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85-0513 Tyler Creek-Robert H. Anderson and Associates, Inc.
BERNARD G.aosCH 117,6 i4 ��-, Ertl � �I PRESIDErJT t; GARY D.JONES t VICE-PRESIDENT t3. M r1 / " 1 Q GERALD L,HEI:Vj 1 � VICE-PRESI DEN r ROBERT H. ANDERSON & ASSOCIATES, iNC. CONSULTING ENGINEERS Or.:' aGiti FRANK H.GORHAM 10 STATE AVE.,ST.CHARLES, ILL.60174 312/584-3530 +.. GI ERIN V/CE-PRESIDENT 10 EAST MAIN ST.,EAST DUNDEE, ILL.60118 312/426-8580 May 13, 1985 Mr. Melford A. Dahl, P.E. Director of Public Works 150 Dexter Court Elgin, Illinois 60120 RE: Tyler Creek Erosion Dear Mel: In accordance with the terms of our agreement with the City of Elgin, we have completed our preliminary investigation of the stream bank erosion problem along Tyler Creek at the rear of the property known as 1738 West Highland Avenue. Based on this investigation, we have prepared two conceptual designs to repair the damage to the stream bank and to protect it from further erosion. We have also prepared estimates of the probable cost of the improvements for both of these alternatives. Copies of the conceptual designs and of the estimates are included herewith for your review. Our study of the problem included several visits to the site to observe the flow of water in Tyler Creek and to make a detailed topographic survey of the area affected by stream bank erosion as well as areas immediately upstream and down- stream. During one of our visits to the site we talked with several residents of the area about their observation's of the flow in the creek. The topographic information was used to prepare the base map for the project area on which the conceptual improvement plans are shown. The topographic map shows that the area where erosion damage is most severe is on the outside of an "oxbow" in Tyler Creek where the natural flow of water would tend to erode the bank. This natural erosion process is normally a relatively slow process. Some time ago a forty- eight inch diameter storm sewer was constructed in an easement from Highland Avenue north to Tyler Creek to drain the residential development south to High- land Avenue. The Geometry of this storm sewer is such that a significant flow enters Tyler Creek with substantial energy angled at approximately twenty degrees upstream of perpendicular. This results in a eddy action against the south bank of the stream just upstream of the storm sewer outlet and it is this eddy action that has accelerated the erosion of the stream bank at this location. I discussed the permit requirements for the project with Gary Jereb of the Illinois Department of Transportation, Division of Water Resources. He informed me that permits are not normally issued to allow for property owners to reclaim land lost to natural erosion. At my invitation, Mr. Jereb visited the site on April 30 to see the extent of the problem and, based on this visit, he has indicated that a permit can be issued in this case. He outlined the guidelines that his depart- ment would follow in reviewing the plans and the permit application and we have incorporated them in our conceptual designs. Tyler Creek Erosion Elgin, Illinois May 13, 1985 Page 2 Our Conceptual Design Alternative A calls for the construction of a reinforced concrete retaining wall along the south bank of the stream for a distance of approx- imately ninety-five feet upstream of the existing headwall on the storm sewer. This wall would be constructed at approximately the old shore line and the area behind the wall would be filled in with topsoil and re-vegetated with trees, shrubs and ground cover. Stone rip-rap would be placed in the stream bed at the storm sewer outlet to stop the erosion of the stream bed at that point and a concrete energy dissipator would be added the existing headwall. We estimate that the probable cost to construct all of these improvements will be $38,786.00. Our Conceptual Design Alternative B is very similar to Alternative A except that it will utilize a retaining wall along the stream bank constructed of rock filled gabions (wire baskets) . This type of construction will be equally effective in controlling the erosion of the stream bank and will have a more natural appearance than the reinforced concrete retaining wall. The stream bank above the retaining wall will be filled with topsoil and re-vegetated under this plan also. We estimate that the cost to construct all of the improvements under this alternative will be approximately $25,500.00. We looked into other methods of stabilizing the stream bank and ultimately eliminated them from consideration for one or more of the following reasons: 1. New materials which are not generally available in this area. 2. Technology and/or materials that have not been proven in similar application. 3. Complicated construction methods requiring expertise not generally available from local contractors. 4. Construction methods requiring the use of large equipment at a site where access is extremely limited and difficult. In summary, it is our recommendation that either a concrete retaining wall or a rock filled gabion retaining wall be constructed along the stream bank to restore it to its original location and to prevent further erosion caused by eddy currents from the storm sewer discharge into Tyler Creek. We also recommend that an energy dissipator be constructed on the headwall at the end of the storm sewer to reduce the energy of the water entering Tyler Creek from the storm sewer. The stream bank behind the new retaining wall can be restored by filling in with topsoil and planting trees, shrubs and ground cover consistent with the existing vegetation in the area. Our estimates of the probable cost of constructing the improvements indicate that Alternative B will be approximately $13,286.00 less costly than Alternative A. Based on the fact that each of the alternatives will accomplish the project goals equally well, we recommend that Alternative B using the gabion wall be selected based on the anticipated lower construction cost. Tyler Creek Erosion Elgin, Illinois May 13, 1985 Page 3 I am available to discuss this report with you and your staff in detail. Please call me if you have any comments or questions or if you need additional information. If you concur with our recommendations as stated above, please advise me so that we can proceed to prepare the construction plans and specifications and the permit applications. Very truly yours, Robert H. Anderson & Assoc. , Inc. Frank H. Gorham, P.E. Vice President FHG/dl cc: file enclosures TYLER CREEK PRELIMINARY ESTIMATE OF PROBABLE COST MAY 9, 1985 ALTERNATIVE B ROCK FILLED GABION RETAINING WALL Estimated Unit Total Item Quantity Price Amount 1. Remove Debris --- Lump Sum $ 1,000.00 2. Energy Dissipator --- Lump Sum $ 400.00 3. Rock Filled Gabion Retaining Wall 54 Sq. Yds. $ 150.00 $ 8,100.00 4. Rock Filled Revetment Mattress 13 Cu. Yds. $ 150.00 $ 1,950.00 5. Topsoil 150 Cu. Yds. $ 20.00 $ 3,000.00 6. Storm Sewer (6") 30 Lin. Ft. $ 10.00 $ 300.00 7. Trees 6 Each $ 600.00 $ 3,600.00 8. Shrubs 50 Each $ 25.00 $ 1,250.00 9. Ground Cover 175 Each $ 6.00 $ 1,050.00 10. Sod 150 Sq. Yds. $ 4.00 $ 600.00 SUB-TOTAL $21,250.00 CONTINGENCIES @ 20% $ 4,250.00 TOTAL CONSTRUCTION COST $25,500.00 • TYLER CREEK PRELIMINARY ESTIMATE OF PROBABLE COST MAY 9, 1985 ALTERNATIVE A REINFORCED CONCRETE RETAINING WALL Estimated Unit Total Item Quantity Price Amount 1. Remove Debris --- Lump Sum $ 1,000.00 2. Energy Dissipator --- Lump Sum $ 400.00 3. Reinforced Concrete Ret. Wall 75 Cu. Yds. $ 300.00 $22,500.00 4. Topsoil 150 Cu. Yds. $ 20.00 $ 3,000.00 5. Stone Dumped Rip-Rap 52 Sq. Yds. $ 30.00 $ 1,560.00 6. Storm Sewer (6") 30 Lin. Ft. $ 10.00 $ 300.00 7. Trees 6 Each $ 600.00 $ 3,600.00 8. Shrubs 50 Each $ 25.00 $ 1, 250.00 9. Ground Cover 175 Each $ 6.00 $ 1,050.00 10. Sod 150 Sq. Yds. $ 4.00 $ 600.00 SUB-TOTAL $35,260.00 CONTINGENCIES @ 107 $ 3,526.00 TOTAL CONSTRUCTION COST $38,786.00 May 21 , 1985 MEMORANDUM TO: Bob Malm, Acting City Manager FROM: Mel Dahl , Public Works Director RE: 1738 West Highland Avenue Tyler Creek Erosion The City Council awarded the contract for engineering services to Robert H. Anderson and Associates for the above referenced project on March 11 , 1985. Phase I of this work involved the preparation of alter- native solutions to prevent further erosion at 1738 West Highland Avenue. Attached please find a copy of R.H. Anderson's report and drawings which show two (2) alternate proposals. We have reviewed the report and plans and feel that Alternative B offers the best solution for this problem. It is, therefore, our recommendation that Robert H. Anderson and Associates be directed to proceed with Phase II (design) utilizing Alter- nate B. MD:do Attachments cc: Gary Miller Mike Sarro Marie Yearman BERNARD G.PR BODSCH D T. --24- 6A‘ GARY D.JONES VICE-PRESI DENT GERALD L. HEINZ VICE-PRESI DENT ROBERT H. ANDERSON & ASSOCIATES, INC. CONSULTING ENGINEERS . . . FRANK H. GORHAM 10 STATE AVE.,ST.CHARLES, ILL.60174 312/584-3530 VICE-PRESIDENT 10 EAST MAIN ST.,EAST DUNDEE, ILL.60118 312/426-8580 January 21, 1985 Mr. Melford A. Dahl, P.E. _ Public Works Director 150 Dexter Court Elgin, Illinois 60120 Phone: 695-6500 RE: Engineering Services 1738 W. Highland Avenue Tyler Creek Erosion Dear Mr. Dahl: In response to your solicitation of January 7, 1985, I am pleased to submit herewith our qualifications for providing the professional engineering services necessary for the above refezenced project. The information which you specifically requested regarding experience and personnel is documented in the attachments hereto in sufficient detail to show that we are qualified to provide all of the services necessary to carry this project through to completion of the construction if necessary. PERSONNEL AND EXPERIENCE 1 As indicated in the enclosed brochure, our firm has been providing engineering services to municipalities and other public bodies in northern Illinois since 1955. Our four principals have an aggregate of close to 100 years experience in the practice of civil engineering. We have an excellent reputation for pro- viding sound engineering solutions to problems utilizing state-of-the-art methods. Our experience with respect to stream, bank and slope stabilization is extensive; the enclosed partial list of projects of this nature which have been successfully completed by our staff is provided for your review. We have excellent working relationship with IDOT personnel and have a thorough understanding of methods of material stabilization as well as energy dissipation techniques at conduit outfall points. Mr. Frank Gorham, one of four principals in the firm, will be the project manager for the project. Mr. Gorham has been actively involved in drainage and water resource projects in Illinois for the past twenty years. Mr. Gorham is a registered engineer in Illinois, and will be in charge of supervising and coordinating field and office components of the total project described herein, including any necessary sub-contracts and requirements relative to site access. E:)? {F, CIEEIVED fnt JAN 311 9 5 CO'� CF LI1GIN Mr. Melford A. Dahl, P.E. . January 21, 1985 • Page 2 We have six employees living in Elgin and several others within the Elgin area. Our Dundee office is ten minutes from the Project and could efficiently furnish the necessary support personnel needed to expeditiously complete this task. Our current work schedule is such that we could begin work on your project immediately after contract approval, and anticipate compliance with the following schedule: PROJECT SCHEDULE PROJECT TASK TIME FOR COMPLETION (1) Preliminary meetings and site inspection. 7 (2) Soil borings and report. 17 (3) Preliminary report. 24 (4) Report review. 28 (5) Field work. 32 (6) Plans and specifications. 40 (7) Permit applications. 42 NOTE: We anticipate no problems in submitting this report to the city by February 26, 1985, as well as complete plans and specifications by March 29, 1985, assuming no undue delays are caused by forces out- side our control. * Days after receiving NOTICE TO PROCEED. We have modern equipment to assist in the performance of the work, including EDM surveying equipment, computer-assisted drafting facilities, and the re- production and copying capabilities. We would anticipate hiring a competent geotechnical firm to provide soils and materials information necessary for report and design stages. Please refer to the accompanying Project Team attachment for a list of per- sonnel who will be available as needed for the proposed work. Resumes of key personnel to be involved with this project are also included for your review. To provide an indication of the size and diversity of Robert H. Anderson and Associates, Inc. a company brochure is also enclosed. SCOPE OF SERVICES We have reviewed the "Scope of Work" included in your request for proposals and we estimate that the engineering fee will be as follows: A. Report Phase $1,500.00 B. Soil Boring (sub-contract) $1,500.00 C. Design Phase $2,000.00 TOTAL $5,000.00 Mr. Melford A. Dahl, P.E. January 21, 1985 Page 3 Should our firm be chosen to perform the proposed improvements, we would anticipate entering into a formal agreement similar in format to the one presently being used by our firm on current municipal projects-a copy is attached for your review. `We are currently in a position to begin work on the project immediately upon receiving an authorization to proceed from you. We recognize the fact that a commitment of personnel on a full-time basis is required to complete this work within the time frame that you have established. We are prepared to make this commitment by assigning personnel from among those listed in the personnel section of our qualifications statement as necessary for each of the phases of the project. I hope that this letter and the supplemental information that accompanies it is sufficient to enable you to complete your evaluation process but, if you have questions or if you need clarification or additional information, please call me immediately. Very truly yours, ROBERT H. ANDERSON & ASSOC. , INC. gfA-m-44412&e-l:f Bernard G. Bosch, P.E. President BGB/dl cc: file Enclosures - APPROVED BY: City of Elgin Signed: 24 Mayor Attest: „Aa, 4i City erk 83SeaDate: l t l 3 6 •83- Seal l GENERAL PROVISIONS Attached to and made a part of LETTER AGREEMENT dated February ___, 1985, between CITY OF ELGIN (Owner) and ROBERT H. ANDERSON & ASSOCIATES, INC. (Engineer) in respect of the project (Project) described therein. SECTION 1 - BASIC SERVICES OF ENGINEER 1. 1. General 1. 1. 1. ENGINEER shall perform professional services as hereinafter stated which include customary civil , structural , mechanical and electrical engineering services and customary architectural services incidental thereto. 1.2. Study and Report Phase. After written authorization to proceed, ENGINEER shall: 1.2. 1. Consult with OWNER to clarify and define OWNER 'S requirements for the Project and review available data. 1 .2.2. Advise OWNER as to the necessity of OWNER'S providing or obtaining from others data or services of the types described in paragraph 3.3, and act as OWNER'S representative in connection with any such services. 1.2.3. Provide analysis of OWNER'S needs, planning surveys, site evaluations and comparative studies of prospective sites and solutions. 1 .2.4. Provide a general economic analysis of OWNER'S requirements applicable to various alternatives. Page 1 1.2. 5. Prepare a Report containing schematic layouts, sketches and conceptual design criteria with appropriate exhibits to indicate clearly the considerations involved and the alternative solutions available to OWNER and setting forth ENGINEER'S findings and recommendations with opinions of probable costs for the Project, including Construction Cost, contingencies, allowances for charges of all professionals and consultants, allowances for the costs of land and rights-of-way, compensation for or damages to properties and interest and financing charges (all of which are hereinafter called "Project Cost") . 1.2.6. Furnish five copies of the Report and present and review it in person with OWNER. The duties and responsibilities of ENGINEER during the Study and Report Phase are amended and supplemented as indicated in paragraph 2 of -Exhibit A "Further Description of Basic Engineering Services and Related Matters" , which is attached to and made a part of these General Provisions. 1.3. Preliminary Design Phase. After written authorization to proceed with the Preliminary Design Phase, ENGINEER shall : 1.3. 1. In consultation with OWNER and- on the basis of the accepted Report, determine the extent of the Project. 1.3.2. Prepare preliminary design documents consisting of final design criteria, preliminary drawings and outline specification. 1.3.3. Based on the information contained in the preliminary design documents, submit a revised opinion of probable Project Cost. 1.3. 4. Furnish five copies of the above preliminary design documents and present and review them in person with OWNER. The duties and responsibilities of ENGINEER during the Preliminary Design Phase are amended and supplemented as indicated in paragraph 3 of Exhibit A "Further Description of Basic Engineering Services and Related Matters". 1.4. Final Design Phase After written authorization to proceed with the Final Design Phase, ENGINEER shall : Page 2 1.4. 1. On the basis of the accepted preliminary design documents and the revised opinion of probable Project Cost, prepare for incorporation in the Contract Documents final drawings to show the character and extent of the Project (hereinafter called "Drawings") and Specifications. 1.4. 2. Furnish to OWNER such documents and design data as may be required for, and assist in the preparation of , the required documents so that OWNER may apply for approvals of such governmental authorities as have jurisdiction over design criteria applicable to the Project , and assist in obtaining such approvals by participating in submissions to and negotiations with appropriate authorities. 1.4.3. Advise OWNER of any adjustments to the latest opinion of probable Project Cost caused by changes in extent or design requirements of the Project or Construction Cost and furnish a revised opinion of probable Project Cost based on the Drawings and Specifications. 1.4.4. Prepare for review and approval by OWNER, his legal counsel and other advisors contract agreement forms, general conditions and supplementary conditions, and (where appropriate) bid forms, invitations to bid and instructions to bidders, and assist in the preparation of other related documents. 1.4.5. Furnish five copies of the above documents and present and review them in person with OWNER. The duties and responsibilities of ENGINEER during the Final Design Phase are amended and supplemented as indicated in paragraph 4 of Exhibit A "Further Description of Basic Engineering Services and Related Matters" . 1.5. Bidding or Negotiating Phase. (Not included as part of this Agreement) After written authorization to proceed with the Bidding or Negotiating Phase, ENGINEER shall : 1.5. 1. Assist OWNER in obtaining bids or negotiating proposals for each separate prime contract for construction, materials, equipment and services. Page 3 1.5.2. Consult with and advise OWNER as to the acceptability of subcontractors and other persons and organizations proposed by the prime contractor (s) (hereinafter called "Contractor (s) ") for those portions of the work as to which such acceptability is required by the bidding documents. 1.5.3. Consult with and advise OWNER as to the acceptability of substitute materials and equipment and equipment proposed by Contractor (s) when substitution prior to the award of contracts is allowed by the bidding documents. 1.5.4. Assist OWNER in evaluating bids or proposals and in assembling and awarding contracts. The duties and responsibilities of ENGINEER during the Bidding or Negotiating Phase are amended and supplemented as indicated in paragraph 5 of Exhibit A "Further Description of Basic Engineering Services and Related Matters". 1.6. Construction Phase. (Not included as part of this Agreement) Du 'ng the Construction Phase ENGINEER shall : 1. 6. 1. • •nsult with and advise OWNER and act as his re• esentative as provided in Articles 1 trk'ough 17, inc -ive, of the Standard General Condit l ons of the Constr tion Contract No. 1914-9(1978 ition) . The extent an• limitations of the duties -- _ he quality or quantity of such work. ENGINEER shall nit be responsible for the means, methods, to niques, sequences or procedures of construction sel - ted by Contractor (s) or the safety precautiC;ns and • ograms incident to the work of Contractor's) . ENGIN R'S efforts will be directed toward providing a great-r degree of confidence for OWNER that'the complete. work of Contractor (s) will conform to the Contract 'ocuments, but ENGINEER shall not be responsibl- for the failure of Contractor (s) to perform the construction work in accordance with the Contract Doc ments. During such visits and on the basis of his 'n-site observation, ENGINEER shall keep OWNER informed of the progress of the work. shall endeavor to gua d OWNER against defects and deficiencies in • uch work and may disapprove or reject work faili a to conform to the Contract Documents. 1.6.3. Review and approve ( • take other appropriate action in respect of) Shop D wings (as that term is defined in the aforesaid Standa d General Conditions) and samples, the results of ests and inspections and other data which each Con rattor is required to submit, but only for confo mance with the design concept of the Project an4d . ompliance with the information given in the ton ract Documents (but such review and approval of other •ction shall not extend to means, methods, sequences, •echniques or procedures of construction or t• safety precautions and programs incident' thereto) ; e -termine the acceptability of substitute materi -ls and equipment proposed by Contractor (s) ; and rec- ' ve and review (for general content as required by he Specifications) iaintenance and opera ing instructions, schedules, guarantees, bends and certificates of inspection which are to be assembled by Contractorfs) in accordance with the ontract Documents. 1.6.4. Issue all ' nstructions of OWNER to Contract•r (s) ; issue nec ssary interpretations and clarific-tions of the Cont act Documents and in connection therwith prepare change orders as required; have author ty, as OWNER' representative, to required special inspe tion or testing of the work; act as initia inte preter of the requirements of the Contract Doc ments and judge of the acceptability of the wo t reunder and make decisions on all claims of OWNER\ d Contractor (s) relating to the acceptability of Page 5 he work or the interpretation of the requirements ,if t e Contract Documents pertaining to the execution/ an. progress of the work; but ENGINEER shall not, be liai e for the results of any such interpretations or deci .„' ons rendered by him in good faith. / 1. 6.5. Based of ENGINEER'S on-site observations as in experien ed and qualified design profession/1 an on review of applications for payment and the, accompanyi g data and schedules, determin4 the amounts owi g to Contractor (s) and recom.diend in writing paym, is to Contractor (s) in su. h amounts; such recommeni -tions of payment will constitute a representation to OWNER, based on such observations and review, tha`, the work has progressed to the point indicated, that, o the best of ENGINEER'S knowledge, information and be ief. the quality of such work is in accordance with he Contract Documents (subject to an evaluation of suc work as a, functioning Project upon Substantial Comp etion, to the results of any subsequent tests calle. for iii the Contract Documents, and to any q alif:ications stated in his recommendation) , and tha payment of the amount recommended is due Contra. or(s) ; but by recommending any payment ENGINEER wily it thereby be deemed to have represented that conti ous or exhaustive examinations have beenmade b ENGINEER to check the quality or quantity of the war or to review the means, methods, sequnces, tech ' iques or procedures of construction or1^ r afety precau ion or programs incident thereto of that ENGINEER has made an examination to aiertain how or fo what purposes any Contractor has g sed the moneys paid in account of the Contract Price or that title to any if the work, materials ory uipment has passed to I 'NER free and clear of any/lien, claims, security int-rests or encumbrance1, or that the Contractor (s) ave completed heir work exactly in accordant - with the Contract ocuments. 1.6.6. Conduc an inspection to determine if the Pr•ject is subst tially complete and a final inspection to dete mine if the work has been completed in act rdance with the Contract Documents and if e. h Co tractor has fulfilled all of his obligations t ereunder so that ENGINEER may recommend, in riting, final payment to each Contractor and may Page 6 live written notice to OWNER and the ContractorCs) tha the work is acceptable (subject to any ,; '�J conditi - ,s therein expressed) , but any su,ar recommenda in and notice shall be su .:rgct to the limitations ex . -ssed in paragraph„,„ 6.5. 1.6.7. ENGINEER shall not be poi ible for the acts or omissions of any Contrac . or subcontractor , or any of the other persons -xcept NEER'S own employees and agents) at th- site or otherwi' performing any of the Contrac •r (s) ' work; however, king contained i ''paragraphs 1. 6. 1 thru 1.6.7, ' Elusive, shall b construed to release ENGINEER from 1 ility for ilure to perform properly duties undertaken INEER in the Contract Documents. Page 7 SECTION 2 - ADDITIONAL SERVICES OF ENGINEER 2. 1. Normal and customary engineering services do not include services in respect of the following categories of work which are usually referred to as Additional Services. If OWNER wishes ENGINEER to perform any Additional Services, he shall so instruct ENGINEER in writing, and ENGINEER will be paid therefore as provided in the Letter Agreement. Additional Services include: - Preparation of applications and supporting documents for governmental financial support of the Project; and preparation or review of environmental studies and related services. - Services to make measured drawings of or to investigate existing conditions or facilities. - Services resulting from significant changes in the extent of the Project or major changes in documentation previously accepted by OWNER where changes are due to causes beyond ENGINEER'S control . - Providing renderings or models. - Preparing- documents for alternate bids requested by OWNER for work which is not executed or for out-of-sequence work. - Detailed consideration of operations, maintenance and overhead expenses; and the preparation of rate schedules, earnings and expense statements, cash flow and economic evaluations, feasibility studies, appraisals and valuations. - Furnishing the services of special consultants. - Services resulting from the award of more than one prime contract for construction, materials, equipment or services for the Project, or from the construction contract containing cost-plus or incentive-savings provisions for Contractor 's basic compensation, or from arranging for performance by persons other than the principal prime contractors or from administering OWNER'S contracts for such services. Page 8 • - Services in connection with field surveys for staking out the work of Contractor (s) . - Services in connection with change orders to reflect changes requested by OWNER, evaluating substitutions proposed by Contractor (s) after award, and services resulting from material , equipment or energy shortages. - Services during out-of-town travel other than visits to the site. - Preparing for OWNER, on request , a set of reproducible record prints based on data furnished by Contractor (s) . - Additional or extended services during construction made necessary by (1) work damaged by fire or other cause during construction, (2) a significant amount of defective or neglected work of Contractor (s) , (3) prolongation of contract time, (4) Contractor (s) ' overtime work, and (5) Contractor (s) ' defaults. - Preparation of operating and maintenance manuals; extensive assistance in utilization or startup; and training OWNER'S personnel . - Services after completion of the Construction Phase. - Preparing to serve or serving as a consultant or witness in any legal or administrative proceeding or public hearing. - Providing services normally furnished by OWNER. 2.2. If the parties agree, ENGINEER shall provide resident Project representation under ENGINEER'S supervision which will be paid for by OWNER as indicated in Exhibit A "Further Description of Basic Engineering Services and Related Matters" and which will be intended to assist ENGINEER in observing performance of Contractor (s) ' work, but will not involve ENGINEER in the construction means, methods, techniques, sequences or procedures or safety precautions or programs nor provide to OWNER any guarantee by ENGINEER of the accuracy, quality or timeliness of Contractor (s) ' performance. • Page 9 SECTION 3 - OWNER'S RESPONSIBILITIES 3. 1. OWNER shall provide all criteria and full information as to OWNER'S requirements for the Project; designate a person to act with authority on OWNER'S behalf in respect of all aspects of the Project; examine and respond promptly to ENGINEER'S submissions; and give prompt written notice to ENGINEER whenever he observes or otherwise become aware of any defect in the work. 3. 2. OWNER shall also do the following and pay all costs incident thereto: - Furnish to ENGINEER property, boundary, easement} right-of-way and utility surveys; property descriptions; zoning and deed restrictions; all of which ENGINEER may rely upon in performing his services. - Guarantee access to and make all provisions for ENGINEER to enter upon public and private property. - Provide such legal , accounting, independent cost estimating and insurance counseling services as may be required for the Project, any auditing service required in respect of Contractor (s) ' applications for payment, and any inspection services to determine if Contractor (s) are performing the work legally. - Provide field control surveys and fix reference points and base lines. 3.3. OWNER shall pay all costs incident to obtaining bids or proposals from Contractor (s) . Page 10 SECTION 4 - MEANING OF TERMS 4. 1. As used herein the term "this Agreement" refers to the Letter Agreement to which these General Provisions are attached and to these General Provisions as if they were part of one and the same document. 4.2. The construction cost of the entire Project (herein referred to as "Construction Cost") means the total cost of the entire Project to OWNER, but it will not include ENGINEER 'S compensation and expenses, the cost of land, rights-of-way, or compensation for or damages to, properties unless this Agreement so specified , nor will it include OWNER'S legal , accounting, insurance counseling or auditing services, or interest and financing charges incurred in connection with the Project. When Construction Cost is used as a basis far payment, it will be based on one of the following sources with precedence in the order listed for work designed or specified by ENGINEER: 4.2. 1. For completed construction work the total cost of all work performed as designed or specified by ENGINEER. 4.2.2. For work designed or specified but not constructed, the lowest bona fide bid received from a qualified bidder for such work; or, if the work is not bid, the lowest bona fide negotiated proposal for such work. 4. 2.3. For work designed or specified but not constructed upon which no such bid or proposal is received, the most recent estimate of Construction Cost, or, if none is available, ENGINEER'S most recent opinion of probable Construction Cost. Labor furnished by OWNER for the Project will be included in the Construction Cost at current market rates including a reasonable allowance for overhead and profit. Materials and equipment furnished by OWNER will be included at current market prices. No deduction is to be made from ENGINEER'S compensation on account of any penalty, liquidated damages, or other amounts withheld from payments to Contractor (s) . Page 11 4.3. Direct Labor Costs used as a basis for payment mean salaries and wages (basic and incentive) paid to all personnel engaged directly on the Project , including , but not limited to, engineers, architects, surveyors, designers, draftsmen, specification writers, estimators, other technical personnel , stenographers, typists and clerks; but does not include indirect payroll related costs or fringe benefits. 4. 4. The Payroll Costs used as a basis for payment mean salaries and wages (basic and incentive) paid to all personnel engaged directly on the Project , including, but not limited to engineers, architects, surveyors, designers, draftsmen, specification writers, estimators, other technical personnel , stenographers, typists and clerks; plus the cost of customary and statutory benefits including, but not limited to, social security_ contributions, unemployment, excise and payroll taxes, worker 's compensation, health and retirement benefits, sick leave, vacation and holiday pay applicable thereto. 4.5 Reimbursable Expenses mean the actual expenses incurred directly or indirectly in connection with the Project for: transportation and subsistence incidental thereto; obtaining bids or proposals from Contractor (s) ; furnishings and maintaining field office facilities; subsistence and transportation of Resident Project Representatives and their assistants; toll telephone calls and telegrams; reproduction of Reports, Drawings, Specifications, and similar Project-related items in addition to those required under Section 1; expenses of photographic production techniques; and, if authorized in advance by OWNER, overtime work requiring higher than regular rates. Where compensation for Basic Services is on the basis of Direct Labor Costs or Payroll Costs times a factor, Reimbursable Expenses shall include the amount billed to ENGINEER by special consultants employed by ENGINEER (other than as an authorized Additional Service under Section 2) for such consultants' services and Reimbursable Expenses times a factor of 1.20, and shall also include expenses incurred for computer time and other highly specialized equipment, including an appropriate charge for previously established programs and expenses of photographic production techniques times a factor of 1 .20. Page 12 SECTION 5 - MISCELLANEOUS 5. 1. Reuse of Documents. All documents including Drawings and Specifications prepared by ENGINEER pursuant to this Agreement are instruments of service in respect of the Project. They are not intended or represented to be suitable for reuse by OWNER or others on extensions of the Project or on any other project. Any reuse without written verification or adaptation by ENGINEER for the specific purposes intended will be at OWNER'S sole risk and without liability or legal exposure to ENGINEER; and OWNER shall indemnify and hold harmless ENGINEER from all claims, damages, losses and expenses including attorney's fees arising out of or resulting therefrom. Any such verification or adaptation will entitle ENGINEER to further compensation at rates to be agreed upon by OWNER and ENGINEER. 5.2. Opinions of Cost. Since ENGINEER has no control over the cost of labor , materials, equipment or services furnished by others, or over the Contractor- is? ' methods of determining prices, or over competitive bidding or market conditions, his opinions of probable Project Cost and Construction Cost provided for herein are to be made on the basis of his experience and qualifications -and represent his best judgment as an experienced and qualified professional engineer, familiar with the construction industry; but ENGINEER cannot and does not guarantee that proposals, bids or actual Project or Construction Cost will not vary from opinions of probable cost prepared by him. If prior to the Bidding or Negotiating Phase, OWNER wishes greater assurance as to Project or Construction Cost, he shall employ an independent cost estimator as provided in paragraph 3.2. Engineering services to modify the Contract Documents to bring the Construction Cost within any limitation established by OWNER will be considered Additional Services and paid for as such by OWNER. 5.3. Termination. The obligation to provide further services under this Agreement may be terminated by either party upon seven days' written notice in the event of substantial failure by the Page 13 other party to perform in accordance with the terms hereof through no fault of the terminating party. In the event of any termination, ENGINEER will be paid for all services rendered to the date of termination, all Reimbursable Expenses and termination expenses. 5. 4. Successors and Assigns. 5. 4. 1. OWNER and ENGINEER each binds himself and his partners, successors, executors, administrators, assigns and legal representatives to the other party of this Agreement and to the partners, successors, executors, administrators, assigns, and legal representatives of such other party, in respect to all covenants, agreements and obligations of this Agreement. 5.4.2. Neither OWNER nor ENGINEER shall assign, sublet or transfer any rights under or interest in (including, but without limitation, moneys that may become due or moneys that are due) this Agreement without the written consent of the other , except as stated in paragraph 5.5. 1 and except to the extent that the effect of this limitation may be restricted by law. Unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing contained in this paragraph shall prevent ENGINEER from employing such independent consultants, associates and subcontractors as he may deem appropriate to assist him in the performance of services hereunder. 5.4.3. Nothing herein shall be construed to give any rights or benefits hereunder to anyone other than OWNER and ENGINEER. 5.5. Timely Performance. The ENGINEER acknowledges that the timely performance of professional services is an important element of this Agreement. Accordingly, it is agreed that the ENGINEER will put forth his best professional effort to complete the work in accordance with the schedule attached as Appendix A. Page 14 • 5.6. Limitation of Liability. 5. 6. 1. The OWNER agrees to indemnify, hold harmless, and defend the ENGINEER from and against any and all claims, costs, suits, and damages, including defense costs, arising out of errors, omissions, or inaccuracies in the documents and information provided by the OWNER to the ENGINEER. 5.6.2. The OWNER agrees that the professional services of the engineer do not extend to or include the review or site observation of the contractor 's work or performance. The OWNER further agrees to defend, • indemnify and hold harmless the ENGINEER from any claim or suit whatsoever, including but not limited to all payments, expenses or costs involved, arising from or alleged to have arisen from the contractor 's performance or the failure of the contractor 's work to conform to the design intent and the contract documents. The ENGINEER agrees to be responsible for his own or his employees' negligent acts, errors or omissions. 1 Page 15 This document has important legal consequences; consultation with an attorney is encouraged with respect to its completion or modification. �A STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT ' ® SpECIFICATIp,,s �`�Gi,E N PROFESSIONAL ,� A :, ENGINEERS.# c " 4tr cpuNc� \ Jointly Issued by PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A practice division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS and by AMERICAN CONSULTING ENGINEERS COUNCIL and by CONSTRUCTION SPECIFICATIONS INSTITUTE © 1978 National Society of Professional Engineers 2029 K Street, N.W., Washington, D.C. 20006 American Consulting Engineers Council 1015 15th Street, N.W., Washington, D.C. 20005 • Construction Specifications Institute 1150 17th Street, N.W., Washington, D.C. 20036 These General Conditions have been prepared for use with the Owner-Contractor Agreements (NSPE- !- ACEC Document 1910-8-A-1 or 1910-8-A-2; CSI 56467, 56468, 1978 editions). Their provisions are interre- lated and a change in one may necessitate a change in the others. Comments concerning their usage are con- ##/^ tained in the Commentary to the Documents,NSPE-ACEC 1910-9, 1978 edition. '! 7sy 1910-8 it NSPE/ACEC(1978 Edition) CSI 56465 itReprinted 7-80 5M it C TABLE OF CONTENTS OF GENERAL CONDITIONS Article Number Title Page 1 DEFINITIONS 8 2 PRELIMINARY MATTERS 9 3 CONTRACT DOCUMENTS: INTENT AND REUSE 10 4 AVAILABILITY OF LANDS;PHYSICAL CONDITIONS; REFERENCE POINTS 10 5 BONDS AND INSURANCE 11 6 CONTRACTOR'S RESPONSIBILITIES 12 7 WORK BY OTHERS 16 8 OWNER'S RESPONSIBILITIES 17 9 ENGINEER'S STATUS DURING CONSTRUCTION 17 10 CHANGES IN THE WORK 18 11 CHANGE OF CONTRACT PRICE 18 12 CHANGE OF THE CONTRACT TIME 21 13 WARRANTY AND GUARANTEE;TESTS AND INSPECTIONS;CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 21 14 PAYMENTS TO CONTRACTOR AND COMPLETION 22 15 SUSPENSION OF WORK AND TERMINATION 25 16 ARBITRATION 26 17 MISCELLANEOUS 27 3 • INDEX TO GENERAL CONDITIONS `` Article or Paragraph F� ; Number Acceptance of Insurance 5.13 Access to the Work 13.2 Addenda-definition of(see definition of Specifications) 1 Agreement-definition of 1 All Risk Insurance 5.6 Application for Payment-definition of 1 Application for Payment,Final 14.12 Application for Progress Payment 14.2 Application for Progress Payment-review of 14.4 thru 14.7 Arbitration 16 Availability of Lands 4.1 Award-Notice of-defined 1 Before Starting Construction 2.5 thru 2.7 Bid-definition of 1 Bonds and Insurance-in general 5 Bonds-definition of 1 Bonds,Delivery of 2.1,5.1 Bonds,Performance and Other 5.1,5.2 Cash Allowances 11.10 Change Order-Definition of 1 Changes in the Work 10 Claims,Waiver of-on Final Payment 14.16 Clarifications and Interpretations 9.3 Cleaning 6.17 Completion 14 Completion,Substantial 14.8, 14.9 Conference-Pre-Construction 2.8 Construction Machinery,Equipment,etc. 6.4 Continuing Work 6.29 Contract Documents-definition of - 1 Contract Documents-intent and reuse 3 Contract Documents-reuse of + 3.5 Contract Price,Change of 11 Contract Price-definition 1 Contract Time,Change of 12 Contract Time-Commencement of 2.3 Contract Time-definition of 1 Contractor-definition of 1 Contractor May Stop Work or Terminate 15.5 Contractor's Continuing Obligation 14.15 Contractor's Duty to Report Discrepancy in Documents 2.5,3.2 Contractor's Fee-Costs Plus 11.6 Contractor's Liability Insurance 5.3 Contractor's Responsibilities-in general 6 Contractor's Warranty of 1 itle 14.3 Contractual Liability Insurance 5.4 Copies of Documents 2.2 Correction or Removal of Defective Work 13.11 Correction Period,One Year 13.12 Correction,Removal or Acceptance of Defective Work--in general 13.11 thru 13.14 Cost of Work 11.4, 11.5 Costs,Supplemental 11.4.5 C, 4 Day-definition of 1 Defective Work,Acceptance of 13.13 Defective Work,Correction or Removal of 13.11 Defective-definition of 1 Defective Work-in general 13 Defective Work,Rejecting 9.4 Definitions 1 Delivery of Bonds 2.1 Disagreements,Decisions by Engineer 9.9,9.10 Documents,Copies of 2.2 Documents, Record 6.19 Documents,Reuse 3.5 Drawings-definition of 1 Effective date of Agreement-definition of 1 Emergencies 6.22 Engineer-defintion of 1 Engineer's-Notice Work is Acceptable 14.3 Engineer's Responsibilities,Limitations on 9.11 thru 9.14 Engineer's Status During Construction-in general 9 Engineer's-Recommendation of Payment 14.4, 14.13 Equipment,Labor,Materials and 6.3 thru 6.6 Equivalent Materials and Equipment 6.7 Fee,Contractor's-Costs Plus 11.6 i Field Order-definition of 1 Field Order-issued by Engineer 10.2 Final Application for Payment 14.12 Final Inspection 14.11 Final Payment, Recommendation of 14.13, 14.14 Final Payment and Acceptance 14.13 General Requirements-definition of 1 General Provisions 17.3, 17.4 Giving Notice 17.1 Guarantee of Work-by Contractor 13.1 Indemnification 6.30 thru 6.32 Inspection,Final - 14.11 Inspection,Tests and 13.3 thru 13.7 Insurance,Bonds and-in general 5 Insurance-Certificates of 2.7 and 5 Insurance,Contractor's Liability 5.3 Insurance,Contractual Liability 5.4 Insurance,Owner's Liability 5.5 Insurance,Property 5.6 thru 5.12 Intent of Contract Documents 3.1 thru 3.4,9.12 Interpretations and Clarifications 9.3 Investigations of Physical Conditions 4.2 Labor,Materials and Equipment 6.3 thru 6.6 Laws and Regulations 6.14 Liability Insurance-Contractors 5.3 Liability Insurance-Owners 5.5 Limitations on Engineer's Responsibilities 9.11 Materials and Equipment-furnished by Contractor 6.3 Materials or Equipment-Equivalent 6.7 Miscellaneous Provisions 17 Modification-definition of 1 5 Notice,Giving of 17.1 Notice of Award-definition of 1 Notice of Acceptability of Project 14.13 Notice to Proceed--definition of 1 Notice to Proceed-giving of 2.3 "Or-Equal"items 6.7 Other Contractors 7 Overtime Work-prohibition of 6.3 Owner-definition of 1 Owner May Correct Defective Work 13.14 Owner May Stop Work 13.10 Owner May Suspend Work,Terminate 15.1 thru 15.4 Owner's Duty to Execute Change Orders 11.8 Owner's Liability Insurance 5.5 Owner's Representative-Engineer to serve as 9.1 Owner's Responsibilities-in general 8 Owner's Separate Representative at Site 9.8 Partial Utilization 14.10 Partial Utilization-Property Insurance 5.14 Patent Fees and Royalties 6.12 Payments to Contractor-in general 14 Payments,Recommendation of 14.4 thru 14.7.5 Pre-construction Conference 2.8 Performance,and other Bonds 5.1 thru 5.2 Permits 6.13 Physical Conditions-Investigations and Reports 4.2 Physical Conditions,Unforeseen 4.3 Preconstruction Conference 2.8 Preliminary Matters 2 Premises,Use of 6.16,6.17,6.18 Price-Change of Contract 11 Price-Contract-definition of 1 Progress Payment,Applications for 14.2 Progress Schedule- - 2.6, 14.1 Project-definition of 1 Project Representative, Resident-definition of 1 Project Representation-Provision for 9.8 Project,Starting 2.4 Property Insurance 5.6 thru 5.12 Property Insurance-Receipt and Application of Proceeds 5.11,5.12 Property Insurance-Partial Utilization 5.14 Protection,Safety and 6.20 thru 6.21 Recommendation of Payment 14.4, 14.13 Record Documents 6.19 Reference Points 4.4 Regulations,Laws and 6.14 Rejecting Defective Work 9.4 Remedies Not Exclusive 17.5 Removal or Correction of Defective Work 13.11 Resident Project Representative--definition of 1 Resident Project Representative-provision for 9.8 Responsibilities,Contractor's 6 Responsibilities,Owner's 8 Reuse of Documents 3.5 Royalties,Patent Fees and 6.13 ti 6 Safety and Protection • 6.20 thru 6.21 Samples 6.23 Schedule of Shop Drawing Submissions 2.6, 14.1 Schedule of Values 2.6, 14.1 Shop Drawings and Samples 6.23 thru 6.29 Shop Drawings-definition of 1 Site,Visits to-by Engineer 9.2 Specifications-definition of. 1 Starting Construction,Before 2.5 thru 2.9 Starting the Project 2.4 Stopping Work-by Contractor 15.5 Stopping Work-by Owner 13.10 Subcontractor-definition of 1 Subcontractors-in general 6.8 thru 6.11 Substantial Completion-certification of 14.8 Substantial Completion-definition of 1 Subsurface Conditions 4.2,4.3 Supplemental Costs 11.4.5 Surety-consent to payment 14.12, 14.14 Surety-notice of changes 10.5 Surety-qualification of 5.1,5.2 Suspending Work,by Owner 15.1 Suspension of Work and Termination-in general 15 Superintendent-Contractor's 6.2 Supervision and Superintendence 6.1,6.2 Taxes-Payment by Contractor 6.15 Termination-by Contractor 15.5 Termination-by Owner 15.2 thru 15.4 Termination,Suspension of Work and-in general 15 Tests and Inspections 13.3 thru 13.7 Time,Change of Contract 12 Time,Computation of 17.2 Time,Contract-definition of 1 Uncovering Work 13.8, 13.9 Unit Prices 11.3.1 Unit Prices-Adjustment of 11.9 Use of Premises , 6.16,_6.17,6.18 • Values,Schedule of 14.1 Visits to Site-by Engineer 9.2 Waiver of Claims-on Final Payment 14.16 Waiver of Rights by Insured Parties 5.10 Warranty and Guarantee-by Contractor 13.1 Warranty of Title,Contractor's 14.3 Work,Access to 13.2 Work by Others-in general 7 Work,Cost of 11.4, 11.5• Work Continuing During Disputes 6.29 Work-defintion of 1 Work,Neglected by Contractor 13.14 Work,Stopping by Contractor 15.5 Work,Stopping by Owner 15.1 thru 15.4 7 • • A:- A,� i GENERAL CONDITIONS defective--An adjective which when modifying the word Work refers to Work that is unsatisfactory, faulty or defi- cient,or does not conform to the Contract Documents or does ARTICLE 1—DEFINITIONS __ not meet the requirements of any inspection, test or approval referred to in the Contract Documents, or has been damaged Wherever used in these General Conditions or in the other prior to ENGINES R's recommendation of final payment. Contract Documents, the following terms have the meanings indicated which are applicable to both the singular and plural thereof: Drawings--The drawings which show the character and scope of the Work to be performed and which have been prepared Addenda—Written or graphic instruments issued prior to the or approved by ENGINEER and are referred to in the Con- opening of Bids which clarify, correct or change the bidding tract Documents. documents or the Contract Documents. effective date of the Agreement—The date indicated in the Agreement—The written agreement between OWNER and Agreement on which it becomes effective, but if no such date CONTRACTOR covering the Work to be performed; other is indicated it means the date on which the Agreement is Contract Documents are attached to the Agreement and made signed and delivered by the last of the two parties to sign and "a part thereof as provided therein. deliver. Application for Payment—The form accepted by ENGINEER—The person,firm or corporation named as such ENGINEER which is to be used by CONTRACTOR in re- in the Agreement. questing progress or final payment and which is to include such supporting documentation as is required by the Contract Documents. Field Order--A written order issued by ENGINEER which orders minor changes in the Work in accordance with para- Bid—The offer or proposal of the Bidder submitted on the graph 10.2 but which does not involve a change in the Con- prescribed form setting forth the prices for the Work to be tract Price or the Contract Time. performed. General Requirements—Sections of Division 1 of the Specifi- Bonds—Bid, performance and payment bonds and other in- cations. struments of security. t :'Modification—(a) A written amendment of the Contract Change Order—A written order to CONTRACTOR signed by Documents signed by both parties, (b)a Change Order, or(c) OWNER authorizing an addition, deletion or revision in the a Field Order. A modification may only be issued after the Work,or an adjustment in the Contract Price or the Contract effective date of the Agreement. Time issued afterthe effective date of the Agreement. - Notice of Award—The written notice by OWNER to the ap- Contract Documents—The Agreement, Addenda (which per- parent successful Bidder stating that upon compliance by the taro to the Contract Documents), CONTRACTOR's Bid hpparent successful Bidder with the conditions precedent (including documentation accompanying the Bid and any enumerated therein, within the time specified, OWNER will post-Bid documentation submitted prior to the Notice of sign and deliver the Agreement. Award) when attached as an exhibit to the Agreement, the Bonds, these General Conditions, the Supplementary Condi- Notice to Proceed—A written notice given by OWNER to tions, the Specifications, the Drawings as the same are more CONTRACTOR(with a copy to ENGINEER)fixing the date specifically identified in the Agreement, together with all on which the Contract Time will commence to run and on Modifications issued after the execution of the Agreement. which CONTRACTOR shall start to perform his obligation under the Contract Documents. Contract Price—The moneys payable by OWNER to CON- TRACTOR under the Contract Documents as stated in the OWNER—The public body or authority,corporation,associ- Agreement. ation, partnership, or individual with whom CONTRACTOR has entered into the Agreement and for whom the Work is to Contract Time—The number of days (computed as provided be provided. in paragraph 17.2)or the date stated in the Agreement for the completion of the Work. Project—The total construction of which the Work to be pro- vided under the Contract Documents may be the whole, or a CONTRACTOR—The person, firm or corporation with part as indicated elsewhere in the Contract Documents. whom OWNER has entered into the Agreement. Resident Project Representative—The authorized representa- day—A calendar day of twenty-four hours measured from tive of ENGINEER who is assigned to the site or any part midnight to the next midnight. thereof. 8 Shop Drawings—All drawings,diagrams,illustrations,sched- Commencement of Contract Time;Notice to Proceed: ules and other data which are specifically prepared by CON- 2.3. The Contract Time will commence to run on the TRACTOR, a Subcontractor, manufacturer, fabricator, sup- thirtieth day after the effective date of the Agreement, or,if a plier or distributor to illustrate some portion of the Work Notice to Proceed is given, on the day indicated in the Notice and all illustrations, brochures, standard schedules, perform- to Proceed;but in no event shall the Contract Time commence ance charts, instructions, diagrams and other information to run later than the ninetieth day after the day of Bid opening prepared by a manufacturer, fabricator, supplier or distrib- or the thirtieth day after the effective date of the Agreement. utor and submitted by CONTRACTOR to illustrate material A Notice to Proceed may be given at any time within thirty or equipment for some portion of the Work. days after the effective date of the Agreement. Specifications—Those portions of the Contract Documents consisting of written technical descriptions of materials, Starting the Project: equipment, construction systems, standards and work- 2.4. CONTRACTOR shall start to perform the Work on manship as applied to the Work and certain administrative the date when the Contract Time commences to run, but no details applicable thereto. Work shall be done at the site prior to the date on which the Contract Time commences to run. Subcontractor—An individual, firm or corporation having a direct contract with CONTRACTOR or with any other Sub- contractor for the performance of a part of the Work at the Before Starting Construction: site. 2.5. Before undertaking each part of the Work, CONTRACTOR shall carefully study and compare the Con- Substantial Completion—The Work (or a specified part tract Documents and check and verify pertinent figures shown .l thereof)has progressed to the point where, in the opinion of thereon and all applicable field measurements. CON- ENGINEER as evidenced by his definitive certificate of Sub- TRACTOR shall promptly report in writing to ENGINEER stantial Completion, it is sufficiently complete, in accordance any conflict, error or discrepancy which CONTRACTOR with the Contract Documents, so that the Work (or specified may discover;however,CONTRACTOR shall not be liable to part) can be utilized for the purposes for which it was in- OWNER or ENGINEER for failure to report any conflict, tended; or if there be no such certificate issued, when final error or discrepancy in the Drawings or Specifications, unless • payment is due in accordance with paragraph 14.13. The CONTRACTOR had actual knowledge thereof or should rea- terms "substantially complete" and "substantially com- sonably have known thereof. pleted" as applied to any Work refer to Substantial Comple- tion thereof. 2.6. Within ten days after the effective date of the Agree- ment (unless otherwise specified in the General Require- Work—The entire completed construction or the various sep- ments), CONTRACTOR shall submit to ENGINEER for arately identifiable parts thereof required to be furnished review and acceptance an estimated progress schedule in- under the Contract Documents. Work is the result of per- dicating the starting and completion dates of the various - forming services, furnishing labor and furnishing and incor- stages of the Work, a preliminary schedule of Shop Drawing porating materials and equipment into the construction,all as submissions, and a preliminary schedule of values of the required by the Contract Documents. Work. k� 2.7. Before any Work at the site is started, CONTRAC- TOR shall deliver to OWNER, with a copy to ENGINEER, certificates (and other evidence of insurance requested by OWNER)which CONTRACTOR is required to purchase and ARTICLE 2—PRELIMINARY MATTERS maintain in accordance with paragraphs 5.3 and 5.4, and OWNER shall deliver to CONTRACTOR certificates (and t Delivery of Bonds: other evidence of insurance requested by CONTRACTOR) which OWNER is required to purchase and maintain in ac- 2.1. When CONTRACTOR delivers the executed Agree- cordance with paragraphs 5.6 and 5.7. ments to OWNER, CONTRACTOR shall also deliver to OWNER such Bonds as CONTRACTOR may be required to furnish in accordance with paragraph 5.1. Preconstruction Conference: 2.8. Within twenty days after the effective date of the Copies of Documents: Agreement, but before CONTRACTOR starts the Work at 2.2. OWNER shall furnish to CONTRACTOR up to ten the site,a conference will be held for review and acceptance of copies (unless otherwise specified in the General Require- the schedules referred to in paragraph 2.6, to establish proce- ments) of the Contract Documents as are reasonably neces- dures for handling Shop Drawings and other submittals and { sary for the execution of the Work. Additional copies will be for processing Applications for Payment, and to establish a furnished,upon request,at the cost of reproduction. working understanding among the parties as to the Work. 9 tE ' • ARTICLE 3—CONTRACT DOCUMENTS: INTENT ARTICLE 4—AVAILABILITY OF LANDS;PHYSICAL AND REUSE CONDITIONS; REFERENCE POINTS Intent: A vailability of Lands: 3.1. The Contract Documents comprise the entire Agree- 4.1. OWNER shall furnish, as indicated in the Contract ment between OWNER and CONTRACTOR concerning the Documents,the lands upon which the Work is to be per- Work. They may be altered only by a Modification. formed,rights-of-way for access thereto,and such other lands which are designated for the use of CONTRACTOR. Ease- 3.2. The Contract Documents are complementary;what is ments for permanent structures or permanent changes in ex- called for by one is as binding as if called for by all. If,during isting facilities will he obtained and paid for by OWNER, un- the performance of the Work, CONTRACTOR finds a con- less otherwise provided in the Contract Documents. If CON- flict,error or discrepancy in the Contract Documents,he shall TRACTOR belie\es that any delay in OWNER's furnishing report it to ENGINEER in writing at once and before pro- these lands or easements entitles him to an extension of the ceeding with the Work affected thereby; however, CON- Contract Time, CONTRACTOR may make a claim therefor TRACTOR shall not be liable to OWNER or ENGINEER for as pros ided in Article 12. CONTRACTOR shall provide for failure to report any conflict, error or discrepancy in the all additional lands and access thereto that may be required • Specifications or Drawings unless CONTRACTOR had for temporary construction facilities or storage of materials actual knowledge thereof or should reasonably have known and equipment. thereof. Physical Conditions—Investigations and Reports: • 3.3. It is the intent of the Specifications and Drawings to 4.2. Reference is made to the Supplementary Conditions describe a complete project(or part thereof)to be constructed for identification of those reports of investigations and tests in accordance with the Contract Documents. Any Work that of subsurface and latent physical conditions at the site or may reasonably be inferred from the Specifications or Draw- otherwise affecting cost, progress or performance of the ings as being required to produce the intended result shall be Work which have been relied upon by ENGINEER in pt epa- supplied whether or not it is specifically called for. When ration of the Drawings and Specifications. Such reports are words which have a well-known technical or trade meaning not guaranteed as to accuracy or completeness and are not are used to describe Work,materials or equipment such words part of the Contract Documents. shall be interpreted in accordance with such meaning. Refer- ence to standard specifications, manuals or codes of any Unforeseen Physical Conditions: technical society, organization or association, or to the code 4.3. CONTRACTOR shall promptly notify OWNER and of any governmental authority, whether such reference be ENGINEER in writing of any subsurface or latent physical specific or by implication, shall mean the latest standard spec- conditions at the site or in an existing structure differing mate- ification, manual or code in effect at the time of opening of rially from those indicated or referred to in the Contract Bids (or, on the effective date of the Agreement if there were Documents. ENGINEER will promptly review those condi- no Bids), except as may be otherwise specifically stated. tions and advise OWNER in writing if further investigation or However, no provision of any referenced standard specifica- tests are necessary.Promptly thereafter,OWNER shall obtain tion,manual or code(whether or not specifically incorporated ° the necessary additional investigations and tests and furnish by reference in the Contract Documents) shall change the copies to ENGINEER and CONTRACTOR. If ENGINEER duties and responsibilities of OWNER, CONTRACTOR or finds that the results of such investigations or tests indicate ENGINEER, or any of their agents or employees from those that there are subsurface or latent physical conditions which set forth in the Contract Documents. Clarifications and differ materially from those intended in the Contract Docu- interpretations of the Contract Documents shall be issued by ments, and which could not reasonably have been anticipated ENGINEER as provided for in paragraph 9.3. by CONTRACTOR, a Change Order shall be issued incorpo- rating the necessary revisions. 3.4. The Contract Documents will be governed by the law of the place of the Project. Reference Points: 4.4. OWNER shall provide engineering surveys for con- Reuse of Documents: struction to establish reference points which in his judgment 3.5. Neither CONTRACTOR nor any Subcontractor, are necessary to enable CONTRACTOR to proceed with the manufacturer, fabricator,supplier or distributor shall have or Work.CONTRACTOR shall be responsible for laying out the acquire any title to or ownership rights in any of the Draw- Work (unless otherwise specified in the General Require- ings, Specifications or other documents (or copies of any ments), shall protect and preserve the established reference thereof) prepared by or bearing the seal of ENGINEER; and points and shall make no changes or relocations without the • they shall not reuse any of them on extensions of the Project prior written approval of O\VNER. CONTRACTOR shall or any other project without written consent of OWNER and report to ENGINEER whenever any reference point is lost or ENGINEER and specific written verification or adaptation by destroyed or requires relocation because of necessary changes ENGINEER. in grades or locations, and shall be responsible for replace- 10 1 ment or relocation of such reference points by professionally result of an offense directly or indirectly related to the qualified personnel. employment of such person by CONTRACTOR, or(ii)by j any other person for any other reason; 1 I ARTICLE 5—BONDS AND INSURANCE 5.3.5. Claims for damages, other than to the Work it- self, because of injury to or destruction of tangible prop- Performance and Other Bonds: city, including loss of use resulting therefrom;and 5.1. CONTRACTOR shall furnish performance and pay- ment Bonds, each in an amount at least equal to the Contract 5.3.6. Claims for damages because of bodily injury or Price as security for the faithful performance and payment of death of any person or property damage arising out of the all CONTRACTOR's obligations under the Contract Docu- ownership,maintenance or use of any motor vehicle. ments. These Bonds shall remain in effect at least until one The inslirance required by this paragraph 5.3 shall include the year after the date of final payment, except as otherwise pro specific coverages and be written for not less than the limits of vided by law. CONTRACTOR shall also furnish such other liability and coverages provided in the Supplementary Condi- Bonds as are required by the Supplementary Conditions. All tions, or required by law, whichever is greater. The corn- Bonds shall be in the forms prescribed by the bidding docu prehensive general liability insurance shall include completed ments or Supplementary Conditions and be executed by such operations insurance.All such insurance shall contain a provi- Sureties as (i) are licensed to conduct business in the state sion that the coverage afforded will not be cancelled, where the Project is located, and (ii)are named in the current materially changed or renewal refused until at least thirty list of "Companies Holding Certificates of Authority as days' prior written notice has been given to OWNER and Acceptable Sureties on Federal Bonds and as Acceptable ENGINEER. All such insurance shall remain in effect until Reinsuring Companies" as published in Circular 570 final payment and at all times thereafter when CON- (amended) by the Audit Staff Bureau of Accounts, U.S. TRACTOR may be correcting, removing or replacing defec- Treasury Department. All Bonds signed by an agent must be tive Work in accordance with paragraph 13.12. In addition, accompanied by a certified copy of the authority to act. CONTRACTOR shall maintain such completed operations 5.2. If the Surety on any Bond furnished by CONTRAC- insurance for at least two years after final payment and TOR is declared a bankrupt or becomes insolvent or its right furnish OWNER with evidence of continuation of such incur to do business is terminated in any state where any part of the ance at final payment and one year thereafter. Project is located or it ceases to meet the requirements of clauses (i) and (ii) of paragraph 5.1, CONTRACTOR shall Contractual Liability Insurance: within five days thereafter substitute another Bond and 5.4. The comprehensive general liability insurance Surety,both of which shall be acceptable to OWNER. required by paragraph 5.3 will include contractual liability insurance applicable to CONTRACTOR's obligations under paragraphs 6.30 and 6.31. Contractor's Liability Insurance: • 5.3. CONTRACTOR shall purchase and maintain such Owner's Liability Insurance: _ comprehensive general liability and other insurance as will 5.5. OWNER shall be responsible for purchasing and provide protection from claims set forth below which may maintaining his own liability insurance and, at his option, • arise-out of or result from CONTRACTOR's performance of may purchase and maintain such insurance as will protect f the Work and CONTRACTOR's other obligations under the OWNER against claims which may arise from operations Contract Documents, whether such performance is by CON- under the Contract Documents. TRACTOR, by any Subcontractor, by anyone directly or in- directly employed by any of them, or by anyone for whose Property Insurance: I acts any of them may be liable: 5.6. Unless otherwise provided in the Supplementary 5.3.1. Claims under workers' or workmen's compen- Conditions, OWNER shall purchase and maintain property cation, disability benefits and other similar employee insurance upon the Work at the site to the full insurable value benefit acts; thereof (subject to such deductible amounts as may be pro- vided in the Supplementary Conditions or required by law). # 5.3.2. Claims for damages because of bodily injury, This insurance shall include the interests of OWNER, CON- occupational sickness or disease, or death of CONTRAC- TRACTOR and Subcontractors in the Work, shall insure . TOR's employees; against the perils of fire and extended coverage and shall include "all risk" insurance for physical loss and damage 5.3.3. Claims for damages because of bodily injury, including theft, vandalism and malicious mischief, collapse sickness or disease, or death of any person other than and water damage, and such other perils as may be provided CONTRACTOR's employees; in the Supplementary Conditions, and shall include damages, r losses and expenses arising out of or resulting from any 5.3.4. Claims for damages insured by personal injury insured loss or incurred in the repair or replacement of any ) liability coverage which are sustained(i)by any person as a insured property (including fees and charges of engineers, t 11 t , • I s MI architects, attorneys and other professionals). If not covered money so received, and he shall distribute it in accordance under the "all risk" insurance or otherwise provided in the with such agreement as the parties in interest may reach. If no Supplementary Conditions, CONTRACTOR shall purchase other special agreement is reached the damaged Work shall be and maintain similar property insurance on portions of the repaired or replaced, the moneys so received applied on Work stored on and off the site or in transit when such por- account thereof and the Work and the cost thereof covered by tions of the Work are to be included in an Application for an appropriate Change Order. Payment. The policies of insurance required to be purchased and maintained by OWNER in accordance with paragraphs 5.12. OWNER as trustee shall have power to adjust and 5.0 and 5.7 shall contain a provision that the coverage settle any loss with the insurers unless one of the parties in afforded will not be cancelled or materially changed until at interest shall object in writing within fifteen days after the least thirty days' prior written notice has been given to occurrence of loss to OWNER's exercise of this power. If such objection be made, OWNER as trustee shall make settle- CONTRACTOR. ment with the insurers in accordance with such agreement as 5.7. OWNER shall purchase and maintain such boiler and the parties in interest may reach. If required in writing by any machinery insurance as may be required by the Supplemen party in interest,OWNER as trustee shall upon the occurrence tary Conditions or by law. This insurance shall include the of an insured loss, give bond for the proper performance of interests of OWNER, CONTRACTOR and Subcontractors in his duties. the Work. Acceptance of Insurance: 5.13. If OWNER has any objection to the coverage S.S. OWNER shall not be responsible for purchasing and afforded by or other provisions of the insurance required to maintaining any property insurance to protect the interests of be purchased and maintained by CONTRACTOR in accor- CONTRACTOR or Subcontractors in the Work to the extent dance with paragraphs 5.3 and 5.4 on the basis of its not corn- of any deductible amounts that are provided in the Supple plying with the Contract Documents, OWNER will notify mentary Conditions. If CONTRACTOR wishes property CONTRACTOR in writing thereof within ten days of the date insurance coverage within the limits of such amounts, of delivery of such certificates to OWNER in accordance with CONTRACTOR may purchase and maintain it at his own paragraph 2.7. If CONTRACTOR has any objection to the expense. coverage afforded by or other provisions of the policies of insurance required to be purchased and maintained by 5.9. If CONTRACTOR requests in writing that other spe- OWNER in accordance with paragraphs 5.6 and 5.7 on the cial insurance be included in the property insurance policy, basis of their not complying with the Contract Documents, OWNER shall, if possible, include such insurance, and the CONTRACTOR will notify OWNER in writing thereof with- cost thereof shall be charged to CONTRACTOR by appropri- in ten days of the date of delivery of such certificates to CON- ate Change Order.Prior to commencement of the Work at the TRACTOR in accordance with paragraph 2.7. OWNER and site,OWNER will in writing advise CONTRACTOR whether CONTRACTOR will each provide to the other such addi- or not such other insurance has been procured by OWNER. - tional information in respect of insurance provided by him as the other may reasonably request. Failure by OWNER or Waiver of Rights: CONTRACTOR to give any such notice of objection within - 5.10. OWNER and CONTRACTOR waive all rights the time provided shall constitute acceptance of such insur- against each other and the Subcontractors and their agents ance purchased by the other as complying with the Contract and employees and against ENGINEER and separate contrac- Documents. tors (if any) and their subcontractors' agents and employees, for damages caused by fire or other perils to the extent cov- Partial Utilisation—Property Insurance: ered by insurance provided under paragraphs 5.6 and 5.7, in- 5.14. If OWNER finds it necessary to occupy or use a elusive, or any other property insurance applicable to the portion or portions of the Work prior to SuLstantial Comple- Work, except such rights as they may have to the proceeds of tion of all the Work, such use or occupancy may be accom- such insurance held by OWNER as trustee.OWNER shall re- plished in accordance with paragraph 14.10;provided that no quire similar written waivers by ENGINEER and from each such use or occupancy shall commence before the insurers separate contractor, and CONTRACTOR shall require simi- providing the property insurance have acknowledged notice lar written waivers from each Subcontractor (in accordance thereof and in writing effected the changes in coverage neces- w I t h paragraph 6.11 as applicable);each such waiver will be in sitated thereby.The insurers providing the property insurance favor of all other parties enumerated in this paragraph 5.10. shall consent by endorsement on the policy or policies,but the property insurance shall not be cancelled or lapse on account Receipt and Application of Proceeds: of any such partial use or occupancy. 5.11. Any insured loss under the policies of insurance required by paragraphs 5.6 and 5.7 shall be adjusted with ARTICLE 6—CONTRACTOR'S RESPONSIBILITIES OWNER and made payable to OWNER as trustee for the insureds, as their interests may appear, subject to the Supervision and Superintendence: requirements of any applicable mortgage clause and of para- 6.1. CONTRACTOR shall supervise and direct the Work graph 5.12. OWNER shall deposit in a separate account any competently and efficiently, devoting such attention thereto 12 • and applying such skills and expertise as may be necessary to fabricator, supplier or distributor, the naming of the item is perform the Work in accordance with the Contract Docu- intended to establish the type, function and quality required. ments. CONTRACTOR shall be solely responsible for the Unless the name is followed by words indicating that no sub- means, methods, techniques, sequences and procedures of stitution is permitted, materials or equipment of other manu- construction, but CONTRACTOR shall not be solely respon- facturers, fabricators, suppliers or distributors may be sible for the negligence of others in the design or selection of a accepted by ENGINEER if sufficient information is submit- specific means, method, technique, sequence or procedure of ted by CONTRACTOR to allow ENGINEER to determine construction which is indicated in and required by the Con- that the material or equipment proposed is equivalent to that tract ')ocuments. CONTRACTOR shall be responsible to see named. The procedure for review by ENGINEER will be as that the finished Work complies accurately with the Contract set forth in paragraphs 6.7.1 and 6.7.2 below as supplemented Documents. in the General Requirements. 6.2. CONTRACTOR shall keep on the Work at all times 6.7.1. Requests for review of substitute items of during its progress a competent resident superintendent, who material and equipment will not be accepted by ENGI- shall not be replaced without written notice to OWNER and NEER from anyone other than CONTRACTOR. If CON- ENGINEER except under extraordinary circumstances. The TRACTOR wishes to furnish or use a substitute item of superintendent will be CONTRACTOR's representative at the material or equipment CONTRACTOR shall make written site and shall have authority to act on behalf of CONTRAC- application to ENGINEER for acceptance thereof,certify- TOR. All communications given to the superintendent shall ing that the proposed substitute will perform adequately be as binding as if given to CONTRACTOR. the functions called for by the general design, be similar and of equal substance to that specified and be suited to Labor,Materials and Equipment: the same use and capable of performing the same function 6.3. CONTRACTOR shall provide competent, suitably as that specified. The application will state whether or not qualified personnel to survey and lay out the Work and per- acceptance of the substitute for use in the Work will form construction as required by the Contract Documents. require a change in the Drawings or Specifications to adapt CONTRACTOR shall at all times maintain good discipline the design to the substitute and whether or not incorpora • - and order at the site. Except in connection with the safety or tion or use of the substitute in connection with the Work is • protection of persons or the Work or property at the site or subject to payment of any license fee or royalty. All adjacent thereto,and except as otherwise indicated in the Sup- variations of the proposed substitute from that specified plementary Conditions, all Work at the site shall be per- and w Hance,shall be identified in the application and available mainte- nance, repairreplacementserviceill be indicated. formed during regular working hours, and CONTRACTOR will not permit overtime work or the performance of Work on The application will also contain an itemized estimate of all costs that will result directly or indirectly from accept- Saturday, Sunday or any legal holiday without OWNER's written consent given after prior written notice to ance of such substitute; including costs of redesign and ENGINEER. claims of other contractors affected by the resulting change, all of which shall be considered by ENGINEER in 6.4. CONTRACTOR shall furnish all materials, equip- evaluating the proposed substitute. ENGINEER may ment, labor, transportation, construction equipment and _ require CONTRACTOR to furnish at CONTRACTOR's machinery, tools, appliances, fuel, power, light, heat, tele- expense additional data about the proposed substitute. ENGINEER will be the sole judge of acceptability,and no phone,water and sanitary facilities and all other facilities and incidentals necessary for the execution, testing, initial oper substitute will be ordered or installed without ENGI ation and completion of the Work. NEER's prior written acceptance. OWNER may require CONTRACTOR to furnish at CONTRACTOR's expense 6.5. All materials and equipment shall be of good quality a special performance guarantee or other surety with and new, except as otherwise provided in the Contract Docu- respect to any substitute. ments. If required by ENGINEER, CONTRACTOR shall furnish atisfactory evidence (including reports of required 6.7.2. ENGINEER will record time required by ENGI- tests)as to the kind and quality of materials and equipment. NEER and ENGINEER'S consultants in evaluating substi tutions proposed by CONTRACTOR and in making 6.6. All materials and equipment shall be applied, in- changes in the Drawings or Specifications occasioned stalled, connected, erected, used, cleaned and conditioned in thereby. Whether or not ENGINEER accepts a proposed accordance with the instructions of the applicable manufac- substitute, CONTRACTOR shall reinburse OWNER for turer, fabricator, supplier or distributor, except as otherwisechargesi the of ENGINEER and ENGINEER's consultants provided in the Contract Documents. for evaluating any proposed substitute. Equivalent Materials and Equipment: Concerning Subcontractors: 6.7. Whenever materials or equipment are specified or de- 6.8. CONTRACTOR shall not employ any Subcontractor it scribed in the Drawings or Specifications by using the name of or other person or organization (including those who are to 'i a proprietary item or the name of a particular manufacturer, furnish the principal items of materials or equipment), II ! 13 I,� it whether initially or as a substitute,against whom OWNER or tion,design,process,product or device which is the subject of ENGINEER may have reasonable objection.A Subcontractor patent rights or copyrights held by others. If a particular or other person or organization identified in writing to invention, design, process, product or device is specified in OWNER and ENGINEER by CONTRACTOR prior to the the Contract Documents for use in the performance of the Notice of Award and not objected to in writing by OWNER Work and if to the actual knowledge of OWNER or ENGI- or ENGINEER prior to the Notice of Award will he deemed NEER its use is subject to patent rights or copyrights calling acceptable to OWNER and ENGINEER. Acceptance of any for the payment of any license fee or royalty to others, the ex- Subcontractor, other person or organization by OWNER or istence of such rights shall be disclosed by OWNER in the ENGINEER shall not constitute a waiver of any right of Contract Documents. CONTRACTOR shall indemnify and OWNER or ENGINEER to reject defective Work. If hold harmless OWNER and ENGINEER and anyone directly OWNER or ENGINEER after due investigation has reason- or indirectly employed by either of them from and against all able objection to any Subcontractor, other person or organi- claims, damages, losses and expenses (including attorneys' zation proposed by CONTRACTOR after the Notice of fees) arising out of any infringement of patent rights or copy- Award, CONTRACTOR shall submit an acceptable substi- rights incident to the use in the performance of the Work or Lute and the Contract Price shall be increased or decreased by resulting from the incorporation in the Work of any inven- the difference in cost occasioned by such substitution, and an tion, design, process, product or device not specified in the appropriate Change Order shall be issued. CONTRACTOR Contract Documents, and shall defend all such claims in con- shall not be required to employ any Subcontractor, other nection w ith any alleged infringement of such rights. person or organization against whom CONTRACTOR has permits: reasonable objection. 6.13. Unless otherwise provided in the Supplementary 6.9. CONTRACTOR shall be fully responsible for all acts Conditions,CONTRACTOR shall obtain and pay for all con- and omissions of his Subcontractors and of persons and struction permits and licenses. OWNER shall assist CON- organizations directly or indirectly employed by them and of TRACTOR, when necessary, in obtaining such permits and persons and organizations for whose acts any of them may be licenses. CONTRACTOR shall pay all gosernmental charges liable to the same extent that CONTRACTOR is responsible and inspection fees necessary for the prosecution of the Work, for the acts and omissions of persons directly employed by which are applicable at the time of opening of Bids. CON- CONTRACTOR. Nothing in the Contract Documents shall TRACTOR shall pay all charges of utility service companies create any contractual relationship between OWNER or for connections to the Work, and OWNER shall pay all ENGINEER and any Subcontractor or other person or orga- charges of such companies for capital costs related thereto. nization having a direct contract with CONTRACTOR, nor shall it create any obligation on the part of OWNER or Laws and Regulations: ENGINEER to pay or to see to the payment of any moneys 6.14. CONTRACTOR shall give all notices and comply due any Subcontractor or other person or organization, with all laws, ordinances, rules and regulations applicable to except as may otherwise be required by law. OWNER or the Work. If CONTRACTOR observes that the Specifications ENGINEER may furnish to any Subcontractor or other or Drawings are at variance therewith, CONTRACTOR shall person or organization, to the extent practicable, evidence of give ENGINEER prompt written notice thereof, and any nec- amounts paid to CONTRACTOR on account of specific essary changes shall be adjusted by an appropriate Modifica- Work done. tion. if CONTRACTOR performs any Work knowing or 6.10. The divisions and sections of the Specifications and having reason to know that it is contrary to such laws, ordi- the identifications of any Drawings shall not control CON nances, rules and regulations, and without such notice to TRACTOR in dividing the Work among Subcontractors or ENGINEER, CONTRACTOR shall bear all costs arising delineating the Work to be performed by any specific trade. therefrom; however, it shall not be CONTRACTOR'S pri- mary responsibility to make certain that the Specifications 6.11. All Work performed for CONTRACTOR by a Sub- and Drawings are in accordance with such laws, ordinances, contractor will be pursuant to an appropriate agreement rules and regulations. between CONTRACTOR and the Subcontractor which speci- fically binds the Subcontractor to the applicable terms and Taxes: conditions of the Contract Documents for the benefit of 6.15. CONTRACTOR shall pay all sales, consumer, use OWNER and ENGINEER and contains waiver provisions as and other similar taxes required to be paid by him in accor- required by paragraph 5.10. CONTRACTOR shall pay each dance with the law of the place of the Project. Subcontractor a just share of any insurance moneys received by CONTRACTOR on account of losses under policies issued Use of Premises: pursuant to paragraphs 5.6 through 5.8. 6.16. CONTRACTOR shall confine construction equip- ment, the storage of materials and equipment and the opera- Patent Fees and Royalties: tions of workmen to areas permitted by law, ordinances, 6.12. CONTRACTOR shall pay all license fees and royal- permits or the requirements of the Contract Documents, and ties and assume all costs incident to the use in the performance shall not unreasonably encumber the premises with construc- of the Work or the incorporation in the Work of any inven- tion equipment or other materials or equipment. 14 • 6.17. During the progress of the Work, CONTRACTOR able to the fault of Drawings or Specifications or to the acts or shall keep the premises free from accumulations of waste ma- omissions of OWNER or ENGINEER or anyone employed by terials,rubbish and other debris resulting from the Work. At either of them or anyone for whose acts either of them may be the completion of the Work CONTRACTOR shall remove all liable, and not attributable, directly or indirectly, in whole or waste materials, rubbish and debris from and about the prem- in part, to the fault or negligence of CONTRACTOR). ises as well as all tools, appliances, construction equipment CONTRACTOR's duties and responsibilities for the safety and machinery, and surplus materials, and shall leave the site and protection of the Work shall continue until such time as clean and ready for occupancy by OWNER.CONTRACTOR all the Work is completed and ENGINEER has issued a notice shall restore to tF,;it original condition those portions of the to OWNER and CONTRACTOR in accordance with para- site not designated for alteration by the Contract Documents. graph 14.13 that the Work is acceptable. 6.18. CONTRACTOR shall not load nor permit any part 6.21. CONTRACTOR shall designate a responsible of any structure to be loaded in any manner that will endanger member of his organization at the site whose duty shall be the the structure, nor shall CONTRACTOR subject any part of prevention of accidents. This person shall be CONTRAC- the Work or adjacent property to stresses or pressures that TOR's superintendent unless otherwise designated in writing will endanger it. by CONTRACTOR to OWNER. Record Documents: Emergencies: 6.19. CONTRACTOR shall keep one record copy of all 6.22. In emergencies affecting the safety or protection of Specifications, Drawings, Addenda, Modifications, Shop persons or the Work or property at the site or adjacent there- Drawings and samples at the site, in good order and an- to,CONTRACTOR,without special instruction or authoriza- notated to show all changes made during the construction tion from ENGINEER or OWNER, is obligated to act to pre- process. These shall be available to ENGINEER for exam- vent threatened damage,injury or loss.CONTRACTOR shall ination and shall be delivered to ENGINEER for OWNER give ENGINEER prompt written notice of any significant upon completion of the Work. changes in the Work or deviations from the Contract Docu- ments caused thereby. Safety and Protection: 6.20. CONTRACTOR shall be responsible for initiating, Shop Drawings and Samples: maintaining and supervising all safety precautions and pro- 6.23. After checking and verifying all field measurements, grams in connection with the Work. CONTRACTOR shall CONTRACTOR shall submit to ENGINEER for review and take all necessary precautions for the safety of, and shall pro- approval, in accordance with the accepted schedule of Shop vide the necessary protection to prevent damage, injury or Drawing submissions (see paragraph 2.8), five copies(unless loss to: otherwise specified in the General Requirements) of all Shop Drawings, which shall have been checked by and stamped 6.20.1. all employees on the Work and other persons with the approval of CONTRACTOR and identified as • who may be affected thereby, - ENGINEER may require.The data shown on the Shop Draw- ings will be complete with respect to dimensions, design cri- 6.20.2. all the Work and all materials or equipment to teria,materials of construction and like information to enable I be incorporated therein, whether in storage on or off the ENGINEER to review the information as required. 1 site,and I 6.24. CONTRACTOR shall also submit to ENGINEER (, 6.20.3. other property at the site or adjacent thereto, for review and approval with such promptness as to cause no including trees, shrubs, lawns, walks, pavements, road- delay in Work, all samples required by the Contract Docu- ways, structures and utilities not designated for removal, ments. All samples will have been checked by and stamped relocation or replacement in the course of construction. with the approval of CONTRACTOR, identified clearly as to material, manufacturer, any pertinent catalog numbers and CONTRACTOR shall comply with all applicable laws, ordi- the use for which intended. nances, rules, regulations and orders of any public body hav- ing jurisdiction for the safety of persons or property or to pro- 6.25. At the time of each submission, CONTRACTOR tett them from damage, injury or loss; and shall erect and shall in writing call ENGINEER's attention to any deviations maintain all necessary safeguards for such safety and protec- that the Shop Drawings or samples may have from the tion. CONTRACTOR shall notify owners of adjacent prop- requirements of the Contract Documents. erty and utilities when prosecution of the Work may affect them.All damage,injury or loss to any property referred to in 6.26. ENGINEER will review and approve with reason- paragraph 6.20.2 or 6.20.3 caused, directly or indirectly, in able promptness Shop Drawings and samples, but ENGI- whole or in part, by CONTRACTOR, any Subcontractor or NEER's review and approval shall be only for conformance anyone directly or indirectly employed by any of them or with the design concept of the Project and for compliance with anyone for whose acts any of them may be liable, shall be the information given in the Contract Documents and shall remedied by CONTRACTOR(except damage or loss attribut- not extend to means, methods, sequences, techniques or pro- 15 ii t cedures of construction or to safety precautions or programs CONTRACTOR, any Subcontractor, anyone directly or indi- incident thereto. The review and approval of a separate item rectly employed by any of them or anyone for whose acts any as such will not indicate approval of the assembly in which the of them may be liable, the indemnification obligation under item functions. CONTRACTOR shall make any corrections paragraph 6.30 shall not be limited in any way by any limita- required by ENGINEER and shall return the required number tion on the amount or type of damages, compensation or of corrected copies of Shop Drawings and resubmit new benefits payable by or for CONTRACTOR or any Subcon- samples for review and approval. CONTRACTOR shall tractor under workers' or workmen's compensation acts, direct specific attention in writing to revisions other than the disability benefit acts or other employee benefit acts. 4 corrections called for by ENGINEER on previous submittals. CONTRACTOR's stamp of approval on any Shop Drawing 6.32. The obligations of CONTRACTOR under para- or sample shall constitute a representation to OWNER and P P graph 6.30 shall not extend to the liability of ENGINEER,his ENGINEER that CONTRACTOR has either determined and agents or employees arising out of the preparation or verified all quantities, dimensions, field construction criteria, approval of maps, drawings, opinions, reports, surveys, materials, catalog numbers, and similar data or assumes full Change Orders,designs or specifications. responsibility for doing so, and that CONTRACTOR-has re- viewed or coordinated each Shop Drawing or sample with the requirements of the Work and the Contract Documents. ARTICLE 7—WORK BY OTHERS 6.27. Where a Shop Drawing or sample is required by the Specifications, no related Work shall be commenced until the 7.1. OWNER may perform additional work related to the submittal has been reviewed and approved by ENGINEER. Project by himself, or have additional work performed by utility service companies, or let other direct contracts therefor 6.28. ENGINEER's review and approval of Shop Draw- which shall contain General Conditions similar to these. ings or samples shall not relieve CONTRACTOR from re- CONTRACTOR shall afford the utility service companies sponsibility for any deviations from the Contract Documents and the other contractors who are parties to such direct con- unless CONTRACTOR has in writing called ENGINEER's tracts (or OWNER, if OWNER is performing the additional attention to such deviation at the time of submission and work with OWNER's employees) reasonable opportunity for ENGINEER has given written concurrence and approval to the introduction and storage of materials and equipment and the specific deviation, nor shall any concurrence or approval the execution of work, and shall properly connect and coordi- by ENGINEER relieve CONTRACTOR from responsibility nate his Work with theirs. for errors or omissions in the Shop Drawings. 7.2. If any part of CONTRACTOR's Work depends for Continuing the Work: proper execution or results upon the work of any such other 6.29. CONTRACTOR shall carry on the Work and main- contractor or utility service company (or OWNER), CON- tain the progress schedule during all disputes or disagreements TRACTOR shall inspect and promptly report to ENGINEER with OWNER. No Work shall be delayed or postponed pend- in writing any patent or apparent defects or deficiencies in_ ing resolution of any disputes or disagreements, except as such work that render it unsuitable for such proper execution CONTRACTOR and OWNER_ may otherwise agree in and results. CONTRACTOR's failure so to report shall con- writing. stitute an acceptance of the other work as fit and proper for integration with CONTRACTOR's Work except for latent or Indemnification: non-apparent defects and deficiencies in the other work. 6.30. To the fullest extent permitted by law, CON- 7.3. CONTRACTOR shall do all cutting, fitting and TRACTOR shall indemnify and hold harmless OWNER and patching of his Work that may be required to make its several ENGINEER and their agents and employees from and against parts come together properly and integrate with such other all claims, damages, losses and expenses including but not work.CONTRACTOR shall not endanger any work of others limited to attorneys' fees arising out of or resulting from the performance of the Work, provided that any such claim, by cutting, excavating or otherwise altering their work and damage, loss or expense (a) is attributable to bodily injury, will only cut or alter their work with the written consent of sickness, disease or death, or to injury to or destruction of ENGINEER and the others whose work will be affected. tangible property (other than the Work itself) including the loss of use resulting therefrom and(b)is caused in whole or in 7.4. If the performance of additional work by other con- part by any negligent act or omission of CONTRACTOR,any tractors or utility service companies or OWNER was not j Subcontractor, anyone directly or indirectly employed by any noted in the Contract Documents,written notice thereof shall of them or anyone for whose acts any of them may be liable, be given to CONTRACTOR prior to starting any such addi- regardless of whether or not it is caused in part by a party tional work. if CONTRACTOR believes that the perform- indemnified hereunder. ance of such additional work by OWNER or others involves additional expense to CONTRACTOR or requires an ex- 6.31. In any and all claims against OWNER or ENGI- tension of the Contract Time, CONTRACTOR may make a NEER or any of their agents or employees by any employee of claim therefor as provided in Articles II and 12. 16 • ARTICLE 8—OWNER'S RESPONSIBILITIES progress and quality of the executed Work and to determine, in general, if the Work is proceeding in accordance with the 8.1. OWNER shall issue all communications to Contract Documents. ENGINEER will not be required to CONTRACTOR through ENGINEER. make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. ENGINEER's efforts 8.2. In ease of termination of the employment of ENGI- will be directed toward providing for OWNER a greater de- NEER, OWNER shall appoint an engineer against whom gree of confidence that the completed Work will conform to CONTRACTOR makes no reasonable objection, whose the Contract Documents. On the basis of such visits and on- ctat, under the Contract Documents shall be that of the site observations as an experienced and qualified design pro- former ENGINEER. Any dispute in connection with such fessional, ENGINEER will keep OWNER informed of the appoinment shall be subject to arbitration. progress of the Work and will endeavor to guard OWNER against defects and deficiencies in the Work. 8.3. OWNER shall furnish the data required of OWNER V under the Contract Documents promptly and shall make pay- Clarifications and Interpretations: ments to CONTRACTOR promptly after they are due as 9.3. ENGINEER will issue with reasonable promptness provided in paragraphs 14.4 and 14.13. such written clarifications or interpretations of the Contract Documents (in the form of Drawings or otherwise) as ENGI- 8.4. OWNER's duties in respect of providing lands and NEER may determine necessary, which shall be consistent easements and providing engineering surveys to establish ref- with or reasonably inferable from the overall intent of the erence points are set forth in paragraphs 4.1 and 4.4 Para- Contract Documents. If CONTRACTOR believes that a writ- graph 4.2 refers to OWNER's identifying and making avail- ten clarification or interpretation justifies an increase in the able to CONTRACTOR copies of reports of investigations Contract Price or Contract Time,CONTRACTOR may make and tests of subsurface and latent physical conditions at the a claim therefor as provided in Article 11 or Article 12. site or otherwise affecting performance of the Work which have been relied upon by ENGINEER in preparing the Draw- Rejecting Defective Work: ings and Specifications. 9.4. ENGINEER will have authority to disapprove or reject Work which is defective,and will also have authority to 8.5. OWNER's responsibilities in respect of purchasing require special inspection or testing of the Work as provided and maintaining liability and property insurance are set forth in paragraph 13.9, whether or not the Work is fabricated, in paragraphs 5.5 through 5.7. installed or completed. 8.6. In connection with OWNER's rights to request Shop Drawings, Change Orders and Payments: changes in the Work in accordance with Article 10, OWNER (especially in certain instances as provided in paragraph 10.4) 9.5. In connection with ENGINEER's responsibility for is obligated to execute Change Orders. Shop Drawings and samples, see paragraphs 6.23 through : 6.29 inclusive. 8.7. OWNER's responsibility in respect of certain inspections,tests and approvals is set forth in paragraph 13.4. 9.6. In connection with ENGINEER's responsibilities as ' j to Change Orders,see Articles 10, 11 and 12. 8.8. In connection with OWNER's right to stop Work or suspend Work, see paragraphs 13.10 and 15.1. Paragraph 9.7. In connection with ENGINEER's responsibilities in 15.2 deals with OWNER's right to terminate services of respect of Applications for Payment,etc.,see Article 14. CONTRACTOR under certain circumstances. Project Representation: 9.8. If OWNER and ENGINEER agree, ENGINEER will ARTICLE 9—ENGINEER'S STATUS DURING furnish a Resident Project Representative to assist ENGI- CONSTRUCTION NEER in observing the performance of the Work.The duties, responsibilities and limitations of authority of any such Owner's Representative: Resident Project Representative and assistants will be as 9.1. ENGINEER will be OWNER's respresentative dur- provided in the Supplementary Conditions. If OWNER des- ing the construction period. The duties and responsibilities ignates another agent to represent him at the site who is not and the limitations of authority of ENGINEER as OWNER's ENGINEER's agent or employee, the duties, responsibilities representative during construction are set forth in the Con- and limitations of authority of such other person will be as tract Documents and shall not be extended without written provided in the Supplementary Conditions. consent of OWNER and ENGINEER. Decisions on Disagreements: Visits to Site: 9.9. ENGINEER will be the initial interpreter of the re- 9.2. ENGINEER will make visits to the site at intervals quirements of the Contract Documents and judge of the ac- appropriate to the various stages of construction to observe the ceptability of the Work thereunder. Claims, disputes and 17 • . other matters relating to the acceptability of the Work or the 9.14. ENGINEER will not be responsible for the acts or interpretation of the requirements of the Contract Documents omissions of CONTRACTOR or of any Subcontractors,or of pertaining to the execution and progress of the Work shall be the agents or employees of any CONTRACTOR or Subcon- J referred initially to ENGINEER in writing with a request for a tractor, or of any other persons at the site or otherwise formal decision in accordance with this paragraph, which performing any of the Work. ENGINEER will render in writing within a reasonable time. Written notice of each such claim, dispute and other matter ARTICLE 10--CHANGES IN THE WORK shall be delivered by the claimant to ENGINEER and the other party to the Agreement within fifteen days of the occur- 10.1. Without invalidating the Agreement,OWNER may, ? rence of the event giving rise thereto, and written supposing at any time or from time to time, order additions,deletions or data will be submitted to ENGINEER and the other party revisions in the Work; these will be authorized by Change within forty-five days of such occurrence unless ENGINEER Orders. Upon receipt of a Change Order, CONTRACTOR allows an additional period of time to ascertain more accurate shall proceed with the Work involved. All such Work shall be data. In his capacity as interpreter and judge ENGINEER will executed under the applicable conditions of the Contract not show partiality to OWNER or CONTRACTOR and will Documents. If any Change Order causes an increase or de- not be liable in connection with any interpretation or decision crease in the Contract Price or an extension or shortening of rendered in good faith in such capacity. the Contract Time, an equitable adjustment will be made as provided in Article 11 or Article 12 on the basis of a claim 9.10. The rendering of a decision by ENGINEER pursu- made by either party. ant to paragraph 9.9 with respect to any such claim,dispute or other matter(except any which have been waived by the mak- 10.2. ENGINEER may authorize minor changes in the ing or acceptance of final payment as provided in paragraph Work not involving an adjustment in the Contract Price or the 14.16) will be a condition precedent to any exercise by Contract Time, which are consistent with the overall intent of OWNER or CONTRACTOR of such rights or remedies as the Contract Documents. These may be accomplished by a either may otherwise have under the Contract Documents or Field Order and shall be binding on OVI'NER, and also on at law in respect of any such claim,dispute or other matter. CONTRACTOR who shall perform the change promptly. If CONTRACTOR believes that a Field Order justifies an increase in the Contract Price or Contract Time, CON- Limitations on ENGINEER's Responsibilities: TRACTOR may make a claim therefor as provided in Article 9.11. Neither ENGINEER's authority to act under this 11 or Article 12. Article 9 or elsewhere in the Contract Documents nor any decision made by ENGINEER in good faith either to exercise 10.3. Additional Work performed without authorization or not exercise such authority shall give rise to any duty or of a Change Order will not entitle CONTRACTOR to an in responsibility of ENGINEER to CONTRACTOR, any Sub- crease in the Contract Price or an extension of the Contract contractor, any manufacturer, fabricator, supplier or dis Time, except in the case of an emergency as provided in para- tributor;or any of their agents or employees or any other graph 6.22 and except as provided in paragraphs 10.2 and person performing any of the Work. 13.9. - 9.12. Whenever in the Contract Documents the terms "as 10.4. OWNER shall execute appropriate Change Orders ordered", "as directed", "as required", "as allowed" or prepared by ENGINEER covering changes in the Work which terms of like effect or import are used, or the adjectives are required by OWNER, or required because of unforeseen "reasonable", "suitable", "acceptable", "proper" or physical conditions or emergencies, or because of uncovering "satisfactory" or adjectives of like effect or import are used, Work found not to be defective, or as provided in paragraphs to describe requirement, direction, review or judgment of 11.9 or 11.10, or because of any other claim of CONTRAC- ENGINEER as to the Work, it is intended that such require- TOR for a change in the Contract Time or the Contract Price ment, direction, review or judgment will be solely to evaluate which is recommended by ENGINEER. the Work for compliance with the Contract Documents (unless there is a specific statement indicating otherwise). The 10.5. If notice of any change affecting the general scope use of any such term or adjective never indicates that ENGI- of the Work or change in the Contract Price is required by the NEER shall have authority to supervise or direct performance provisions of any Bond to be given to the Surety, it will be of the Work or authority to undertake responsibility contrary CONTRACTOR's responsibility to so notify the Surety, and to the provisions of paragraphs 9.13 or 9.14. the amount of each applicable Bond shall be adjusted accord- ingly. CONTRACTOR shall furnish proof of such adjust- 9.13. ENGINEER will not be responsible for CON- mens to OWNER. TRACTOR's means, methods, techniques, sequences or pro- cedures of construction, or the safety precautions and ARTICLE I1--CHANGE OF CONTRACT PRICE programs incident thereto, and ENGINEER will not be re- sponsible for CONTRACTOR's failure to perform the Work 1 1.1. The Contract Price constitutes the total in accordance with the Contract Documents. compensation (subject to authorized adjustments) payable to 18 CONTRACTOR for performing the Work. All duties, re- 11.4.2. Cost of all materials and equipment furnished sponsibilities and obligations assigned to or undertaken by and incorporated in the Work,including costs of transpor- CONTRACTOR shall be at his expense without change in the tation and storage thereof, and manufacturers' field Contract Price. services required in connection therewith. All cash dis- counts shall accrue to CONTRACTOR unless OWNER 11.2. The Contract Price may only be changed by a deposits funds with CONTRACTOR with which to make Change Order. Any claim for an increase in the Contract payments, in which case the cash discounts shall accrue to Price shall be based on written notice delivered to OWNER OWNER. All trade discounts, rebates and refunds,and all and ENGINEER within fifteen days of the occurrence of the returns from sale of surplus materials and equipment shall event giving rise to the claim. Notice of the amount of the accrue to OWNER and CONTRACTOR shall make provi- claim with supporting data shall be delivered within forty-five sions so that they may be obtained. days of such occurrence unless ENGINEER allows an addi- tional period of time to ascertain accurate cost data. All 11.4.3. Payments made by CONTRACTOR to the claims for adjustment in the Contract Price shall be deter- Subcontractors for Work performed by Subcontractors.If mined by ENGINEER if OWNER and CONTRACTOR can- required by OWNER, CONTRACTOR shall obtain corn- not otherwise agree on the amount involved. Any change in petitive bids from Subcontractors acceptable to CON- the Contract Price resulting from any such claim shall be in- TRACTOR and shall deliver such bids to OWNER who corporated in a Change Order. • will then determine, v,ith the advice of ENGINEER,which bids will be accepted. If a subcontract provides that the 11.3. The value of any Work covered by a Change Order Subcontractor is to be paid on the basis of Cost of the or of any claim for an increase or decrease in the Contract Work Plus a Fee, the Subcontractor's Cost of the Work Price shall be determined in one of the following ways: shall be determined in the same manner as CONTAC- TOR's Cost of the Work.All subcontracts shall be subject 11.3.1. Where the Work involved is covered by unit to the other provisions of the Contract Documents insofar prices contained in the Contract Documents, by applica- as applicable. tion of unit prices to the quantities of the items involved (subject to the provisions of paragraph 11.9). 11.4.4. Costs of special consultants(including,but not limited to, engineers, architects, testing laboratories, sur- 11.3.2. By mutual acceptance of a lump sum. veyors, lawyers and accountants) employed for services specifically related to the Work. 11.3.3. On the basis of the Cost of the Work (deter- mined as provided in paragraphs 11.4 and 11.5) plus a 11.4.5. Supplemental costs including the following: Contractor's Fee for overhead and profit (determined as provided in paragraph 11.6). 11.4.5.1. The proportion of necessary trans- portation, travel and subsistence expenses of CON- Cost of the Work: TRACTOR's employees incurred in discharge of duties 11.4. The term Cost of the Work means the sum of all connected with the Work. costs necessarily incurred and paid by CONTRACTOR in the 11.4.5.2. Cost, including transportation and proper performance of the Work. Except as otherwise may be maintenance, of all materials, supplies, equipment, agreed to in writing by OWNER, such costs shall be in machinery, appliances, office and temporary facilities amounts no higher than those prevailing in the locality of the at the site and hand tools not owned by the workmen, Project, shall include only the following items and shall not which are consumed in the performance of the Work, include any of the costs itemized in paragraph 11.5: and cost less market value of such items used but not 11.4.1. Payroll costs for employees in the direct consumed which remain the property of CON- em to of CONTRACTOR in the TRACTOR. employ performance of the Work under schedules of job classifications agreed upon 11.4.5.3. Rentals of all construction equipment and by OWNER and CONTRACTOR. Payroll costs for em- machinery and the parts thereof whether rented from plbyees not employed full time on the Work shall be appor- CONTRACTOR or others in accordance with rental tioned on the basis of their time spent on the Work. agreements approved by OWNER with the advice of Payroll costs shall include, but not be lira ed to, salaries ENGINEER, and the costs of transportation, loading, and wages plus the cost of fringe beige;its which shall unloading, installation, dismantling and removal include social security contributions, unemployment, thereof—all in accordance with terms of said rental excise and payroll taxes, workers' or workmen's compen- agreements. The rental of any such equipment, sation,health and retirement benefits,bonuses,sick leave, machinery or parts shall cease when the use thereof is vacation and holiday pay applicable thereto.Such employ- no longer necessary for the Work. ees shall include superintendents and foremen at the site. The expenses of performing Work after regular working 11.4.5.4. Sales, use or similar taxes related to the hours,on Sunday or legal holidays,shall be included in the Work, and for which CONTRACTOR is liable, above to the extent authorized by OWNER. imposed by any governmental authority. 19 1 11.4.5.5. Deposits lost for causes other than CON- Contract Documents to purchase and maintain the same TRACTOR's negligence,royalty payments and fees for (except for additional Bonds and insurance required be- permits and licenses. cause of changes in the Work). 11.4.5.6. Losses and damages (and related 11.5.5. Costs due to the negligence of CONTRAC- expenses), not compensated by insurance or otherwise, TOR, any Subcontractor, or anyone directly or indirectly to the Work or otherwise sustained by CONTRACTOR employed by any of them or for whose acts any of them in connection with the execution of the Work,provided may be liable, including but not limited to, the correction • they have resulted from causes other than the negligence of defective Work, disposal of materials or equipment of CONTRACTOR, any Subcontractor, or anyone di- wrongly supplied and making good any damage to rectly or indirectly employed by any of them or for p;operty. whdse acts any of them may be liable. Such losses shall include settlements made with the written consent and 11.5.6. Other overhead or general expense costs of any approval of OWNER. No such losses,damages and ex- kind and the costs of any item not specifically and penses shall be included in the Cost of the Work for the expressly included in paragraph 11.4. purpose of determining Contractor's Fee. If, however, any such loss or damage requires reconstruction and Contractor's Fee: CONTRACTOR is placed in charge thereof, CON- 11.6. The Contractor's Fee allowed to CONTRACTOR TRACTOR shall be paid for services a fee proportion- for overhead and profit shall be determined as follows: ate to that stated in paragraph 11.6.2. 11.6.1. a mutually acceptable fixed fee; or if none can 11.4.5.7. The cost of utilities, fuel and sanitary be agreed upon, facilities at the site. 11.6.2. a fee based on the following percentages of the 11.4.5.8. Minor expenses such as telegrams, long various portions of the Cost of the Work: distance telephone calls, telephone service at the site, expressage and similar petty cash items in connection 11.6.2.1. for costs incurred under paragraphs with the Work. 11.4.1 and 11.4.2, the Contractor's Fee shall be ten percent, 11.4.5.9. Cost of premiums for additional Bonds and insurance required because of changes in the Work. 11.6.2.2. for costs incurred under paragraph 11.4.3,the Contractor's Fee shall be five percent;and if 11.5. The term Cost of the Work shall not include any of a subcontract is on the basis of Cost of the Work Plus a the following: Fee, the maximum allowable to the Subcontractor as a fee for overhead and profit shall be ten percent,and 11.5.1. Payroll costs and other compensation of CON- TRACTOR's officers, executives, principals (of partner- 11.6.2.3. no fee shall be payable on the basis of ship and sole proprietorships), general managers, 'costs itemized under paragraphs 11.4.4, 11.4.5 and engineers, architects, estimators, lawyers, auditors, 11.5. accountants, purchasing and contracting agents, expedi- tors, timekeepers, clerks and other personnel employed by 11.7. The amount of credit to be allowed by CONTRAC- CONTRACTOR whether at the site or in his principal or a TOR to OWNER for any such change which results in a net branch office for general administration of the Work and decrease in cost, will be the amount of the actual net decrease. not specifically included in the agreed upon schedule of job When both additions and credits are involved in any one classifications referred to in subparagraph 11.4.1—all of change, the combined overhead and profit shall be figured on which are to be considered administrative costs covered by the basis of the net increase,if any. the Contractor's Fee. Adjustment of Unit Prices: • 11.5.2. Expenses of CONTRACTOR's principal and 11.8. Whenever the cost of any Work is to be determined branch offices other than CONTRACTOR's office at the pursuant to paragraphs 11.4 and 11.5, CONTRACTOR will site. submit in form acceptable to ENGINEER an itemized cost breakdown together with supporting data. 11.5.3. Any part of CONTRACTOR's capital ex- penses, including interest on CONTRACTOR's capital 11.9. Where the quantity of Work with respect to any employed for the Work and charges against CON- item that is covered by a unit price differs materially and sig- TRACTOR for delinquent payments. nificantly from the quantity of such Work indicated in the Contract Documents, an appropriate Change Order shall be 11.5.4. Cost of premiums for all Bonds and for all in- issued on recommendation of ENGINEER to adjust the unit surance whether or not CONTRACTOR is required by the price. 20 • f Cash Allowances: Access to Work: 11.10. It is understood that CONTRACTOR has included 13.2. ENGINEER and ENGINEER's representatives, in the Contract Price all allowances so named in the Contract other representatives of OWNER, testing agencies and gov- Documents and shall cause the Work so covered to be done by ernmental agencies with jurisdictional interests will have ac- such Subcontractors, manufacturers, fabricators, suppliers or cess to the Work at reasonable times for their observation,in- distributors and for such sums within the limit of the allow- spection and testing. CONTRACTOR shall provide proper ances as may be acceptable to ENGINEER. Upon final pay- and safe conditions for such access. ment, the Contract Price shall be adjusted as required and an af.dropriate Change Order issued. CONTRACTOR agrees Tests and Inspections: that the original Contract Price includes such sums as CON- 13.3. CONTRACTOR shall give ENGINEER timely TRACTOR deems proper for costs and profit on account of notice of readiness of the Work for all required inspections, cash allowances. No demand for additional cost or profit in tests or approvals. connection therewith will be valid. 13.4. If any law, ordinance, rule, regulation, code, or order of any public body having jurisdiction requires any Work (or part thereof) to specifically be inspected, tested or ARTICLE 12=CHANGE OF THE CONTRACT TIME approved, CONTRACTOR shall assume full responsibility therefor, pay all costs in connection therewith and furnish 12.1. The Contract Time may only be changed by a ENGINEER the required certificates of inspection, testing or Change Order. Any claim for an extension in the Contract approval. CONTRACTOR shall also be responsible for and Time shall be based on written notice delivered to OWNER shall pay all costs in connection with any inspection or testing and ENGINEER within fifteen days of the occurrence of the required in connection with OWNER's or ENGINEER's ac- event giving rise to the claim. Notice of the extent of the claim ceptance of a manufacturer, fabricator, supplier or distrib- - with supporting data shall be delivered within forty-five days utor of materials or equipment proposed to he incorporated in of such occurrence unless ENGINEER allows an additional the Work, or of materials or equipment submitted for ap- period of time to ascertain more accurate data. All claims for proval prior to CONTRACTOR's purchase thereof for incor- adjustment in the Contract Time shall be determined by poration in the Work. The cost of all other inspections, tests ENGINEER if OWNER and CONTRACTOR cannot other- and approvals required by the Contract Documents shall be wise agree. Any change in the Contract Time resulting from paid by OWNER(unless otherwise specified). any such claim shall he incorporated in a Change Order. 13.5. All inspections, tests or approvals other than those 12.2. The Contract Time will be extended in an amount required by law, ordinance, rule, regulation, code or order of equal to time lost due to delays beyond the control of CON- any public body having jurisdiction shall be performed by or- TRACTOR if a claim is made therefor as provided in para- ganizations acceptable to OWNER and CONTRACTOR (or graph 12.1. Such delays shall include, but not be limited to, by ENGINEER if so specified). acts or neglect by OWNER or others performing additional Work as contemplated by Article 7, or to fires, floods, labor 13.6. If any Work that is to be inspected, tested or ap- disputes, epidemics, abnormal weather conditions, or acts of _ proved is covered without written concurrence of ENGI- God. NEER, it must, if requested by ENGINEER, be uncovered for observation. Such uncovering shall be at CONTRAC- II 12.3. All time limits stated in the Contract Documents are TOR's expense unless CONTRACTOR has given ENGI- of the essence of the Agreement.The provisions of this Article NEER timely notice of CONTRACTOR's intention to cover 12 shall not exclude recovery for damages(including cempen- such Work and ENGINEER has not acted with reasonable sation for additional professional services) for delay by either promptness in response to such notice. party. 13.7. Neither observations by ENGINEER nor inspec- t tions, tests or approvals by others shall relieve CONTRAC- ARTICLE 13—WARRANTY AND GUARANTEE; TOR from his obligations to perform the Work in accordance TESTS AND INSPECTIONS; CORREC- with the Contract Documents. TION,REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK Uncovering Work: 13.8. If any Work is covered contrary to the written re- Warranty and Guarantee: quest of ENGINEER, it must, if requested by ENGINEER, 13.1. CONTRACTOR warrants and guarantees to be uncovered for ENGINEER's observation and replaced at OWNER and ENGINEER that all Work will be in accordance CONTRACTOR's expense. with the Contract Documents and will not be defective. Prompt notice of all defects shall be given to CONTRAC- 13.9. If ENGINEER considers it necessary or advisable TOR. All defective Work, whether or not in place, may be that covered Work be observed by ENGINEER or inspected rejected,corrected or accepted as provided in this Article 13. or tested by others, CONTRACTOR, at ENGINEER's re- 21 quest, shall uncover, expose or otherwise make available for of final payment, a Change Order shall be issued incorporat- observation, inspection or testing as ENGINEER may re- ing the necessary revisions in the Contract Documents,includ- quire, that portion of the Work in question, furnishing all ing appropriate reduction in the Contract Price; or, if the ac- necessary labor, material and equipment. If it is found that ceptance occurs after such recommendation, an appropriate such Work is defective,CONTRACTOR shall bear all the ex- amount shall be paid by CONTRACTOR to OWNER. penses of such uncovering, exposure, observation, inspection OWNER May Correct Defective Work: and testing and of satisfactory reconstruction, including com- pensation for additional professional services, and an appro- priate deductive Change Order shall be issued. If, however, after written notice of ENGINEER to proceed to correct and such Work is not found to be defective,CONTRACTOR shall to correct defective Work or to remove and replace rejected be allowed an increase in the Contract Price or an extension of Work as required by ENGINEER in accordance with para- the Contract Time, or both,directly attributable to such un- graph 13.11, or if CONTRACTOR fails to perform the Work covering, exposure, observation, inspection, testing and in accordance with the Contract Documents(including any re- reconstruction if he makes a claim therefor as provided in quirements of the progress schedule), OWNER may, after Articles 11 and 12. seven days' written notice to CONTRACTOR, correct and remedy any such deficiency. In exercising his rights under this Owner May Stop the Work: paragraph OWNER shall proceed expeditiously.To the extent 13.10. If the Work is defective, or CONTRACTOR fails necessary to complete corrective and remedial action, to supply sufficient skilled workmen or suitable materials or OWNER may exclude CONTRACTOR from all or part of equipment, OWNER may order CONTRACTOR to stop the the site, take possession of all or part of the Work, and sus- Work, or any portion thereof, until the cause for such order pend CONTRACTOR's services related thereto, take posses- has been eliminated; however, this right of OWNER to stop sion of CONTRACTOR's tools, appliances, construction the Work shall not give rise to any duty on the part of equipment and machinery at the site and incorporate in the OWNER to exercise this right for the benefit of CONTRAC- Work all materials and equipment stored at the site or for TOR or any other party. which OWNER has paid CONTRACTOR but which are stored elsewhere. CONTRACTOR shall allow OWNER, Correction or Removal of Defective Work: OWNER's representatives, agents and employees such access 13.11. If required by ENGINEER, CONTRACTOR shall to the site as may be necessary to enable OWNER to exercise promptly,without cost to OWNER and as specified by ENGI- his rights under this paragraph. All direct and indirect costs of NEER, either correct any defective Work,whether or not fab OWNER in exercising such rights shall be charged against ricated, installed or completed, or, if the Work has been re CONTRACTOR in an amount verified by ENGINEER,and a jected by ENGINEER, remove it from the site and replace it Change Order shall be issued incorporating the necessary revi- with nondefective Work. sions in the Contract Documents and a reduction in the Con- tract Price.Such direct and indirect costs shall include,in par One Year Correction Period: ticular but without limitation, compensation for additional professional services required and all costs of repair and 13.12. If within one year after the date of Substantial replacement of work of others destroyed or damaged by cor- Completion or such longer period of time as may be pre- rection, removal or replacement of CONTRACTOR's defec- scribed by law or by the terms of any applicable special tive Work.CONTRACTOR shall not be allowed an extension guarantee required by the Contract Documents or by any spe- of the'Contract Time because of any delay in performance of cific provision of the Contract Documents, any Work is the Work attributable to the exercise by OWNER of found to be defective, CONTRACTOR shall promptly, OWNER's rights hereunder. without cost to OWNER and in accordance with OWNER's written instructions,either correct such defective Work, or, if ARTICLE 14—PAYMENTS TO CONTRACTOR AND it has been rejected by OWNER, remove it from the site and COMPLETION replace it with nondefective Work. If CONTRACTOR does not promptly comply with the terms of such instructions,or in Schedules: on emergency where delay would cause serious risk of loss or 14.1 At least ten days prior to submitting the first Appli- damage, OWNER may have the defective Work corrected or cation for a progress payment, CONTRACTOR shall (except the rejected Work removed and replaced, and all direct and as otherwise specified in the General Requirements)submit to indirect costs of such removal and replacement, including ENGINEER a progress schedule, a final schedule of Shop compensation for additional professional services, shall be Drawing submission and where applicable a schedule of val- paid by CONTRACTOR. ues of the Work. These schedules shall be satisfactory in form and substance to ENGINEER.The schedule of values shall in- Acceptance of Defective Work: elude quantities and unit prices aggregating the Contract 13.13. If, instead of requiring correction or removal and Price, and shall subdivide the Work into component parts in replacement of defective Work, OWNER (and, prior to sufficient detail to serve as the basis for progress payments ENGINEER's recommendation of final payment,also ENGI- during construction. Upon acceptance of the schedule of val- NEER)prefers to accept it,OWNER may do so. In such case, ues by ENGINEER, it shall be incorporated into a form of if acceptance occurs prior to ENGINEER's recommendation Application for Payment acceptable to ENGINEER. 22 • Application for Progress Payment: However, by recommending any such payment ENGINEER 14.2. At least ten days before each progress payment falls will not thereby be deemed to have represented that exhaustive due(but not more often than once a month),CONTRACTOR or continuous on-site inspections have been made to check the shall submit to ENGINEER for review an Application for quality or the quantity of the Work, or that the means, Payment filled out and signed by CONTRACTOR covering methods, techniques, sequences, and procedures of construe- the Work completed as of the date of the Application and tion have been reviewed or that any examination has been accompanied by such supporting documentation as is made to ascertain how or for what purpose CONTRACTOR required by the Contract Documents and also as ENGINEER has used the moneys paid or to be paid to CONTRACTOR on may reasonably require. If payment is requested on the basis account of the Contract Price, or that title to any Work, of materials and equipment not incorporated in the Work but materials or equipment has passed to OWNER free and clear deli%ered and suitably stored at the site or at another location of any Liens. agreed to in writing,the Application for Payment shall also be accompanied by such data, satisfactory to OWNER, as will 14.6. ENGINEER's recommendation of final payment establish OWNER's title to the material and equipment and will constitute an additional representation by ENGINEER to protect OWNER's interest therein, including applicable OWNER that the conditions precedent to CONTRACTOR's insurance. Each subsequent Application for Payment shall being entitled to final payment as set forth in paragraph 14.13 include an affidavit of CONTRACTOR stating that all have been fulfilled. previous progress payments received on account of the Work have been applied to discharge in full all of CONTRACTOR's 14.7. ENGINEER may refuse to recommend the whole or obligations reflected in prior Applications for Payment. The any part of any payment if, in his opinion, it would be incor- amount of retainage with respect to progress payments will be rect to make such representations to OWNER. He may also as stipulated in the Agreement. refuse to recommend any such payment,or,because of subse- quently discovered evidence or the results of subsequent in- CONTRACTOR's Warranty of Title: spections or tests,nullify and such payment previously recom- 14.3. CONTRACTOR warrants and guarantees that title mended to such extent as may be necessary in ENGINEER's to all Work, materials and equipment covered by any Appli- opinion to protect OWNER from loss because: cation for Payment, whether incorporated in the Projector not, will pass to OWNER at the time of payment free and 14.7.1. the Work is defective, or completed Work has clear of all liens, claims, security interests and encumbrances been damaged requiring correction or replacement, (hereafter in these General Conditions referred to as "Liens"). 14.7.2. written claims have been made against OWNER or Liens have been filed in connection with the Review of Applications for Progress Payment: Work, 14.4. ENGINEER will, within ten days after receipt of 14.7.3. the Contract Price has been reduced because of each Application for Payment,either indicate in writing a rec- Modifications, ommendation of payment and present the Application to OWNER, or return the Application to CONTRACTOR indi- 14.7.4. OWNER has been required to correct defective caring in writing ENGINEER's reasons for refusing to recom Work or complete the Work in accordance with paragraph mend payment. In the latter case,CONTRACTOR may make 13.14, the necessary corrections and resubmit the Application. OWNER shall, within ten days of presentation to him of the 14.7.5. of CONTRACTOR's unsatisfactory prosecu- Application for Payment with ENGINEER's recommenda- tion of the Work in accordance with the Contract tion pay CONTRACTOR the amount recommended. Documents,or 14.5. ENGINEER's recommendation of any payment re- 14.7.6. CONTRACTOR's failure to make payment to quested in an Application for Payment will constitute a rep- Subcontractors,or for labor,materials or equipment. resentation by ENGINEER to OWNER, based on ENGI- NEER s NGI-NEERs on-site observations of the Work in progress as an Substantial Completion: experienced and qualified design professional and on ENGI- 14.8. When CONTRACTOR considers the entire Work NEER'€ review of the Application for Payment and the ready for its intended use CONTRACTOR shall,in writing to accompanying data and schedules that the Work has pro- OWNER and ENGINEER, certify that the entire Work is gressed to the point indicated; that, to the best of substantially complete and request that ENGINEER issue a ENGINEER's knowledge,information and belief, the quality certificate of Substantial Completion. Within a reasonable of the Work is in accordance with the Contract Documents time thereafter, OWNER, CONTRACTOR and ENGINEER (subject to an evaluation of the Work as a functioning Project shall make an inspection of the Work to determine the status upon Substantial Completion,to the results of any subsequent of completion. If ENGINEER does not consider the Work tests called for in the Contract Documents and any qualifica- substantially complete, ENGINEER will notify CONTRAC- tions stated in the recommendation) and that CONTRAC- TOR in writing giving his reasons therefor. If ENGINEER TOR is entitled to payment of the amount recommended. considers the Work substantially complete, ENGINEER will 23 • • quest, shall uncover, expose or otherwise make available for of final payment, a Change Order shall be issued incorporat- observation, inspection or testing as ENGINEER may re- ing the necessary revisions in the Contract Documents,includ- quire, that portion of the Work in question, furnishing all ing appropriate reduction in the Contract Price; or, if the ac- necessary labor, material and equipment. If it is found that ceptance occurs after such recommendation, an appropriate such Work is defective,CONTRACTOR shall bear all the ex- amount shall be paid by CONTRACTOR to OWNER. penses of such uncovering, exposure, observation, inspection OWNER May Correct Defective Work: and testing and of satisfactory reconstruction, including com- pensation for additional professional services, and an appro- priate deductive Change Order shall be issued. If, however, after written notice of ENGINEER to proceed to correct and such Work is not found to be defective,CONTRACTOR shall to correct defective Work or to remove and replace rejected be allowed an increase in the Contract Price or an extension of Work as required by ENGINEER in accordance with para the Contract Time, or both,directly attributable to such un- graph 13.11,or if CONTRACTOR fails to perform the Work covering, exposure, observation, inspection, testing and in accordance with the Contract Documents(including any re- reconstruction if he makes a claim therefor as provided in quirements of the progress schedule), OWNER may, after Articles 11 and 12. seven days' written notice to CONTRACTOR, correct and remedy any such deficiency. In exercising his rights under this Owner May Stop the Work: paragraph OWNER shall proceed expeditiously.To the extent • 13.10. If the Work is defective, or CONTRACTOR fails necessary to complete corrective and remedial action, to supply sufficient skilled workmen or suitable materials or OWNER may exclude CONTRACTOR from all or part of equipment, OWNER may order CONTRACTOR to stop the the site, take possession of all or part of the Work, and sus- Work, or any portion thereof, until the cause for such order pend CONTRACTOR's services related thereto, take posses- has been eliminated; however, this right of OWNER to stop sion of CONTRACTOR's tools, appliances, construction the Work shall not give rise to any duty on the part of equipment and machinery at the site and incorporate in the OWNER to exercise this right for the benefit of CONTRAC- Work all materials and equipment stored at the site or for TOR or any other party. which OWNER has paid CONTRACTOR but which are stored elsewhere. CONTRACTOR shall allow OWNER, Correction or Removal of Defective Work: OWNER's representatives, agents and employees such access 13.11. If required by ENGINEER,CONTRACTOR shall to the site as may be necessary to enable OWNER to exercise promptly,without cost to OWNER and as specified by ENGI- his rights under this paragraph. All direct and indirect costs of NEER,either correct any defective Work,whether or not fab OWNER in exercising such rights shall be charged against ricated, installed or completed, or, if the Work has been re CONTRACTOR in an amount verified by ENGINEER,and a jected by ENGINEER, remove it from the site and replace it Change Order shall be issued incorporating the necessary revi- with nondefective Work. sions in the Contract Documents and a reduction in the Con- tract Price. Such direct and indirect costs shall include,in par- One Year Correction Period: ticular but without limitation, compensation for additional professional services required and all costs of repair and 13.12. If within one year after the date of Substantial . replacement of work of others destroyed or damaged by cor- Completion or such longer period of time as may be pre- rection, removal or replacement of CONTRACTOR's defec- scribed by law or by the terms of any applicable special tive Work. CONTRACTOR shall not be allowed an extension guarantee required by the Contract Documents or by any spe- of the Contract Time because of any delay in performance of cific provision of the Contract Documents, any Work is the Work attributable to the exercise by OWNER of found to be defective, CONTRACTOR shall promptly, OWNER's rights hereunder. without cost to OWNER and in accordance with OWNER's written instructions,either correct such defective Work, or,if ARTICLE 14—PAYMENTS TO CONTRACTOR AND it has been rejected by OWNER, remove it from the site and COMPLETION replace it with nondefective Work. If CONTRACTOR does not promptly comply with the terms of such instructions,or in Schedules: tan emergency where delay would cause serious risk of loss or 14.1 At least ten days prior to submitting the first Appli- damage, OWNER may have the defective Work corrected or cation for a progress payment, CONTRACTOR shall (except the rejected Work removed and replaced, and all direct and as otherwise specified in the General Requirements)submit to indirect costs of such removal and replacement, including ENGINEER a progress schedule, a final schedule of Shop compensation for additional professional services, shall be Drawing submission and where applicable a schedule of val- paid by CONTRACTOR. ues of the Work.These schedules shall be satisfactory in form and substance to ENGINEER.The schedule of values shall in- Acceptance of Defective Work: elude quantities and unit prices aggregating the Contract 13.13. If, instead of requiring correction or removal and Price, and shall subdivide the Work into component parts in replacement of defective Work, OWNER (and, prior to sufficient detail to serve as the basis for progress payments ENGINEER's recommendation of final payment,also ENGI- during construction. Upon acceptance of the schedule of val- NEER)prefers to accept it, OWNER may do so. In such case, ues by ENGINEER, it shall be incorporated into a form of A if acceptance occurs prior to ENGINEER's recommendation Application for Payment acceptable to ENGINEER. Li�,'z� 22 • Application for Progress Payment: However, by recommending any such payment ENGINEER 14.2. At least ten days before each progress payment falls will not thereby be deemed to have represented that exhaustive due(but not more often than once a month),CONTRACTOR or continuous on-site inspections have been made to check the shall submit to ENGINEER for review an Application for quality or the quantity of the Work, or that the means, Payment filled out and signed by CONTRACTOR covering methods, techniques, sequences, and procedures of construe- the Work completed as of the date of the Application and tion have been reviewed or that any examination has been accompanied by such supporting documentation as is made to ascertain how or for what purpose CONTRACTOR required by the Contract Documents and also as ENGINEER has used the moneys paid or to be paid to CONTRACTOR on may reasonably require. If payment is requested on the basis account of the Contract Price, or that title to any Work, of materials and equipment not incorporated in the Work but materials or equipment has passed to OWNER free and clear delivered and suitably stored at the site or at another location of any Liens. agreed to in writing,the Application for Payment shall also be accompanied by such data, satisfactory to OWNER, as will 14.6. ENGINEER's recommendation of final payment establish OWNER's title to the material and equipment and will constitute an additional representation by ENGINEER to protect OWNER's interest therein, including applicable OWNER that the conditions precedent to CONTRACTOR's insurance. Each subsequent Application for Payment shall being entitled to final payment as set forth in paragraph 14.13 include an affidavit of CONTRACTOR stating that all have been fulfilled. previous progress payments received on account of the Work have been applied to discharge in full all of CONTRACTOR's 14.7. ENGINEER may refuse to recommend the whole or obligations reflected in prior Applications for Payment. The any part of any payment if, in his opinion, it would be incor- amount of retainage with respect to progress payments will be rect to make such representations to OWNER. He may also as stipulated in the Agreement. refuse to recommend any such payment, or,because of subse- quently discovered evidence or the results of subsequent in- CONTRACTOR's Warranty of Title: spections or tests,nullify and such payment previously recom- 14.3. CONTRACTOR warrants and guarantees that title mended to such extent as may be necessary in ENGINEER's to all Work, materials and equipment covered by any Appli- opinion to protect OWNER from loss because: cation for Payment, whether incorporated in the Project or not, will pass to OWNER at the time of payment free and 14.7.1. the Work is defective, or completed Work has clear of all liens, claims, security interests and encumbrances been damaged requiring correction or replacement, (hereafter in these General Conditions referred to as "Liens"). 14.7.2. written claims have been made against OWNER or Liens have been filed in connection with the Review of Applications for Progress Payment: Work, 14.4. ENGINEER will, within ten days after receipt of 14.7.3. the Contract Price has been reduced because of each Application for Payment,either indicate in writing a rec Modifications, •ommendation of payment and present the Application to OWNER, or return the Application to CONTRACTOR indi- 14.7.4. OWNER has been required to correct defective eating in writing ENGINEER's reasons for refusing to recom- Wgrk or complete the Work in accordance with paragraph mend payment. In the latter case,CONTRACTOR may make - 13.14, the necessary corrections and resubmit the Application. OWNER shall, within ten days of presentation to him of the 14.7.5. of CONTRACTOR's unsatisfactory prosecu- Application for Payment with ENGINEER's recommenda- tion of the Work in accordance with the Contract tion pay CONTRACTOR the amount recommended. Documents,or 14.5. ENGINEER's recommendation of any payment re- 14.7.6. CONTRACTOR's failure to make payment to quested in an Application for Payment will constitute a rep- Subcontractors,or for labor,materials or equipment. ;esentation by ENGINEER to OWNER, based on ENGI- NEER's on-site observations of the Work in progress as an Substantial Completion: experienced and qualified design professional and on ENGI- 14.8. When CONTRACTOR considers the entire Work NEER's review of the Application for Payment and the ready for its intended use CONTRACTOR shall,in writing to accompanying data and schedules that the Work has pro- OWNER and ENGINEER, certify that the entire Work is gressed to the point indicated; that, to the best of substantially complete and request that ENGINEER issue a ENGINEER's knowledge,information and belief, the quality certificate of Substantial Completion. Within a reasonable of the Work is in accordance with the Contract Documents time thereafter, OWNER, CONTRACTOR and ENGINEER (subject to an evaluation of the Work as a functioning Project shall make an inspection of the Work to determine the status upon Substantial Completion,to the results of any subsequent of completion. If ENGINEER does not consider the Work tests called for in the Contract Documents and any qualifica- substantially complete, ENGINEER will notify CONTRAC- tions stated in the recommendation) and that CONTRAC- TOR in writing giving his reasons therefor. If ENGINEER TOR is entitled to payment of the amount recommended. considers the Work substantially complete, ENGINEER will 23 • prepare and deliver to OWNER a tentative certificate of Sub- of Substantial Completion as to that part of the Work, stantial Completion which shall fix the date of Substantial attaching thereto a tentative list of items to be completed Completion.There shall be attached to the certificate a tenta- or corrected before final payment. Prior to issuing a certi- tive list of items to be completed or corrected before final pay- ficate of Substantial Completion as to part of the Work ment. OWNER shall have seven days after receipt of the ten- ENGINEER will deliver to OWNER and CONTRACTOR tative certificate during which he may make written objection a written recommendation as to the division of responsi- to ENGINEER as to any provisions of the certificate or bilities pending final payment between OWNER and CON- attached list. If, after considering such objections, ENGI- TRACTOR with respect to security, operation, safety, NEER concludes that the Work is not substantially complete, maintenance, utilities and insurance for that part of the ENGINEER will within fourteen days after submission of the Work which shall become binding upon OWNER and tentative certificate to OWNER notify CONTRACTOR in CONTRACTOR at the time of issuing the definitive cer- writing, stating his reasons therefor. If,after consideration of tificate of Substantial Completion as to that part of the OWNER's objections, ENGINEER considers the Work sub- Work unless OWNER and CONTRACTOR shall have stantially complete, ENGINEER will within said fourteen otherwise agreed in writing and so informed ENGINEER. days execute and deliver to OWNER and CONTRACTOR a OWNER shall have the right to exclude CONTRACTOR definitive certificate of Substantial Completion(with a revised from any part of the Work which ENGINEER has so certi- tentative list of items to be completed or corrected) reflecting fied to be substantially complete, but OWNER shall allow such changes from the tentative certificate as he believes justi- CONTRACTOR reasonable access to complete or correct fled after consideration of any objections from OWNER. At items on the tentative list. the time of delivery of the tentative certificate of Substantial Completion ENGINEER will deliver to OWNER and CON- 14.10.2. In lieu of the issuance of a certificate of Sub- TRACTOR a written recommendation as to division of re- stantial Completion as to part of the Work, OWNER may sponsibilities pending final payment between OWNER and take over operation of a facility constituting part of the CONTRACTOR with respect to security, operation, safety, Work whether or not it is substantially complete if such maintenance, heat, utilities and insurance. Unless OWNER facility is functionally and separately useable; provided and CONTRACTOR agree otherwise in writing and so in- that prior to any such takeover,OWNER and CONTRAC- form ENGINEER prior to his issuing the definitive certificate TOR have agreed as to the division of responsibilities of Substantial Completion ENGINEER's aforesaid recom- between OWNER and CONTRACTOR for security, oper- mendation will be binding on OWNER and CONTRACTOR ation, safety, maintenance, correction period, heat, utili- until final payment. ties and insurance with respect to such facility. 14.9. OWNER shall have the right to exclude CON- 14.10.3. No occupancy of part of the Work or taking TRACTOR from the Work after the date of Substantial Com- over of operations of a facility will be accomplished prior pletion,but OWNER shall allow CONTRACTOR reasonable to compliance with the requirements of paragraph 5.14 in access to complete or correct items on the tentative list. - respect of property insurance. Partial Utilization: Final Inspection: 14.10. Use by OWNER of completed portions of the Work may be accomplished prior to Substantial Completion 14.11. Upon written notice from CONTRACTOR that of all the Work subject to the following: the Work is complete, ENGINEER will make a final inspec- tion with OWNER and CONTRACTOR and will notify 14.10.1. OWNER at any time may request CON- CONTRACTOR in writing of all particulars in which this in- TRACTOR in writing to permit OWNER to use any part spection reveals that the Work is incomplete or defective. of the Work which OWNER believes to be substantially CONTRACTOR shall immediately take such measures as are complete and which may be so used without significant necessary to remedy such deficiencies. interference with construction of the other parts of the r Work. If CONTRACTOR agrees, CONTRACTOR will Final Application for Payment: certify to OWNER and ENGINEER that said part of the 14.12. After CONTRACTOR has completed all such cor- Work is substantially complete and request ENGINEER to rections to the satisfaction of ENGINEER and delivered all • issue a certificate of Substantial Completion for that part maintenance and operating instructions, schedules, guaran- of the Work. Within a reasonable time thereafter tees, Bonds, certificates of inspection, marked-up record OWNER, CONTRACTOR and ENGINEER shall make documents and other documents—all as required by the Con- an inspection of that part of the Work to determine its tract Documents,and after ENGINEER has indicated that the status of completion. If ENGINEER does not consider Work is acceptable (subject to the provisions of paragraph that part of the Work to be substantially complete, EN- 14.16), CONTRACTOR may make application for final pay- GINEER will notify OWNER and CONTRACTOR in ment following the procedure for progress payments. The writing giving his reasons therefor. If ENGINEER con- final Application for Payment shall he accompanied by all siders that part of the Work to be substantially complete, documentation called for in the Contract Documents and such ENGINEER will execute and deliver to OWNER and other data and schedules as ENGINEER may reasonably re- CONTRACTOR a certificate to that effect, fixing the date quire, together with complete and legally effective releases or 24 waivers (satisfactory to OWNER) of all Liens arising out of shall be absolute. Neither recomniendation of any progress or or filed in connection with the Work. In lieu thereof and as final payment by ENGINEER, nor the issuance of a certifi- approved by OWNER,CONTRACTOR may furnish receipts cate of Substantial Completion,nor any payment by OWNER or releases in full;an affidavit of CONTRACTOR that the re- to CONTRACTOR under the Contract Documents, nor any leases and receipts include all labor, services, material and use or occupancy of the Work or any part thereof by equipment for which a Lien could be filed, and that all pay- OWNER, nor any act of acceptance by OWNER nor any rolls, material and equipment bills, and other indebtedness failure to do so, nor the issuance of a notice of acceptability connected with the Work for which OWNER or his property by ENGINEER pursuant to paragraph 14.13, nor any correc- mivht in any way be responsible,have been paid or otherwise tion of defective Work by OWNER shall constitute an accept- satisfied; and consent of the Surety, if any, to final payment. ance of Work not in accordance with the Contract Documents If any Subcontractor, manufacturer, fabricator, supplier or or a release of CONTRACTOR's obligation to perform the distributor fails to furnish a release or receipt in full, CON- Work in accordance with the Contract Documents. TRACTOR may furnish a Bond or other collateral satisfac- tory to OWNER to indemnify OWNER against any Lien. Waiver of Claims: 14.16. The making and acceptance of final payment shall Final Payment and Acceptance: constitute: 14.13. If, on the basis of ENGINEER's observation of the Work during construction and final inspection, and 14.16.1. a waiver of all claims by OWNER against ENGINEER's review of the final Application for Payment CONTRACTOR, except claims arising from unsettled and accompanying documentation—all as required by the Liens, from defective Work appearing after final inspec- Contract Documents, ENGINEER is satisfied that the Work tion pursuant to paragraph 14.11 or from failure to has been completed and CONTRACTOR has fulfilled all of comply with the Contract Documents or the terms of any his obligations under the Contract Documents, ENGINEER special guarantees specified therein; however, it shall not will, within ten days after receipt of the final Application for constitute a waiver by OWNER of any rights in respect of Payment, indicate in writing his recommendation of payment CONTRACTOR's, continuing obligations under the and present the Application to OWNER for payment. There- Contract Documents;and upon ENGINEER will give written notice to OWNER and CONTRACTOR that the Work is acceptable subject to the 14.16.2. a waiver of all claims by CONTRACTOR provisions of paragraph 14.16. Otherwise, ENGINEER will against OWNER other than those previously made in writ- return the Application to CONTRACTOR, indicating in ing and still unsettled. writing the reasons for refusing to recommend final pay- ment,in which case CONTRACTOR shall make the necessary corrections and resubmit the Application. If the Application ARTICLE 15—SUSPENSION OF WORK AND and accompanying documentation are appropriate as to form TERMINATION and substance, OWNER shall,within thirty days after receipt thereof pay CONTRACTOR the amount recommended by Owner May Suspend Work: ENGINEER. 15.1. OWNER may, at any time and without cause, sus- 14.14. If, through no fault of CONTRACTOR, final corn- pend the Work or any portion thereof for a period of not pletion of the Work is significantly delayed thereof and if more than ninety days by notice in writing to CONTRAC- ENGINEER so confirms, OWNER shall, upon receipt of TOR and ENGINEER which shall fix the date on which Work • CONTRACTOR's final Application for Payment and recom- shall be resumed. CONTRACTOR shall resume the Work on mendation of ENGINEER, and without terminating the the date so fixed.CONTRACTOR will be allowed an increase Agreement,make payment of the balance due for that portion in the Contract Price or an extension of the Contract Time,or of the Work fully completed and accepted. If the remaining both, directly attributable to any suspension if he makes a balance to be held by OWNER for Work not fully completed claim therefor as provided in Articles 11 and 12. or collected is less than the retainage stipulated in the Agree- ment, and if Bonds have been furnished as required in para- Owner May Terminate: graph 5.1,the written consent of the Surety to the payment of 15.2. Upon the occurrence of any one or more of the the balance due for that portion of the Work fully completed following events: and accepted shall be submitted by CONTRACTOR to EN- GINEER with the Application for such payment. Such pay- 15.2.1. if CONTRACTOR is adjudged a bankrupt or ment shall be made under the terms and conditions governing insolvent, final payment, except that it shall not constitute a waiver of claims. 15.2.2. if CONTRACTOR makes a general assign- ment for the benefit of creditors, Contractor's Continuing Obligation: 14.15. CONTRACTOR's obligation to perform and corn- 15.2.3. if a trustee or receiver is appointed for CON- plete the Work in accordance with the Contract Documents TRACTOR or for any of CONTRACTOR's property, 4 25 15.2.4. if CONTRACTOR files a petition to take ad- Contractor May Stop Work or Terminate: vantage of any debtor's act, or to reorganize under the 15.5. If, through no act or fault of CONTRACTOR, the bankruptcy or similar laws, Work is suspended for a period of more than ninety days by OWNER or under an order of court or other public authority, 15.2.5. if CONTRACTOR repeatedly fails to supply or ENGINEER fails to act on any Application for Payment sufficient skilled workmen or suitable materials or within thiry days after it is submitted, or OWNER fails for equipment, thirty days to pay CONTRACTOR any sum finally deter- mined to be due, then CONTRACTOR may, upon seven 15.2.6. if CONTRACTOR repeatedly fails to make days' written notice to OWNER and ENGINEER, terminate prompt payments to Subcontractors or for labor,materials the Agreement and recover from OWNER payment for all or equipment, Work executed and any expense sustained plus reasonable termination expenses. In addition and in lieu of terminating 15.2.7. if CONTRACTOR disregards laws, ordi- the Agreement, if ENGINEER has failed to act on an Appli- nances, rules, regulations or orders of any public body cation for Payment or OWNER has failed to make any pay- having jurisdiction, ment as aforesaid, CONTRACTOR may upon seven days' notice to OWNER and ENGINEER stop the Work until pay- 15.2.8. if CONTRACTOR disregards the authority of ment of all amounts then due. The provisions of this para- ENGINEER, or graph shall not relieve CONTRACTOR of his obligations under paragraph 6.29 to carry on the Work in accordance 15.2.9. if CONTRACTOR otherwise violates in any with the progress schedule and without delay during disputes substantial way any provisions of the Contract and disagreements with OWNER. Documents, OWNER may after giving CONTRACTOR and his Surety ARTICLE 16 ARBITRATION seven days' written notice, terminate the services of CON- 16.1. All claims, disputes and other matters in question TRACTOR, exclude CONTRACTOR from the site and take between OWNER and CONTRACTOR arising out of, or re- possession of the Work and of all CONTRACTOR's tools, lacing to the Contract Documents or the breach thereof except appliances, construction equipment and machinery at the site for claims which have been waived by the making or accept- and use the same to the full extent they could be used by CON- ance of final payment as provided by paragraph 14.16, shall TRACTOR (without liability to CONTRACTOR for trespass or conversion), incorporate in the Work all materials and be decided by arbitration in accordance with the Construction equipment stored at the site or for which OWNER has paid Industry Arbitration Rules of the American Arbitration Asso CONTRACTOR but which are stored elsewhere, and finish ciation then obtaining subject to the limitations of this Article the Work as OWNER may deem expedient. In such case 16.This agreement so to arbitrate and any other agreement or CONTRACTOR shall not be entitled to receive any further consent to arbitrate entered into in accordance herewith as payment until the Work is finished. If the unpaid balance of provided in this Article 16 will be specifically enforceable the Contract Price exceeds the direct and indirect costs of under the prevailing arbitration law of any court having juris- completing the Work, including compensation for additional diction. professional services,such excess shall be paid to CONTRAC 16.2'. No demand for arbitration of any claim, dispute or TOR. If such costs exceed such unpaid balance, CONTRAC- TOR shall pay the difference to OWNER. Such costs incurred other matter that is required to be referred to ENGINEER ini by OWNER shall be verified by ENGINEER and incorpo tially for decision in accordance with paragraph 9.9 shall be rated in a Change Order, but in finishing the Work OWNER made until the earlier of (a) the date on which ENGINEER shall not be required to obtain the lowest figure for the Work has rendered a decision or (b) the tenth day after the parties performed. have presented their evidence to ENGINEER if a written deci- sion has not been rendered by ENGINEER before that date. No demand for arbitration of any such claim,dispute or other 15.3. Where CONTRACTOR's services have been so matter shall be made later than thirty days after the date on terminated by OWNER, the termination shall not affect any which ENGINEER has rendered a written decision in respect rights of OWNER against CONTRACTOR then existing or thereof in accordance with paragraph 9.9; and the failure to which may thereafter accrue. Any retention or payment of demand arbitration within said thirty days' period shall result moneys due CONTRACTOR by OWNER will not release in ENGINEER'S decision being final and binding upon CONTRACTOR from liability. OWNER and CONTRACTOR. If ENGINEER renders a de- cision after arbitration proceedings have been initiated, such 15.4. Upon seven days'written notice to CONTRACTOR decision may be entered as evidence but shall not supersede and ENGINEER, OWNER may, without cause and without the arbitration proceedings, except where the decision is prejudice to any other right or remedy, elect to abandon the acceptable to the parties concerned. Work and terminate the Agreement. In such case, CON- TRACTOR shall be paid for all Work executed and any ex- 16.3. Notice of the demand for arbitration shall be filed in pense sustained plus reasonable termination expenses. writing with the other party to the Agreement and with the 26 American Arbitration Association,and a copy shall be sent to been validly given if delivered in person to the individual or to ENGINEER for information. The demand for arbitration a member of the firm or to an officer of the corporation for shall be made within the thirty-day period specified in para- whom it is intended, or if delivered at or sent by registered or graph 16.2 where applicable, and in all other cases within a certified mail, postage prepaid, to the last business address reasonable time after the claim, dispute or other matter in known to the giver of the notice. question has arisen, and in no event shall any such demand be made after institution of legal or equitable proceedings based on such claim, dispute or other matter in question would be Computation of Time: barred by the applicable statute of limitations. 17.2. When any period of time is referred to in the Con- 16.4. No arbitration arising out of or relating to the Con- tract Documents by days, it shall be computed to exclude the tract Documents shall include by consolidation, joinder or in first and include the last day of such period. If the last day of any other manner any other person or entity(including ENGI any such period falls on a Saturday or Sunday or on a day NEER, his agents, employees or consultants) who is not a made a legal holiday by the law of the applicable jurisdiction, party to this Agreement unless: such day shall be omitted from the computation. 16.4.1. the inclusion of such other person or entity is necessary if complete relief is to he afforded among those General: who are already parties to the arbitration, 17.3. Should OWNER or CONTRACTOR suffer injury or damage to his person or property because of any error, 16.4.2. such other person or entity is substantially in- omission or act of the other party or of any of the other par- volved in a question of law or fact which is common to ty's employees or agents or others for whose acts the other those who are already parties to the arbitration and which party is legally liable, claim shall be made in writing to the will arise in such proceedings,and other party within a reasonable time of the first observance of such injury or damage. 16.4.3. the written consent of the other person or entity sought to be included and of OWNER and CON- TRACTOR has been obtained for such inclusion, which 17.4. The duties and obligations imposed by these Gen- consent shall make specific reference to this paragraph; eral Conditions and the rights and remedies available here- but no such consent shall constitute consent to arbitration under to the parties hereto, and, in particular but without of any dispute not specifically described in such consent or limitation, the warranties, guarantees and obligations im- to arbitration with any party not specifically identified in posed upon CONTRACTOR by paragraphs 6.30, 13.1, 13.11, such consent. 13.14, 14.3 and 15.2 and all of the rights and remedies avail- able to OWNER and ENGINEER thereunder, shall be in ad- 16.5. The award rendered by the arbitrators will be final, dition to,and shall not be construed in any way as a limitation judgment may be entered upon it in any court having juris- of, any rights and remedies available to any or all of them diction thereof, and will not be subject to modification or ap- which are otherwise imposed or available by law or contract, peal except to the extent permitted by Sections 10 and 11 of by special warranty or guarantee or by other provisions of the the Federal Arbitration Act(9 U.S.C. §§l0, 11). Contract Documents, and the provisions of this paragraph shall be as effective as if repeated specifically in the Contract ARTICLE 17—MISCELLANEOUS Documents in connection with each particular duty, obliga- tion, right and remedy to which they apply. All representa- Giving Notice: tions, warranties and guarantees made in the Contract Docu- 17.1. Whenever any provision of the Contract Documents ments shall survive final payment and termination or comple- requires the giving of written notice it shall be deemed to have tion of this Agreement. 27