1996 Standard General Conditions of Consruction Contract
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This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or
modification, This document should be adapted to the particular circumstances of the contemplated Project and the
Controlling Law.
STANDARD
GENERAL CONDITIONS
OF THE
CONSTRUCTION CONTRACT
Prepared by
ENGINEERS JOINT CONTRACT DOCUMENTS COMMI'ITEE
and
;&
Issued and Published Jointly By
fI National Society of
Professional Engineers
Profes8iDIIBI Englnsers In Private Practia
4E
AMERICAN CONSULTING
ENGINEERS COUNCIL
AMERICAN SOCIETY OF
CIVIL ENGINEERS
PROFESSIONAL ENGlNEERS IN PRIVATE PRACTICE
a practice division of the
NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS
AMERICAN CONSULTING ENGINEERS COUNCIL
AMERICAN SOCIETY OF CIVIL ENGINEERS
This document has been approved and endorsed by
The Associated General T Comraotors of America
Construction Specifications Institute
~S":?-
.""
These General Conditions have been prepared for use with the Owner-Contractor Agreements (No. 1910.:s-A-l or 1910-
8-A - 2) (1996 Editions). Their provisions are interrelated and a change in one may necessitate a change in the other.
Comments concerning their usage are contained in the EJCDC User's Guide (No. '1910-50). For guidance in the
preparation of Supplementary Conditions, see Guide to the Preparation of Supplementary Conditions (No. 1910-17)
(1996 Edition).
EJCDC No. 191O~8 (1996 Edition)
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TABLE OF CONTENTS
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ARTICLE 1 - DEFINITIONS AND TERMINOLOGY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 6
1.01 Defined Tenns ................................................... 00700 _ 6
1.02 Tenninology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 8
ARTICLE 2 - PRELIMINARY MATTERS. . .. . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . . . . . . . 00700 _ 9
2.01 Delivery of Bonds ................................................. 00700 _ 9
2.02 Copies of Documents ............................................... 00700 _ 9
2.03 Commencement of Contract Times; Notice to Proceed ................,......... 00700 _ 9
2.04 Starting the Worlc ................................................. 00700 _ 9
2.05 Before Starting Construction .......................................... 00700 _ 9
2.06 Preconstruction Coriference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 10
2.07 Initial Acceptance of Schedules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 10
ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE .................... 00700 _ 10
3.01 Intent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 10
3.02 Reference Standards .............................................. 00700 _ 10
3.03 Reporting and Resolving Discrepancies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 11
3.04 Amending and Supplementing Contract Documents ........................... 00700 _ 11
3.05 Reuse ofDocumen1S . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 11
ARTICLE 4 - AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDmONS;
REFERENCE POINTS .............................................. 00700 _ 11
4.01 Availability of Lands .............................................. 00700 _ 11
4.02 Subsurface and Plrysical Conditions . " . . . . . . . . . . . . " . . . . . . . . . . . . . . . . . . . . 00700 _ 12
4.03 Differing Subsurface or Plrysical Conditions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 12
4.04 Underground Facilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 13
4.05 Reference Points " . . . . . . . . . . . " . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 13
4.06 Hazardous Environmental Condition at Site . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 14
ARTICLE 5 - BONDS AND INSURANCE . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 15
5.01 Performance, Payment, and Other Bonds ................................. 00700 _ 15
5.02 Licensed Sureties and Insurers ........................................ 00700 _ 15
5.03 Certificates of Insurance ................ . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 15
5.04 CONTRACTOR's Liability Insurance ............ . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 15
5.05 OWNER's Liability Insurance. . . . . . . . . . . . . . . .. . . . . . . . . . . . , . . . . . . . . . . . . 00700 _ 16
5.06 Property Insurance ............................................... 00700 _ 16
5.07 Waiver of Rights '" . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 17
5.08 Receipt and Application of Insurance Proceeds . . . . . . . . . . . . . . . . . . . ~ . . . . . . . . . . 00700 _ 18
5.09 Acceptance of Bonds and Insurance; Option to Replace ......................... 00700 _ 18
5.10 Partial Utilization., Acknowledgment of Property Insurer . . . . . . . . . . . . . . . . , . . . . . . . 00700 _ 18
ARTICLE 6 - CONTRACTOR'S RESPONSmIUTIES ..............................,.... 00700 _ i8
6.01 Supervision and Superintendence . , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 18
6.02 Labor,' Working Hours ................................,............ 00700 _ 19
6.03 Services, Materials, and Equipment . . . . , . . . . . . . . . . . . . . . .. . . , . . . . . . . . . . . . 00700 _ 19
6.04 Progress Schedule , . . , . . . . . . . . . . , . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . . . . 00700 _ 19
6.05 Substitutes and "Or-Equals" . . . . . . . . . . . . . . . . . . . . . . . . . . . . , , . . . . , . " . . . , 00700 _ 19
6.06 Concerning Subcontractors, Suppliers, and Others. . . . . . . . . . . . . . . . . .. . . . . . . . , . , 00700 _ 20
6.07 Patent Fees and Royalties ...................... . . . . . . . . . . . . ." . . . . . . . 00700 _ 21
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6.08 Pennits. . . . . . . , . . . .' . . . . . . . . . , , . . . . . . . . . . . . , . . . . . . . . . . . . . . . . ". . . 00700 _ 21
6.09 I..aws and Regulations, . . . . . . , . . , . . . . . . . . . . . . . . . . , . . . , . . . . . . , . , . . . . . 00700 -,22.
6.10 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . . . , . . . . . . . . . . . . . . . . . . . 00700 _ 22
6.11 Use of Site and Other Areas . . . . , , . . . . . . . . . . . . . . . . . . . . . . . , . . , . .. . , . . . . . 00700 _ 22
6.12 Record Documents . . , . . . . . . . . . , . . , . . , . . . . . . . . . . . . . . . , . " . . . , . . . . . . . 00700 _ 22
6.13 Safety and Protection . . . . . . . , . . . . , . . . . . . . . . . , . . , , . . . , . . . . . . . . . . . . , . 00700 _ 23
6.14 SafeTy Representative ,............,....................,.,.....,... 00700 _ 23
6.15 Hazard Communication Programs , . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 23
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13.07 Correction Period .......................... " . . . . . . . . . . . , . . . . . . . . 00700 _ 35
13.08 Acceptance of Defective Work. . . '. . . . . . . . . . . , . . .. . . . . . . . . ; . . . . . . . . . . . . . 00700 _ 36
13.09 OWNER May Correct Defective Work. . . . . . . . . . . . . . . . . . ... . . . . , . . . . . . . . . . . 00700 _ 36
ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION . . . . . . . . . , . . , . . . . . . . , . . . 00700 _ 36
14.01 Schedule of Values . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . , . . . . . . . 00700 _ 36
14.0Z,- Progress Payments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 37
14.03 CONTRACI'OR's Warranty of Title ..... . . . . . . . . . . . . . . . . . . . . . ; . . , . . . . . . . 00700 _ 38
14.04 Substantial Completion " . . . . . . . . . . . . . . . . , . . , . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 38
14.05 Partial Utilization ...,............................................. 00700 _ 39
14.06 Final Inspection ................................................. 00700 _ 39
14.07 Final Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . . . . . ,. . 00700 _ 39
14.08 Final Completion Delayed . . . . . . . . . . . . . . . . . . . . " . . . . . . . . . . . . . . . . . . . . . 00700 _ 40
14.09 Waiver of Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " . . . . . . . . 00700 _ 40
ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION ............................ 00700 _ 40
15.01 OWNER May Suspend Work. . . . . . . . . . . . . . " . . .. . . . . . . . . . . . .. . . . . . . . . . 00700 _ 40
15.02 OWNER May Terminate for Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700- 40
15.03 OWNER May Terminate For Convenience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700- 41
15.04 CONTRACI'OR May Stop Work or Terminate. . . . . . . . . . . . . . . . . . . . . . . . . . . . .... 00700 _ 41
ARTICLE 16 - DISPUTE RESOLUTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . 00700 _ 41
16.01 Methods and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 41
ARTICLE 17 - MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 42
17.01 Giving Notice. . . . . . . . . . . . . . . " . . . . . . . , . . . . . . . . . . . . . . . . . . . . . .. . . . 00700 _ 42
17.02 Computation ofTlmeS . ,'. . . . . . . . . . . . . . . . . , . . . . . . . . . . . . , . . , . , . . . " . . .00700 _ 42
17.03 Cumulative Remedies ........... . . . . . . . . . . . . . . . . . . . . . . . . " . . .. . . . . .. . 00700 _ 42
17.04 Survival of Obligations .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 00700 _ 42
17,05 Controlling Law .........................,....................... 00700 -42
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16. Cost of the Work--See paragraph 11.01.A for
definition.
17 . Drawings-That part of the Contract Documents
prepared or approved by ENGINEER which graphically
shows the scope, extent, and character of the Work to be
performed by CONTRACTOR. Shop Drawings and
other CONTRACTOR submittals are not Drawings as so
defined.
18. Effective Date of the Agreement-- The date
indicated in the Agreement on which it becomes effective,
but if no such date is indicated, it means the date on
which the Agreement is signed and delivered by the last
of the two parties to sign and deliver.
19. ENGlNEER--The individual or entity named as
such in the Agreement.
20. ENGINEER's Consultant--An individual or entity
haviIig a contract with ENGINEER to furnish services as
ENGINEER's independent professional associate or
consultant with respect to the Project and who is
identified as such in the Supplementary Conditions.
21. Field Order-A written order issued by ENGI-
NEER which requires minor changes in the Work but
which does not involve a change in the Contract Price or
the Contract Times.
22. General Requirements-Sections of Division 1 of
the Specifications. The General Requirements pertain to
all sections of the Specifications.
23. Hazardous Environmental Condition-The
presence at the Site of Asbestos, PCBs, Petroleum,
Hazardous Waste, or Radioactive Material in such
quantities or circumstances that may present a substantial
danger to persons or property exposed thereto in
connection with the Work.
24. Hazardous Waste-The term Hazardous Waste
shall have the meaning provided in Section 1004 of the
Solid Waste Disposal Act (42 USC Section 6903) as
amended from time to time.
25. Laws and Regulations; Laws or Regulations-Any
and all applicable laws, rules, regulations, ordinances,
codes, and orders of any and all governmental bodies,
agencies, authorities, and courts having jurisdiction.
26. Liens--;Charges, security interests, or
encumbrances upon Project funds, real property. or
personal property,
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27. Milestone--A principal event specified in the
Contract Documents relating to an intermediate comple-
tion date or time prior to Substantial Completion of all the
Work.
, 28. Notice of Award-The written notice by OWNER
to the apparent successful. bidder stating that upon timely
compliance by the apparent successful bidder with the
conditions precedent listed therein, OWNER will sign and
deliver the Agreement.
29. Notice to Proceed--A written notice given by
OWNER to CONTRACTOR fixing the date on which the
Contract Times will commence to run and on which
CONTRACTOR shall start to perform the Work under
the Contract Documents.
30. OWNER-The individual, entity, public body, or
authority with whom CONTRACTOR has entered into
the Agreement and for whom the Work is to be
performed.
31. Partial Utilization-Use by OWNER of a substan-
tially completed. part of the Work for the purpose for
which it is intended (or a related purpose) prior to
Substantial Completion of all the Work.
32. PCBs--Polychlorinated biphenyls.
33. Petroleum--Petroleum, including crude oil or any
fraction thereof which is liquid at standard conditions of
temperature and pressure (60 degrees Fahrenheit and 14.7
pounds per square inch absolute), such as oil, petroleum,
fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil
mixed with other non-Hazardous Waste and crude oils.
34. Project-The total construction of which the
Work to be performed under. the Contract Documents
may be the whole, or a part as may be indicated
elsewhere in the Contract Documents.
35. Project Manual-The bound documentary
information prepared for bidding and constructing the
Work. A listing of the contents of the Project Manual,
which may be bound in one or more volumes, is
contained in the table(s) of contents.
36. Radioactive Material--Source, special nuclear, or
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byproduct material as defmed by the ~m.ic Energy Act
of 1954 (42 USC Section 2011 et seq.) as amended from
time to time.
37. Resident Project Represemative- The authorized
representative of ENGINEER who may be assigned to the
Site or any part thereof.
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use of any such term or adjective shall not be effective to
assign to ENGINEER any duty or authority to supervise
or direct the performance of the Work or any duty or
authority to undertake responsibility contrary to the
provisions of paragraph 9.10 or any other provision of the
Contract Documents.
B. Day
ARTICLE 2 - PRELIMINARY MATTERs
2.01 Delivery of Bonds
A. When CONTRACTOR delivers the executed
Agreements to OWNER, CONTRACTOR shall also deliver
to OWNER such Bonds as CONTRACTOR may be required
to furnish.
1. The word "day" shall constitute a calendar day
of 24 hours measured from midnight to the next midnight. 2.02 Copies of Documents
C. Defective
1. The word "defective," when modifying the word
"Work," refers to Work that is unsatisfactory, faulty, or
deficient in that it does not conform to the Contract-
Documents or does not meet the requirements of any
inspection, reference standard, test, or approval referred
to in the Contract Documents, or has been damaged prior
to ENGINEER's recommendation of final payment
(unless responsibility for the protection thereof has been
assumed by OWNER at Substantial Completion in accor-
dance with paragraph 14.04 or 14.05).
D. Furnish, Install, Peiform, Provide
1. The word "furnish," when used in connection
with services, materials, or equipment, shall mean .to
supply and deliver said services, materials, or equipment
to the Site (or some other specified location) ready for use
or installation and in usable or operable condition.
2. The word "install," when used in connection
with services, materials, or equipment, shall mean to put
into use or place in final position said services, materials,
or equipment complete and ready for intended use.
3. The words "perform" or "provide," when used
in connection with services, materials, or equipment,
shall mean to furnish and install said services, materials,
or equipment complete and ready for intended use.
4. When "furnish," "install," "perform," or "pro-
vide" is not used in connection with services, materials,
or equipment in a context clearly requiring an obligation
of CONTRACTOR, "provide" is implied.
E. Unless stated otherwise in the Contract Documents,
words or phrases which have a well-known technical or
construction . industry or trade meaning are used in the
Contract Documents in accordance with such recognized
meaning.
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A. OWNER shall furnish to CONTRACTOR up to ten
copies of the Contract. Documents. Additional copies will be
furnished upon request at the cost of reproduction.
2.03 Commencement of Contract Times; Notice to Proceed
A. The Contract Times will commence to run on the
thirtieth day after the Effective Date of the Agreement or, if
a Notice to Proceed is given, on the day indicated in the
Notice to Proceed. A Notice to Proceed may be given at any
time within 30 days after the Effective Date of the
Agreement. In no event will the Contract Times commence
to run later than the sixtieth day after the day of Bid opening
or the thirtieth day after the Effective Date of the Agreement,
· whichever date is earlier.
2.04 Starting the Work
A. CONTRACTOR shall start to perform the Work on
the date when the Contract Times commence to run. No
Work shall be done at the Site prior to the date on which the
Contract Times commence to run.
2.05 Before Starting ConstTUCtion
A. CONTRAcrOR's Review of Contract Documents:
Before undertaking each part of the Work, CONTRACTOR
shall carefully study and compare the Contract Documents
and check and verify pertinent figures therein and all
applicable field measurements. CONTRACTOR shall
promptly report in writing to ENGINEER any conflict, error,
ambiguity, or discrepancy which CONTRACTOR may
discover and shall obtain a written interpretation or
clarification from ENGINEER before proceeding with any
Work affected thereby; however, CONTRACTOR shall not
be liable to OWNER or ENGINEER,Jor failure to report any
conflict, error, ambiguity, or discrepancy'in the- Contract
Documents unless CONTRACTOR knew or reasonably
should have lmown thereof.
B. Preliminary Schedules: Within ten days after the
Effective Date of the Agreement (unless otherwise specified
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except as may be otherwise specifically stated in the 3.04 Amending and Supplementing Contract Documents
Contract Documents. '
2. No provision of any such standard, specification,
manual or code, or any instruction of a Supplier shall be
effective to change the duties or responsibilities of
OWNER, CONTRACTOR, or ENGINEER, or any of
their subcontractors, cOIlSultants, agents, or employees
from those set forth in the Contract Documents, nor shall
any such provision or instruction be effective to assign to
OWNER, ENGINEER, or any of ENGINEER's
COIlSultants,agents, or employees any duty or authority
to supervise or direct the performance of the Work or any
duty or authority to undertake responsibility inconsistent
with the provisions of the Contract Documents.
3.03 Reporting and Resolving Discrepancies
A. Reporting Discrepancies
1. If, during the performance of the Work,
CONTRACTOR discovers any conflict, error, ambiguity,
or discrepancy within the Contract Documents or between
the Contract Documents and any provision of any Law or
Regulation applicable to the performance of the Work or '
of any standard, specification, manual or code, or of any
instruction of any Supplier, . CONTRACTOR shall report
it to ENGINEER in writing at once. CONTRACTOR
shall not proceed with the Work 'affected thereby (except
in an emergency as required by paragraph 6.16.A) until
an amendment or supplement to the Contract Documents
has been issued by one of the methods indicated in
paragraph 3.04; provided, however, that CONTRACTOR
shall not be liable to OWNER or ENGINEER for failure
to report any such conflict, error, ambiguity, or dis-
crepancy unless CONTRACTOR knew or reasonably
should have known thereof.
B. Resolving Discrepancies
1. Except as may be otherwise specifically stated in
the Contract Documents, the provisions of the Contract
Documents shall take precedence in resolving any
conflict, error, ambiguity, or discrepancy between the
provisions of the Contract Documents and:
a. the provisions of any standard, specification,
manual, code, or instruction (whether or not specifi-
cally incorporated by reference in the COntract
Documents); or
b. the provisions of any Laws or Regulations
applicable to the performance of the Work (unless
such an interRretation of the provisions of the
Contract Documents would resul~ in violation of such
Law or Regulation).
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A. The Contract Documents may be amended to provide
for additions, deletions, and revisions in the Work or to
modify the terms and conditions thereof in one or more of the
following ways: (i) a Written Amendment; (ii) a Change
Order; or (Hi) a Work Change Directive.
B. The requirements of the Contract Documents may be
supplemented, and minor variations and deviations in the
Work may be authorized, by one or more of the following
ways: (i) a Field Order; (ii) ENGINEER's approval of a
Shop Drawing or Sample; or (ill) ENGINEER's written
interpretation or clarification.
3.05 Reuse of Documents
A. CONTRACTOR and any Subcontractor or Supplier
or other individual or entity performing or furnishing any of
the Work under a direct or indirect contract with OWNER:
(i) shall not have or acquire any title to or ownership rights
in any of the Drawings, Specifications, or other documents
(or copies of any thereot) prepared by or bearing the seal of
ENGINEER or ENGINEER's Consultant, including
electronic media editions; and (ll) shall not reuse any of such
Drawings, Specifications, other documents, or copies thereof
on extensions of the Project or any other project without
written consent of OWNER and ENGINEER and specific
written verification or adaption by ENGINEER. This
prohibition will survive final payment, completion, and
acceptance of the Work,or termination or completion of the
Contract. Nothing herein shall preclude CONTRACTOR
from retaining copies of the Contract Documents for record
purposes.
ARTICLE 4 - AVAILABILITY OF LANDS;
SUBSURFACE AND PHYSICAL CONDmONS;
REFERENCE POINTS
4.01 Availability of Lands
A. OWNER shall furnish the Site. OWNER shall notify
CONTRACTOR of any encumbrances or restrictions not of
general application but specifically related to use of the Site
with which CONTRACTOR must comply in performing the
Work. OWNER will obtain in a timely manner and pay for
easements for permanent structures ()~ permlnent changes in
existing facilities. If CONTRACTOR and OWNER are
unable to agree on entitlement to or on the amount or extent,
if any, of any adjustment in the Contract Price or Contract
Times, or both, as a result of any delay in OWNER's
furnishing the Site, CONTRACTOR may make a Claim
therefor as provided in paragraph 10.05.
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2. 'CONTRACTOR shall not be entitled to any
adjustment in the Contract Price or Contract Times if:
a. CONTRACTOR knew of the existence of
such conditions at the time CONTRACTOR made a
fInal commitment to OWNER in respect of Contract
Price and Contract Times by the submission of a Bid
or becoming bound under a negotiated contract; or
b. the existence of such condition could
reasonably have been discovered or revealed as a
result of any examination, investigation, exploration,
test, or study of the Site and contiguous areas
required by the Bidding Requirements or Contract
Documents to be conducted by or for CON-
TRACTOR prior to CONTRACTOR's making such
fInal commitment; or
c. CONTRACTOR failed to give the written
notice within the time and as required by paragraph
4.03.A.
3. If OWNER and CONTRACTOR are unable to
agree on entitlement to or on the amount or extent, if any,
of anyadjustm.ent in' the Contract, Price or Contract
Times, or both, a Claim may be made therefor as
provided in paragraph 10.05. However, OWNER,
ENGINEER, and ENGINEER's Consultants shall notbe
liable to CONTRACTOR for any claims, costs, losses, or
damages (including but not limited to all fees and charges
of engineers, architects, attorneys, and other professionals
and all court or arbitration or other dispute resolution
costs) sustained by CONTRACTOR on or in connection
with any other project or anticipated project.
4.04 Underground Facilities
A. Shown or Indicated: The information and data shown
or indicated in the Contract Documents with respect to
existing Underground Facilities at or contiguous to the Site
is based on information and data furnished to OWNER or
ENGINEER by the owners of such Underground Facilities,
including OWNER, or by others. Unless it is otherwise
expressly provided in the Supplementary Conditions:
1. OWNER and ENGINEER shall not be
responsible for the accuracy or completeness of any, such
information or data; and
2. the cost of all of the following will be included in
the Contract Price, and CONTRACTOR shall have full
responsibility for:
a. reviewing and checking all such information
and data,
00700 - 13
b. locating all Underground Facilities shown or
indicated in the Contract Documents,
c. coordination of the Work with the owners of
such Underground Facilities, including OWNER,
during construction, and
d. the safety and protection of all such Under-
ground Facilities and repairing any damage thereto
resulting from the Work.
B. Not Shown or Indicated
1. If an Underground Facility is uncovered or
revealed at or contiguous to the Site which was not shown
or indicated, or not shown or indicated with reasonable
accuracy in the Contract Documents, CONTRACTOR
shall, promptly after becoming aware thereof and before
further disturbing conditions affected thereby or
performing any Work in connection therewith (except in
an emergency as required by paragraph 6.16.A), identify
the owner of such Underground Facility and give written
notice to that owner and to OWNER and ENGINEER.
ENGINEER will promptly review the Underground
Facility and determine the extent, if any, to which a
change is required in the Contract Documents to reflect
and document the consequences of the existence or
location of the Underground Facility. During such time,
CONTRACTOR shall be responsible for the safety and
protection of such Underground Facility.
2. If ENGINEER concludes that a change in the
Contract Documents is required, a Work Change
Directive or a Change Order wUlbe issued to reflect and
document such consequences. An equitable adjustment
shall be made in the Contract Price of Contract Times, or
both, to the extent that they are attributable to the
existence or location of any Underground Facility that
was not shown or indicated or not shown or indicated
with reasonable accuracy in the Contract Documents and
that CONTRACTOR did not know of and could' not
reasonably have been expected to be aware of or to have
anticipated. If OWNER and CONTRACTOR are unable
to agree on entitlement to or on the amount or extent, if
. any, of any such adjustment in Contract Price or Contract
Times, OWNER or CONTRACTOR may make a Claim
therefor as provided in paragraph 10.05.
4.05 Reference Poi1ltS
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A. OWNER shall provide engineering surveys to
establish reference points for construction which in
ENGINEER's judgment are necessary to enable CON-
TRACTOR to proceed with the Work. CONTRACTOR
shall be responsible for laying out the Work, shall protect and
preserve the establi$,ed reference points and propeny
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in this paragraph 4.06.E shall obligate OWNER to indemnify
any individual or entity from and against the consequences of
that individual's or entity's own negligence,
H. To the fullest extent permitted by Laws and
Regulations, CONTRACTOR shall indemnify and hold
harmless OWNER, ENGINEER, ENGINEER's Consultants,
and the officers, directors, partners, employees, agents, other
consultants, and subcontractors of each and any of them from
and against all claims, costs, losses, and damages (including
but not limited to all fees and charges of engineers,
architects, attorneys, and other professionals and all court or
arbitration or other dispute resolution costs) arising out of or
relating to a Hazardous Environmental Condition created by
CONTRACTOR or by anyone for whom CONTRACTOR is
responsible. Nothing in this paragraph 4.06.Fshall obligate
CONTRACTOR to indemnify any individual or entity from
and against the consequences of that individual's or entity's
own negligence.
1. The provisions of paragraphs 4.02, 4.03, and 4.04
are not intended to apply to a Hazardous Environmental
Condition uncovered or revealed at the Site.
ARTICLE 5 - BONDS AND INSURANCE
5.01 Performance, Payment, and Other Bonds
A. CONTRACTOR shall furnish performance and
payment Bonds, each in an amount at least equal to the
Contract Price as security for the faithful performance and
payment of all CONTRACTOR's obligations under the
Contract Documents. These Bonds shall remain in effect at
least until one year after the date when final payment
becomes due, except as provided otherwise by Laws or
Regulations or by the Contract Documents. CONTRACTOR
shall also furnish such other Bonds as are required by the
Contract Documents.
B. All Bonds shall be in the form prescribed by the
Contract Documents except as provided otherwise by Laws
or Regulations, and shall be executed by such sureties as are
named in the current list of "Companies Holding Certificates
of Authority as Acceptable Sureties on Federal Bonds and as
Acceptable Reinsuring Companies" as published in Circular
570 (amended) by the Financial Management Service, Surety ,
Bond Branch, U.S. Department of the Treasury. All Bonds
signed by an agent must be accompanied by a certified copy
of such agent's authority to act.
C. If the surety on any Bond furnished by CON-
TRACTOR is declared bankrupt or becomes insolvent or its
right to do business is terminated in any state where any part
of the Project is located or it ceases to meet the requirements
00700 - 15
of paragraph 5.01.B, CONTRACTOR shall within 20 days
thereafter substitute another Bond and surety, both of which
shall comply with the requirements of paragraphs 5.01.B and
5.02.
5.02 Licensed Sureties andlnsurers
A. All Bonds and insurance required by the Contract
Documents to be purchased and maintained by OWNER or
CONTRACTOR shall be obtained from surety or insurance
companies that are duly licensed or authorized in the
jurisdiction in which the Project is located to issue Bonds or
insurance policies for the limits and coverages so required.
Such surety and insurance companies shall also meet such
additional requirements and qualifications as may be provided
in the Supplementary Conditions.
5.03 Certificates of Insurance
A. CONTRACTOR shall deliver to OWNER, with
copies to each additional insured identified in the Supple-
mentary Conditions, certificates of insurance (and other
evidence of insurance requested by OWNER or any other
additional insured) which CONTRACTOR is required to
purchase and maintain. OWNER shall deliver to
CONTRACTOR, with copies to each additional insured
identified in the Supplementary Conditions, certificates of
insurance (and other evidence of insurance requested by
CONTRACTOR or any other additional insured) which
OWNER is required to purchase and maintain.
5.04 CONTRACTOR's Liability Insurance
A. CONTRACTOR shall purchase and maintain such
liability and other insurance as is appropriate for the Work
being performed and as will provide protection from claims
set forth below which may arise out of or result from
CONTRACTOR's performance of the Work and
CONTRACTOR's other obligations under the Contract
Documents, whether it is to be performed by
CONTRACTOR, any Subcontractor or Supplier, or by
anyone directly or indirectly employed by any of them to
perform any of the Work, or by anyone for whose acts any
of them may be liable:
1. ~laims under workers' compensation, disability
benefits, and other similar employee benefit acts;
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2. claims for damages because -@f bOdily injury,
occupational sickness or disease, or death of
CONTRACTOR's employees;
3, claims for damages because of bodily injury,
sickness or disease, or death of any person other than
CONTRACTOR's employees;
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4. cover materials and equipment stored at the Site
or at another location that was agreed to m writing by
OWNER prior to being incorporated in the Work,
provided that such materials and equipment have been
included in an Application for Payment recommended by
ENGINEER;
5. allow for partial utilization of the Work by
OWNER;
6, include testing and startup; and
7. be maintained in effect until final payment is
made unless otherwise agreed to in writing by OWNER,
CONTRACTOR, and ENGINEER with 30 days written
notice to each other additional insured to whom a certifi-
cate of insurance has been issued.
B. OWNER shall purchase and majutain such boiler and
machinery insurance or additional property insurance as may
be required by the Supplementary Conditions or Laws and
Regulations which will include the interests of OWNER,
CONTRACTOR, Subcontractors, ENGINEER,
ENGINEER's Consultants, and any other individuals or
entities identified in the Supplementary Conditions, each of
whom is deemed to have an insurable interest and shall be
listed as an insured or additional insured.
C. All the policies of insurance (and the certificates or
other evidence thereot) required to be purchased and
maintained in accordance with paragraph 5.06 will contain a
provision or endorsement that the coverage afforded 'will not
be canceled or materially changed or renewal refused Until at
least 30 days prior written notice has been given to OWNER
and CONTRACTOR and to each other additional insured to
whom a certificate of insurance has been issued and will
contain waiver provisions in accordance with paragraph 5.07.
D.' OWNER shall not be responsible for purchasing and
maintaining any property insurance specified in this
paragraph 5.06 to protect'the interests of CONTRACTOR,
Subcontractors, or others in.the Work to the extent of any
deductible amoUntS that are identified in the Supplementary
Conditions. The risk of loss within such identified deductible
amount will be borne by CONTRACTOR, Subcontractors,
or others suffering any such loss, and if any of them wishes
property insurance coverage within the limits of such
amounts, each may purchase and mawtain it at the
purchaser's own expense.
E. If CONTRACTOR requests In writing that other
special insurance be included in the property insurance
policies provided under paragraph 5.06, OWNER shall, if
possible, include such insurance, and the cost thereof will be
charged to CONTRACTOR by appropriate Change Order or
Written Amendment. Prior to commencement of the Work
00700 - 17
at the Site, OWNER shall in writing advise CONTRACTOR
whether or not such othetinsurance has been procured by
OWNER.
5.07 Waiver of Rights
A. OWNER and CONTRACTOR intend that all policies
purchased in accordance with paragraph 5.06 will protect
OWNER, CONTRACTOR, Subcontractors. ENGINEER,
ENGINEER's Consultants, and all other individuals or
entities identified in the Supplementary Conditions to be
listed as insureds or additional insureds (and the officers,
directors, partners, employees, agents, and other consultants
and subcontractors of each and any of them) in such policies
and will. provide primary coverage for all losses and damages
caused by the perils or causes of loss covered thereby. All
such policies shall cOntain provisions to the effect that in the
event of payment of any loss or damage the insurers will
have no rights of recovery against. any of the insureds or
additional insureds thereunder. OWNER and CONTRAC-
TOR waive all rights against each other and their respective
officers, directors, partners, employees, agents, and other
consultants and subcontractors of each and any of them for
all losses and damages caused by, arising out of or resulting
from any of the perils or causes of loss covered by such
policies and any other property insurance applicable to the
Work; and, in addition, waive all such rights against
Subcontractors, ENGINEER, ENGINEER's Consultants, and
, all other individuals or entities identified in the Supplemen-
tary ConditionS to be listed as insureds or additional insureds
(and the officers, directors, partners, employees, agents, and
other consultants and subcontractors of each and any of them)
under such policies for losses and damages so caused. None
of the above waivers shall extend to the rights that any party
making such waiver may have to the proceeds of insurance
held by OWNER as trustee or otherwise payable under any
policy so issued.
B. OWNER waives all rights against CONTRACTOR,
Subcontractors, ENGINEER, ENGINEER's Consultants, and
the officers, direCtors, partners, employees, agents, and other
consultants and subcontractors of each and any of the~ for:
1. loss due to business interruption, loss of use, or
other consequential loss extending beyond direct physical
loss or damage to OWNER's property or the Work
caused by, arising out of, or resulting from fire or other
peril whether or not insured by OWNER; and
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2. loss or damage to the completed Project or part
thereof caused by, arising out of, or resulting from fire or
other insured peril or cause of loss covered by any
property insurance maintained on the completed Project
or part thereof by OWNER during partial utilization
pursuant to paragraph 14.05, after Substantial Completion
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6.02 Labor; Working Hours
A. CONTRACTOR shall provide competent, suitably
qualified personnel to survey, layout, and construct the
Work as required by the Contract Documents. CON-
TRACTOR shall at all times maintain good discipline and
order at the Site.
B. Except as otherwise required for the safety or
protection of persons or the Work or property at the Site or
adjacent thereto, and except as otherwise stated in the
Contract Documents, all Work at the Site shall be performed
dwing regular working hours, and CONTRACTOR will not
permit overtime work or the performance of Work on
Saturday, SUnday, or any legal holiday without OWNER's
written consent (which will not be unreasonably withheld)
given after prior written notice to ENGINEER.
6.03 Services, Materials, and Equipment
A. Unless otherwise. specified in the General Re-
quirements, CONTRACTOR shall provide and assume full
responsibility for all services, materials, equipment, labor,
transportation, construction equipment and machinery, tools,
appliances, fuel, power, light, heat, telephone, water,
sanitary facilities, temporary facilities, and all other facilities
and incidentals necessary for the performance, testing,
start-up, and completion of the Work.
B. All materials and equipment incorporated into the
Work shall be as specified or, if not specified, shall, be of
good quality and new, except as otherwise provided in the
Contract Documents. All warranties and guarantees
specifically called for by the Specifications shall expressly
run to the benefit of OWNER. If required by ENGINEER,
CONTRACTOR shall furnish. satisfactory evidence
(including reports of required tests) as to the source, kind,
and quality of materials and equipment. All materials and
equipment shall be stored, applied, installed, connected,
erected, protected, used, cleaned, and conditioned in
accordance with instructions of the applicable Supplier,
except as otherwise may be provided in the Contract Docu-
ments.
6.04 Progress Schedule
A. CONTRACTOR shall adhere to the progress schedule
established in accordance with paragraph 2.07 as it may be
adjusted from time to time as provided below .
1. CONTRACTOR shall submit to ENGINEER for
acceptance (to the extent indicated in paragraph 2.07)
proposed adjustments in the progress schedule that will
not result in changing the Contract Times (or Milestones).
Such adjustments will conform generally to the progress
schedule then in effect and additiornilly will comply with
00700 - 19
any provisi,ons of the General Requirements applicable
thereto.
2. Proposed adjustments in the progress schedule
that will change the Contract Times (or Milestones) shall
be submitted in accordance with the requirements of
Article 12. Such adjustments may only be made by a
Change Order or Written Amendment in accordance with
Article 12.
6.05 Substitutes and "Or-Equals n
A. Whenever an item of material or equipment is
specified or described in the Contract Documents by using
the name of a proprietary item or the name of a particular
Supplier, the specification or description is intended to
establish the type, function, appearance, and quality required.
Unless the specification or description contains or is followed
by words reading that no like, equivalent, or "or-equal" item
'or no substitution is permitted, other items of material or
equipment or material or equipment' of other Suppliers may
be submitted to ENGINEER for review under the circum-
stances described below.
1. "Or-Equal" Items: If in ENGINEER's sole
discretion an item of material or equipment proposed by
CONTRACTOR is functionally equal to that named and
sufficiently similar so that no change in related Work will
be required, it may be considered by ENGINEER as an
"or-equal" item, in which case review and approval of
the proposed itemmay,in ENGINEER's sole discretion,
be accomplished without compliance with some or all of
the requirements for approval. of proposed substitute
items. For the purposes of this paragraph 6.05.A.l, a
proposed item of material or equipment will be
considered functionally equal to an item so named if:
a. in the exercise of reasonable judgment
ENGINEER determines that: (i) it is at least equal in
quality, durability, appearance, strength, and desi~
characteristics; (ii) it will reliably perform at least
equally well the function imposed by the design
concept of the completed Project as a functioning
whole, and;
b. CONTRACTOR certifies that: (i) there is no
increase in cost to the OWNER; and (ii) it will
conform substantially, ev~ with deviations, to the
detailed requirements of the item. named in the
Contract Documents.
2. Substitute Items
a. If in ENGINEER's sole discretion an item of
material or equipment proposed by CONTRACTOR
does 'not qualify as an "or-equal" item under
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~ntities to be submitted to OWNER in advance for acceptance
by OWNER by a specified date prior to the Effective Date of
the Agreement, and if CONTRACTOR has submitted a list
thereof in accordance with the Supplementary Conditions,
OWNER's acceptance (either in writing or by failing to make
written objection thereto by the date indicated for acceptance
or objection in the, Bidding Documents or the Contract
Documents) of any such Subcontractor, Supplier, or other
individual or entity so identified may be revoked on the basis
of reasonable objection after due investigation. CON-
TRACTOR shall submit an acceptable replacement for the
rejected Subcontractor, Supplier, or other individual or
entity, and the Contract Price will be adjusted by the differ-
ence in the COSt occasioned by such replacement, and an
appropriate Change Order will be issued or Written
Amendment signed. No acceptance by OWNER of any such
Subcontractor, Supplier, or other individual or entity;
whether initially or as a replacement, shall constitute a
waiver of any right of OWNER or ENGINEER to reject
defective Work.
C. CONTRACTOR shall be fully responsible to
OWNER and ENGINEER for all acts and omissions of the
Subcontractors, Suppliers, and other individuals or entities
performing or furnishing any of the Work just as
CONTRACTOR is responsible for CONTRACTOR's own
acts and omissions. Nothing in the Contract Documents shall
create for the benefit. of any such Subcontractor, Supplier,.. or'
other individual or entity any contractual relationship between
OWNER or ENGINEER and any such Subcontractor,
Supplier or other individual or entity, nor shall it create any
obligation on the part of OWNER or ENGINEER to payor
to see to the payment of any moneys due any such Subcon-
tractor. Supplier, or other individual or entity except' as may
otherwise be required by Laws and Regulations.
. D. CONTRACTOR shall be solely responsible for
scheduling and coordinating the Work of Subcontractors,
Suppliers, and other individuals or entities performing or
furnishing any of the Work under a direct or indirect contract
with CONTRACTOR.
E. CONTRACTOR shall require all Subcontractors,
Suppliers, and such other individuals or entities performing
or furnishing any of the Work to communicate with ENGI-
NEER through CONTRACTOR.
F, The divisions and sections of the Specifications and
the identifications of any Drawings shall not eontrol
CONTRACTOR in dividing the Work among Subcontractors
or Suppliers or delineating the Work to be performed by any
specific trade.
G. All Work performed for CONTRACTOR by a
Subcontractor or Supplier will be pursuant to an appropriate
agreement between CONTRACTOR and the Subcontractor
00700 - 21
or Supplier which specifically binds the Subcontractor or
Supplier to the applicable terms and conditions of the
Contract Documents for the benefit . of OWNER and
ENGINEER. Whenever any such agreement is with a
Subcontractor or Supplier who is listed as an additional
insured on the property insurance provided in paragraph
5.06, the agreement between the CONTRACTOR and the
Subcontractor or Supplier will contain provisions whereby
the Subcontractor or Supplier waives all rights against
OWNER, CONTRACTOR, ENGINEER, ENGINEER's
Consultants, and all other individuals or entities identified in
the Supplementary Conditions to be listed as insureds or
additional insureds (and the officers, directors, partners,
employees, agents, and other consultants and subcontractors
of each and any of them) for all losses and damages caused
by, arising out of, relating to, or resulting from any of the
perils or causes of loss covered by such policies and any
other property insurance applicable to the Work. If the
insurers on any such policies require separate waiver forms
to be signed by any Subcontractor or Supplier, CONTRAC-
TOR will obtain the same.
6.07 Patent Fees and Royalties
A. CONTRACTOR shall pay all license fees and
royalties and assume all. costs incident to the use in the
perfonnance of the Work or the incorporation in the Work of
any invention, design, process, product, or device which is
the subject of patent rights or copyrights held by others. If
a particular invention, design, process, product, or device is
specified in the Contract Documents for use in the
performance of the Work and if to the actual knowledge of,
OWNER or ENGINEER its use is subject to patent rights or
copyrights calling for the payment of any license fee or ,
royalty to others, the existence of such rights shall be
disclosed by OWNER in the Contract Documents. To the
fullest extent permitted by Laws and Regulations,
CONTRACTOR shall indem.nifyand hold harmless
OWNER, ENGINEER, ENGINEER's Consultants, and the
officers, directors, partners, employees or agents, and other
consultants of each and any of them from and against all
claims, costs, losses, and damages (including but not limited
to all fees and charges of engineers, architects, attorneys, and
other professionals and all court or arbitration or other
dispute resolution costs) arising out of or relating to any
infringement of patent rights or copyrights incident to the use
in the performance of the Work or resulting from the
incorporation in the Work of any invention,..pesign, process,
product, or device not specified in the Contract Documents.
6.08 Permits
A. Unless otherwise provided in the Supplementary
Conditions, CONTRACTOR shall obtain and pay for all
conStruction permits and licenses. OWNER shall' assist
CONTRACTOR, when necessary, in obtaining such permits
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Change Directives, Field Orders, and written interpretations
and clarifications in good. order and annotated to show
changes made during construction. These record documents
together with all approved Samples and a counterpart of all
approved Shop Drawings will be available to ENGINEER for
reference. Upon completion of the Work, these record
documents, Samples, and Shop Drawings will be delivered to
ENGINEER for OWNER.
6.13 Safety and Protection
A. CONTRACTOR shall be solely responsible for
initiating, mait]t;liniTlg and supervising all safety precautions
and programs in connection with the Work. CONTRACTOR
shall take all necessary precautions for the safety of, and
shall provide the necessary' protection to prevent damage,
injury or loss to:
1. all persons on the Site or who may be affected
by the Work;
2. all the Work and materials and equipment to be
incorporated therein, whether in storage on or off the
Site; and
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3. other property at the Site or adjacent thereto,
including trees, shrubs, lawns, walks, pavements,
roadways, structures, utilities, and Underground Facilities
not designated for removal, relocation:, or ,replacement in
the course of construction.
B. CONTRACTOR. shall comply with all applicable
Laws and Regulations relating to the safety of persons or
property, or to the protection of persons or property from
damage, injury, or 10ss; and shall erect and maintain all
necessary safeguards for such safety and protection.
CONTRACTOR shall notify owners of adjacent property and
of. Underground Facilities and other utility owners when
prosecution of the Work may affect them, and shall cooperate
with them in the protection, removal, relocation, and
replacement of their property. All damage, injury, or loss to
any property referred to in paragraph 6.13.A.2 or 6.13.A.3
caused, directly or indirectly, in whole or in part, by CON-
TRACTOR, any Subcontractor, Supplier, or any other
individual or entity directly or indirectly employed by any of
them to perform any of the Work, or.anyone for whose acts
any of them may be liable, shall be remedied by
CONTRACTOR (except damage or loss attributable to the
fault of Drawings or Specifications or to the acts or
omissions of OWNER. or ENGINEER or ENGINEER's Con-
sultant, or anyone employed by any of them, or anyone for
whose acts any of them may be liable, and not attributable,
directly or indirectly, in whole or'in part, to the fault or
negligence of CONTRACTOR or any Subcontractor,
Supplier, or other individual or entity directly or indirectly
employed by any of them). CONTRACTOR's duties and
00700 - 23
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responsibilities for safety and for protection of the Work shall
continue until such time as all the Work is completed and
ENGINEER has issued a notice to OWNER' and
CONTRACTOR in accordance with paragraph 14.07.B that
the Work is acceptable (except as otherwise expressly
provided in connection with Substantial Completion).
6.14 Safety Representative
A. CONTRACTOR shall designate a qualified and
experienced safety representative at the Site whose duties and
responsibilities shall be the prevention of accidents and the
maintaining and supervising of safety precautions and
programs.
6.15 Hazard Communication Programs
A. CONTRACTOR shall be responsible for coordinating
any exchange of material safety data sheets or other hazard
communication information required to be made available to
or exchanged between or among employers at the Site in
accordance with Laws or Regulations.
6.16 Emergencies
A. In emergencies affecting the safety or proteCtion of
persons or the Work or property at the Site or adjacent
thereto, CONTRACTOR is obligated to act to prevent
threatened damage, injury, or loss. CONTRACTOR shall
give ENGINEER prompt written notice if CONTRACTOR
believes that any significant changes in the Work or
variations from the Contract Documents have been caused
thereby or are required as a result thereof. If ENGINEER
determines that a change in the Contract Documents is
required because of the action taken by CONTRACTOR in
response to such an emergency, a Work Change Directive or
Change Order will be issued.
6.17 Shop Drawings and Samples
A. CONTRACTOR shall submit Shop Drawings to
ENGINEER for review and approval in accordance with the
acceptable schedule of Shop Drawings and Sample
submittals. All submittals will be identified as ENGINEER
may require and in the number of copies specified in the
General Requirements. The data shown on the Shop
Drawings will be complete with respect to quantities, dimen-
sions, specified performance and qesign criteria, materials,
and similar data to show ENGINEER the slrvices, materials,
and equipment CONTRACTOR proposes to provide and to
enable ENGINEER to review the information for the limited
purposes required by paragraph 6.17 .E.
B. CONTRACTOR shall also submit Samples to
ENGINEER for review and approval in accordance with the
acceptable schedule of Shop Drawings and Sample
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as permitted by paragraph 15.04 or as OWNER and
CONTRACTOR ttlay otherwise agree in writing.
6.19 CONTRAcrOR's Genera/Warranty and Guarantee
A. CONTRACTOR warrants and guarantees to
OWNER, ENGINEER, and ENGINEER's Consultants that
all Work will be in accordance with the Contract Documents
and will not be defective. CONTRACTOR's warranty and
guarantee hereunder excludes defects or damage caused by:
1. abuse, modification, or improper maintenance or
operation by persons other than CONTRACTOR, Sub-
contractors, Suppliers, or any other individual or entity
for whom CONTRACTOR is responsible; or
2. normal wear and tear under normal usage.
B. CONTRACTOR's obligation to perform and
complete the Work in accordance with the Contract
Documents shall be absolute. None of the following will
constitute an acceptance of Work.that is not in accordance
with the Contract Documents or a release of
CONTRACTOR's obligation to perform the Work in
accordance with ,the Contract Documents:
1. observations by ENGINEER;
2. recommendation by ENGINEER or payment by
OWNER of any progress or final payment;
3. the issuance of a certificate of Substantial
Completion by ENGINEER or any payment related
thereto by OWNER;
4. use or occupancy of the Work or any part thereof
by OWNER;
5. any acceptance by OWNER or any failure to do
so;
6. any review and approval of a Shop Drawing or
Sample submittal or the issuance of a notice of acceptabil-
ity by ENGINEER;
7. any inspection, test, or approval by others; or
8. any correction of defective Work by OWNER.
6.20 Indemnification
A. To the fullest extent permitted by Laws and Regula-
tions, CONTRACTOR shall indemnify and, hold harmless
OWNER, ENGINEER, ENGINEER's Consultants, and the
officers, directors, partners, employee~, agents, and other
consultants and subcontractors of each and any of them from
00700 - 25
,and against all claims, costs, losses, and damages (inClUding
but not limited to all fees and charges of engineers,
architects, attorneys, and other professionals and all court or
arbitration or other dispute resolution costs) arising out of or
relating to the performance of the Work, provided that any
such claim, cost, loss, or damage:
1. is attributable to bodily ~ury, sickness, disease,
or death, or to injury to or. destruction of tangible
property (other than the Work itself), including the loss of
use resulting therefrom; and
2. is caused in whole or in part by any negligent act
or omission of CONTRACTOR, any Subcontractor, any
Supplier, or any individual or entity directly or indirectly
employed by any of them to perform any of the Work or
anyone for whose acts any of them may be liable,
regardless of whether or not caused in part by any
negligence or omission of an individual or entity indem-
nified hereunder or whether liability is imposed upon such
indemnified pany by Laws and Regulations regardless of
the negligence of any such individual or entity.
B. In any and all claims against OWNER or ENGINEER
or any of their respective consultants, agents, officers,
directors, partners, or employees by any employee (or the
survivor or personal representative of such employee) of
CONTRACTOR, any Subcontractor, any Supplier, or any
individual or entity directly or indirectly employed by any of
them to perform any of the Work, or anyone for whose acts
any of them may be liable, the indemnification obligation
under paragraph 6.20.A shall not be limited in any way by
any limitation on the amount or type of damages,
compensation, or benefits payable by or for CONTRACTOR
or any such Subcontractor, Supplier, or other individual or
entity under workers' compensation acts, disability benefit
acts, or other employee benefit acts.
C. The indemnification obligations of CONTRACTOR
under paragraph 6.20.A shall not extend to the liability of
ENGINEER and ENGINEER's Consultants or to the
officers, directors, partners, employees, agents, and other
consultants and subcontractors of each and any of them
arising out of:
1. the preparation or approval of, or the failure to
prepare or approve, maps, Drawings, opinions, reports,
surveys, Change Orders, desi~ or Specifications; or
".J:
2. giving directions or instructions, or failing to
give them, if that is the primary cause of the injury or
damage.
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and tests of subsurface conditions and drawings of physical
conditions in or relating to existing surface or subsurface
structures at or contiguous to the Site that have been utilized
by ENGINEER in preparing the Contract Documents.
8.06 Insurance
A. OWNER's responsibilities, if any, in respect to pur-
chasing and maintaining liability and property insurance are
set forth in Article 5.
8.07 Change Orders
ARTICLE 9 - ENGINEER'~ STATUS DURING
CONSTRUCTION
9.01 OWNER'S Representative
A. ENGINEER will be OWNER's representative dUring
the construction period. The duties and responsibilities' and
the limitations of authority of ENGINEER as OWNER's
representative during construction are set forth in the
Contract Documents and will not be changed without written
consent of OWNER and ENGINEER.
A. OWNER is obligated to execute Change Orders as 9.02 Visits to Site
indicated in paragraph 10.03.
8.08 Inspections, Tests, and Approvals
A. OWNER's responsibility in respect to certain inspec-
tions, tests, and approvals is set forth in paragraph 13.03.B.
8.09 Limitations on OWNER's Responsibilities
A. The OWNER shall not supervise, direct, or have
control or authority over, nor be responsible for,
CONTRACTOR's means, methods, techniques, sequences,
or procedures of construction, or the safety precautions and
programs incident thereto; or for, any failure ofCON-,
TRACTOR to comply with Laws and Regulations applicable
to the performance of the Worlc. OWNER will not be
responsible for CONTRACTOR's failure to perform the
Work in accordance with the Contract Documents.
8.10 Undisclosed Hazardous Environmental Condition
A. OWNER's responsibility in respect to an undisclosed
Hazardous Environmental Condition is set forth in paragraph
4.06.
8.11 Evidence of Financial Arrangements
A. If and to the extent OWNER has agreed to furnish
CONTRACTOR reasonable evidence that fmancial
arrangements have been made to satisfy OWNER's
obligations UB.der the Contract Documents, OWNER's
responsibility in respect thereof will be as set forth in the
Supplementary Conditions.
00700 - 27
A. ENGINEER will make visits to the Site at intervals
appropriate to the various stages of construction as
ENGINEER deems necessary in order to observe as an
experienced and qualified design professional the progress
that has been made and the quality of the various. aspects of
CONTRACTOR's executed Work. Based on information
obtained during such visits and observations, ENGINEER,
for the benefit of OWNER, will determine, in general, if the
Work is proceeding in accordance with the Contract
Documents. ENGINEER will not be required to make
exhaustive or continuous inspections on the Site to check the
quality or quantity of the Work. ENGINEER's efforts will
be directed toward providing for .OWNER a greater degree
of confidence that the completed Work will conform
generally to the Contract Documents. On the basis of such
visits and observations, ENGINEER. will keep OWNER
informed of the progress of the Work and will endeavor to
guard OWNER against defective Work.
B. ENGINEER's visits and observations are subject to
all the limitations on ENGINEER's authority and
responsibility set forth in paragraph 9.10, and -particularly,
but without limitation, during'or as a result of ENGINEER's
visits or observations of CONTRACTOR's Work
ENGINEER will not supervise, direct, control, or have
authority over or be responsible for CONTRACTOR's
means, methods, techniques, sequences, or procedures of
construction, or the safety precautions and programs incident
thereto, or for any failure of CONTRACTOR to comply with
Laws and Regulations applicable to the performance of the
Work.
9.03 Project Representative
~
A. If OWNER and ENGINEER agree. ENGINEER will
furnish a Resident Project Representative to assist
ENGINEER in providing more extensive observation of the
Work. The responsibilities and authority and limitations
thereon of any such Resident Project Representative and
assistants will be as provided in paragraph 9.10 and in the
Supplementary Conditions. If OWNER designates another
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or responsibility or the undertaking, exercise, or perfonnance
of any authority or responsibility by ENGINEER shall create,
impose, or give rise to any duty in contract, ton, or
otherwise owed by ENGINEER to CONTRACTOR, any
Subcontractor, any Supplier, any other individual or entity,
or to any surety for or employee or agent of any of them.
B. ENGINEER will not supervise, direct, control, or
have authority over Ol" be responsible for CONTRACTOR's
means, methods, techniques, sequences, or procedures of
construction, or the safety precautions and programs incident
thereto, or for any failure of CONTRACTOR to comply with
Laws and Regulations applicable to the performance of the
Work. ENGINEER will not be responsible for
CONTRACTOR's failure to perform the Work in accordance
With the Contract Documents.
C. ENGINEER will not be responsible for the acts or
omissions of CONTRACTOR or of any Subcontractor, any
Supplier, or of any othel" individual or entity performing any
of the Work.
D. ENGINEER's review of the final Application for
Payment and accompanying documentation and all mainte-
nance and' operating instructions, schedules, guarantees,
Bonds, certificates of inspection, tests and approvals, and
other documentation required to be delivered by paragraph
14.07.A will only be to determine generally that their content
complies with the requirements of, and in the case of
certificates of inspections, tests, and approvals that the results
certified indicate, compliance with, the Contract Documents.
E. The limitations upon authority and responsibility set
forth in this paragraph 9.10 shall also apply to ENGINEER's
Consultants, Resident Project Representative, and assistants.
ARTICLE 10 - CHANGES IN THE WORK; CLAIMS
lO.OI Authorized Changes in the Work
A. Without invalidating the Agreement and without
notice to any surety, OWNER may, at any time or from time
to time, order additions, deletions, or revisions in the Work
by a Written Amendment, a Change Order, or a Work
Change Directive. Upon receipt of any such document,
CONTRACTOR shall promptly proceed with the Work
involved which will be performed under the applicable
conditions of the Contract Documents (except as otherwise
specifically provided).
B. If OWNER and CONTRACTOR are unable to agree
on entitlement to, or on the amount or extent, if any, of an
adjustment in the Contract Price or Contract Times, or both,
that should be allowed as a result of a Work Change
00700 - 29
Directive, a Claim may be made therefor as provided in
paragraph 10.05.
10.02 Unauthorized. Changes in the Work
A. CONTRACTOR shall not be entitled to an increase
in the Contract Price or an extension of the Contract Times
with respect to any work performed that is not required by
the Contract Documents as. amended, modified, or
supplemented as provided in paragraph 3.04, except in the
case of an emergency as provided in paragraph 6.16 or in the
case of uncovering Work as provided in paragraph 13.04.B.
10.03 Execution of Change Orders
A. OWNER and CONTRACTOR shall execute
appropriate Change Orders recommended by ENGINEER (or
Written Amendments) covering:
1. changes in the Work which are: (i) ordered by
OWNER pursuant to paragraph lO.01.A, (ii) required
because of acceptance of defective Work under para-
graph 13.08.A or OWNER's correction of defective
Work under paragraph 13.09, or (iii) agreed to by the
parties;
2. changes in the Contract Price or Contract Times
which are agreed to by the parties, including any
undisputed sum or amount of time. for Work actually
performed in accordance with a Work Change Directive;
and
3. changes in the Contract Price or Contract Times
which embody the substance of any written decision
rendered by ENGINEER pursuant to paragraph 10.05;
provided that, in lieu of executing any such Change
Orqer, an appeal may be taken from.any such decision
in accordance with the provisions of the Contract
Documents and applicable Laws and Regulations, but
during any such appeal, CONTRACTOR shall carry on
the Work and adhere to. the progress schedule as
provided in paragraph 6.18.A.
10.04 Notification to Surety
A. If notice of any change affecting the general scope
of the Work or the provisions of the Contract Documents
(including, but not limited to, Contract Price or Contract
Times) is required by the provisions~of an~ond to be given
to a surety, the giving of any such notice will be
CONTRACTOR's responsibility. The amount of each
applicable Bond will be adjusted to reflect the effect of any
such change.
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3. Payments made by CONTRACTOR to
Subcontractors for Work performed by 'Subcontractors.
If required by OWNER, CONTRACTOR shall obtain
competitive bids from subcontractors acceptable to
OWNER and CONTRACTOR and shall deliver such
bids to OWNER, who will then determine, with the
advice of ENGINEER, which bids, if any, will be
acceptable. If any subcontract provides that the
Subcontractor is to be paid on the basis of Cost of the
Work plus a fee, the Subcontractor's Cost of the Work
and fee shall be determined in the same manner as
CONTRACTOR's Cost of the Work and fee as provided
in this paragraph 11. 0 1.
4. Costs of special consultants (including but not
limited to engineers, architects, testing laboratories,
surveyors, attorneys, and accountants) employed for
services specifically related to the Work.
5. Supplemental costs including the following:
a. The proportion of necessary transportation,
travel, and subsistence expenses of
CONTRACTOR's employees incurred in discharge
of duties connected with the Work.
b. Cost, including transportation and mainte-
nance, of all materials, supplies, equipment,
machinery, appliances, office, and temporary facili-
ties at the Site, and hand tools not owned by the
workers, which are consumed in the performance of
the Work. and cost, less market value, of such items
used but not consumed which remain the property of
CONTRACTOR.
c. Rentals of all construction equipment and
machinery, and the parts thereof whether rented
from. CONTRACTOR or others in accordance with
rental agreements approved by OWNER with the
advice of ENGINEER, and the costs of
transportation, loading, unloading, assembly,
dismantling, and removal thereof. All such costs
shall be in accordance with the terms of said rental
agreements. The rental of any'such equipment, ma-
chinery, or parts shall cease when the use thereof is
no longer necessary for the Work~
d. Sales, consumer, use, and other similar
taxes related to the Work, and for which CON-
TRACTOR is liable, imposed by Laws and Regu-
lations.
e. Deposits lost for causes other than negli-
gence of CONTRACTOR, any Subcontractor, or
anyone directly or indirectly employed by any of
them or for whose acts any of them may be liable,
00700 - 31
and royalty payments and fees for permits and
licenses.
f. Losses and damages (and related expenses)
caused by damage to the Work, not compensated by
insurance or otherwise, sustained by
CONTRACTOR in connection with the perfor-
mance of the Work (except losses and damages
within the deductible amounts of property insurance
established in accordance with paragraph 5.06.D),
provided such losses and damages have resulted
from causes other than the negligence of
CONTRACTOR, any Subcontractor, or anyone
directly or indirectly employed by any of them or
for whose acts any of. them may be liable. Such
losses shall include settlements made with the
written consent and approval of OWNER. , No such
losses, damages, and expenses shall be included in
the Cost of the Work for the purpose of determining
CONTRACTOR's fee.
g. The cost of utilities, fuel, and sanitary
facilities at the Site.
h. Minor expenses such as telegrams, long
distance telephone calls, telephone service at the
Site, expressage, and similar petty cash items in
connection with the Work.
i. ' When the Cost of the Work is used to
determine the value of a Change Order or of a
Claim, the cost of premiums for additional Bonds
and insurance required because of the changes in the
Work or caused by the event giving rise to the
Claim.
j. When all the Work is performed on the
basis of cost-plus, the costs of premiums for all
Bonds and insurance CONTRACTOR is required by
the Contract Documents to purchase and maintain.
B. Costs Excluded: The term Cost of the Work shall
not include any of the following items:
1. Payroll costs and other compensation of
CONTRACTOR's officers. executives, principals (of
partnerships and sole proprietorships), general manag-
ers, engineers, architects, estim, ators, a, nomeys, audi-
. ..J( .
tors, accountants, purchasing and cdttracting agents,
expediters, timekeepers, clerks, and other personnel
employed.by CONTRACTOR, whether at the Site Or in
CONTRACTOR's principal or branch office for general
administration of the Work and not specifically included
in the agreed upon schedule of job classifications
referred to in paragraph 11.01.A.1 or specifically
covered by paragraph 11.01.AA, all of which are to be
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ARTICLE 12 - CHANGE OF CONTRACT PRICE;
CHANGE OF CONTRACT TIMES
12.01 Change of Contract Price
A. The Contract Price may only be changed by a
Change Order or by a Written Amendment. Any Claim for
an adjustment in the Contract Price shall be based on written
notice submitted by the party making the Claim to the
ENGINEER and the other party to the Contract in accor-
dance with the provisions of paragraph 10.05.
B. The value of any Work covered by a Change Order
or of any Claim for anadjustmeDt in the Contract Price will
be determined as follows:
1. where the Work involved is covered by unit
prices contained in the Contract Documents, byapplica-
tion of such unit prices to the quantities of the items
involved (subject to the provisions of paragraph 11.03 );
or
2. where the Work involved is not covered by unit
prices contained in the Contract Documents, by a
mutually agreed lump. sum (which may include an
allowance for overhead and profit not necessarily in
accordance with paragraph 12.01.C.2); or
3. where the Work involved is not covered by unit
prices contained in the Contract' Documents and agree-
ment to a lump sum is not reached under paragraph
12.01.B.2, on the basis of the Cost of the Work
(determined as provided in paragraph 11.01) plus a
CONTRACTOR's fee for overhead and profit (deter-
mined as provided in paragraph 12.01.C).
C. CONTRACTOR's Fee: The CONTRACTOR's fee
for overhead and profit shall be determined as follows:
1. a mutually acceptable fixed fee; or
2. if a fixed fee is not agreed upon, then a fee
based on the following percentages of the various
portions of the Cost of the Work:
a. for costs incurred under paragraphs
11.01.A.l and 11.01.A.2, the CONTRACTOR's
fee shall be 15 percent;
b. for costs' incurred under paragraph
11.01.A.3, the CONTRACTOR's fee shall be five
percent;
c. where. one or more tiers,of subcontracts are
on the basis of Cost of the Work plus a fee and no
00700 - 33
fixed fee is agreed upon, the intent of paragraph
12.01.C.2.a is that the Subcontractor who actually
performs the Work, at whatever tier, will be paid
a fee of 15 percent of the costs incurred by such
Subcontractor under paragraphs 11.01.A.l and
11.01.A.2 and that any higher tier Subcontractor
and CONTRACTOR will each be paid a fee of five
percent of the amount paid to the next lower tier
Subcontractor;
d. no fee shall be payable on the basis of costs
itelllizedunder paragraphs 11.01.AA, 11.01.A.S,
and 11.01.B;
e. the amount of credit to be allowed by
CONTRACTOR to OWNER for any change which
results in a net decrease in cost will be the amount
of the actual net decrease in cost plus a deduction in
CONTRACTOR's fee by an amount equal to five
percent of such net decrease; and
f. when both additions and credits are in-
volved in anyone change, the adjustment in
CONTRACTOR's fee shall be computed on the
basis of the net change in accordance with para-
graphs 12.01.C.2.a through 12.01.C.2.e, inclu;.
sive.
12.02
Change of Contract Times
A. The Contract Times (or Milestones) may only be
changed by a Change Order or by a Written Amendment.
Any Claim. for an adjustment in the Contract Times (or
Milestones) shall be based on written notice submitted by the
party making the claim to the ENGINEER and the other
party to the Contract in accordance with the. provisions of
paragraph 10.05.
B. Any adjustment of the Contract Times (or
Milestones) covered by a Change Order or of any Claim for
an adjustment in the Contract Times (or Milestones) will be
determined in accordance with the provisions of this
Article 12.
12.03 Delays Beyond CONTRACTOR's Control
A. Where CONTRACTOR is prevented from
completing any part of the' Work witQjn the .Contract Times
(or Milestones) due to delay beyond the control of
CONTRACTOR, the Contract Times (or Milestones) will be
extended in an amount eqWti to the time lost due to such
delay if a Claim is made therefor as provided in paragraph
12.02.A. Delays beyond the control of CONTRACTOR
shall include, but not be limited to, acts or neglect by
OWNER, acts or neglect of utility owners or other
contractors performing other work as contemplated' by
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E. If any Work (or the work of others) that is to be
inspected, tested, or approved is covered by CONTRACTOR
without written concurrence of ENGINEER, it must, if
requested by ENGINEER, be uncovered for observation.
F. Uncovering Work as provided in paragraph 13.03.E
shall be at CONTRACTOR's expense unless CON-
TRACTOR has given ENGINEER timely notice of
CONTRACTOR's intention to cover the same and ENGI-
NEER has not acted with reasonable promptness in response
to such notice.
13.04 Uncovering Work
A. If any Work is covered contrary to the written
request of ENGINEER, it must, if requested by ENGINEER,
be uncovered for ENGINEER's observation and replaced at
CONTRACTOR's expense.
B. If ENGINEER considers it necessary or advisable
that covered Work be observed by ENGINEER or inspected
or tested by others, CONTRACTOR, at ENGINEER's
request, shall uncover, expose, or otherwise make available
for observation, inspection, or testing as ENGINEER may
require, that portion of the Work in question, furnishing all
necessary labor, material, and equipment. If it is found that
such Work is defective, CONTRACTOR shall pay all
Claims, costs, losses, and damages (including but not limited
to all fees and charges of engineers, architects, attorneys, and
other professionals and all court or arbitration or other
dispute resolution costs), arising'.out of or relating to such
uncovering, exposure, observation, inspection, and testing,
and of satisfactory replacement or reconstruction (including
but not limited to all costs of repair or replacement of work
of others); and OWNER shall be entitled to an appropriate
decrease in the Contract Price. If the parties are unable to
agree as to the amount thereof, OWNER may make a Claim
therefor as provided in paragraph 10.05. If, however, such
Work is not found to be defective, CONTRACTOR shall be
allowed an increase in the Contract Price or an extension of
the Contract Times (or Milestones), or both, directlyattribut-
able to such uncovering, exposure, observation, inspection,
testing, replacement, and reconstruction. If the parties are
unable to agree as to the amount or extent thereof,
CONTRACTOR may make a Claim therefor as provided in
paragraph to.05.
13.05 OWNER May Stop the Work
A. If the Work is defective, or CONTRACTOR fails to
supply sufficient skilled workers or suitable materials or
equipment, or fails to perform the Work in such a way that
the completed Work will conform to the Contract
Documents, OWNER may order CONTRACTOR to stOp the-
Work., or any portion thereof, until the cause for such order
has been eliminated; however, this right'of OWNER tp stop
00700 - 35
the Work shall not give rise to any duty on the part of
OWNER to exercise this right for the benefit of
CONTRACTOR, any Subcontractor, any Supplier, any other
individual or entity, or any surety for, or employee or agent
of any of them.
13.06 Correction or Removal of Defective Work
A. CONTRACTOR shall correct all defective Work,
whether or not fabricated, installed, or completed, or, if the
Work has been rejected by ENGINEER, remove it from the
Project and replace it with Work that is not defective.
CONTRACTOR shall pay all Claims, costs, losses, and
damages (ineluding but not limited to all fees and charges of
engineers, architects, attorneys, and other professionals and
all court or arbitration or other dispute resolution costs)
arising out of or relating to such correction or removal
(including but not limited to all costs of repair or replacement
of work of others).
13.07 Correction Period
A. If within one year after the date of Substantial
Completion or such longer period of time as may be
prescribed by Laws or Regulations or by the terms of any
applicable special guarantee required by the Contract
Documents or by any specific provision. of the Contract
Documents, any Work is found to be defective, or if the
repair of any damages to the land or areas made available for
CONTRACTOR's use by OWNER or permitted by Laws and
Regulations as contemplated in paragraph 6.11.A is found to
be defective, CONTRACTOR shall promptly, without cost
to OWNER and in accordance with OWNER's written
instructions: (i) repair such defective land or areas, or (ii)
correct such defective Work or, if the defective Work has
been rejected by OWNER, remove it from the Project and
replace it with Work that is not defective, and (ill) satisfac-
torily correct or repair or remove and replace any damage to
other Work, to the work of others or other land or areas
resulting therefrom. If CONTRACTOR does not promptly
comply with the terms of such instructions, or in an
emergency where delay would cause serious risk of loss or
damage, OWNER may have the defective Work corrected or
repaired or may have the rejected Work removed and
replaced, and all Claims, costs, losses, and damages
(including but not limited to all fees and charges of
engineers, architects, attorneys, and other professionals and
all court or arbitration or other dispute resolution costs)
arising out of or relating to such corr~ction or repair or such
removal and replacement (including but not limited to all
costs of repair or replacement of work of others) will be paid
by CONTRACTOR.
B. In special circumstances where a particular item of
equipmem is placed in continuous service before Substantial
Completion of all the Work, the correction period for that
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14.02 Progress Payments
A. Applications for Payments
1. At least 20 days before the date established for
each progress payment (but not more often than once a
month), CONTRACTOR shall submit to ENGINEER
for review an Application for Payment filled out and ,
signed by CONTRACTOR covering the Work
completed as of the date of the Application and
accompanied by such supporting documentation as is
required by the Contract Documents. If payment is
requested on the basis of materials and equipment not
incorporated in the Work but delivered and suitably
stored at the Site or at another location agreed to in
writing, the Application for Payment shall also be
accompanied by a bill of sale, invoice, or other docu-
mentation warranting that OWNER has received the
materials and equipment free and clear of all Liens and
evidence that the materials and equipment are covered
by appropriate property insurance or other arrangements
to protect OWNER's interest therein, all of which must
be satisfactory to OWNER.
2. Beginning with the second Application for
Payment, each Application shall include an affidavit of
CONTRACTOR stating that all previous progress
payments received on account of the Work have been
applied on account to discharge CONTRACTOR's
legitimate obligations associated with prior Applications
for Payment.
3. The amount of retainage with respect to pro-
gress payments will be as stipulated in the Agreement.
B. Review ofApplicadons
1. ENGINEER will, within 10 days after receipt of
each Application for Paymerit, either'indicate in writing
a recommendation of payment and present the
Application to OWNER or return the Application to
CONTRACTOR indicating in writing ENGINEER's
reasons for refusing to recommend payment. In the
latter case, CONTRACTOR may make the necessary
corrections and resubmit the Application.
2. ENGINEER's recommendation of any payment
requested in an Application for Payment will constitute
a representation by ENGINEER to OWNER, based on
ENGINEER's observations on the Site of the executed
Work as an experienced and qualified design profession-
al and on ENGINEER I S review of the Application for
Payment and the accompanying data and schedules, that
to the best of ENGINEER's knowledge, information and
belief:
00700 - 37
a. the Work has progressed to the point
indicated;
b. the quality of the Work is generally in
accordance with the Contract Documents (subject to
an evaluation of the Work as a functioning whole
prior to or upon Substantial Completion, to the
results of any subsequent tests called for in the
Contract Documents, to a fInal determination of
quantities and classifications for Unit Price Work
under paragraph 9.08, and to any other
qualifIcations stated in the recommendation); and
c. the conditions precedent to
CONTRACTOR's being entitled to such payment
appear to have been fulfllled in so far as it is
ENGINEER's responsibility to observe the Work.
3. By recommending any such payment ENGI-
NEER will not thereby be deemed to have represented
that: (i) inspections made to check the quality or the
quantity of the Work as it has been performed have been
exhaustive, extended to every aspect of the Work in
progress, or involved detailed inspections of the Work
beyond the responsibilities specifically assigned to
ENGINEER in the Contract Documents; or (ii) that
there may not be other matters or issues between the
parties that might entitle CONTRACTOR to be paid
additionally by OWNER or entitle OWNER to withhold
payment to CONTRACTOR.
4. Neither ENGINEER's review of
CONTRACTOR's Work for the purposes of recom-
mending payments nor ENGINEER's recommendation
of any payment, including final payment, will impose
responsibility on ENGINEER to supervise, direct, or
control the Work or for the means, methods, techniques,
sequences, or procedures of construction, or the safety
precautions and programs incident thereto, or for CON-
TRACTOR's failure to comply with Laws and Regu-
lations applicable to CONTRACTOR's performance of
the Work. Additionally, said review or recommendation
will not impose responsibility on ENGINEER to make
any examination to ascertain how or for what purposes
CONTRACTOR has used the moneys paid on account of
the Contract Price, or to determine that title to any of
the Work, materials, or equipment has passed to
OWNER free and clear of any Liens.
"
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5. ENGINEER may refuse to recommend the
whole or any part of any payment if, in ENGINEER's
opinion, it would be incorrect to make the representa-
tions to OWNER referred to in paragraph 14.02.B.2.
ENGINEER may also refuse to recommend any such
payment or, because of subsequently discovered
evidence or the results of subsequent inspections or tests,
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ties pending fmal payment between OWNER and
CONTRACTOR with respect to security, operation, safety,
and protection of the Work, maintenance, heat, utilities,
insurance, and warranties and guarantees. Unless OWNER
and CONTRACTOR agree otherwise in writing and so
inform ENGINEER in writing prior to ENGINEER's issuing
the definitive certificate of Substantial Completion,
ENGINEER's aforesaid recommendation will be binding on
OWNER and CONTRACTOR until fmal payment.
B. OWNER shall have the right to exclude
CONTRACTOR from the Site after the date of Substantial
Completion, but OWNER shall allow CONTRACTOR
reasonable acceSs to complete or correct items on the
tentative list.
14.05 Partial Utilization
A. Use by OWNER at OWNER's option of any
substantially completed part of the Work which has
specifically been identified in the Contract Documents, or
which OWNER, ENGINEER, and CONTRACTOR agree
constitutes a separately functioning and usable part of the
Work that can be used by OWNER for its intended purpose
without significant interference with CONTRACTOR's
performance of the remainder of the Work, may be
accomplished prior to Substantial Completion of all the Work
subject to the following conditions.
1. OWNER at any time may request CON-
TRACTOR in writing to pennit OWNER to use any
such part of the Work which OWNER believes to be
ready for its iniended use and substantially complete. If
CONTRACTOR agrees that such part of the Work is
substantially complete, CONTRACTOR will certify to
OWNER and ENGINEER that such part of the Work is
substantially complete and request ENGINEER to issue
a certificate of Substantial Completion for that part of
the Work. CONTRACTOR at any time may notify
OWNER and ENGINEER in writing that
CONTRACTOR considers any such part of the Work
ready for its intended use and substantially complete and
request ENGINEER to issue a certificate of Substantial
Completion for that part of the Work. Within a
reasonable time after either such request, OWNER,
CONTRACTOR, and ENGINEER shall make an
inspection of that part of the Work to determine its status
of completion. If ENGINEER does not consider that
part of the Work to be substantially complete,
ENGINEER will notify OWNER and CONTRACTOR
in writing giving the reasons therefor. If ENGINEER
considers that part of the Work to be substantially
complete, the provisions of paragraph 14.04 will apply
with respect to certification of Substantial Completion of
that part of the Work and the division of responsibility
in respect thereof and access theretb.
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2. No occupancy or separate operation of part of
the Work may occur prior to compliance with the
requirements of paragraph 5.10 regarding property
insurance.
14.06 Final Inspection
A. Upon written notice from CONTRACTOR that the
entire Work or an agreed portion thereof is complete,
ENGINEER will promptly make a final inspection with
OWNER and CONTRACTOR and will notify CON-
TRACTOR in writing of all particwars in which this
inspection reveals that the Work is incomplete or defective.
CONTRACTOR shall immediately take such measures as are
necessary to complete such Work or remedy such
deficiencies .
14.07 Final Payment
A. Application for Payment
1. After CONTRACTOR has, in the opinion of
ENGINEER, satisfactorily completed all corrections
identified during the fmal inspection and has delivered,
in accordance with the Contract Documents, all main-
tenance and operating instructions, schedules, guaran-
tees, Bonds, certificates or other evidence of insurance
certificates of inspection, marked-up record documents
(as provided in paragraph 6.12), and other documents,
CONTRACTOR may make application for final
payment following the procedure for progress payments.
2. The final Application for Payment shall be
accompanied (except as previously delivered) by: (i) all
documentation called for in the Contract Documents,
including but not limited to the evidence of insurance
required by subparagraph 5,04.B.7; (ii) consent of the
surety, if any, to final payment;' and (iii) complete and
legally effective releases or waivers (satisfactory to
OWNER) of all Lien rights arising out of or Liens fIled
in connection with the Work.
3. In lieu of the releases or waivers of Liens
specified in paragraph 14.07.A.2 and as approved by
OWNER, CONTRACTOR may furnish receipts or
releases in full and an affidavit of CONTRACTOR that:
(i) the releases and receipts include all labor, services,
material, and equipment for which.a Lien could be filed;
and (ll) all payrolls, materialabd e~pment bills, and
other indebtedness connected with the Work for which
. OWNER or OWNER's property might in any way be
responsible have been paid or otherwise. satisfied. If any
Subcontractor or Supplier fails to furnish such a release
or receipt in full, CONTRACTOR may furnish a Bond
or other collateral satisfactory to OWNER to indemnify
OWNER against any Lien.
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the services of CONTRACTOR, exclude CONTRACTOR
from the Site, and take possession of the Work and of all
CONTRACTOR's tools, appliances, construction equipment,
and machinery, at the Site, and use the same to the full extent
they could be used by CONTRACTOR (without liability to
CONTRACTOR for trespass or conversion),. incorporate in '
the Work all materials and equipment stored at the Site or for
which OWNER has paid CONTRACTOR but which are
stored elsewhere, and finish the Work as OWNER may deem
expedient. In such case, CONTRACTOR shall not be
entitled to receive any further payment until the Work is
finished. If the unpaid balance of the Contract Price exceeds
all claims, costs, losses, and damages (including but not
limited to all fees and charges of engineers, architects,
attorneys, and other professionals and all court or arbitration
or other dispute resolution costs) sustained by OWNER
arising out of or relating to completing the Work, such excess
will be paid to CONTRACTOR. If such claims, costs,
losses, and damages exceed such unpaid balance,
CONTRACTOR shall pay the difference to OWNER. Such
claims, costs, losses, and damages incurred by OWNER will
be reviewed by ENGINEER as to their reasonableness and,
when so approved by ENGINEER, incorporated in a Change
Order. When exercising any rights or remedies .under this
paragraph OWNER shall not be required to obtain the lowest
price for the Work performed.
C. Where CONTRACTOR's services have been so
Lerminatedby OWNER, the termination will not affect any
rights or remedies of OWNER against CONTRACTOR then
existing or which may thereafter accrue. Any retention or
payment of moneys due CONTRACTOR by OWNER will
notrelease CONTRACTOR from liability.
15.03 OWNER May Tenninate For Convenience
A. Upon seven days written notice to CONTRACTOR
and ENGINEER, OWNER may, without cause and without
prejudice to any other right or remedy of OWNER, elect to
terminate the Contract. In such case, CONTRACTOR shall
be paid (without duplication of any items):
engineers, architects, attorneys, and other professionals
and all court or arbitration or other dispute resolution
costs) incurred in settlement of terminated contracts
with Subcontractors, Suppliers, and others; and
4. for reasonable expenses directIyattributable to
termination.
B. CONTRACTOR shall not be paid on account of loss
of anticipated profits or revenue or other economic loss
arising out of or resulting from such termination.
. 15.04 CONTRAcrOR May Stop Work or Tenninate
A. If, through no act or fault of CONTRACTOR, the
Work is suspended for more than 90 consecutive days by
OWNER or under an order of court or other public authority,
or ENGINEER fails to act on any Application for Payment
within 30 days after it is submitted, or OWNER fails for 30
days to pay CONTRACTOR any sum finally determined to
be due, then CONTRACTOR may, upon seven days written
notice to OWNER and ENGINEER, and provided OWNER
or ENGINEER do not remedy such suspension or. failure
within that time, terminate the Contract and recover from
OWNER payment on the same terms as provided' in
paragraph 15.03. In lieu of terminating the Contract and
without prejudice to any other right or remedy, if ENGI-
NEER has failed to act on an Application for Payment within
30 days after it is subinitted, or OWNER has failed for 30
days to pay CONTRACTOR any sum finally determined to
be due, CONTRACTOR may, seven days after written notice
to OWNER and ENGINEER, stop the Work until payment
is made of all such amounts due CONTRACTOR, including
interest thereon. The provisions of this paragraph 15.04 are
not intended to preclude CONTRACTOR from making a
Claim under paragraph 10.05 for an adjustment in Contract
Price or Contract Times or otherwise for expenses or damage
directly attributable to CONTRACTOR's stopping the Work
as permitted by this paragraph.
ARTICLE 16 - DISPUTE RESOLUTION
1. for completed and acceptable Work executed in
accordance with the Contract Documents prior to the
effective date of termination, including fair and 16.01 Methods and Procedures
reasonable sums for overhead and profit on such Work;
2. for expenses sustained prior to the effective date
of termination in performing services and furnishing
labor, materials, or equipment as required by the
Contract Documents in connection with uncompleted
Work, plus fair and reasonable sums for overhead and
profit on such expenses;
3. for all claims, costs, loss~s, and damages
(including but not limited to all fees and charges of
00700 - 41
A. Dispute resolution methods and procedures, if any,
shall be as set forth in the Supplemenqu-y Conditions. If no
method and procedure has been set forth, and subject to the
provisions of paragraphs 9.09 and 10.05, OWNER and
CONTRACTOR may exercise such rights or remedies as
either may otherwise have under the Contract Documents or
by Laws or Regulations in respect of any dispute.