's compliance with 24 the provisions of this paragraph. In the event Owner proceeds with such an audit the Construction Manager shall make available to Owner the Construction Manager's relevant records at no cost to the Owner. 9.3.21. 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. ARTICLE 10 TERMINATION OR SUSPENSION 10.05 TERMINATION IF PROJECT NOT APPROVED The Constructor Manager understands and acknowledges that the Project has not yet been approved by the city council of the City of Elgin. In the event the Project is not approved by the city council on or before December 31, 2024, then this Agreement shall be terminated without any further liability between the Owner and the Construction Manager. In the event this Agreement is terminated pursuant to this Section 10.05,the Owner shall pay to the Construction Manager the total lump sum amount of$20,000,regardless of the cost of any services provided or any expenses incurred by the Construction Manager prior to such termination. 10.1 TERMINATION PRIOR TO ESTABLISHING GUARANTEED MAXIMUM PRICE 10.1.1 Prior to execution by both parties of Amendments to this Agreement establishing the final Guaranteed Maximum Price, the Owner may terminate this Contract at anytime without cause. The Construction Manager may terminate this Contract for Cause as follows: 10.1.2 if the Owner or Construction Manager terminates this Contract pursuant to this Paragraph 10.1 prior to commencement of the Construction Phase, the Construction Manager shall be equitably compensated for Preconstruction Phase services performed prior to receipt of notice of termination; provided, however, that the compensation for such services shall not exceed the compensation set forth in Subparagraph 4.1.1. 10.1.3 If the Owner or Construction Manager terminates this Contract pursuant to this Paragraph 10.1 after commencement of the Construction Phase,the Construction Manager shall,in addition to the compensation provided in Subparagraph 10.1.2 be paid an amount calculated as follows: 1. Take the Cost of the Work incurred by the Construction Manager. 2. Add the Construction Manager's Fee computed upon the Cost of the Work to the date of termination at the rate stated in Exhibit 2 or, if the Construction Manager's Fee is stated as a fixed sum in that exhibit, an amount which bears the same ratio to that fixed-sum Fee as the Cost of the Work upon its completion. 25 g 3. Subtract the aggregate of previous payments made by the Owner on account of the Construction Phase. The Owner shall also pay the Construction Manager fair compensation, either by purchase or rental at the election of the Owner, for any equipment owned by the Construction Manager which the Owner elects to retain and which is not otherwise included in the Cost of the Work under Clause 10.1.3.1. To the extent that the Owner elects to take legal assignment of subcontracts and purchase orders(including rental agreements),the Construction Manager shall, as a condition of receiving the payments referred to in this Article 10, execute and deliver all such papers and take all such steps, including the legal assignment of such subcontracts and other contractual rights of the Construction Manager, as the Owner may require for the purpose of fully vesting in the Owner the rights and benefits of the Construction Manager under such subcontract or purchase orders. Subcontracts, purchase orders and rental agreements entered into by the Construction Manager with the Owner's written approval prior to the execution of Amendments to this agreement shall contain provisions • permitting assignment to the Owner as described above. 10.2 TERMINATION SUBSEQUENT TO ESTABLISHING GUARANTEED MAXIMUM PRICE Subsequent to execution by both parties of Amendments to this agreement establishing the final Guaranteed Maximum Price,the Contract may be terminated as provided in Paragraph 15.01 of the General Conditions and applicable law. 10.2.1 In the event of such termination by the Owner, the amount payable to the Construction Manager pursuant to Article 15 of the General Conditions shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to Subparagraphs 10.1.2 and 10.1.3 of this Agreement. 10.2.2 In the event of such termination by the Construction Manager, the amount to be paid to the Construction Manager shall not exceed the amount the Construction Manager would be entitled to receive under Subparagraphs 10.1.2 or 10.1.3 above,except that the Construction Manager's Fee shall be calculated as if the Work had been fully completed by the Construction Manager, including a reasonable estimate of the Cost of the Work for Work not actually completed. 10.2.3 Subsequent to execution by both parties of amendments to this agreement establishing the final Guaranteed Maximum Price,the Owner may terminate this contract without cause at Owner's convenience upon fifteen(15)days prior written notice to the Construction Manager. In the event of such termination by the Owner the amount payable to the Construction Manager shall not exceed the amount the Construction Manager would have been entitled to receive pursuant to subparagraphs 10.1.2 and 10.1.3 of the Agreement. In such event the Construction Manager shall also be reimbursed for its actual costs for demobilization and the costs of any cancellation of existing subcontracts and purchase orders, provided however, the reimbursement for actual costs of demobilization shall in no event exceed One Hundred Thousand Dollars($100,000.00)and shall not exceed the Guaranteed Maximum Price. 10.3 SUSPENSION 10.3.1 The Owner may,without cause,order the Contractor in writing to suspend,the Work in whole or in part for such period of time as the Owner may determine, not to exceed 30 consecutive calendar days or an aggregate of 30 calendar days in any six-month period. 26 10.3.2 The Contract Sum and Contract Time shall be adjusted for increases in the cost and time caused by suspension,delay or interruption as described in Section 10.3.1. Adjustment of the Contract Sum shall include profit.No adjustment shall be made to the extent 1. that performance is,was or would have been so suspended,delayed or interrupted by another cause for which the Contractor is responsible;or 2. that an equitable adjustment is made or denied under another provision of the Contract. In the event of such a suspension by the Owner, the Guaranteed Maximum Price, if established, shall be increased as provided in Subparagraph 10.3.2 above except that the term"cost"in that Subparagraph shall be understood to mean the Cost of the Work and the term "profit" shall be understood to mean the Construction Manager's Fee as described in Exhibit 2. IN WITNESS WHEREOF, the undersigned have placed their hands and seals upon and executed this Agreement in triplicate as though each copy hereof was an original and that there are not other oral agreements that have not been reduced to writing in this statement. For the Owner: Dated this 4th day of December,A.D.,2024 Cl"IY OF • N ATTEST: By: By: City Manager City Clerk (Seal) For the CONSTRUCTION MANAGER Dated this day of , A.D.,2024 By: C By: Its Its ,,4¢ (Seal) 27 EXHIBIT 1 ELGIN ® LAMP INOORPO RATQO THE CITY IN THE SUBURBS' A CO w6TRIlCTIOM TRA OITIOI+ Wing Park Golf Course Clubhouse Hourly Rates and Conditions,expire 5/30/2026 October 10,2024 *Hourly Rates: Principal $250.00/HR Project Executive $200.00/HR Project Manager $150.00/HR Project Engineer $ 90.00/HR Project Mgr Asst. $ 70.00/HR VP of Estimating $145.00/HR Senior Estimator $100.00/HR Estimator $ 80.00/HR Project Accountant $100.00/HR Safety Director $100.00/HR Superintendent $135.00/HR Carpenter $115.00/HR Laborer $105.00/HR Overtime rates are time and a half over 8 hours during weekdays and the first 8 hours on Saturday. Double time is for anything after 8 hours on Saturday and work on Sunday and Holidays. Overtime only applies to Carpenters and Laborers. Superintendents will be paid overtime if they are performing labor and not supervision. Additional work and optional services will be performed either at the hourly rates established above or a lump sum proposal will be submitted for review and approval by the Owner. The fee percentage as established on the previous page will be charged for all additional work performed but not deducted for work removed. EXHIBIT 2 City of Elgin Wing Park Golf Course Clubhouse [El1 IV C CHR POR Alf EO Project Supervision and Fee ' 1' LAMP ,ELGIN October 10,2024 THE CITY IN TE1E SUBURBS' ITEM QUANTITY UNIT COST/UNIT COST Project Supervision Project Superintendent-Full Time 8 MO $ 22,755.00 $ 182,040.00 Project Manager 8 MO $ 5,915.00 $ 47,320.00 Project Assistant 8 MO $ 615.00 $ 4,920.00 Project Management Software(Procore) 8 MO $ 700.00 $ 5,600.00 Project Accountant 8 MO $ 800.00 $ 6,400.00 Project Accounting Software(Textura) 8 MO $ 500.00 $ 4,000.00 Safety Director 8 MO $ 800.00 $ 6,400.00 Office Trailer 8 MO $ 1,000.00 $ 8,000.00 Office Trailer-Set Up/Remove 2 EA $ 2,000.00 $ 4,000.00 Office Trailer-Hook Up Utilities 2 EA $ 3,000.00 $ 6,000.00 Phone/Computer Wireless Service 8 MO $ 150.00 $ 1,200.00 Computer/Fax/Printer 1 LS $ 1,000.00 $ 1,000.00 Document Management 1 LS $ 500.00 $ 500.00 Drawing/Specification Reproduction 1 LS $ 750.00 $ 750.00 Office Supplies/Small Tools 1 LS $ 500.00_ $ 500.00 $ 278,630.00 Preconstruction,Construction Management Fee, Insurance,&Bond Preconstruction Services 1 LS $ 20,000.00 $ 20,000.00 Construction Management Fee $ 2,750,000.00 2.50% $ 68,750.00 Performance Bond $ 2,750,000.00 0.80% $ 22,000.00 General Liability Insurance $ 2,750,000.00 0.45% $ 12,375.00 $ 123,125.00 TOTAL CONSTRUCTION MANAGEMENT FEES $ 401,755.00 All services and fees are negotiable City of Elgin Wing Park Golf Course Clubhouse r..t. Project General Conditions and Fee J I L. D LAMP INOOAPORATtO E LG I N A COpYTpUCT,UN 11:�'JITICIr October10,2024 TI IE CITY IN THE SUBURBS' ITEM QUANTITY UNIT COST/UNIT COST Safety 1 LS $ 4,000.00 $ 4,000.00 Survey/Layout 1 LS $ 7,500.00 $ 7,500.00 Temporary Fence 500 LF $ 8.00 $ 4,000.00 Temporary Gates 2 EA $ 300.00 $ 600.00 Temporary Partitions/Enclosures 1 LS $ 6,000.00 $ 6,000.00 Temporary Sanitary 8 MO $ 200.00 $ 1,600.00 Temp Electric Service-Service(By Owner) 8 MO $ - $ - Temp Electric Service-Install(By Electrician) 1 EA $ - $ - Temporary Water-Service(By Owner) 8 MO $ - $ - Temporary Water-Install(By Plumber) 1 EA $ - $ - General Clean Up 8 MO $ 5,250.00 $ 42,000.00 Parking Lot/Street Sweeping 4 EA $ 400.00 $ 1,600.00 Dumpsters 24 EA $ 500.00 $ 12,000.00 Final Clean Up 1 LS $ 10,000.00 $ 10,000.00 Project Signage 1 LS $ 3,000.00 $ 3,000.00 TOTAL PROJECT GENERAL CONDITIONS $ 92,300.00 The Project General Conditions as listed above can be provided by Lamp Incorporated or assigned to the Trade Contractors bidding on this project.We can either do this as a lump sum or as a reimbursable expense.The advantage of Lamp Incorpated self-performing these services is cost savings,project efficiency,and safety. Should these be bid out,trade contractors will inflate these costs to protect their bid as they customarily do not bid on this work.Some of this work will be contracted out to other contractors who will have overhead and profit in their proposal that wilt then be marked up by the Trade Contractor.We will save at least one to two layers of mark up on these services.Also,we provide clean up services proatively with our crew versus trying to get the Trade Contractor to send someone when they're available.A clean and safe site is a productive site and Trade Contractors bidding on Lamp Incorporated projects know they can improve their productivity which leads to lower bids on Bid Day. EXHIBIT 3 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. I 00-700-1 Copyright©1996 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 ARTICLE 1 -DEFINITIONS AND TERMINOLOGY 6 1.01 Defined Terms 6 1.02 Terminology 8 ARTICLE 2-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 Preconstruction 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 1 1 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 ARTICLE 5-BONDS AND INSURANCE 13 5.01 Performance,Payment,and Other Bonds 13 5.02 Licensed Sureties and Insurers 14 5.03 Certificates of Insurance 14 5.04 CONTRACTOR'S Liability Insurance 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 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 ARTICLE 7-OTHER WORK 23 7.01 Related Work at Site 23 7.02 Coordination 23 ARTICLE 8-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 ARTICLE 10-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 ARTICLE 15-TERMINATION 36 15.01 OWNER May Terminate for Cause 36 15.02 OWNER May Terminate For Convenience 36 ARTICLE 16-DISPUTE RESOLUTION 37 16.01 Methods and Procedures 37 ARTICLE 17-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 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 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 1.01 Defined Terms terms of the Contract. A demand for money or services by a third party is not a Claim. A. Wherever used in the Contract Documents and printed with initial or all capital letters,the terms listed below shall have 11. Contract--The entire and integrated written the meanings indicated which are applicable to both the singular agreement between the OWNER and CONTRACTOR and plural thereof. concerning the Work. The Contract supersedes prior negotiations,representations,or agreements,whether written 1. Addenda--Written or graphic instruments issued or oral. prior to the opening of Bids which clarify,correct,or change the Bidding Requirements or the Contract Documents. 12. Contract Documents--The Contract Documents establish the rights and obligations of the parties and include 2. Agreement--The written instrument which is the Agreement, Addenda (which pertain to the Contract evidence of the agreement between OWNER and Documents), CONTRACTOR's Bid (including CONTRACTOR covering the Work. documentation accompanying the Bid and any post Bid documentation submitted prior to the Notice of Award),the 3. Application for Payment--The form acceptable to Notice to Proceed,the Bonds,Certificates of Insurance,these ENGINEER which is to be used by CONTRACTOR during General Conditions, the Supplementary Conditions, the the course of the Work in requesting progress or final Specifications and the Drawings as the same are more payments and which is to he accompanied by such specifically identified in the Agreement, together with all supporting documentation as is required by the Contract Written Amendments, Change Orders, Work Change Documents. Directives, Field Orders, and ENGINEER's written interpretations and clarifications issued on or after the 4. Asbestos--Any material that contains more than one Effective Date of the Agreement. Approved Shop Drawings percent asbestos and is friable or is releasing asbestos fibers and the reports and drawings of subsurface and physical into the air above current action levels established by the conditions are not Contract Documents. Only printed or hard United States Occupational Safety and Health copies of the items listed in this paragraph are Contract Administration. Documents. Files in electronic media format of text,data, graphics,and the like that may be furnished by OWNER to 5. Bid--The offer or proposal of a bidder submitted on CONTRACTOR are not Contract Documents. the prescribed form setting forth the prices for the Work to be performed. 13. Contract Price--The moneys payable by OWNER to CONTRACTOR for completion of the Work in 6. Bidding Documents--The Bidding Requirements accordance with the Contract Documents as stated in the and the proposed Contract Documents (including all Agreement(subject to the provisions of paragraph 11.03 in Addenda issued prior to receipt of Bids). the case of Unit Price Work). 7. Bidding Requirements--The Advertisement or 14. Contract Times--The number of days or the dates Invitation to Bid,Instructions to Bidders,Bid security form, stated in the Agreement to: (i) achieve Substantial if any,and the Bid form with any supplements. Completion;and(ii)complete the Work so that it is ready for final payment as evidenced by ENGINEER's written 8. Bonds--Performance and payment bonds and other recommendation of final payment. instruments of security. 15. CONTRACTOR--The individual or entity with 9. Change Order--a change in a contract term other whom OWNER has entered into the Agreement. than as specifically provided in the contract which authorizes or necessitates any increase or decrease in the cost of the 16. Cost of the Work--See paragraph 11.01.A for contract or the time of completion by thirty(30) days or definition. more. 17. Drawings or Plans--That part of the Contract Documents prepared or approved by ENGINEER which 00-700-6 graphically shows the scope, extent, and character of the Contract Times shall commence to run and on which Work to be performed by CONTRACTOR. Shop Drawings CONTRACTOR shall start to perform the Work under the and other CONTRACTOR submittals are not Drawings as Contract Documents. so defined. 30. OWNER--The City of Elgin 18. Effective Date of the Agreement--The date indicated in the Agreement on which it becomes effective, 31. Partial Utilization--Use by OWNER of a but if no such date is indicated,it means the date on which substantially completed part of the Work for the purpose for the Agreement is signed and delivered by the last of the two which it is intended (or a related purpose) prior to parties to sign and deliver. Substantial Completion of all the Work. 19. ENGINEER--The individual or entity named as 32. PCBs--Polychlorinated biphenyls. such in the Agreement. 33. Petroleum--Petroleum, including crude oil or any 20. ENGINEER'S Consultant--An individual or entity fraction thereof which is liquid at standard conditions of having a contract with ENGINEER to furnish services as temperature and pressure(60 degrees Fahrenheit and 14.7 ENGINEER's independent professional associate or pounds per square inch absolute),such as oil,petroleum,fuel consultant with respect to the Project and who is identified as oil,oil sludge,oil refuse,gasoline,kerosene,and oil mixed such in the Supplementary Conditions. with other non-Hazardous Waste and crude oils. 21. Field Order--A written order issued by ENGINEER 34. Project--The total construction of which the Work which requires minor changes in the Work but which does to be performed under the Contract Documents may be the not involve a change in the Contract Price or the Contract whole, or a part, as may be indicated elsewhere in the Times. Contract Documents. 22. General Requirements--Sections of Division 1 of 35. Project Manual--The bound documentary the Specifications. The General Requirements pertain to all information prepared for bidding and constructing the Work. sections of the Specifications. A listing of the contents of the Project Manual,which may be bound in one or more volumes,is contained in the table(s) 23. Hazardous Environmental Condition--The of contents. presence at the Site of Asbestos, PCBs, Petroleum, Hazardous Waste,or Radioactive Material in such quantities 36. Radioactive Material--Source,special nuclear,or or circumstances that may present a substantial danger to byproduct material as defined by the Atomic Energy Act of persons or property exposed thereto in connection with the 1954(42 USC Section 2011 et seq.)as amended from time Work. to time. 24. Hazardous Waste—The term Hazardous Waste shall 37. Resident Project Representative--The authorized have the meaning provided in Section 1004 of the Solid representative of ENGINEER who may be assigned to the Waste Disposal Act (42 USC Section 6903)as amended Site or any part thereof. from time to time. 38. Samples--Physical examples of materials, 25. Laws and Regulations;Laws or Regulations—Any equipment,or workmanship that are representative of some and all applicable laws,rules,regulations,ordinances,codes, portion of the Work and which establish the standards by and orders of any and all governmental bodies, agencies, which such portion of the Work shall be judged. authorities,and courts having jurisdiction. 39. Shop Drawings--All drawings, diagrams, 26. Liens--Charges,security interests,or encumbrances illustrations,schedules,and other data or information which upon Project funds,real property,or personal property. are specifically prepared or assembled by or for CONTRACTOR and submitted by CONTRACTOR to 27. Milestone--A principal event specified in the illustrate some portion of the Work. Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work. 40. Site--Lands or areas indicated in the Contract 28. Reserved Documents as being furnished by OWNER upon which the Work is to be performed, including rights-of-way and 29. Notice to Proceed--A written notice given by easements for access thereto,and such other lands furnished OWNER to CONTRACTOR fixing the date on which the 00-700-7 by OWNER which are designated for the use of 49. Work Change Directive--A written statement to CONTRACTOR. CONTRACTOR issued on or after the Effective Date of the Agreement and signed by OWNER ordering an addition, 41. Specifications—That part of the Contract deletion,or revision in the Work,or responding to differing Documents consisting of written technical descriptions of or unforeseen subsurface or physical conditions under which materials,equipment,systems,standards,and workmanship the Work is to be performed or to emergencies. A Work as applied to the Work and certain administrative details Change Directive shall not change the Contract Price or the applicable thereto. Contract Times but is evidence that the parties expect that the change ordered or documented by a Work Change 42. Subcontractor--An individual or entity having a Directive shall be incorporated in a subsequently issued direct contract with CONTRACTOR or with any other Change Order following negotiations by the parties as to its Subcontractor for the performance of a part of the Work at effect,if any,on the Contract Price or Contract Times. the Site. 50. Written Amendment--A written statement modifying 43. Substantial Completion--The time at which the the Contract Documents, signed by OWNER and Work(or a specified part thereof)has progressed to the point CONTRACTOR on or after the Effective Date of the where, in the opinion of ENGINEER, the Work (or a Agreement and normally dealing with the non-engineering or specified part thereof)is sufficiently complete,in accordance nontechnical rather than strictly construction-related aspects with the Contract Documents, so that the Work (or a of the Contract Documents. specified part thereof)can be utilized for the purposes for which it is intended. The terms"substantially complete"and 1.02 Terminology "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. A. Intent of Certain Terms or Adjectives 44. Supplementary Conditions--That part of the 1. Whenever in the Contract Documents the terms"as Contract Documents which amends or supplements these allowed,""as approved,"or terms of like effect or import are General Conditions. used, or the adjectives "reasonable," "suitable," "acceptable,""proper,""satisfactory,"or adjectives of like 45. Supplier--A manufacturer, fabricator, supplier, effect or import are used to describe an action or distributor,materialman,or vendor having a direct contract determination of ENGINEER as to the Work,it is intended with CONTRACTOR or with any Subcontractor to furnish that such action or determination shall be solely to evaluate, materials or equipment to be incorporated in the Work by in general, the completed Work for compliance with the CONTRACTOR or any Subcontractor. requirements of and information in the Contract Documents and conformance with the design concept of the completed 46. Underground Facilities--All underground Project as a functioning whole as shown or indicated in the pipelines,conduits,ducts,cables,wires,manholes,vaults, Contract Documents (unless there is a specific statement tanks,tunnels,or other such facilities or attachments,and any indicating otherwise). The use of any such term or adjective encasements containing such facilities,including those that shall not be effective to assign to ENGINEER any duty or convey electricity,gases,steam,liquid petroleum products, authority to supervise or direct the performance of the Work telephone or other communications,cable television,water, or any duty or authority to undertake responsibility contrary wastewater,storm water,other liquids or chemicals,or traffic to the provisions of paragraph 9.10 or any other provision of or other control systems. the Contract Documents. 47. Unit Price Work--Work to be paid for on the basis B. Day of unit prices. 1. The word"day"shall constitute a calendar day of 24 48. Work--The entire completed construction or the hours measured from midnight to the next midnight. 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, C. Defective and furnishing,installing,and incorporating all materials and equipment into such construction, all as required by the 1. The word "defective," when modifying the word Contract Documents. "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 00-700-8 inspection,reference standard,test,or approval referred to in Proceed. A Notice to Proceed may be given at any time within the Contract Documents, or has been damaged prior to 30 days after the Effective Date of the Agreement. ENGINEER's recommendation of final payment (unless responsibility for the protection thereof has been assumed by 2.04 Starting the Work OWNER at Substantial Completion in accordance with paragraph 14.04 or 14.05). A. CONTRACTOR shall start to perform the Work on the date when the Contract Times commence to run. No Work shall D. Furnish,Install,Perform,Provide be done at the Site prior to the date on which the Contract Times commence to run. 1. The word"furnish,"when used in connection with services,materials,or equipment,shall mean to supply and 2.05 Before Starting Construction deliver said services,materials,or equipment to the Site(or some other specified location)ready for use or installation A. CONTRACTOR's Review of Contract Documents: and in usable or operable condition. Before undertaking each part of the Work, CONTRACTOR shall carefully study and compare the Contract Documents and 2. The word"install,"when used in connection with check and verify pertinent figures therein and all applicable field services,materials,or equipment,shall mean to put into use measurements. CONTRACTOR shall promptly report in or place in final position said services, materials, or writing to ENGINEER any conflict, error, ambiguity, or equipment complete and ready for intended use. discrepancy which CONTRACTOR may discover and shall obtain a written interpretation or clarification from ENGINEER 3. The words`perform"or"provide,"when used in before proceeding with any Work affected thereby; however, connection with services, materials, or equipment, shall CONTRACTOR shall not be liable to OWNER or ENGINEER mean to furnish and install said services, materials, or for failure to report any conflict,error,ambiguity,or discrepancy equipment complete and ready for intended use. in the Contract Documents unless CONTRACTOR knew or reasonably should have known thereof. 4. When"furnish,""install,""perform,"or"provide" is not used in connection with services, materials, or B. Preliminary Schedules: Within ten days after the equipment in a context clearly requiring an obligation of Effective Date of the Agreement(unless otherwise specified in CONTRACTOR,"provide"is implied. the General Requirements), CONTRACTOR shall submit to ENGINEER for its timely review: E. Unless stated otherwise in the Contract Documents, words or phrases which have a well-known technical or 1. a preliminary progress schedule indicating the times construction industry or trade meaning are used in the Contract (numbers of days or dates)for starting and completing the Documents in accordance with such recognized meaning. various stages of the Work, including any Milestones specified in the Contract Documents; ARTICLE 2-PRELIMINARY MATTERS 2. a preliminary schedule of Shop Drawing and Sample submittals which shall list each required submittal 2.01 Delivery of Bonds 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 3. a preliminary schedule of values for all of the Work OWNER such Bonds and certificates of insurance as which includes quantities and prices of items which when CONTRACTOR may be required to furnish. added together equal the Contract Price and subdivides the Work into component parts in sufficient detail to serve as the 2.02 Copies of Documents basis for progress payments during performance ofthe Work. Such prices shall include an appropriate amount ofoverhead A. OWNER shall furnish to CONTRACTOR up to ten and profit applicable to each item of Work. copies of the Contract Documents. Additional copies shall be 2.06 Preconstruction Conference furnished upon request at the cost of reproduction. A. Within 10 days after the date of delivery of the Project 2.03 Commencement of Contract Times;Notice to Proceed Schedules referenced herein but before any Work at the Site is started,a conference attended by CONTRACTOR,ENGINEER, A. The Contract Times shall commence to run on the the OWNER and others as appropriate shall be held to establish thirtieth day after the Effective Date of the Agreement or,if a a working understanding among the parties as to the Work and to Notice to Proceed is given,on the day indicated in the Notice to discuss the schedules referred to in paragraph 2.05.B, 00-700-9 procedures for handling Shop Drawings and other submittals, 1. If, during the performance of the Work, processing Applications for Payment,and maintaining required CONTRACTOR discovers any conflict,error,ambiguity,or records. discrepancy within the Contract Documents or between the Contract Documents and any provision of any Law or 2.07 Initial Acceptance of Schedules: reserved 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 ARTICLE 3-CONTRACT DOCUMENTS: INTENT, to ENGINEER in writing within three business days. AMENDING,REUSE 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 3.01 Intent Documents has been issued by OWNER or ENGINEER as provided for herein. A. The Contract Documents are complementary;what is called for by one is as binding as if called for by all. B. Resolving Discrepancies B. Any applicable labor, documentation, services, 1. Except as maybe otherwise specifically stated in the materials,or equipment that may reasonably be inferred from the Contract Documents, the provisions of the Contract Contract Documents or from prevailing custom or trade usage as Documents shall take precedence in resolving any conflict, being required to produce the intended result shall be provided error,ambiguity,or discrepancy between the provisions of whether or not specifically called for at no additional cost to the Contract Documents and: OWNER. a. the provisions of any standard, specification, C. Clarifications and interpretations of the Contract manual,code,or instruction(whether or not specifically Documents shall be issued by ENGINEER as provided in incorporated by reference in the Contract Documents); Article 9. provided however, that any conflict between the provisions of the Contract Documents and any Laws or 3.02 Reference Standards Regulations applicable to the performance of the Work shall he resolved in favor of the Laws or Regulations. A. Standards, Specifications, Codes, Laws, and Regulations 3.04 Amending and Supplementing Contract Documents 1. Reference to standards,specifications,manuals,or A. The Contract Documents may be amended to provide for codes of any technical society,organization,or association, additions,deletions,and revisions in the Work or to modify the or to Laws or Regulations, whether such reference be terms and conditions thereof in one or more of the following specific or by implication, shall mean the standard, ways:(i)a Written Amendment;(ii)a Change Order;or(iii)a specification,manual,code,or Laws or Regulations in effect Work Change Directive. at the time of opening of Bids,except as may be otherwise specifically stated in the Contract Documents. B. The requirements of the Contract Documents may be supplemented,and minor variations and deviations in the Work 2. No provision of any such standard, specification, may be authorized,by one or more of the following ways:(i)a manual or code, or any instruction of a Supplier shall be Field Order;(ii)ENGINEER's approval of a Shop Drawing or effective to change the duties or responsibilities ofOWNER, Sample; or (iii) ENGINEER's written interpretation or CONTRACTOR, or ENGINEER, or any of their clarification. subcontractors,consultants,agents,or employees from those set forth in the Contract Documents, nor shall any such 3.05 Reuse of Documents provision or instruction be effective to assign to OWNER, A. CONTRACTOR and any Subcontractor or Supplier or ENGINEER,or any of ENGINEER's Consultants,agents,or other individual or entity performing or furnishing any of the employees any duty or authority to supervise or direct the Work: (i) shall not have or acquire any title to or ownership performance of the Work or any duty or authority to rights in any ofthe Drawings,Specifications,or other documents undertake responsibility inconsistent with the provisions of (or copies of any thereof) prepared by or bearing the seal of the Contract Documents. ENGINEER or ENGINEER's Consultant,including electronic media editions; and(ii) shall not reuse any of such Drawings, 3.03 Reporting and Resolving Discrepancies Specifications,other documents,or copies thereof on extensions of the Project or any other project without written consent of A. Reporting Discrepancies OWNER and ENGINEER and specific written ratification by 00-700-10 ENGINEER. This prohibition shall survive final payment, 2. other data, interpretations, opinions, and completion, and acceptance of the Work, or termination or information contained in such reports or shown or indicated completion of the Contract. Nothing herein shall preclude in such drawings;or CONTRACTOR from retaining copies of the Contract Documents for record purposes. 3. any CONTRACTOR interpretation of or conclusion drawn from any "technical data" or any such other data, interpretations,opinions,or information. ARTICLE 4-AVAILABILITY OF LANDS;SUBSURFACE AND PHYSICAL CONDITIONS;REFERENCE POINTS 4.03 Deering Subsurface or Physical Conditions A. Notice: IfCONTRACTOR believes that any subsurface 4.01 Availability of Lands or physical condition at or contiguous to the Site that is uncovered or revealed either: A. OWNER shall furnish reasonable access to the Site. OWNER shall notify CONTRACTOR of any encumbrances or 1. is of such a nature as to establish that any"technical restrictions not of general application but specifically related to data" on which CONTRACTOR is entitled to rely as use of the Site with which CONTRACTOR must comply in provided in paragraph 4.02 is materially inaccurate;or performing the Work. OWNER shall obtain in a timely manner and pay for easements for permanent structures or permanent 2. is of such a nature as to require a change in the changes in existing facilities. Contract Documents;or B. CONTRACTOR shall provide for all additional lands 3. differs materially from that shown or indicated in the and access thereto that may be required for temporary Contract Documents;or construction facilities or storage of materials and equipment. 4. is of an unusual nature,and differs materially from 4.02 Subsurface and Physical Conditions conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the A. Reports and Drawings: The Supplementary Conditions Contract Documents; identify: then CONTRACTOR shall, promptly after becoming aware 1. those reports of explorations and tests of subsurface thereof and before further disturbing the subsurface or physical conditions at or contiguous to the Site that ENGINEER has conditions or performing any Work in connection therewith used in preparing the Contract Documents;and (except in an emergency as required by paragraph 6.16.A), notify OWNER and ENGINEER in writing about such 2. those drawings of physical conditions in or relating condition. CONTRACTOR shall not further disturb such to existing surface or subsurface structures at or contiguous condition or perform any Work in connection therewith(except to the Site(except Underground Facilities)that ENGINEER as aforesaid)until receipt of written order to do so. has used in preparing the Contract Documents. B. ENGINEER's Review: After receipt of written notice as B. Limited Reliance by CONTRACTOR on Technical Data required by paragraph 4.03.A, ENGINEER shall promptly Authorized: CONTRACTOR may rely upon the general review the pertinent condition, determine the necessity of accuracy of the"technical data"contained in such reports and OWNER's obtaining additional exploration or tests with respect drawings, but such reports and drawings are not Contract thereto, and advise OWNER in writing (with a copy to Documents. Such "technical data" is identified in the CONTRACTOR)of ENGINEER's findings and conclusions. Supplementary Conditions. Except for such reliance on such "technical data,"CONTRACTOR may not rely upon or make C. Possible Price and Times Adjustments any Claim against OWNER, ENGINEER, or any of ENGINEER's Consultants with respect to: 1. The Contract Price or the Contract Times,or both, shall be equitably adjusted,in the form of a Change Order,to 1. the completeness of such reports and drawings for the extent that the existence of such differing subsurface or CONTRACTOR's purposes, including,but not limited to, physical condition causes an increase or decrease in any aspects of the means,methods,techniques,sequences, CONTRACTOR's cost of,or time required for,performance and procedures of construction to be employed by of the Work;subject,however,to the following: CONTRACTOR, and safety precautions and programs incident thereto;or a. such condition must meet any one or more of the categories described in paragraph 4.03.A;and 00-700-11 2. the cost of all of the following shall be included in b. with respect to Work that is paid for on a Unit the Contract Price, and CONTRACTOR shall have full Price Basis, any adjustment in Contract Price shall be responsibility for: subject to the provisions of paragraphs 9.08 and 11.03. a. reviewing and checking all such information 2. CONTRACTOR shall not be entitled to any and data, adjustment in the Contract Price or Contract Times if b. locating all Underground Facilities shown or a. CONTRACTOR knew of the existence of such indicated in the Contract Documents, conditions at the time CONTRACTOR made a final commitment to OWNER in respect of Contract Price c. coordination of the Work with the owners of and Contract Times by the submission of a Bid or such Underground Facilities,including OWNER,during becoming bound under a negotiated contract;or construction,and b. the existence of such condition could d. the safety and protection of all such reasonably have been discovered or revealed as a result Underground Facilities and repairing any damage of any examination, investigation, exploration,test,or thereto resulting from the Work. study of the Site and contiguous areas required by the Bidding Requirements or Contract Documents to be B. Not Shown or Indicated conducted by or for CONTRACTOR prior to 1. If an Underground Facility is uncovered or revealed CONTRACTOR's making such final commitment;or at or contiguous to the Site which was not shown or indicated, or not shown or indicated with c. CONTRACTOR failed to give the written reasonable accuracy in the Contract Documents, notice promptly and as required by paragraph 4.03.A. CONTRACTOR shall, promptly after becoming aware thereof and before further disturbing d. CONTRACTOR represents he has made a conditions affected thereby or performing any Work reasonable inspection of the construction site and hereby in connection therewith(except in an emergency as voluntarily waives the incorporation of the provisions of required by paragraph 6.16.A),identify the owner 30 ILCS 557/1 et seq.and represents that the negotiated of such Underground Facility and give written contract price is the sole consideration for the notice to that owner and to OWNER and construction of the improvement described in this ENGINEER. ENGINEER shall promptly review contract. Further, OWNER shall not be liable to the Underground Facility and determine the extent, CONTRACTOR for any amount of money over the if any,to which a change is required in the Contract negotiated contract price. Documents to reflect and document the 3. OWNER, ENGINEER, and ENGINEER's consequences of the existence or location of the Consultants shall not be liable to CONTRACTOR for any Underground Facility. During such time, claims,costs,losses,or damages(including but not limited to CONTRACTOR shall be responsible for the safety all fees and charges of engineers,architects,attorneys,and and protection of such Underground Facility. other professionals and all court or arbitration or other dispute resolution costs)sustained by CONTRACTOR on or 2. If ENGINEER concludes that a change in the in connection with any other project or anticipated project. Contract Documents is required,a Work Change Directive or a Change Order may be issued at 4.04 Underground Facilities OWNER'S discretion to reflect and document such consequences. A. Shown or Indicated:Any information and data shown or indicated in the Contract Documents with respect to existing C. The provisions of paragraphs 4.02,4.03,and 4.04 shall not Underground Facilities at or contiguous to the Site is based on apply to a Hazardous Environmental Condition uncovered or information and data furnished to OWNER or ENGINEER by revealed at the Site. the owners of such Underground Facilities,including OWNER, or by others. Unless it is otherwise expressly provided in the 4.05 Reference Points Supplementary Conditions: 1. OWNER and ENGINEER shall not be responsible A. OWNER shall provide land surveys necessary to for the accuracy or completeness of any such information or establish right of way, easements and property lines. data;r and 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 D. If CONTRACTOR encounters a Hazardous by ENGINEER. CONTRACTOR shall he responsible for Environmental Condition or if CONTRACTOR or anyone for laying out the Work,shall protect and preserve the established whom the CONTRACTOR is responsible creates a Hazardous reference points and property monuments, and shall make no Environmental Condition,CONTRACTOR shall immediately changes or relocations without the prior written approval of (i)secure or otherwise isolate such condition;(ii)stop all Work OWNER. CONTRACTOR shall report to ENGINEER in connection with such condition and in any area affected whenever any reference point or property monument is lost or thereby(except in an emergency as required by paragraph 6.16); destroyed or requires relocation because of necessary changes in and (iii) notify OWNER and ENGINEER (and promptly grades or locations, and shall be responsible and pay for the thereafter confirm such notice in writing(and promptly thereafter accurate replacement or relocation of such reference points or confirm such notice in writing). OWNER shall promptly consult property monuments by professionally qualified personnel. with ENGINEER concerning the necessity for OWNER to retain a qualified expert to evaluate such condition or take corrective 4.06 Hazardous Environmental Condition at Site action if any. A. Reports and Drawings: Reference is made to the E. CONTRACTOR shall not be required to resume Work Supplementary Conditions for the identification of those reports in connection with such condition or in any affected area until and drawings relating to a Hazardous Environmental Condition after OWNER has obtained any required permits related thereto identified at the Site, if any, that have been utilized by the and delivered to CONTRACTOR written notice:(i)specifying ENGINEER in the preparation of the Contract Documents. that such condition and any affected area is or has been rendered safe for the resumption of Work;or(ii)specifying any special B. Limited Reliance by CONTRACTOR on Technical Data conditions under which such Work may be resumed safely. Authorized: CONTRACTOR may rely upon the general accuracy of the"technical data"contained in such reports and F. If after receipt of such written notice CONTRACTOR drawings, but such reports and drawings are not Contract does not agree to resume such Work or does not agree to resume Documents. Such "technical data" is identified in the such Work under such special conditions,then OWNER may Supplementary Conditions. Except for such reliance on such order the portion of the Work that is in the area affected by such "technical data,"CONTRACTOR may not rely upon or make condition to be deleted from the Work. OWNER shall be any Claim against OWNER, ENGINEER or any of entitled to deduct the cost of such Work from the Contract Price. ENGINEER's Consultants with respect to: G. To the fullest extent permitted by Laws and Regulations, CONTRACTOR shall indemnify and hold harmless OWNER, 1. the completeness of such reports and drawings for ENGINEER, ENGINEER's Consultants, and the officers, CONTRACTOR's purposes, including,but not limited to, directors, partners, employees, agents, other consultants, and any aspects of the means, methods,techniques,sequences subcontractors of each and any of them from and against all and procedures of construction to be employed by claims,costs,losses,and damages(including but not limited to CONTRACTOR and safety precautions and programs all fees and charges of engineers,architects,attorneys,and other incident thereto;or professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to a Hazardous 2. other data,interpretations,opinions and information Environmental Condition created by CONTRACTOR or by contained in such reports or shown or indicated in such anyone for whom CONTRACTOR is responsible. Nothing in drawings;or this paragraph shall obligate CONTRACTOR to indemnify any individual or entity from and against the consequences of that 3. any CONTRACTOR interpretation of or conclusion individual's or entity's own negligence. drawn from any "technical data" or any such other data, interpretations,opinions or information. ARTICLE 5-BONDS AND INSURANCE C. CONTRACTOR shall not be responsible for any Hazardous Environmental Condition uncovered or revealed at 5.01 Performance.Payment,and Other Bonds the Site which was not shown or indicated in Drawings or Specifications or identified in the Contract Documents to be A. SUBCONTRACTOR shall furnish performance and within the scope of the Work. CONTRACTOR shall be payment Bonds, each in an amount at least equal to the responsible for a Hazardous Environmental Condition created Subcontract Price as security for the faithful performance with any materials brought to the Site by CONTRACTOR, and payment of all SUBCONTRACTOR's obligations Subcontractors, Suppliers, or anyone else for whom under the Contract Documents. These Bonds shall remain in CONTRACTOR is responsible. 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 Contract Documents. 00-700-13 CONTRACTOR shall also furnish such other Bonds as are it is excess or pro rata,it shall be endorsed to be primary with required by the Contract Documents. respect to the City of Elgin. B. All Bonds shall be in the form prescribed by the C. The policies to be purchased and maintained shall be Contract Documents except as provided otherwise by Laws or furnished by insurers with A.M.Best Company rating of at least Regulations,and shall be executed by such sureties as are named A-(Excellent)and a financial size category of VIII or greater. in the current list of "Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as 5.04 CONTRACTOR's Liability Insurance Acceptable Reinsuring Companies"as published in Circular 570 (amended)by the Financial Management Service,Surety Bond A. CONTRACTOR shall purchase and maintain such Branch,U.S.Department of the Treasury or as may otherwise be liability and other insurance as is appropriate for the Work being acceptable to OWNER at OWNER'S discretion. All Bonds performed and as shall provide protection from claims set forth signed by an agent must be accompanied by a certified copy of below which may arise out of or result from CONTRACTOR's such agent's authority to act. performance of the Work and CONTRACTOR's other obligations under the Contract Documents,whether it is to be C. If the surety on any Bond furnished by performed by CONTRACTOR,any Subcontractor or Supplier, SUBCONTRACTOR is declared bankrupt or becomes or by anyone directly or indirectly employed by any of them to insolvent or its right to do business is terminated in any state perform any of the Work,or by anyone for whose acts any of where any part of the Project is located or it ceases to meet the them may be liable: requirements of paragraph 5.01.B, SUBCONTRACTOR shall within 20 days thereafter substitute another Bond and 1. claims under workers' compensation, disability surety, both of which shall comply with the requirements of benefits,and other similar employee benefit acts; paragraphs 5.01.B and 5.02. 2. claims for damages because of bodily injury, occupational sickness or disease, or death of CONTRACTOR's employees; 5.02 Licensed Sureties and Insurers 3. claims for damages because of bodily injury, sickness or disease, or death of any person other than A. All Bonds and insurance required by the Contract CONTRACTOR's employees; Documents to be purchased and maintained shall be obtained from surety or insurance companies that are duly licensed or 4. claims for damages insured by reasonably available authorized in the state of Illinois to issue Bonds or insurance personal injury liability coverage which are sustained:(i)by policies for the limits and coverages so required. Such surety any person as a result of an offense directly or indirectly and insurance companies shall also meet such additional related to the employment of such person by requirements and qualifications as may be provided in the CONTRACTOR,or(ii) by any other person for any other Supplementary Conditions. reason; 5.03 Certificates of Insurance 5. claims for damages,other than to the Work itself, because of injury to or destruction of tangible property A. CONTRACTOR shall deliver to OWNER, with copies wherever located,including loss of use resulting therefrom; to each additional insured identified in the Supplementary and Conditions, certificates of insurance (and other evidence of insurance requested by OWNER or any other additional insured) 6. claims for damages because of bodily injury or which CONTRACTOR is required to purchase and maintain. death of any person or property damage arising out of the OWNER shall deliver to CONTRACTOR, with copies to each ownership,maintenance or use of any motor vehicle. additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance B. The policies of insurance so required by this paragraph requested by CONTRACTOR or any other additional insured) 5.04 to be purchased and maintained shall: which OWNER is required to purchase and maintain. 1. with respect to insurance required by paragraphs B. Such insurance shall apply as primary insurance with 5.04.A.3 through 5.04.A.6 inclusive, include as additional respect to any other insurance or self-insurance program afforded insureds(subject to any customary exclusion in respect of to the City of Elgin. There shall be no endorsement or professional liability)OWNER,ENGINEER,ENGINEER's modification of such insurance to make it excess over other Consultants,and any other individuals or entities identified in available insurance,and alternatively,if the insurance states that the Supplementary Conditions,all of whom shall be listed as 00-700-14 additional insureds,and include coverage for the respective include insurance for physical loss or damage to the officers, directors, partners, employees, agents, and other Work,temporary buildings,falsework,Work in transit consultants and subcontractors of each and any of all such including ocean transit, and Work in storage at each additional insureds, and the insurance afforded to these project site or at another location acceptable to Owner, additional insureds shall provide primary coverage for all and shall insure against at least the following perils: claims covered thereby; fire,lightning,extended coverage,theft,vandalism and malicious mischief, earthquake, collapse, debris 2. include at least the specific coverages and be removal,demolition occasioned by enforcement ofLaws written for not less than the limits of liability provided in the and Regulations, water damage, flood, and damage Supplementary Conditions or required by Laws or caused by frost and freezing; Regulations,whichever is greater; 3. include expenses incurred in the repair or 3. include completed operations insurance; replacement of any insured property(including,but not limited to,fees and charges of engineers and architects); 4. include contractual liability insurance covering and CONTRACTOR's indemnity obligations under paragraphs 6.07,6.11,and 6.20; 4. be maintained in effect until final payment is made unless otherwise agreed to in writing by Owner, 5. contain a provision or endorsement that the Contractor,and Engineer,with 30 days'written notice coverage afforded shall not be canceled,materially changed to each other insured. 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 5.06 Waiver of Rights Supplementary Conditions to whom a certificate of insurance has been issued(and the certificates of insurance furnished A. OWNER and CONTRACTOR intend that all policies by the CONTRACTOR pursuant to paragraph 5.03 shall so purchased in accordance with paragraph 5.05 shall protect provide); OWNER, CONTRACTOR, Subcontractors, ENGINEER, ENGINEER's Consultants,and all other individuals or entities 6. remain in effect at least until final payment and at all identified in the Supplementary Conditions to be listed as times thereafter when CONTRACTOR may be correcting, insureds or additional insureds (and the officers, directors, removing,or replacing defective Work in accordance with partners, employees, agents, and other consultants and paragraph 13.07;and subcontractors of each and any of them) in such policies and shall provide primary coverage for all losses and damages 7. with respect to completed operations insurance,and caused by the perils or causes of loss covered thereby. All such any insurance coverage written on a claims-made basis, policies shall contain provisions to the effect that in the event of remain in effect for at least two years after final payment(and payment of any loss or damage the insurers shall have no rights CONTRACTOR shall furnish OWNER and each other of recovery against any of the insureds or additional insureds additional insured identified in the Supplementary thereunder. OWNER and CONTRACTOR waive all rights Conditions, to whom a certificate of insurance has been against each other and their respective officers, directors, issued, evidence satisfactory to OWNER and any such partners, employees, agents, and other consultants and additional insured of continuation of such insurance at final subcontractors of each and any of them for all losses and payment and one year thereafter). damages caused by,arising out of or resulting from any of the perils or causes of loss covered by such policies and any other 5.05 Owner's Property Insurance property insurance applicable to the Work; and, in addition, waive all such rights against Subcontractors, ENGINEER, A. Owner shall purchase and maintain property ENGINEER's Consultants,and all other individuals or entities insurance coverage for the Work at each site in the amount identified in the Supplementary Conditions to be listed as of the full replacement cost thereof. This insurance shall: insureds or additional insureds (and the officers, directors, partners, employees, agents, and other consultants and 1. include the interests of Owner, Contractor, subcontractors of each and any of them)under such policies for Subcontractors,Engineer,and Engineer's Consultants, losses and damages so caused. None of the above waivers shall each of whom is deemed to have an insurable interest extend to the rights that any party making such waiver may have and shall be listed as a named insured; to the proceeds of insurance held by OWNER as trustee or otherwise payable under any policy so issued. 2. be written on a Builder's Risk"all-risk"or open peril or special causes of loss policy form that shall at 5.07 Acceptance of Bonds and Insurance;Option to Replace least 00-700-15 B. At all times during the progress of the Work, A. If either OWNER or CONTRACTOR has any objection CONTRACTOR shall assign a competent resident to the coverage afforded by or other provisions of the Bonds or superintendent thereto who shall not be replaced without written insurance required to be purchased and maintained by the other notice to OWNER and ENGINEER. The superintendent shall party in accordance with Article 5 on the basis of be CONTRACTOR's representative at the Site and shall have non-conformance with the Contract Documents,the objecting authority to act on behalf of CONTRACTOR. All party shall so notify the other party in writing within 10 days communications given to or received from the superintendent after receipt of the certificates (or other evidence requested) shall be binding on CONTRACTOR. required by paragraph 2.05.C. OWNER and CONTRACTOR shall each provide to the other such additional information in 6.02 Labor; Working Hours respect of insurance provided as the other may reasonably request. If either party does not purchase or maintain all of the A. CONTRACTOR shall provide competent, suitably Bonds and insurance required of such party by the Contract qualified personnel to survey,lay out,and construct the Work as Documents,such party shall notify the other party in writing of required by the Contract Documents. CONTRACTOR shall at such failure to purchase prior to the start of the Work,or of such all times maintain good discipline and order at the Site. failure to maintain prior to any change in the required coverage. Without prejudice to any other right or remedy,the other party B. Except as otherwise required for the safety or protection may elect to obtain equivalent Bonds or insurance to protect such of persons or the Work or property at the Site or adjacent other party's interests at the expense of the party who was thereto, and except as otherwise stated in the Contract required to provide such coverage,and a Change Order shall be Documents, all Work at the Site shall be performed during issued to adjust the Contract Price accordingly. regular working hours,and CONTRACTOR shall not permit overtime work or the performance of Work on Saturday,Sunday, 5.8 Partial Utilization, Acknowledgment of Property or any legal holiday without OWNER's written consent(which Insurer shall not be unreasonably withheld) given after prior written notice to ENGINEER or except as may otherwise by specifically A. If OWNER finds it necessary to occupy or use a portion provided by the Contract Documents. or portions of the Work prior to Substantial Completion of all the Work as provided in paragraph 14.05,no such use or occupancy 6.03 Services,Materials,and Equipment shall commence before the insurers providing the property insurance pursuant to paragraph 5.05 have acknowledged notice A. Unless otherwise specified in the General Requirements, thereof and in writing effected any changes in coverage CONTRACTOR shall provide and assume at necessitated thereby. The insurers providing the property CONTRACTOR'S cost, full responsibility for all services, insurance shall consent by endorsement on the policy or policies, materials, equipment, labor, transportation, construction but the property insurance shall not be canceled or permitted to equipment and machinery,tools,appliances,fuel,power,light, lapse on account of any such partial use or occupancy. 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. ARTICLE 6-CONTRACTOR'S RESPONSIBILITIES B. All materials and equipment incorporated into the Work shall be as specified or,if not specified,shall be of good quality 6.01 Supervision and Superintendence and new, except as otherwise provided in the Contract Documents. All warranties and guarantees specifically called for A. CONTRACTOR shall supervise,inspect,and direct the by the Specifications shall expressly run to the benefit of Work competently and efficiently,devoting such attention thereto OWNER. If required by ENGINEER,CONTRACTOR shall and applying such skills and expertise as may be necessary to furnish satisfactory evidence(including reports of requ red tests) perform the Work in accordance with the Contract Documents. as to the source,kind,and quality of materials and equipment. CONTRACTOR shall be solely responsible for the means, All materials and equipment shall be stored,applied,installed, methods,techniques,sequences,and procedures ofconstruction, connected,erected,protected,used,cleaned,and conditioned in but CONTRACTOR shall not be responsible for the negligence accordance with instructions of the applicable Supplier,except of OWNER or ENGINEER in the design or specification of a as otherwise may be provided in the Contract Documents. specific means,method,technique,sequence,or procedure of construction which is shown or indicated in and expressly 6.04 Progress Schedule required by the Contract Documents. CONTRACTOR shall be responsible to see that the completed Work complies accurately A. CONTRACTOR shall adhere to the progress schedule with the Contract Documents. established in accordance with the Contract Documents as may be adjusted from time to time as provided below. 00-700-16 application,and available engineering,sales,maintenance, 1. CONTRACTOR shall submit to ENGINEER for repair, and replacement services shall be indicated. The acceptance (to the extent indicated in the Contract application shall also contain an itemized estimate of all Documents) any proposed adjustments in the progress costs or credits that shall result directly or indirectly from schedule that shall not result in changing the Contract Times use of such substitute item,including costs of redesign and (or Milestones). Such adjustments shall conform generally to claims of other contractors affected by any resulting change, the progress schedule then in effect and additionally shall all of which shall be considered by ENGINEER in comply with any provisions of the General Requirements evaluating the proposed substitute item. ENGINEER may applicable thereto. require CONTRACTOR to furnish additional data about the proposed substitute item. 2. Proposed adjustments in the progress schedule that shall change the Contract Times(or Milestones) shall be B. Substitute Construction Methods or Procedures: If a submitted in accordance with the requirements of Article 12. specific means, method,technique,sequence,or procedure of Such adjustments may only be made by a Change Order or construction is shown or indicated in and expressly required by Written Amendment in accordance with Article 12. the Contract Documents,CONTRACTOR may furnish or utilize a substitute means,method,technique,sequence,or procedure of 6.05 Substitutes and "Or-Equals" construction approved by ENGINEER.CONTRACTOR shall submit sufficient information to allow ENGINEER, in A. Whenever an item of material or equipment is specified ENGINEER's sole discretion,to determine that the substitute or described in the Contract Documents by using the name of a proposed is equivalent to that expressly called for by the proprietary item or the name of a particular Supplier, the Contract Documents. The procedure for review by ENGINEER specification or description is intended to establish the type, shall be substantially similar to that provided in subparagraph function, appearance, and quality required. Unless the 6.05.A.2. specification or description contains or is followed by words reading that no like, equivalent, or "or-equal" item or no C. Engineer's Evaluation: ENGINEER shall bealloweda substitution is permitted,other items of material or equipment or reasonable time within which to evaluate each proposal or material or equipment of other Suppliers may be submitted to submittal made pursuant to paragraphs 6.05.A and 6.05.B. ENGINEER for review under the circumstances described ENGINEER shall be the sole judge of acceptability. No below. "or-equal"or substitute shall be ordered, installed or utilized until ENGINEER's review is complete, which shall be 1. The procedure for review by ENGINEER for"or evidenced by either a Change Order for a substitute or an equal"or substitute items shall be as set forth in below,as approved Shop Drawing for an"or equal." ENGINEER shall supplemented in the General Requirements and as advise CONTRACTOR in writing of any negative ENGINEER may decide is appropriate under the determination. circumstances. D. Special Guarantee: OWNER may require 2. CONTRACTOR shall first make written CONTRACTOR to furnish at CONTRACTOR's expense a application to ENGINEER for review of a proposed special performance guarantee or other surety with respect to any substitute item of material or equipment that substitute. CONTRACTOR seeks to furnish or use. The application shall certify that the proposed substitute item shall perform E. ENGINEER's Cost Reimbursement: ENGINEER shall adequately the functions and achieve the results called for record time required by ENGINEER and ENGINEER's by the general design, be similar in substance to that Consultants in evaluating substitute proposed or submitted by specified,and be suited to the same use as that specified. CONTRACTOR pursuant to paragraphs 6.05.A.2 and 6.05.B The application shall state the extent,if any,to which the and in making changes in the Contract Documents(or in the use of the proposed substitute item shall prejudice provisions of any other direct contract with OWNER for work on CONTRACTOR's achievement of Substantial Completion the Project)occasioned thereby. Whether or not ENGINEER on time,whether or not use of the proposed substitute item approves a substitute item so proposed or submitted by in the Work shall require a change in any of the Contract CONTRACTOR,CONTRACTOR shall reimburse OWNER for Documents(or in the provisions of any other direct contract the charges of ENGINEER and ENGINEER's Consultants for with OWNER for work on the Project)to adapt the design evaluating each such proposed substitute. to the proposed substitute item and whether or not incorporation or use of the proposed substitute item in F. CONTRACTOR's Expense: CONTRACTOR shall connection with the Work is subject to payment of any provide all data in support of any proposed substitute or license fee or royalty. All variations of the proposed "or-equal"at CONTRACTOR's expense. substitute item from that specified shall be identified in the 00-700-17 6.06 Concerning Subcontractors,Suppliers,and Others Suppliers, and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract A. CONTRACTOR shall not employ any Subcontractor, with CONTRACTOR. Supplier,or other individual or entity(including those acceptable to OWNER as indicated in paragraph 6.06.B),whether initially E. CONTRACTOR shall require all Subcontractors, or as a replacement, against whom OWNER may have Suppliers,and such other individuals or entities performing or reasonable objection. CONTRACTOR shall not be required to furnishing any of the Work to communicate with ENGINEER employ any Subcontractor,Supplier,or other individual or entity through CONTRACTOR. to furnish or perform any of the Work against whom CONTRACTOR has reasonable objection. Any person F. The divisions and sections of the Specifications and the employed by CONTRACTOR or Subcontractors who does not identifications of any Drawings shall not control perform his work in a proper and skillful manner, or who is CONTRACTOR in dividing the Work among Subcontractors or intemperate,disorderly,or otherwise objectionable,shall,at the Suppliers or delineating the Work to be performed by any written request of OWNER, be forthwith removed from the specific trade. project site and shall not be employed again in any portion ofthe Work without written consent of OWNER. G. All Work performed for CONTRACTOR by a Subcontractor or Supplier shall be pursuant to an appropriate B. If the Supplementary Conditions require the identity of agreement between CONTRACTOR and the Subcontractor or certain Subcontractors,Suppliers,or other individuals or entities Supplier which specifically binds the Subcontractor or Supplier to be submitted to OWNER in advance for acceptance by to the applicable terms and conditions of the Contract OWNER by a specified date prior to the Effective Date of the Documents for the benefit of OWNER and ENGINEER. Agreement,and if CONTRACTOR has submitted a list thereof Whenever any such agreement is with a Subcontractor or in accordance with the Supplementary Conditions,OWNER's Supplier who is listed as an additional insured on the property acceptance (either in writing or by failing to make written insurance provided in paragraph 5.05,the agreement between objection thereto by the date indicated for acceptance or the CONTRACTOR and the Subcontractor or Supplier shall objection in the Bidding Documents or the Contract Documents) contain provisions whereby the Subcontractor or Supplier of any such Subcontractor,Supplier,or other individual or entity waives all rights against OWNER, CONTRACTOR, so identified may be revoked on the basis of reasonable objection ENGINEER, ENGINEER's Consultants, and all other after due investigation. CONTRACTOR shall submit an individuals or entities identified in the Supplementary Conditions acceptable replacement for the rejected Subcontractor,Supplier, to be listed as insureds or additional insureds(and the officers, or other individual or entity, and the Contract Price shall be directors,partners,employees,agents,and other consultants and adjusted by the difference in the cost occasioned by such subcontractors of each and any of them) for all losses and replacement,and an appropriate Change Order shall be issued or damages caused by,arising out of,relating to,or resulting from Written Amendment signed. No acceptance by OWNER of any any of the perils or causes of loss covered by such policies and such Subcontractor, Supplier, or other individual or entity, any other property insurance applicable to the Work. If the whether initially or as a replacement, shall constitute or be insurers on any such policies require separate waiver forms to be construed as a waiver of any right of OWNER or ENGINEER to signed by any Subcontractor or Supplier.CONTRACTOR shall reject defective Work. obtain the same. C. CONTRACTOR shall be fully responsible to OWNER 6.07 Patent Fees and Royalties and ENGINEER for all acts and omissions of the Subcontractors, Suppliers, and other individuals or entities A. CONTRACTOR shall pay all license fees and royalties performing or furnishing any of the Work just as and assume all costs incident to the use in the performance ofthe CONTRACTOR is responsible for CONTRACTOR's own acts Work or the incorporation in the Work of any invention,design, and omissions. Nothing in the Contract Documents shall create process,product,or device which is the subject of patent rights for the benefit of any such Subcontractor, Supplier, or other or copyrights held by others. If a particular invention,design, individual or entity any contractual relationship between process, product, or device is specified in the Contract OWNER or ENGINEER and any such Subcontractor,Supplier Documents for use in the performance of the Work and if to the or other individual or entity,nor shall it create any obligation on actual knowledge of OWNER or ENGINEER its use is subject the part of OWNER or ENGINEER to pay or to see to the to patent rights or copyrights calling for the payment of any payment of any moneys due any such Subcontractor,Supplier,or license fee or royalty to others,the existence of such rights shall other individual or entity except as may otherwise be required by be disclosed by OWNER in the Contract Documents. To the Laws and Regulations. fullest extent permitted by Laws and Regulations, CONTRACTOR shall indemnify and hold harmless OWNER, D. CONTRACTOR shall be solely responsible for ENGINEER, ENGINEER's Consultants, and the officers, scheduling and coordinating the Work of Subcontractors, directors,partners,employees or agents,and other consultants of 00-700-18 each and any of them from and against all claims,costs,losses, A. CONTRACTOR shall pay all sales,consumer,use,and and damages(including but not limited to all fees and charges of other similar taxes required to be paid by CONTRACTOR in engineers,architects,attorneys,and other professionals and all accordance with the Laws and Regulations of the place of the court or arbitration or other dispute resolution costs)arising out Project which are applicable during the performance of the of or relating to any infringement of patent rights or copyrights Work. incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, 6.11 Use of Site and Other Areas process, product, or device not specified in the Contract Documents. A. Limitation on Use of Site and Other Areas 1. CONTRACTOR shall confine construction equipment,the storage of materials and equipment,and the 6.08 Permits operations of workers to the Site and other areas permitted by Laws and Regulations, and shall not unreasonably A. Unless otherwise provided in the Supplementary encumber the Site and other areas with construction Conditions, CONTRACTOR shall obtain and pay for all equipment or other materials or equipment. construction permits and licenses. OWNER shall assist CONTRACTOR shall assume full responsibility for any CONTRACTOR,when necessary,in obtaining such permits and damage to any such land or area,or to the owner or occupant licenses. CONTRACTOR shall pay all governmental charges thereof,or of any adjacent land or areas resulting from the and inspection fees necessary for the prosecution of the Work performance of the Work. which are applicable at the time of opening of Bids. 2. Should any claim be made by any such owner or 6.09 Laws and Regulations occupant because of the performance of the Work, CONTRACTOR shall promptly settle with such other party A. CONTRACTOR shall give all notices and comply with by negotiation or otherwise resolve the claim as provided by all Laws and Regulations applicable to the performance of the law. Work. Except where otherwise expressly required by applicable Laws and Regulations, neither OWNER nor ENGINEER shall 3. To the fullest extent permitted by Laws and be responsible for monitoring CONTRACTOR's compliance Regulations, CONTRACTOR shall indemnify and hold with any Laws or Regulations. harmless OWNER,ENGINEER,ENGINEER's Consultant, and the officers,directors,partners,employees,agents,and B. If CONTRACTOR performs any Work knowing or other consultants of each and any of them from and against having reason to know that it is contrary to Laws or Regulations, all claims, costs, losses, and damages (including but not CONTRACTOR shall bear all claims, costs, losses, and limited to all fees and charges of engineers, architects, damages (including but not limited to all fees and charges of attorneys, and other professionals and all court or other engineers, architects, attorneys, and other professionals and all dispute resolution costs) arising out of or relating to any court or arbitration or other dispute resolution costs)arising out of claim or action, legal or equitable, brought by any such or relating to such Work; however, it shall not be owner or occupant against OWNER, ENGINEER,or any CONTRACTOR's primary responsibility to make certain that other party indemnified hereunder to the extent caused by or the Specifications and Drawings are in accordance with Laws based upon CONTRACTOR's performance of the Work. and Regulations, but this shall not relieve CONTRACTOR of CONTRACTOR shall to the greatest extent allowable by CONTRACTOR's obligations under paragraph 3.03. law,hold harmless and indemnify OWNER from and against any and all suits,causes of action,and any and all liability of C. Changes in Laws or Regulations not known at the time of any nature arising out of or in connection with opening of Bids (or, on the Effective Date of the Agreement if CONTRACTOR's negligent or illegal failure to comply with there were no Bids) having an effect on the cost or time of any law or regulation,including but not limited to any claim performance of the Work may be the subject of an adjustment in for injunctive relief or for any attorney's fees incurred Contract Price or Contract Times. If OWNER and thereof. CONTRACTOR are unable to agree on entitlement to or on the amount or extent,if any,of any such adjustment,a Claim may be B. Removal of Debris During Performance of the Work: made therefor as provided in paragraph 10.05. During the progress of the Work CONTRACTOR shall keep the Site and other areas free from accumulations of waste materials, 6.10 Taxes 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 of the Work and shall cooperate with them in the protection, removal, CONTRACTOR shall clean the Site and make it ready for relocation, and replacement of their property. All damage, utilization by OWNER. At the completion of the Work injury,or loss to any property referred to in paragraph 6.13.A.2 CONTRACTOR shall remove from the Site all tools,appliances, or 6.13.A.3 caused,directly or indirectly,in whole or in part,by construction equipment and machinery, and surplus materials CONTRACTOR, any Subcontractor, Supplier, or any other and shall restore to original condition all property not designated individual or entity directly or indirectly employed by any of for alteration by the Contract Documents. them to perform any of the Work,or anyone for whose acts any of them may be liable, shall be remedied by CONTRACTOR D. Loading Structures: CONTRACTOR shall not load nor (except damage or loss attributable to the fault of Drawings or permit any part of any structure to be loaded in any manner that Specifications or to the acts or omissions of OWNER or shall endanger the structure,nor shall CONTRACTOR subject ENGINEER or ENGINEER's Consultant,or anyone employed any part of the Work or adjacent property to stresses or pressures by any of them, or anyone for whose acts any of them may be that shall endanger it. liable,and not attributable,directly or indirectly,in whole or in part, to the fault or negligence of CONTRACTOR or any 6.12 Record Documents Subcontractor,Supplier,or other individual or entity directly or indirectly employed by any of them). CONTRACTOR's duties A. CONTRACTOR shall maintain in a safe place at the Site and responsibilities for safety and for protection of the Work one record copy of all Drawings, Specifications, Addenda, shall continue until such time as all the Work is completed and Written Amendments,Change Orders,Work Change Directives, ENGINEER has issued a notice to OWNER and Field Orders, and written interpretations and clarifications in CONTRACTOR in accordance with paragraph 14.07.B that the good order and annotated to show changes made during Work is acceptable(except as otherwise expressly provided in construction. These record documents together with all connection with Substantial Completion). approved Samples and a counterpart of all approved Shop Drawings shall be available to ENGINEER and OWNER for 6.14 Safety Representative reference. Upon completion of the Work, these record documents,Samples,and Shop Drawings shall be delivered to A. CONTRACTOR shall designate a qualified and ENGINEER for OWNER. experienced safety representative at the Site whose duties and responsibilities shall be the prevention of accidents and the 6.13 Safety and Protection maintaining and supervising of safety precautions and programs. A. CONTRACTOR shall be solely responsible for 6.15 Hazard Communication Programs initiating,maintaining and supervising all safety precautions and programs in connection with the Work. CONTRACTOR shall A. CONTRACTOR shall be responsible for coordinating take all necessary precautions for the safety of,and shall provide any exchange of material safety data sheets or other hazard the necessary protection to prevent damage,injury or loss to: communication information required to be made available to or exchanged between or among employers at the Site in 1. all persons on the Site or who may be affected by accordance with Laws and Regulations. the Work; 6.16 Emergencies 2. all the Work and materials and equipment to be incorporated therein,whether in storage on or off the Site; A. In emergencies affecting the safety or protection of and persons or the Work or property at the Site or adjacent thereto, CONTRACTOR is obligated to act to prevent threatened 3. other property at the Site or adjacent thereto, damage,injury,or loss. CONTRACTOR shall give ENGINEER including trees,shrubs,lawns,walks,pavements,roadways, prompt written notice if CONTRACTOR believes that any structures, utilities, and Underground Facilities not significant changes in the Work or variations from the Contract designated for removal, relocation, or replacement in the Documents have been caused thereby or are required as a result course of construction. thereof. If ENGINEER determines that a change in the Contract Documents is required because of the action taken by B. CONTRACTOR shall comply with all applicable Laws CONTRACTOR in response to such an emergency, a Work and Regulations relating to the safety of persons or property,or Change Directive or Change Order shall be issued. to the protection of persons or property from damage,injury,or loss; and shall erect and maintain all necessary safeguards for 6.17 Shop Drawings and Samples such safety and protection. CONTRACTOR shall notify owners of adjacent property and of Underground Facilities and other A. CONTRACTOR shall submit Shop Drawings to utility owners when prosecution of the Work may affect them, 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 3. At the time of each submittal, CONTRACTOR in the number of copies specified in the General Requirements. shall give ENGINEER specific written notice of such The data shown on the Shop Drawings shall be complete with variations, if any, that the Shop Drawing or Sample respect to quantities, dimensions, specified performance and submitted may have from the requirements of the Contract design criteria,materials,and similar data to show ENGINEER Documents, such notice to be in a written communication the services, materials, and equipment CONTRACTOR separate from the submittal; and, in addition,shall cause a proposes to provide and to enable ENGINEER to review the specific notation to be made on each Shop Drawing and information. Sample submitted to ENGINEER for review and approval of each such variation. B. CONTRACTOR shall also submit Samples to ENGINEER for review and approval in accordance with the E. ENGINEER's Review acceptable schedule of Shop Drawings and Sample submittals. Each Sample shall be identified clearly as to material,Supplier, 1. ENGINEER shall timely review and approve Shop pertinent data such as catalog numbers,and the use for which Drawings and Samples in accordance with the schedule of intended and otherwise as ENGINEER may require to enable Shop Drawings and Sample submittals acceptable to ENGINEER to review the submittal for the limited purposes ENGINEER. ENGINEER's review and approval shall be required by paragraph 6.17.E.The numbers of each Sample to only to determine if the items covered by the submittals shall, be submitted shall he as specified in the Specifications. after installation or incorporation in the Work,conform to the information given in the Contract Documents and be C. Where a Shop Drawing or Sample is required by the compatible with the design concept of the completed Project Contract Documents or the schedule of Shop Drawings and as a functioning whole as indicated by the Contract Sample submittals acceptable to ENGINEER as required by Documents. paragraph 2.07, any related Work performed prior to ENGINEER's review and approval of the pertinent submittal 2. ENGINEER's review and approval shall not extend shall be at the sole expense and responsibility of to means,methods,techniques,sequences,or procedures of CONTRACTOR. construction (except where a particular means, method, technique, sequence, or procedure of construction is D. Submittal Procedures specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident 1. Before submitting each Shop Drawing or Sample, thereto. The review and approval of a separate item as such CONTRACTOR shall have determined and verified: shall not indicate approval of the assembly in which the item functions. a. all field measurements,quantities,dimensions, specified performance criteria,installation requirements, 3. ENGINEER's review and approval of Shop materials,catalog numbers,and similar information with Drawings or Samples shall not relieve CONTRACTOR from respect thereto; responsibility for any variation from the requirements of the Contract Documents unless CONTRACTOR has in writing b. all materials with respect to intended use, called ENGINEER's attention to each such variation at the fabrication,shipping,handling,storage,assembly,and time of each submittal as required by paragraph 6.17.D.3 and installation pertaining to the performance of the Work; ENGINEER has given written approval of each such c. all information relative to means, methods, variation by specific written notation thereof incorporated in techniques, sequences,and procedures of construction or accompanying the Shop Drawing or Sample approval;nor and safety precautions and programs incident thereto; shall any approval by ENGINEER relieve CONTRACTOR and from responsibility for complying with the requirements of the Contract Documents. d. CONTRACTOR shall also have reviewed and coordinated each Shop Drawing or Sample with other F. Resubmittal Procedures Shop Drawings and Samples and with the requirements of the Work and the Contract Documents. 1. CONTRACTOR shall make corrections required by ENGINEER and shall return the required number of 2. Each submittal shall bear a stamp or specific written corrected copies of Shop Drawings and submit as required indication that CONTRACTOR has satisfied new Samples for review and approval. CONTRACTOR CONTRACTOR's obligations under the Contract shall direct specific attention in writing to revisions other Documents with respect to CONTRACTOR's review and than the corrections called for by ENGINEER on previous approval of that submittal. submittals. 00-700-21 6. any review and approval of a Shop Drawing or 6.18 Continuing the Work Sample submittal or the issuance of a notice of acceptability by ENGINEER; A. CONTRACTOR shall carry on the Work and adhere to the progress schedule during all disputes or disagreements with 7. any inspection,test,or approval by others;or OWNER. No Work shall be delayed or postponed pending 8. any correction of defective Work by OWNER. resolution of any disputes or disagreements,except as permitted by the Contract Documents or as OWNER and CONTRACTOR 6.20 Indemnification may otherwise agree in writing. A. Indemnification. To the fullest extent permitted by law, 6.19 CONTRACTOR's Genera!Warranty and Guarantee Contractor agrees to and shall indemnify, defend and hold harmless the Owner,the Engineer, Engineer's consultants and A. CONTRACTOR warrants and guarantees to OWNER, the officers,employees,boards and commissions of each and any ENGINEER,and ENGINEER's Consultants that all Work shall of them from and against any and all claims,suits,judgments, be in accordance with the Contract Documents and shall not be costs, attorneys' fees, damages or any and all other relief or defective. CONTRACTOR's warranty and guarantee hereunder liability arising out of or resulting from or through,or alleged to excludes defects or damage caused by: arise out of,any acts or negligent acts or omissions of Contractor or Contractor's officers,employees,agents or subcontractors in 1. abuse, modification, or improper maintenance or the performance of this agreement, or arising out of or in operation by persons other than CONTRACTOR, connection with litigation based on any mechanic's lien or other Subcontractors,Suppliers,or any other individual or entity claims, suits, judgments and/or demands for damages by for whom CONTRACTOR is responsible;or subcontractors. In the event of any action against the Owner,its officers,employees,agents,boards or commissions covered by 2. normal wear and tear under normal usage. the foregoing duty to indemnify,defend and hold harmless,such action shall be defended by legal counsel of Owner's choosing. This warranty shall guarantee all work for a period of two years In the event and to the extent that any legal work is performed by from the date of acceptance of the Work and final acceptance by Owner's in-house legal counsel pursuant to the provisions ofthis the OWNER, unless a different guarantee period of time is section,Owner shall be reimbursed by Contractor for such legal specified under other parts of the Contract Documents. work at the rate of$200 per hour,which rate Contractor hereby agrees and acknowledges to be a reasonable rate for such in- B. CONTRACTOR's obligation to perform and complete house attorneys' fees. The provisions of this paragraph shall the Work in accordance with the Contract Documents shall be survive any expiration and/or termination of this agreement. absolute. None of the following shall constitute an acceptance of Work that is not in accordance with the Contract Documents or a B. Contractor Specification Indemnification. To the fullest release of CONTRACTOR's obligation to perform the Work in extent permitted by law, and notwithstanding anything to the accordance with the Contract Documents: 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 1. observations by ENGINEER; contributed or been involved in or with the preparation or drafting of any plans,specifications or Contract Documents,and 2. recommendation by ENGINEER or payment by the officers,employees,boards and commissions of each and any OWNER of any progress or final payment; of them from and against any and all claims,suits,judgments, 3. the issuance of a certificate of Substantial costs, attorneys' fees, damages or any and all other relief or Completion by ENGINEER or any payment related thereto liability arising out of or resulting from or through,or alleged to by OWNER; arise out of or through,ambiguities,errors or conflicts in such specifications,plans or Contract Documents. Contractor hereby 4. use or occupancy of the Work or any part thereofby agrees and acknowledges that any such claims,suits,judgments, OWNER; costs, attorneys' fees, damages or any and all other relief or liability shall inherently and per se he based upon and result from 5. any acceptance by OWNER or any failure to do so; 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 of this 00-700-22 agreement. 1. the individual or entity who shall have authority and responsibility for coordination of the activities among the ARTICLE 7-OTHER WORK various contractors shall be identified; 2. the specific matters to be covered by such authority and responsibility shall be itemized;and 7.01 Related Work at Site 3. the extent of such authority and responsibilities shall A. OWNER may perform other work related to the Project be provided. at the Site or let other direct contracts therefor,or have other work performed by utility owners. If such other work is not B. Unless otherwise provided in the Supplementary noted in the Contract Documents,then: Conditions,OWNER shall have sole authority and responsibility for such coordination. 1. written notice thereof shall be given to 7.03. Subcontractors This Article 7 shall not apply to Subcontractors, CONTRACTOR prior to starting any such other work;and ARTICLE 8-OWNER'S RESPONSIBILITIES 2. if OWNER and CONTRACTOR are unable to agree on entitlement to or on the amount or extent,if any,of 8.01 Communications to Contractor any adjustment in the Contract Price or Contract Times that should be allowed as a result of such other work,a Claim A. Except as otherwise provided in these General may be made therefor as provided in paragraph 10.05. Conditions, OWNER shall issue all communications to CONTRACTOR through ENGINEER. B. CONTRACTOR shall afford each other contractor who is a party to any contract or work as provided in the paragraph B. Requirements to Provide Documents. To the extent above and each utility owner (and OWNER, if OWNER is they are available,the OWNER shall furnish surveys describing performing the other work with OWNER's employees)proper physical characteristics,legal limitations,and utility locations for and safe access to the Site and a reasonable opportunity for the the site of the Project,and a legal description of the Site. introduction and storage of materials and equipment and the execution of such other work and shall properly coordinate the The OWNER shall obtain and pay for necessary approvals, Work with theirs. Unless otherwise provided in the Contract easements, assessments, and charges which are customarily Documents, CONTRACTOR shall do all cutting, fitting, and secured prior to the execution of the Contract. patching of the Work that may be required to properly connect or otherwise make its several parts come together and properly The OWNER shall furnish information or services required integrate with such other work. CONTRACTOR shall not of the OWNER hereunder with reasonable promptness after endanger any work of others by cutting,excavating,or otherwise receipt from the CONTRACTOR of a written request for such altering their work and shall only cut or alter their work with the information or services. written consent of ENGINEER,OWNER and the others whose work may be affected. The OWNER shall provide the CONTRACTOR, at no charge, such copies of the Project Manual as are reasonably C. If the proper execution or results of any part of necessary for the execution of the Work. CONTRACTOR's Work depends upon work performed by others under this Article 7,CONTRACTOR shall inspect such C. OWNER's Right to Perform Construction and to Award other work and promptly report to ENGINEER in writing any Separate Contracts. The OWNER reserves the right to perform delays,defects,or deficiencies in such other work that render it construction or operations at the Site with its own forces or unavailable or unsuitable for the proper execution and results of others. If the CONTRACTOR claims that a delay or additional CONTRACTOR's Work. CONTRACTOR's failure to so cost is involved because of such action by the OWNER, the report shall constitute an acceptance of such other work by CONTRACTOR shall make such Claim as provided elsewhere CONTRACTOR as fit and proper for integration with in the Contract Documents. CONTRACTOR's Work except for latent defects and deficiencies in such other work. When the separate contracts are awarded for different portions of the Project or other construction or operations on the 7.02 Coordination site,the term"Contractor"in the Contract Documents in each case shall mean the Contractor who executes each separate A. If OWNER intends to contract with others for the OWNER-Contractor Agreement. performance of other work on the Project at the Site, the following shall be set forth in Supplementary Conditions: 00-700-23 The OWNER shall provide for coordination of the activities waivers pertain only to the specific matter contained in the of the OWNER's own forces and of each separate contractor waiver and not to any similar,subsequent matters. with the Work of the CONTRACTOR,who shall cooperate with them. The CONTRACTOR shall afford each other person ARTICLE 9 - ENGINEER'S STATUS DURING access to the Site and shall properly coordinate its Work with CONSTRUCTION that of the 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. 9.01 OWNER'S Representative The CONTRACTOR shall make any revisions to the construction schedules deemed necessary after a joint review and A. ENGINEER shall be OWNER's mutual agreement. The construction schedules shall then representative during the construction period. The duties and constitute the schedules to be used by the CONTRACTOR, responsibilities and the limitations of authority ofENG1NEER as separate contractors, and the OWNER until subsequently OWNER's representative during construction are set forth in the revised. Contract Documents and shall not be changed without written consent of OWNER and ENGINEER. D. Limitations on the OWNER's Responsibilities. The OWNER shall not supervise,direct,or have control or authority 9.02 Visits to Site over, nor be responsible for the CONTRACTOR'S means, methods,techniques,sequences,or procedures ofconstruction or A. ENGINEER shall make visits to the Site at the safety precautions and programs incident thereto,or for any intervals appropriate to the various stages of construction as failure of the CONTRACTOR to comply with laws,codes and ENGINEER reasonably deems necessary in order to observe the regulations applicable to the furnishing or performance of the progress that has been made and the quality of the various Work. The OWNER will not be responsible for the aspects of CONTRACTOR's executed Work. Based on CONTRACTOR'S failure to perform or furnish the Work in information obtained during such visits and observations, accordance with the Contract Documents. The OWNER is not ENGINEER, shall determine, in general, if the Work is responsible for the acts or omissions ofthe CONTRACTOR,any proceeding in accordance with the Contract Documents. Subcontractor, Supplier, or anyone for whose acts the ENGINEER shall not be required to make exhaustive or CONTRACTOR,any Subcontractor or Suppliers may be liable. continuous inspections on the Site to check the quality or quantity of the Work. On the basis of such visits and The OWNER's authority to review any of the observations,ENGINEER shall keep OWNER informed of the CONTRACTOR's progress schedules,or its decision to raise or progress of the Work and shall use its best efforts to guard not to raise any objections about such schedules shall not impose OWNER against defective Work. on the OWNER any responsibility for the timing, planning, scheduling,or execution of the Work,nor in any way give rise to B. ENGINEER's visits and observations are any duty or responsibility on the part of the OWNER to exercise subject to all the limitations on ENGINEER's authority and this authority for the benefit of the CONTRACTOR, any responsibility set forth herein, and particularly, but without Subcontractor or Supplier or any other party. limitation, during or as a result of ENGINEER's visits or observations of CONTRACTOR's Work ENGINEER shall not The OWNER's decision to raise or not to raise objections supervise, direct, control, or have authority over or be with regard to any aspects of the CONTRACTOR's insurance responsible for CONTRACTOR's means,methods,techniques, shall in no way give rise to any duty or responsibility on the part sequences, or procedures of construction, or the safety of the OWNER to or for the benefit of the CONTRACTOR,any precautions and programs incident thereto,or for any failure of Subcontractor,any Supplier,or any other party. CONTRACTOR to comply with Laws and Regulations applicable to the performance of the Work. E. Reservation of Rights. The OWNER reserves the right to correct at any time any error in any progress payment that may 9.03 Project Representative have been made. A. If OWNER and ENGINEER agree, Should defective Work be discovered subsequent to final ENGINEER shall furnish a Resident Project Representative to payment,the OWNER reserves the right to make a claim and assist ENGINEER in providing more extensive observation of recover all costs and professional fees associated therewith, the Work. The responsibilities and authority and limitations including the cost of removing and/or replacing the defective thereon of any such Resident Project Representative and Work. assistants shall be as provided in paragraph 9.10 and in the Supplementary Conditions. If OWNER designates another F. Waivers. All waivers by the OWNER are valid only to representative or agent to represent OWNER at the Site who is the extent that they are signed by the OWNER. Any such not ENGINEER's Consultant, agent or employee, the 00-700-24 responsibilities and authority and limitations thereon of such matters relating to the acceptability of the Work,the quantities other individual or entity shall he as provided in the and classifications of Unit Price Work,the interpretation of the Supplementary Conditions. requirements of the Contract Documents pertaining to the performance of the Work, and Claims seeking changes in the 9.04 Clarifications and Interpretations Contract Price or Contract Times shall be referred initially to ENGINEER in writing, in accordance with the provisions of A. ENGINEER shall issue with reasonable paragraph 10.05,with a request for a formal decision. promptness such written clarifications or interpretations of the requirements of the Contract Documents as ENGINEER may B. When functioning as provided under determine necessary,which shall be consistent with the intent of paragraph 9.07, ENGINEER shall not show partiality to and reasonably inferable from the Contract Documents. Such OWNER or CONTRACTOR and shall not be liable in written clarifications and interpretations shall be binding on connection with any interpretation or decision rendered in good OWNER and CONTRACTOR subject to the provisions of faith in such capacity. The rendering of a decision by Paragraph 10.5. ENGINEER pursuant to this paragraph 9.08 with respect to any 9.05 Authorized Variations in Work such Claim, dispute, or other matter shall be a condition precedent to any exercise by OWNER or CONTRACTOR of A. ENGINEER may authorize minor variations such rights or remedies as either may otherwise have under the in the Work from the requirements of the Contract Documents Contract Documents or by Laws or Regulations in respect ofany which do not involve an adjustment in the Contract Price or the such Claim,dispute,or other matter. Contract Times and are compatible with the design concept of the completed Project as a functioning whole as indicated by the 9.09 Limitations on ENGINEER's Authority and Contract Documents. These may be accomplished by a Field Responsibilities Order and shall be binding on CONTRACTOR,subject to the provisions of Paragraph 10.5, who shall perform the A. Neither ENGINEER's authority or Work involved promptly. responsibility under this Article 9 or under any other provision of 9.06 Rejecting Defective Work the Contract Documents nor any decision made by ENGINEER in good faith either to exercise or not exercise such authority or A. ENGINEER shall have authority to responsibility or the undertaking,exercise,or performance of any disapprove or reject Work which ENGINEER believes to be authority or responsibility by ENGINEER shall create,impose, defective, or that ENGINEER believes shall not produce a or give rise to any duty in contract,tort,or otherwise owed by completed Project that conforms to the Contract Documents or ENGINEER to CONTRACTOR, any Subcontractor, any that shall prejudice the integrity of the design concept of the Supplier,any other individual or entity,or to any surety for or completed Project as a functioning whole as indicated by the employee or agent of any of them. Contract Documents. ENGINEER shall also have authority to require special inspection or testing of the Work as provided B. ENGINEER shall not supervise, direct, herein whether or not the Work is fabricated, installed, or control, or have authority over or be responsible for completed. CONTRACTOR's means,methods,techniques,sequences.or procedures of construction, or the safety precautions and 9.07 Determinations for Unit Price Work programs incident thereto,or for any failure of CONTRACTOR to comply with Laws and Regulations applicable to the A. ENGINEER shall determine the actual performance of the Work. ENGINEER shall not be responsible quantities and classifications of Unit Price Work performed by for CONTRACTOR's failure to perform the Work in accordance CONTRACTOR. ENGINEER shall review with with the Contract Documents. CONTRACTOR the ENGINEER's preliminary determinations on such matters before rendering a written decision thereon(by C. ENGINEER shall not be responsible for the recommendation of an Application for Payment or otherwise). acts or omissions of CONTRACTOR or of any Subcontractor, ENGINEER's written decision thereon shall be final and binding any Supplier,or ofany other individual or entity performing any (except as modified by ENGINEER to reflect changed factual of the Work. conditions or more accurate data) upon OWNER and CONTRACTOR,subject to the provisions of paragraph 10.05. D. ENGINEER's review of the final Application for Payment and accompanying documentation and all 9.08 Decisions on Requirements of Contract Documents maintenance and operating instructions,schedules,guarantees, and Acceptability of Work Bonds,certificates of inspection,tests and approvals,and other A. ENGINEER shall be the initial interpreter of documentation required to be delivered by paragraph 14.07.A the requirements of the Contract Documents and judge of the shall be to determine that their content complies with the acceptability of the Work thereunder. Claims,disputes and other requirements of, and in the case of certificates of inspections, 00-700-25 tests,and approvals that the results certified indicate compliance 3. changes in the Contract Price or Contract Times with,the Contract Documents. which embody the substance of any written decision rendered by ENGINEER pursuant to paragraph 10.05; E. The limitations upon authority and provided that,in lieu of executing any such Change Order, responsibility set forth in this paragraph 9.09 shall also apply to an appeal may be taken from any such decision in ENGINEER's Consultants,Resident Project Representative,and accordance with the provisions of the Contract Documents assistants. and applicable Laws and Regulations,but during any such appeal, CONTRACTOR shall carry on the Work and ARTICLE 10-CHANGES IN THE WORK;CLAIMS adhere to the progress schedule as provided in paragraph 6.18.A. 10.01 Authorized Changes in the Work 10.04 Notification to Surety A. Without invalidating the Agreement and without notice A. If notice of any change affecting the general scope of to any surety,OWNER may,at any time or from time to time, the Work or the provisions of the Contract Documents order additions,deletions,or revisions in the Work by a Written (including,but not limited to,Contract Price or Contract Times) Amendment, a Change Order, or a Work Change Directive. is required by the provisions of any Bond to be given to a surety, Upon receipt of any such document, CONTRACTOR shall the giving of any such notice shall be CONTRACTOR's promptly proceed with the Work involved which shall be or SUBCONTRACTOR's responsibility. The amount of each performed under the applicable conditions of the Contract applicable Bond shall be adjusted to reflect the effect of any Documents(except as otherwise specifically provided). such change. 10.05 Claims and Disputes B. If OWNER and CONTRACTOR are unable to agree on entitlement to, or on the amount or extent, if any, of an A. Notice: Written notice stating the general nature of adjustment in the Contract Price or Contract Times,or both,that each Claim,dispute, or other matter shall be delivered by the should be allowed as a result of a Work Change Directive, a claimant to ENGINEER and the other party to the Contract Claim may be made therefor as provided in paragraph 10.05. promptly(but in no event later than 30 days)after the start of the event giving rise thereto. Notice of the amount or extent of the 10.02 Unauthorized Changes in the Work Claim, dispute, or other matter with supporting data shall be delivered to the ENGINEER and the other party to the Contract A. CONTRACTOR shall not be entitled to an increase in within 60 days after the start of such event(unless ENGINEER the Contract Price or an extension of the Contract Times with allows additional time for claimant to submit additional or more respect to any work performed that is not required by the accurate data in support ofsuch Claim,dispute,or other matter). Contract Documents as amended,modified,or supplemented as A Claim for an adjustment in Contract Price shall be prepared in provided in paragraph 3.04,except in the case of an emergency accordance with the provisions of paragraph 12.01.B. A Claim as provided in paragraph 6.16 or in the case of uncovering Work for an adjustment in Contract Time shall be prepared in as provided in paragraph 13.04.B. accordance with the provisions of Article 12. Each Claim shall be accompanied by claimant's written statement that the 10.03 Execution of Change Orders adjustment claimed is the entire adjustment to which the claimant believes it is entitled as a result of said event. The opposing A. OWNER and CONTRACTOR shall execute party shall submit any response to ENGINEER and the claimant appropriate Change Orders recommended by ENGINEER(or within 30 days after receipt of the claimant's last submittal Written Amendments)covering: (unless ENGINEER allows additional time). 1. changes in the Work which are:(i)required bylaw B. ENGINEER's Decision: ENGINEER shall render a (ii)ordered by OWNER pursuant to paragraph 10.01.A, formal decision in writing within 30 days after receipt of the last (iii) required because of acceptance of defective Work submittal of the claimant or the last submittal of the opposing under paragraph 13.08.A or OWNER's correction of party, if any. ENGINEER's written decision on such Claim, defective Work under paragraph 13.09,(iv)agreed to by dispute,or other matter shall be final and binding upon OWNER the parties; and CONTRACTOR unless: 2. changes in the Contract Price or Contract Times 1. an appeal from ENGINEER's decision is taken which are agreed to by the parties,including any undisputed within the time limits and in accordance with the dispute sum or amount of time for Work actually performed in resolution procedures set forth in Article 16;or accordance with a Work Change Directive;and 00-700-26 2. if no such dispute resolution procedures have been retirement benefits, bonuses, sick leave, vacation and set forth in Article 16,a written notice of intention to appeal holiday pay applicable thereto. The expenses ofperforming from ENGINEER's written decision is delivered by Work outside of regular working hours, on Saturday, OWNER or CONTRACTOR to the other and to Sunday,or legal holidays,shall be included in the above to ENGINEER within 30 days after the date of such decision, the extent authorized by OWNER. and a formal proceeding is instituted by the appealing party in a forum of competent jurisdiction within 60 days after the 2. Cost of all materials and equipment furnished and date of such decision or within 60 days after Substantial incorporated in the Work,including costs of transportation Completion,whichever is later(unless otherwise agreed in and storage thereof,and Suppliers' field services required writing by OWNER and CONTRACTOR), to exercise in connection therewith. All cash discounts shall accrue to such rights or remedies as the appealing party may have CONTRACTOR unless OWNER deposits funds with with respect to such Claim, dispute, or other matter in CONTRACTOR with which to make payments, in which accordance with applicable Laws and Regulations. case the cash discounts shall accrue to OWNER. All trade discounts, rebates and refunds and returns from sale of C. If ENGINEER does not render a formal decision in surplus materials and equipment shall accrue to OWNER, writing within the time stated in paragraph 10.05.B,a decision and CONTRACTOR shall make provisions so that they denying the Claim in its entirety shall be deemed to have been may he obtained. issued 31 days after receipt of the last submittal the claimant or the last submittal of the opposing party,if any. 3. Payments made by CONTRACTOR to Subcontractors for Work performed by Subcontractors. If D. No Claim for an adjustment in Contract Price or required by OWNER, CONTRACTOR shall obtain Contract Times(or Milestones)shall be valid if not submitted in competitive bids from subcontractors acceptable to accordance with this paragraph 10.05. OWNER and CONTRACTOR and shall deliver such bids to OWNER,who shall then determine,with the advice of ARTICLE I 1 -COST OF THE WORK;CASH ENGINEER,which bids,if any,shall be acceptable. If any ALLOWANCES;UNIT PRICE WORK subcontract provides that the Subcontractor is to be paid on the basis of Cost of the Work plus a fee,the Subcontractor's Cost of the Work and fee shall be determined in the same 11.01 Cost of the Work manner as CONTRACTOR's Cost of the Work and fee as provided in this paragraph 11.01. A. Costs Included: The term Cost of the Work means the sum of all costs necessarily incurred and paid by 4. Costs of special consultants (including but not CONTRACTOR in the proper performance of the Work. When limited to engineers, architects, testing laboratories, the value of any Work covered by a Change Order or when a surveyors, attorneys, and accountants) employed for Claim for an adjustment in Contract Price is determined on the services specifically related to the Work. basis of Cost of the Work, the costs to be reimbursed to CONTRACTOR shall be only those additional or incremental 5. Supplemental costs including the following: costs required because of the change in the Work or because of the event giving rise to the Claim. Except as otherwise may be a. The proportion of necessary transportation, agreed to in writing by OWNER,such costs shall be in amounts travel,and subsistence expenses of CONTRACTOR's no higher than those prevailing in the locality of the Project,shall employees incurred in discharge of duties connected include only the following items,and shall not include any of the with the Work. costs itemized in paragraph 11.01.B. b. Cost, including transportation and 1. Payroll costs for employees in the direct employ of maintenance, of all materials, supplies, equipment, CONTRACTOR in the performance of the Work under machinery,appliances,office,and temporary facilities schedules of job classifications agreed upon by OWNER at the Site,and hand tools not owned by the workers, and CONTRACTOR. Such employees shall include which are consumed in the performance of the Work, without limitation superintendents, foremen, and other and cost,less market value,of such items used but not personnel employed full time at the Site. Payroll costs for consumed which remain the property of employees not employed full time on the Work shall be CONTRACTOR. apportioned on the basis of their time spent on the Work. Payroll costs shall include, but not be limited to,salaries c. Rentals of all construction equipment and and wages plus the cost of fringe benefits, which shall machinery,and the parts thereof whether rented from include social security contributions,unemployment,excise, CONTRACTOR or others in accordance with rental and payroll taxes, workers' compensation, health and agreements approved by OWNER with the advice of 00-700-27 ENGINEER,and the costs of transportation.loading, 1. Payroll costs and other compensation of unloading,assembly,dismantling,and removal thereof. CONTRACTOR's officers, executives, principals (of All such costs shall be in accordance with the terms of partnerships and sole proprietorships),general managers, said rental agreements. The rental of any such engineers, architects, estimators, attorneys, auditors, equipment, machinery, or parts shall cease when the accountants,purchasing and contracting agents,expediters, use thereof is no longer necessary for the Work. timekeepers, clerks, and other personnel employed by CONTRACTOR, whether at the Site or in d. Sales,consumer,use,and other similar taxes CONTRACTOR's principal or branch office for general related to the Work,and for which CONTRACTOR is administration of the Work and not specifically included in liable,imposed by Laws and Regulations. the agreed upon schedule of job classifications referred to in paragraph 11.01.A.1 or specifically covered by paragraph e. Deposits lost for causes other than negligence 11.01.A.4,all of which are to be considered administrative of CONTRACTOR, any Subcontractor, or anyone costs covered by the CONTRACTOR's fee. directly or indirectly employed by any of them or for whose acts any of them may be liable, and royalty 2. Expenses of CONTRACTOR's principal and payments and fees for permits and licenses. branch offices other than CONTRACTOR's office at the Site. f. Losses and damages(and related expenses) caused by damage to the Work,not compensated by 3. Any part of CONTRACTOR's capital expenses, insurance or otherwise,sustained by CONTRACTOR including interest on CONTRACTOR's capital employed in connection with the performance of the Work for the Work and charges against CONTRACTOR for (except losses and damages within the deductible delinquent payments. amounts of property insurance established in accordance with paragraph 5.05),provided such losses 4. Costs due to the negligence of CONTRACTOR, and damages have resulted from causes other than the any Subcontractor, or anyone directly or indirectly negligence of CONTRACTOR,any Subcontractor,or employed by any ofthem or for whose acts any ofthem may anyone directly or indirectly employed by any of them be liable, including but not limited to, the correction of or for whose acts any of them may be liable. Such defective Work,disposal of materials or equipment wrongly losses shall include settlements made with the written supplied,and making good any damage to property. consent and approval of OWNER. No such losses, damages,and expenses shall be included in the Cost of 5. Other overhead or general expense costs of any the Work for the purpose of determining kind and the costs of any item not specifically and expressly CONTRACTOR's fee. included in paragraphs 11.01.A and 1 1.0I.B. g. The cost of utilities,fuel,and sanitary facilities C. CONTRACTOR's Fee: When all the Work is at the Site. performed on the basis of cost-plus,CONTRACTOR's fee shall be determined as set forth in the Agreement. When the value of h. Minor expenses such as telegrams, long any Work covered by a Change Order or when a Claim for an distance telephone calls,telephone service at the Site, adjustment in Contract Price is determined on the basis of Cost expressage,and similar petty cash items in connection of the Work,CONTRACTOR's fee shall he determined as set with the Work. forth in paragraph 12.01.C. i. When the Cost of the Work is used to D. Documentation: Whenever the Cost of the Work for determine the value of a Change Order or of a Claim, any purpose is to be determined pursuant to paragraphs 11.01.A the cost of premiums for additional Bonds and and 11.01.B, CONTRACTOR shall establish and maintain insurance required because of the changes in the Work records thereof in accordance with generally accepted accounting or caused by the event giving rise to the Claim. practices and submit in a form acceptable to ENGINEER an itemized cost breakdown together with supporting data. j. When all the Work is performed on the basis of cost-plus,the costs of premiums for all Bonds and 11.02 Cash Allowances insurance CONTRACTOR is required by the Contract Documents to purchase and maintain. A. It is understood that CONTRACTOR has included in the Contract Price all allowances so named in the Contract B. Costs Excluded:The term Cost of the Work shall not Documents and shall cause the Work so covered to be performed include any of the following items: for such sums as may be acceptable to OWNER and ENGINEER. CONTRACTOR agrees that: 00-700-28 ARTICLE 12-CHANGE OF CONTRACT PRICE; 1. the allowances include the cost to CONTRACTOR CHANGE OF CONTRACT TIMES (less any applicable trade discounts) of materials and equipment required by the allowances to be delivered at the Site,and all applicable taxes;and 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 B. The value of any Work covered by a Change Order or shall be issued as recommended by ENGINEER to reflect actual of any Claim for an adjustment in the Contract Price shall be amounts due CONTRACTOR on account of Work covered by determined as follows: allowances, and the Contract Price shall be correspondingly adjusted. 1. where the Work involved is covered by unit prices contained in the Contract Documents, by application of 11.03 Unit Price Work such unit prices to the quantities of the items involved (subject to the provisions of paragraph 11.03);or A. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work,initially the Contract Price 2. where the Work involved is not covered by unit shall be deemed to include for all Unit Price Work an amount prices contained in the Contract Documents,by a mutually equal to the sum of the unit price for each separately identified agreed lump sum;or item of Unit Price Work times the estimated quantity of each item as indicated in the Agreement. The estimated quantities of 3. where the Work involved is not covered by unit items of Unit Price Work are not guaranteed and are solely for prices contained in the Contract Documents and agreement the purpose of comparison of Bids and determining an initial to a lump sum is not reached under paragraph 12.0 1.B.2,on Contract Price. Determinations of the actual quantities and the basis of the Cost of the Work(determined as provided classifications of Unit Price Work performed by in paragraph 11.01) plus a CONTRACTOR's fee for CONTRACTOR shall be made by ENGINEER subject to the overhead and profit(determined as provided in paragraph provisions of paragraph 9.08. 12.01.C). B. Each unit price shall be deemed to include an amount C. CONTRACTOR's Fee: The CONTRACTOR's fee for considered by CONTRACTOR to be adequate to cover overhead and profit shall be determined as follows: CONTRACTOR's overhead and profit for each separately identified item. 1. a mutually acceptable fixed fee;or C. OWNER or CONTRACTOR may make a Claim for an 2. if a fixed fee is not agreed upon,then a fee based adjustment in the Contract Price in accordance with paragraph on the following percentages of the various portions of the 10.05 if: Cost of the Work: a. for costs incurred under paragraphs 11.01.A.1 1. the quantity of any item of Unit Price Work and 11.01.A.2,the CONTRACTOR's fee shall be 15 performed by CONTRACTOR differs materially and percent; significantly from the estimated quantity of such item indicated in the Agreement;and b. for costs incurred under paragraph 11.01.A.3, the CONTRACTOR's fee shall be five percent; 2. there is no corresponding adjustment with respect any other item of Work;and c. where one or more tiers of subcontracts are on the basis of Cost of the Work plus a fee and no fixed 3. if CONTRACTOR believes that CONTRACTOR fee is agreed upon,the intent of paragraph 12.01.C.2.a is entitled to an increase in Contract Price as a result of is that the Subcontractor who actually performs the having incurred additional expense or OWNER believes Work, at whatever tier, shall be paid a fee of 15 that OWNER is entitled to a decrease in Contract Price percent of the costs incurred by such Subcontractor under paragraphs 11.01.A.1 and 1 1.01.A.2 and that 00-700-29 any higher tier Subcontractor and CONTRACTOR shall each be paid a fee of five percent of the amount 12.05 Delays Beyond OWNER's and CONTRACTOR's paid to the next lower tier Subcontractor; Control d. no fee shall be payable on the basis of costs A. Where CONTRACTOR is prevented from completing itemized under paragraphs 11.01.A.4, 11.01.A.5,and any part of the Work within the Contract Times(or Milestones) 11.01.B; due to delay beyond the control of both OWNER and CONTRACTOR, an extension of the Contract Times (or e. the amount of credit to be allowed by Milestones)in an amount equal to the time lost due to such delay CONTRACTOR to OWNER for any change which shall be granted. 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 12.06 Delay Damages percent of such net decrease;and A. In no event shall OWNER or ENGINEER be liable to f. when both additions and credits are involved CONTRACTOR,any Subcontractor,any Supplier,or any other in any one change, the adjustment in person or organization,or to any surety for or employee or agent CONTRACTOR's fee shall be computed on the basis of any of them,for damages arising out of or resulting from: of the net change in accordance with paragraphs 12.01.C.2.a through 12.01.C.2.e,inclusive. 1. delays caused by or within the control of CONTRACTOR;or 12.02 Change of Contract Times 2. delays beyond the control of both OWNER and A. The Contract Times (or Milestones) may only be CONTRACTOR including but not limited to fires,floods, changed by a Change Order or by a Written Amendment. Any epidemics, abnormal weather conditions,acts of God,or Claim for an adjustment in the Contract Times(or Milestones) acts or neglect by utility owners or other contractors shall be based on written notice submitted by the party making performing other work as contemplated by Article 7. the claim to the ENGINEER and the other party to the Contract in accordance with the provisions of paragraph 10.05. B. Nothing in this paragraph 12.06 bars a change in Contract Price pursuant to this Article 12 to compensate B. Any adjustment of the Contract Times(or Milestones) CONTRACTOR due to delay,interference,or disruption directly covered by a Change Order or of any Claim for an adjustment in attributable to actions or inactions of OWNER or anyone for the Contract Times (or Milestones) shall be determined in whom OWNER is responsible. accordance with the provisions of this Article 12. ARTICLE 13-TESTS AND INSPECTIONS; 12.03 Delays Beyond CONTRACTOR's Control CORRECTION,REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 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 CONTRACTOR,the Contract 13.01 Notice of Defects 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 A. Prompt notice of all defective Work of which OWNER provided in paragraph 12.02.A. Delays beyond the control of or ENGINEER has actual knowledge shall be given to CONTRACTOR shall include, but not be limited to, acts or CONTRACTOR. All defective Work may be rejected, neglect by OWNER,acts or neglect of utility owners or other corrected,or accepted as provided in this Article 13. contractors performing other work as contemplated by Article 7, fires,floods,epidemics,abnormal weather conditions,or acts of 13.02 Access to Work God. A. OWNER, ENGINEER, ENGINEER's Consultants, 12.04 Delays Within CONTRACTOR's Control other representatives and personnel of OWNER, independent testing laboratories, and governmental agencies with A. The Contract Times (or Milestones) shall not be jurisdictional interests shall have access to the Site and the Work extended due to delays within the control of CONTRACTOR. at reasonable times for their observation,inspecting,and testing. Delays attributable to and within the control of a Subcontractor CONTRACTOR shall provide them proper and safe conditions or Supplier shall be deemed to be delays within the control of for such access and advise them of CONTRACTOR's Site safety CONTRACTOR. 00-700-30 procedures and programs so that they may comply therewith as A. If any Work is covered contrary to the written request applicable. of ENGINEER, it must, if requested by ENGINEER, be uncovered for ENGINEER's observation and replaced at 13.03 Tests and Inspections CONTRACTOR's expense. A. CONTRACTOR shall give ENGINEER timely notice B. If ENGINEER considers it necessary or advisable that of readiness of the Work for all required inspections,tests,or covered Work be observed by ENGINEER or inspected or approvals and shall cooperate with inspection and testing tested by others, CONTRACTOR, at ENGINEER's request, personnel to facilitate required inspections or tests. shall uncover, expose, or otherwise make available for observation,inspection,or testing as ENGINEER may require, B. OWNER shall employ and pay for the services of an that portion of the Work in question, furnishing all necessary independent testing laboratory to perform all inspections,tests, labor,material,and equipment. If it is found that such Work is or approvals required by the Contract Documents except: defective,CONTRACTOR shall pay all Claims,costs,losses, and damages(including but not limited to all fees and charges of 1. for inspections, tests, or approvals covered by engineers,architects,attorneys,and other professionals and all paragraphs 13.03.0 and 13.03.D below; court or arbitration or other dispute resolution costs)arising out of or relating to such uncovering, exposure, observation, 2. that costs incurred in connection with tests or inspection, and testing, and of satisfactory replacement or inspections conducted pursuant to paragraph 13.04.B shall reconstruction(including but not limited to all costs of repair or be paid as provided in said paragraph 13.04.B;and replacement of work of others);and OWNER shall be entitled to an appropriate decrease in the Contract Price. If the parties are 3. as otherwise specifically provided in the Contract unable to agree as to the amount thereof,OWNER may make a Documents. Claim therefor as provided in paragraph 10.05 or as may otherwise be provided by law. C. If Laws or Regulations of any public body having jurisdiction require any Work(or part thereof)specifically to be 13.05 OWNER May Stop the Work inspected, tested, or approved by an employee or other representative of such public body, CONTRACTOR shall A. If the Work is defective, or CONTRACTOR fails to assume full responsibility for arranging and obtaining such supply sufficient skilled workers or suitable materials or inspections, tests, or approvals, pay all costs in connection equipment,or fails to perform the Work in such a way that the therewith,and furnish ENGINEER the required certificates of completed Work shall conform to the Contract Documents, inspection or approval. OWNER may order CONTRACTOR to stop the Work,or any portion thereof, until the cause for such order has been D. CONTRACTOR shall be responsible for arranging and eliminated; however, this right of OWNER to stop the Work obtaining and shall pay all costs in connection with any shall not give rise to any duty on the part of OWNER to exercise inspections, tests, or approvals required for OWNER's and this right for the benefit of CONTRACTOR,any Subcontractor, ENGINEER's acceptance of materials or equipment to be any Supplier,any other individual or entity,or any surety for,or incorporated in the Work; or acceptance of materials, mix employee or agent of any of them. 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 13.06 Correction or Removal of Defective Work by organizations acceptable to OWNER and ENGINEER. A. CONTRACTOR shall correct all defective Work, E. If any Work (or the work of others) that is to be whether or not fabricated,installed,or completed,or,ifthe Work inspected,tested,or approved is covered by CONTRACTOR has been rejected by ENGINEER,remove it from the Project without written concurrence of ENGINEER,it must,ifrequested and replace it with Work that is not defective. CONTRACTOR by ENGINEER,be uncovered for observation. shall pay all Claims,costs,losses,and damages(including but not limited to all fees and charges of engineers, architects, F. Uncovering Work as provided in paragraph 13.03.E attorneys,and other professionals and all court or arbitration or shall be at CONTRACTOR's expense unless CONTRACTOR other dispute resolution costs)arising out of or relating to such has given ENGINEER timely notice of CONTRACTOR's correction or removal(including but not limited to all costs of intention to cover the same and ENGINEER has not acted with repair or replacement of work of others). reasonable promptness in response to such notice. 13.07 Correction Period 13.04 Uncovering Work 00-700-31 A. If within two years after the date of Substantial ENGINEER's recommendation of final payment,ENGINEER) Completion (except for equipment, motors, electrical controls prefers to accept it,OWNER may do so. CONTRACTOR shall and other mechanical devices which are guaranteed for a period pay all Claims, costs, losses, and damages(including but not of two years from the date of acceptance and use of each item of limited to all fees and charges of engineers,architects,attorneys, equipment by OWNER pursuant to Section 6.19(A)herein),or such and other professionals and all court or arbitration or other longer period of time as may be prescribed by Laws or dispute resolution costs)attributable to OWNER's evaluation of Regulations or by the terms of any applicable special guarantee and determination to accept such defective Work(such costs to required by the Contract Documents or by any specific provision be approved by ENGINEER as to reasonableness) and the of the Contract Documents,any Work is found to be defective,or diminished value of the Work to the extent not otherwise paid by if the repair of any damages to the land or areas made available CONTRACTOR pursuant to this sentence. If any such for CONTRACTOR's use by OWNER or permitted by Laws acceptance occurs prior to ENGINEER's recommendation of and Regulations as contemplated in paragraph 6.11.A is found to final payment,a Change Order shall be issued incorporating the be defective, CONTRACTOR shall promptly, without cost to necessary revisions in the Contract Documents with respect to OWNER and in accordance with OWNER's written the Work, and OWNER shall be entitled to an appropriate instructions: (i)repair such defective land or areas,or(ii)correct decrease in the Contract Price,reflecting the diminished value of such defective Work or, if the defective Work has been rejected Work so accepted. If the parties are unable to agree as to the by OWNER, remove it from the Project and replace it with amount thereof, OWNER may make a Claim therefor as Work that is not defective,and(iii)satisfactorily correct or repair provided in paragraph 10.05. If the acceptance occurs after such or remove and replace any damage to other Work,to the work of recommendation, an appropriate amount shall be paid by others or other land or areas resulting therefrom. If CONTRACTOR to OWNER. CONTRACTOR does not promptly comply with the terms of such instructions, or in an emergency where delay would cause 13.09 OWNER May Correct Defective Work serious risk of loss or damage,OWNER may have the defective Work corrected or repaired or may have the rejected Work A. If CONTRACTOR fails within a reasonable time after removed and replaced, and all Claims, costs, losses, and written notice from ENGINEER to correct defective Work or to damages (including but not limited to all fees and charges of remove and replace rejected Work as required by ENGINEER in engineers, architects, attorneys, and other professionals and all accordance with paragraph 13.06.A,or if CONTRACTOR fails court or arbitration or other dispute resolution costs)arising out of to perform the Work in accordance with the Contract or relating to such correction or repair or such removal and Documents,or ifCONTRACTOR fails to comply with any other replacement (including but not limited to all costs of repair or provision of the Contract Documents,OWNER may,after seven replacement of work of others) shall be paid by days written notice to CONTRACTOR,correct and remedy any CONTRACTOR. such deficiency. B. In special circumstances where a particular item of B. In exercising the rights and remedies under this equipment is placed in continuous service before Substantial paragraph,OWNER shall proceed expeditiously. In connection Completion of all the Work,the correction period for that item with such corrective and remedial action,OWNER may exclude may start to run from an earlier date if so provided in the CONTRACTOR from all or part of the Site,take possession of Specifications or by Written Amendment. all or part of the Work and suspend CONTRACTOR's services related thereto, take possession of CONTRACTOR's tools, C. Where defective Work (and damage to other Work appliances,construction equipment and machinery at the Site, resulting therefrom)has been corrected or removed and replaced and incorporate in the Work all materials and equipment stored under this paragraph 13.07,the correction period hereunder with at the Site or for which OWNER has paid CONTRACTOR but respect to such Work shall be extended for an additional period which are stored elsewhere. CONTRACTOR shall allow of one year after such correction or removal and replacement has OWNER, OWNER's representatives, agents and employees, been satisfactorily completed. OWNER's other contractors, and ENGINEER and ENGINEER's Consultants access to the Site to enable OWNER D. CONTRACTOR's obligations under this paragraph to exercise the rights and remedies 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 C. All Claims,costs,losses,and damages(including but substitute for or a waiver of the provisions of any applicable not limited to all fees and charges of engineers, architects, statute of limitation or repose. attorneys,and other professionals and all court or arbitration or other dispute resolution costs)incurred or sustained by OWNER 13.08 Acceptance of Defective Work in exercising the rights and remedies under this paragraph 13.09 shall be charged against CONTRACTOR,and a Change Order A. If, instead of requiring correction or removal and shall be issued incorporating the necessary revisions in the replacement of defective Work, OWNER (and, prior to Contract Documents with respect to the Work. Such claims, 00-700-32 costs,losses and damages shall include but not be limited to all CONTRACTOR stating that all previous progress costs of repair,or replacement of work of others destroyed or payments received on account of the Work have been damaged by correction, removal, or replacement of applied on account to discharge CONTRACTOR's CONTRACTOR's defective Work. legitimate obligations associated with prior Applications for Payment. D. CONTRACTOR shall not be allowed an extension of the Contract Times(or Milestones)because of any delay in the 3. The amount of retainage with respect to progress performance of the Work attributable to the exercise by payments shall be as stipulated in the Agreement. OWNER of OWN ER's rights and remedies under this paragraph 13.09. B. Review of Applications ARTICLE 14 - PAYMENTS TO CONTRACTOR AND 1. ENGINEER shall,within 10 days after receipt of COMPLETION each Application for Payment,either indicate in writing a recommendation of payment and present the Application to OWNER or return the Application to CONTRACTOR 14.01 Schedule of Values indicating in writing ENGINEER's reasons for refusing to recommend payment. In the latter case.CONTRACTOR A. The schedule of values established as provided in may make the necessary corrections and resubmit the paragraph 2.07.A shall serve as the basis for progress payments Application. and shall be incorporated into a form of Application for Payment acceptable to ENGINEER. Progress payments on account of 2. ENGINEER's recommendation of any payment Unit Price Work shall he based on the number of units requested in an Application for Payment shall constitute a completed. representation by ENGINEER to OWNER, based on ENGINEER's observations on the Site of the executed B. CONTRACTOR shall submit revisions to the initial Work as an experienced and qualified design professional schedule of progress payments whenever actual outlays for the and on ENGINEER's review of the Application for Work vary beyond -5 percent and +10 percent from the Payment and the accompanying data and schedules,that to schedule,as determined by ENGINEER. the best of ENGINEER's knowledge, information and belief: a. the Work has progressed to the point 14.02 Progress Payments indicated; A. Applications for Payments b. the quality of the Work is generally in accordance with the Contract Documents(subject to an 1. At least 20 days before the date established for evaluation of the Work as a functioning whole prior to each progress payment (but not more often than once a or upon Substantial Completion,to the results of any month),CONTRACTOR shall submit to ENGINEER for subsequent tests called for in the Contract Documents, review an Application for Payment filled out and signed by to a final determination of quantities and classifications CONTRACTOR covering the Work completed as of the for Unit Price Work under paragraph 9.08,and to any date of the Application and accompanied by such other qualifications stated in the recommendation);and supporting documentation as is required by the Contract Documents. If payment is requested on the basis of c. the conditions precedent to CONTRACTOR's materials and equipment not incorporated in the Work but being entitled to such payment appear to have been delivered and suitably stored at the Site or at another fulfilled in so far as it is ENGINEER's responsibility to location agreed to in writing,the Application for Payment observe the Work. shall also be accompanied by a bill of sale,invoice,or other documentation warranting that OWNER has received the 3. By recommending any such payment ENGINEER materials and equipment free and clear of all Liens and shall not thereby be deemed to have represented that: (i) evidence that the materials and equipment are covered by inspections made to check the quality or the quantity of the appropriate property insurance or other arrangements to Work as it has been performed have been exhaustive, protect OWNER's interest therein, all of which must be extended to every aspect of the Work in progress, or satisfactory to OWNER. involved detailed inspections of the Work beyond the responsibilities specifically assigned to ENGINEER in the 2. Beginning with the second Application for Contract Documents; or (ii) that there may not be other Payment, each Application shall include an affidavit of matters or issues between the parties that might entitle 00-700-33 CONTRACTOR to be paid additionally by OWNER or d. OWNER has actual knowledge of the entitle OWNER to withhold payment to CONTRACTOR. occurrence of any of the events enumerated in paragraphs 14.02.B.5.a through 14.02.B.5.c or 4. ENGINEER may refuse to recommend the whole paragraph 15.02.A. 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.B.2. ENGINEER may also 14.03 CONTRACTOR's Warranty of Title refuse to recommend any such payment or, because of subsequently discovered evidence or the results of A. CONTRACTOR warrants and guarantees that title to subsequent inspections or tests,revise or revoke any such all Work,materials,and equipment covered by any Application payment recommendation previously made,to such extent for Payment, whether incorporated in the Project or not, shall as may be necessary in ENGINEER's opinion to protect pass to OWNER no later than the time of payment free and clear OWNER from loss because: of all Liens. a. the Work is defective,or completed Work has 14.04 Substantial Completion been damaged,requiring correction or replacement; A. When CONTRACTOR considers the entire Work b. the Contract Price has been reduced by ready for its intended use CONTRACTOR shall notify OWNER Written Amendment or Change Orders; and ENGINEER in writing that the entire Work is substantially complete (except for items specifically listed by c. OWNER has been required to correct CONTRACTOR as incomplete)and request that ENGINEER defective Work or complete Work in accordance with issue a certificate of Substantial Completion. Promptly paragraph 13.09;or thereafter,OWNER, CONTRACTOR, and ENGINEER shall make an inspection of the Work to determine the status of d. ENGINEER has actual knowledge of the completion. If ENGINEER does not consider the Work occurrence of any of the events enumerated in substantially complete, ENGINEER shall notify paragraph I5.02.A. CONTRACTOR in writing giving the reasons therefor. If ENGINEER considers the Work substantially complete, C. Payment Becomes Due ENGINEER shall prepare and deliver to OWNER a tentative certificate of Substantial Completion which shall fix the date of 1. Within 30 days after presentation of the Substantial Completion. There shall be attached to the Application for Payment to OWNER with ENGINEER's certificate a tentative list of items to be completed or corrected recommendation,the amount recommended shall(subject before final payment. OWNER shall have fourteen days after to the provisions of paragraph 14.02.D)become due,and receipt of the tentative certificate during which to make written when due shall be paid by OWNER to CONTRACTOR. objection to ENGINEER as to any provisions of the certificate or D. Reduction in Payment attached list. If,after considering such objections,ENGINEER concludes that the Work is not substantially complete, 1. OWNER may refuse to make payment of the full ENGINEER shall within 14 days after submission of the amount recommended by ENGINEER because: tentative certificate to OWNER notify CONTRACTOR in writing, stating the reasons therefor. If,after consideration of a. claims have been made against OWNER on OWNER's objections, ENGINEER considers the Work account of CONTRACTOR's performance or substantially complete, ENGINEER shall within said 14 days furnishing of the Work; execute and deliver to OWNER and CONTRACTOR a definitive and final certificate of Substantial Completion(with a b. Liens have been filed in connection with the revised tentative list of items to be completed or corrected) Work; reflecting such changes from the tentative certificate as ENGINEER believes justified after consideration of any c. there are other items entitling OWNER to a objections from OWNER. At the time of delivery of the set-off against the amount recommended,including,but tentative certificate of Substantial Completion ENGINEER shall not limited to,the failure of Contractor to provide any deliver to OWNER and CONTRACTOR a written lien waivers and/or certifications which may be recommendation as to division of responsibilities pending final required by Owner or as a result of Owner's payments payment between OWNER and CONTRACTOR with respect to to subcontractors pursuant to the provisions of the security, operation, safety, and protection of the Work, Contract Documents;or 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 A. Upon written notice from CONTRACTOR that the Substantial Completion, ENGINEER's aforesaid entire Work or an agreed portion thereof is complete, recommendation shall be binding on OWNER and ENGINEER shall promptly make a final inspection with CONTRACTOR until final payment. OWNER and CONTRACTOR and shall notify CONTRACTOR in writing of all particulars in which this inspection reveals that B. OWNER shall have the right to exclude the Work is incomplete or defective. CONTRACTOR shall CONTRACTOR from the Site after the date of Substantial immediately take such measures as are necessary to complete Completion, but OWNER shall allow CONTRACTOR such Work or remedy such deficiencies. reasonable access to complete or correct items on the tentative list. 14.07 Final Payment 14.05 Partial Utilization A. Application for Payment A. Use by OWNER at OWNER's option of any 1. After CONTRACTOR has, in the opinion of substantially completed part of the Work that has specifically ENGINEER, satisfactorily completed all corrections been identified in the Contract Documents,or which OWNER, identified during the final inspection and has delivered,in ENGINEER,and CONTRACTOR agree constitutes a separately accordance with the Contract Documents,all maintenance functioning and usable part of the Work that can be used by and operating instructions,schedules,guarantees, Bonds, OWNER for its intended purpose without significant certificates or other evidence of insurance certificates of interference with CONTRACTOR's performance of the inspection, marked-up record documents(as provided in remainder of the Work, may be accomplished prior to paragraph 6.12), and other documents, CONTRACTOR Substantial Completion of all the Work subject to the following may make application for final payment following the conditions. procedure for progress payments. 1. OWNER at any time may request CONTRACTOR 2. The final Application for Payment shall be in writing to permit OWNER to use any such part of the accompanied (except as previously delivered) by. (i) all Work which OWNER believes to be ready for its intended documentation called for in the Contract Documents, use and substantially complete. IfCONTRACTOR agrees including but not limited to the evidence of insurance that such part of the Work is substantially complete, required by subparagraph 5.04.B.7; (ii) consent of the CONTRACTOR shall certify to OWNER and ENGINEER surety, if any, to final payment; and (iii) complete and that such part of the Work is substantially complete and legally effective releases or waivers (satisfactory to request ENGINEER to issue a certificate of Substantial OWNER)of all Lien rights arising out of or Liens filed in Completion for that part of the Work. CONTRACTOR at connection with the Work. any time may notify OWNER and ENGINEER in writing that CONTRACTOR considers any such part of the Work B. Review of Application and Acceptance ready for its intended use and substantially complete and request ENGINEER to issue a certificate of Substantial 1. If,on the basis of ENGINEER's observation of the Completion for that part of the Work. Within a reasonable Work during construction and final inspection, and time after either such request,OWNER,CONTRACTOR, ENGINEER's review of the final Application for Payment and ENGINEER shall make an inspection of that part ofthe and accompanying documentation as required by the Work to determine its status of completion. If ENGINEER Contract Documents,ENGINEER is satisfied that the Work does not consider that part of the Work to be substantially has been completed and CONTRACTOR's other complete, ENGINEER shall notify OWNER and obligations under the Contract Documents have been CONTRACTOR in writing giving the reasons therefor. If fulfilled,ENGINEER shall,within ten days after receipt of ENGINEER considers that part of the Work to be the final Application for Payment, indicate in writing substantially complete,the provisions of paragraph 14.04 ENGINEER's recommendation of payment and present the shall apply with respect to certification of Substantial Application for Payment to OWNER for payment. At the Completion of that part of the Work and the division of same time ENGINEER shall also give written notice to responsibility in respect thereof and access thereto. OWNER and CONTRACTOR that the Work is acceptable subject to the provisions of paragraph 14.09. Otherwise, 2. No occupancy or separate operation of part of the ENGINEER shall return the Application for Payment to Work may occur prior to compliance with the requirements CONTRACTOR, indicating in writing the reasons for of paragraph 5.10 regarding property insurance. refusing to recommend final payment, in which case CONTRACTOR shall make the necessary corrections and 14.06 Final Inspection resubmit the Application for Payment. 00-700-35 C. Payment Becomes Due services of CONTRACTOR,exclude CONTRACTOR from the Site, and take possession of the Work and of all 1. Thirty days after the presentation to OWNER of CONTRACTOR's tools, appliances, construction equipment, the Application for Payment and accompanying and machinery at the Site,and use the same to the full extent they documentation,the amount recommended by ENGINEER could be used by CONTRACTOR (without liability to shall become due and,when due,shall be paid by OWNER CONTRACTOR for trespass or conversion),incorporate in the to CONTRACTOR. 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 14.08 Waiver of Claims expedient. In such case,CONTRACTOR shall not be entitled to receive any further payment until the Work is finished. If the A. The making and acceptance of final payment shall unpaid balance of the Contract Price exceeds all claims,costs, constitute: losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other 1. a waiver of all Claims by OWNER against professionals and all court or arbitration or other dispute CONTRACTOR, except Claims arising from unsettled resolution costs)sustained by OWNER arising out of or relating Liens,from defective Work appearing after final inspection to completing the Work, such excess shall be paid to pursuant to paragraph 14.06,from failure to comply with CONTRACTOR. If such claims, costs, losses, and damages the Contract Documents or the terms of any special exceed such unpaid balance, CONTRACTOR shall pay the guarantees specified therein, or from CONTRACTOR's difference to OWNER. Such claims,costs,losses,and damages continuing obligations under the Contract Documents;and incurred by OWNER shall be reviewed by ENGINEER as to their reasonableness and, when so approved by ENGINEER, 2. a waiver of all Claims by CONTRACTOR against incorporated in a Change Order. When exercising any rights or OWNER other than those previously made in writing which remedies under this paragraph OWNER shall not be required to are still unsettled. obtain the lowest price for the Work performed. C. Where CONTRACTOR's services have been so ARTICLE 15-TERMINATION 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 15.01 OWNER May Terminate for Cause release CONTRACTOR from liability. A. The occurrence of any one or more of the following 15.02 OWNER May Terminate For Convenience events shall justify termination for cause: A. Upon seven days written notice to CONTRACTOR and 1. CONTRACTOR's persistent failure to perform ENGINEER, OWNER may, without cause and without the Work in accordance with the Contract Documents prejudice to any other right or remedy of OWNER, elect to (including, but not limited to, failure to supply sufficient terminate the Contract. In such case,CONTRACTOR shall be skilled workers or suitable materials or equipment or failure paid(without duplication of any items): to adhere to the progress schedule established under paragraph 2.07 as adjusted from time to time pursuant to 1. for completed and acceptable Work executed in paragraph 6.04); accordance with the Contract Documents prior to the effective date of termination,including fair and reasonable 2. CONTRACTOR's disregard of Laws or sums for overhead and profit on such Work; Regulations of any public body having jurisdiction; 2. for expenses sustained prior to the effective date of 3. CONTRACTOR's disregard of the authority of termination in performing services and furnishing labor, ENGINEER;or materials, or equipment as required by the Contract Documents in connection with uncompleted Work,plus fair 4. CONTRACTOR's violation in any substantial and reasonable sums for overhead and profit on such way of any provisions of the Contract Documents. expenses; B. If one or more of the events identified in paragraph 3. for all claims, costs, losses, and damages 15.01.A occur, OWNER may, after giving CONTRACTOR (including but not limited to all fees and charges of (and the surety,if any)seven days written notice,terminate the engineers,architects,attorneys,and other professionals and 00-700-36 all court or arbitration or other dispute resolution costs) provided however,that the provisions of this paragraph shall not incurred in settlement of terminated contracts with apply to any provision in the contract documents which provide Subcontractors,Suppliers,and others;and for liquidated damages. Any such contract documents which make reference to liquidated damages shall have such liquidated 4. for reasonable expenses directly attributable to damages apply as the sole recourse available to City for termination. damages. B. CONTRACTOR shall not be paid on account of loss of 17.04 Survival of Obligations anticipated profits or revenue or other economic loss arising out of or resulting from such termination. A. All representations,indemnifications,warranties,and guarantees made in,required by,or given in accordance with the ARTICLE 16-DISPUTE RESOLUTION Contract Documents, as well as all continuing obligations indicated in the Contract Documents, shall survive final payment,completion,and acceptance of the Work or termination 16.01 Methods and Procedures or completion of the Agreement. A. This Agreement shall be subject to and governed by the 17.05 Controlling Law laws of the State of Illinois. Venue for the resolution of any dispute or the enforcement of any rights pursuant to this A. This Contract is to be governed by the law of Illinois. Agreement shall be in the Circuit Court of Kane County. 17.06 Professional Fees and Court Costs Included ARTICLE 17-MISCELLANEOUS 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. 17.01 Giving Notice 17.07 Prevailing Wage Rates A. Whenever any provision of the Contract Documents requires the giving of written notice,it shall be deemed to have A. CONTRACTOR shall comply with the attached been validly given if delivered in person to the individual or to a prevailing wage rates as determined by the Illinois Department member of the firm or to an officer of the corporation for whom of Labor. 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 of the 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; 00-700-37