35 Ill. Adm. Code 661.APPENDIX
A General Conditions of Construction Contract Document
Section 661
Section 661.APPENDIX A
General Conditions of Construction Contract Document
1. Definitions
2. Additional Instructions and Detail Drawings
3. Schedules, Reports and Records
4. Drawings and Specifications
5. Shop Drawings
6. Materials, Services and Facilities
7. Inspection and Testing
8. Substitutions
9. Patents
10. Surveys, Permits, Regulations
11. Protection of Work, Property, Persons
12. Supervision by Contractor
13. Changes in Work
14. Changes in Contract Price
15. Time for Completion and Liquidated Damages
16. Correction of Work
17. Subsurface Conditions
18. Suspension of Work, Termination and Delay
19. Payments to Contractor
20. Acceptance of Final Payment as Release
21. Insurance
22. Contract Security
23. Assignments
24. Indemnification
25. Separate Contracts
26. Subcontracting
27. Engineer's Authority
28. Land and Rights-of-Way
29. Guaranty
30. Arbitration
31. Taxes
1. Definitions
1.1 Wherever used in the Contract Documents, the following terms
shall have the meanings indicated which shall be applicable to both the
singular and plural thereof:
1.2 Addenda – Written or graphic instrument issued prior to the
execution of the Agreement which modify or interpret the Contract Documents,
Drawings and Specifications, by additions, deletions, clarifications or
corrections.
1.3 Bid – The offer or proposal of the Bidder submitted on the
prescribed form setting forth the prices for the Work to be performed.
1.4 Bidder – Any person, firm or corporation submitting a Bid for
the Work.
1.5 Bonds – Bid, Performance, and Payment Bonds and other
instruments of security, furnished by the Contractor and his surety in
accordance with the Contract Documents.
1.6 Change Order – A written order to the Contractor authorizing an
addition, deletion or revision in the Work within the general scope of the
Contract Documents, or authorizing an adjustment in the Contract Price or
Contract Time.
1.7 Contract Documents – The contract, including Advertisement For
Bids, Information For Bidders, Bid, Bid Bond, Agreement, Payment Bond,
Performance Bond. Notice of Award, Notice to Proceed, Change Order, Drawings,
Specifications, and Addenda.
1.8 Contract Price – The total monies payable to the Contractor
under the terms and conditions of the Contract Documents.
1.9 Contract Time – The number of calendar days stated in the
Contract Documents for the completion of the Work.
1.10 Contractor – The person, firm or corporation with whom the Owner
has executed the Agreement.
1.11 Drawings – The part of the Contract Documents which show the
characteristics and scope of the Work to be performed and which have been
prepared by or approved by the Engineer.
1.12 Engineer – The person, firm or corporation named as such in the
Contract Documents.
1.13 Field Order – A written order effecting a change in the Work not
involving an adjustment in the Contract Price or an extension of the Contract
Time, issued by the Engineer to the Contractor during construction.
1.14 Notice of Award – The written notice of the acceptance of the
Bid from the owner to the successful Bidder.
1.15 Notice To Proceed – Written communication issued by the Owner to
the Contractor authorizing him to proceed with the Work and establishing the
date of commencement of the Work.
1.16 Owner – A public or quasi-public body in authority, corporation,
association, partnership, or individual for whom the Work is to be performed.
1.17 Project – The undertaking to be performed as provided in the
Contract Documents.
1.18 Resident Project Representative – The authorized representative
of the Owner who is assigned to the Project site or any part thereof.
1.19 Shop Drawings – All drawings, diagrams, illustrations,
brochures, schedules and other data which are prepared by the Contractor, a
Subcontractor, manufacturer, Supplier or distributor, which illustrate how
specific portions of the Work shall be fabricated or installed.
1.20 Specifications – A part of the Contract Documents consisting of
written descriptions of a technical nature of materials, equipment,
construction systems, standards and workmanship.
1.21 Subcontractor – An individual, firm or corporation having a
direct contract with the Contractor or with any other Subcontractor by the
performance of a part of the Work at the site.
1.22 Substantial Completion – The date as certified by the Engineer
when the construction of the Project or a specified part thereof is
sufficiently completed, in accordance with the Contract Documents, so that the
Project or specified part can be utilized for the purpose for which it is
intended.
1.23 Supplemental General Conditions – Modifications to General
Conditions required by a Federal agency for participation in the Project and
approved by the agency in writing prior to inclusion in the Contract Documents,
or such requirements that may be imposed by applicable state laws.
1.24 Supplier – Any person or organization who supplies materials or
equipment for the Work, including that fabricated to a special design, but who
does not perform labor at the site.
1.25 Work – All labor necessary to produce the construction required
by the Contract Documents, and all materials and equipment incorporated or to
be incorporated in the Project.
1.26 Written Notice – Any notice to any party of the Agreement
relative to any part of this Agreement in writing and considered delivered and
the service thereof completed, when posted by certified or registered mail to
the said party at his last given address, or delivered in person to said party
or his authorized representative on the Work.
2. Additional Instructions and Detail Drawings
2.1 The Contractor may be furnished additional instructions and
detail drawings, by the Engineer, as necessary to carry out the Work required
by the Contract Documents.
2.2 The additional drawings and instruction thus supplied will
become a part of the Contract Documents. The Contractor shall carry out the
Work in accordance with the additional detail drawings and instructions.
3. Schedules, Reports and Records
3.1 The Contractor shall submit to the Owner such schedule of
quantities and costs, progress schedules, payrolls, reports, estimates, records
and other data where applicable as are required by the Contract Documents for
the Work to be performed.
3.2 Prior to the first partial payment estimate the Contractor
shall submit construction progress schedules showing the order in which he
proposes to carry on the Work, including dates at which he will start the
various parts of the Work, estimated date of completion of each part and, as
applicable:
3.2.1 The dates at which special detail drawings will be required; and
3.2.2 Respective dates for submission of Shop Drawings, the beginning
of manufacture, the testing and the installation of materials, supplies and
equipment.
3.3 The Contractor shall also submit a schedule of payments that he
anticipates he will earn during the course of the Work.
4. Drawings and Specifications
4.1 The intent of the Drawing and Specifications is that the
Contractor shall furnish all labor, materials, tools, equipment, and
transportation necessary for the proper execution of the Work in accordance
with the Contract Documents and all incidental work necessary to complete the
Project in an acceptable manner, ready for use, occupancy or operation by the
Owner.
4.2 In case of conflict between the Drawings and Specifications,
the Specifications shall govern. Figure dimensions on Drawings shall govern
over scale dimensions, and detailed Drawings shall govern over general
Drawings.
4.3 Any discrepancies found between the Drawings and Specifications
and site conditions or any inconsistencies or ambiguities in the Drawing or
Specifications shall be immediately reported to the Engineer, in writing, who
shall promptly correct such inconsistencies or ambiguities in writing. Work
done by the Contractor after his discovery of such discrepancies,
inconsistencies or ambiguities shall be done at the Contractor's risk.
5. Shop Drawings
5.1 The Contractor shall provide Shop Drawings as may be necessary
for the prosecution of the Work as required by the Contract Documents. The
Engineer shall promptly review all Shop Drawings. The Engineer's approval of
any Shop Drawings shall not release the Contractor from responsibility for
deviations from the Contract Documents. The approval of any Shop Drawing which
substantially deviates from the requirement of the Contract Documents shall be
evidenced by a Change Order.
5.2 When submitting for the Engineer's review Shop Drawings shall
bear the Contractor's certification that he has reviewed, checked and approved
the Shop Drawings and that they are in conformance with the requirements of the
Contract Documents.
5.3 Portions of the Work requiring a Shop Drawing or sample
submission shall not begin until the Shop Drawing or submission has been
approved by the Engineer. A copy of each approved Shop Drawing and each
approved sample shall be kept in good order by the Contractor at the site and
shall be available to the Engineer.
6. Materials, Services and Facilities
6.1 It is understood that except as otherwise specifically stated
in the Contract Documents, the Contractor shall provide and pay for all
materials, labor, tools, equipment, water, light, power, transportation,
supervision, temporary construction of any nature, and all other services and
facilities of any nature whatsoever necessary to execute, complete, and deliver
the Work within the specified time.
6.2 Materials and equipment shall be so stored as to insure the
preservation of their quality and fitness for the Work. Stored materials and
equipment to be incorporated in the Work shall be located so as to facilitate
prompt inspection.
6.3 Manufactured articles, materials and equipment shall be
applied, installed, connected, erected, used, cleaned and conditioned as
directed by the manufacturer.
6.4 Materials, supplies and equipment shall be in accordance with
samples submitted by the Contractor and approved by the Engineer.
6.5 Materials, supplies or equipment to be incorporated into the
Work shall not be purchased by the Contractor or the Subcontractor subject to a
chattel mortgage or under a conditional sale contract or other agreement by
which an interest is retained by the seller.
7. Inspection and Testing
7.1 All materials and equipment used in the construction of the
Project shall be subject to adequate inspection and testing in accordance with
generally accepted standards, as required and defined in the Contract
Documents.
7.2 The Owner shall provide all inspection and testing services not
required by the Contract Documents.
7.3 The Contractor shall provide at his expense the testing and
inspection services required by the Contract Documents.
7.4 If the Contract Documents, laws, ordinances, rules, regulations
or orders of any public authority having jurisdiction require any Work to
specifically be inspected, tested, or approved by someone other than the
Contractor, the Contractor will give the Engineer timely notice of readiness.
The Contractor will then furnish the Engineer the required certificates of
inspection, testing or approval.
7.5 Inspections, test or approvals by the engineer or others shall
not relieve the Contractor from his obligations to perform the Work in
accordance with the requirements of the Contract Documents.
7.6 The Engineer and his representative will at all times have
access to the Work. In addition, authorized representatives and agents of any
participating Federal or state agency shall be permitted to inspect all work,
materials, payrolls, records of personnel, invoices of materials, and other
relevant data and records. The Contractor will provide proper facilities for
such access and observation of the Work and also for any inspection, or testing
thereof.
7.7 If any Work is covered contrary to the written instructions of
the Engineer it must, if requested by the Engineer, be uncovered for his
observation and replaced at the Contractor's expense.
7.8 If the Engineer considers it necessary or advisable that
covered Work be inspected or tested by others, the Contractor, at the
Engineer's request, will uncover, expose or otherwise make available for
observation, inspection or testing as the Engineer may require, that portion of
the Work in question, furnishing all necessary labor, materials, tools, and
equipment. If it is found that such Work is defective, the Contractor will
bear all the expenses of such uncovering, exposure, observation, inspection and
testing and of satisfactory reconstruction. If, however, such Work is not
found to be defective the Contractor will be allowed an increase in the
Contract Price or an extension of the Contract Time, or both, directly
attributable to such uncovering, exposure, observation, inspection, testing and
reconstruction and an appropriate Change Order shall be issued.
8. Substitutions
8.1 Whenever a material, article or piece of equipment is
identified on the Drawings or Specifications by reference to brand name or
catalogue number, it shall be understood that this is referenced for the
purpose of defining the performance or other salient requirements and that
other products of equal capacities, quality and function shall be considered.
The Contractor may recommend the substitution of a material, article, or piece
of equipment of equal substance and function for those referred to in the Contract
Documents by reference to brand name or catalogue number, and if, in the
opinion of the Engineer, such material, article, or piece of equipment is of
equal substance and function to that specified, the Engineer may approve its
substitution and use by the Contractor. Any cost differential shall be
deductible from the Contract Price and the Contract Documents shall be
appropriately modified by Change Order. The Contractor warrants that if
substitutes are approved, no major changes in the function or general design of
the Project will result. Incidental changes or extra component parts required
to accommodate the substitute will be made by the Contractor without a change
in the Contract Price or Contract Time.
9. Patents
9.1 The Contractor shall pay all applicable royalties and license
fees. He shall defend all suits of claims for infringement of any patent rights
and save the Owner harmless from loss on account thereof, except that the Owner
shall be responsible for any such loss when a particular process design on the
product of a particular manufacturer or manufacturer is specified, however, if
the Contractor has reason to believe that the design process or product
specified is an infringement of a patent, he shall be responsible for such loss
unless he promptly gives such information to the Engineer.
10. Surveys, Permits, Regulations
10.1 The Owner shall furnish all boundary surveys and establish all
base lines for locating the principal component parts of the Work together with
a suitable number of bench marks adjacent to the Work as shown in the Contract
Documents. From the information provided by the Owner, unless otherwise
specified in the Contract Documents, the Contractor shall develop and make all
detail survey, needed for construction such as slope stakes, batter boards,
stakes for pile locations and other working points, lines, elevations and cut
sheets.
10.2 The Contractor shall carefully preserve bench marks, reference
points and stakes and in case of willful or careless destruction, he shall be
charged with the resulting expense and shall be responsible for any mistakes
that may be caused by their unnecessary loss or disturbance.
10.3 Permits and licenses of a temporary nature necessary for the
prosecution of the Work shall be secured and paid for by the Contractor unless
otherwise stated in the Supplemental General Conditions. Permits, licenses and
easements for permanent structures or permanent changes in existing facilities
shall be secured and paid for by the Owner, unless otherwise specified. The
Contractor shall give all notices and comply with all laws, ordinances, rules
and regulations bearing on the conduct of the Work as drawn and specified. If
the Contractor observes that the Contract Documents are at variance therewith,
he shall promptly notify the Engineer in writing, and any necessary changes
shall be adjusted as provided in Section 13, Changes in the Work.
11. Protection of Work, Property and Persons
11.1 The Contractor will be responsible for initiating, maintaining
and supervising all safety precautions and programs in connection with the
Work. He will take all necessary precautions for the safety of and will
provide the necessary protection to prevent damage, injury or loss to all
employees on the Work and other persons who may be affected thereby, all the
Work and all materials or equipment to be incorporated therein, whether in
storage on or off the site, and other property at the site or adjacent thereto,
including trees, shrubs, lawns, walks, pavements, roadways, structures and
utilities not designated for removal, relocation or replacement in the course
of construction.
11.2 The Contractor will comply with all applicable laws, ordinances,
rules, regulations and orders of any public body having jurisdiction. He will
erect and maintain, as required by the conditions and progress of the Work, all
necessary safeguards for safety and protection. He will notify owners of
adjacent utilities when prosecution of the Work may affect them. The Contractor
will remedy all damage, injury or loss to any properly caused directly or
indirectly, in whole or in part, by the Contractor, any Subcontractor or anyone
directly or indirectly employed by any of them or anyone for whose acts any of
them be liable, except damage or loss attributable to the fault of the Contract
Documents or to the acts or omissions of the Owner or the Engineer or anyone
employed by either of them or anyone for whose acts either of them may be
liable and not attributable, directly or indirectly, in whole or in part, to
the fault or negligence of the Contractor.
11.3 In emergencies affecting the safety of persons or the Work or
property at the site or adjacent thereto, the Contractor, without special
instruction or authorization from the Engineer of Owner, shall act to prevent
threatened damage, injury or loss. He will give the Engineer prompt Written
Notice of any significant changes in the Work or deviations from the Contract
Documents caused thereby, and a Change Order shall thereupon be issued covering
the changes and deviations involved.
12. Supervision by Contractor
12.1 The Contractor will supervise and direct the Work. He will be
solely responsible for the means, methods, techniques, sequences and procedures
of construction. The Contractor will employ and maintain on the Work a
qualified supervisor or superintendent who shall have been designated in
writing by the Contractor as the Contractor's representative at the site. The
supervisor shall have full authority to act on behalf of the Contractor and all
communications given to the supervisor shall be as binding as if given to the
Contractor. The supervisor shall be present on the site at all times as
required to perform adequate supervision and coordination of the Work.
13. Changes in the Work
13.1 The Owner may at any time, as the need arises, order changes
within the scope of the Work without invalidating the Agreement. If such
changes increase or decrease the amount due under the Contract Documents or in
the time required for performance of the Work an equitable adjustment shall be
authorized by Change Order.
13.2 The Engineer, also, may at any time, by issuing a Field Order,
make changes in the details of the Work. The Contractor shall proceed with the
performance of any changes in the Work so ordered by the Engineer unless the
contractor believes that such Field Order entitles him to a change in Contract
Price or Time, or both, in which event he shall give the Engineer Written
Notice thereof within seven (7) days after the receipt of the ordered change.
Thereafter the Contractor shall document the basis for the change in Contract
Price or Time within thirty (30) days. The Contractor shall not execute such
changes pending the receipt of an executed Change Order or further instruction
from the Owner.
14. Changes in Contract Price
14.1 The Contract Price may be changed only by a Change Order. The
value of any Work covered by a Change Order or of any claim for increase or
decrease in the Contract Price shall be determined by one or more of the
following methods in the order or precedence listed below:
a. Unit prices previously approved
b. An agreed lump sum
c. The actual cost for labor, direct overhead, materials,
supplies, equipment, and other services necessary to complete the work. In
addition, there shall be added an amount to be agreed upon but not to exceed
fifteen (15) percent of the actual cost of the Work to cover the cost of
general overhead profit.
15. Time for Completion and Liquidated Damages
15.1 The date of beginning and the time for completion of the Work
are essential conditions of the Contract Documents and the Work embraced shall
be commenced on a date specified in the Notice to Proceed.
15.2 The Contractor will proceed with the Work at such rate of
progress to insure full completion within the Contract Time. It is expressly
understood and agreed, by and between the Contractor and the Owner, that the
Contract Time, for the completion of the Work described herein is a reasonable
time, taking into consideration the average climatic and economic conditions
and other factors prevailing in the locality of the Work.
15.3 If the Contractor shall fail to complete the Work within the
Contract Time, or an extension of time granted by the Owner, then the
Contractor will pay to the Owner the amount for liquidated damages as specified
in the BID for each calendar day that the Contractor shall be in default after
the time stipulated in the Contract Documents.
15.4 The Contractor shall not be charged with liquidated damages of
any excess cost when the delay in completion of the Work is due to the
following and the Contractor has promptly given Written Notice of such delay to
the owner or Engineer.
15.4.1 To any preference, priority or allocation order duly issued by
the Owner
15.4.2 To unforeseeable causes beyond the control and without the fault
of negligence of the Contractor, including but not restricted to acts of God,
or of the public enemy, acts of the Owner, acts of another Contractor in the
performance of a contract with the Owner, fires, floods, epidemics, quarantine
restrictions, strikes, freight embargoes, and abnormal and unforeseeable
weather; and
15.4.3 To any delays of Subcontractors occasioned by any of the causes
specified in paragraphs 15.4.1 and 15.4.2 of this article.
16. Correction of work
16.1 The Contractor shall promptly remove from the premises all Work
rejected by the Engineer for failure to comply with the Contract Documents,
whether incorporated in the construction or not, and the Contractor shall
promptly replace and reexecute the Work in accordance with the Contract
Documents and without expense to the Owner and shall bear the expense of making
good all Work of other Contractors destroyed or damaged by such removal or
replacement.
16.2 All removal and replacement Work shall be done at the
Contractor's expense. If the Contractor does not take action to remove such
rejected Work within ten (10) days after receipt of Written Notice, the Owner
may remove such Work and store the materials at the expense of the Contractor.
17. Subsurface Conditions
17.1 The Contractor shall promptly, and before such conditions are
disturbed, except in the event of an emergency, notify the Owner by Written
Notice of:
17.1.1 Subsurface or latent physical conditions at the site differing
materially from those indicated in the Contract Documents; or
17.1.2 Unknown physical conditions at the site, of an unusual nature,
differing materially from those ordinarily encountered and generally recognized
as inherent in Work of the character provided for in the Contract Documents.
17.2 The Owner shall promptly investigate the conditions, and if he
finds that such conditions do so materially differ and cause an increase or
decrease in the cost of, or in the time required for, performance of the Work,
an equitable adjustment shall be made and the Contract Documents shall be
modified by a Change Order. Any claim of the Contractor for adjustment
hereunder shall not be allowed unless he has given the required Written Notice,
provided that the Owner may, if he determines the facts so justify, consider
and adjust any such claims asserted before the date of final payment.
18. Suspension of Work, Termination and Delay
18.1 The Owner may suspend the Work on any portion thereof for a
period of not more than ninety days or such further time as agreed upon by the
Contractor, by Written Notice to the Contractor and the Engineer which notice
shall fix the date on which Work shall be resumed. The Contractor will resume
the Work on the date so fixed. The Contractor will be allowed an increase in
the Contract Price or an extension of the Contract Time, or both, directly
attributable to any suspension.
18.2 If the Contractor is adjudged bankrupt or insolvent, or if he
makes a general assignment for the benefit of his creditors, or if a trustee or
receiver is appointed for the Contractor or for any of his property, or if he
files a petition to take advantage of any debtor's act, or to reorganize under
the bankruptcy or applicable laws, or if he repeatedly fails to supply
sufficient skilled workmen or suitable materials or equipment, or if he
repeatedly fails to make prompt payments to Subcontractors or for labor,
materials or equipment or if he disregards laws, ordinances, rules, regulations
or orders of any public body having jurisdiction of the Work or if he
disregards the authority of the Engineer, or if he otherwise violates any
provision of the Contract Documents, then the Owner may, without prejudice to
any other right or remedy and after giving the Contractor and his surety a
minimum of ten (10) days from delivery of a Written Notice, terminate the
services of the Contractor and take possession of the Project and of all
materials, equipment, tools, construction equipment and machinery thereon owned
by the Contractor, and finish the Work by whatever method he may deem
expedient. In such case the Contractor shall not be entitled to receive any
further payment until the Work is finished. If the unpaid balance of the
Contract Price exceeds the direct and indirect costs of completing the Project,
including compensation for additional professional services, such excess Shall
be Paid to the Contractor. If such costs exceed such unpaid balance, the
Contractor will pay the difference to the Owner. Such costs incurred by the
Owner will be determined by the Engineer and incorporated in a Change Order.
18.3 Where the Contractor's services have been so terminated by the
Owner, said termination shall not affect any rights of the Owner against the
Contractor then existing or which may thereafter accrue. Any retention or
payment of monies by the Owner due the Contractor will not release the
Contractor from compliance with the Contract Documents.
18.4 After ten (10) days from delivery of a Written Notice to the
Contractor and the Engineer the Owner may, without cause and without prejudice
to any other right or remedy elect to abandon the Project and terminate the
Contract in such case, the Contractor shall be paid for all Work executed and
any expense sustained plus reasonable profit.
18.5 If, through no act or fault of the Contractor, the Work is
suspended for a period of more than ninety (90) days by the Owner or under an
order of court or other public authority or the Engineer fails to act on any
request for payment within thirty (30) days after it is submitted or the Owner
fails to pay the Contractor substantially the sum approved by the Engineer or
awarded by arbitrators within thirty (30) days of its approval and
presentation, then the Contractor may after ten (10) days from delivery of a
Written Notice to the Owner and the Engineer, terminate the Contract and
recover from the Owner payment for all Work executed and all expenses sustained.
In addition and in lieu of terminating the Contract, if the Engineer has failed
to act on a request for payment or if the Owner has failed to make any payment
as aforesaid, the Contractor may upon ten (10) days written notice to the Owner
and the Engineer stop the Work until he has been paid all amounts then due in
which event and upon resumption of the Work, Change Orders shall be issued for
adjusting the Contract Price or extending the Contract Time or both to
compensate for the costs and delays attributable to the stoppage of the Work.
18.6 If the performance of all or any portion of the Work is
suspended, delayed, or interrupted as a result of a failure of the Owner or
Engineer to act within the time specified in the Contract Documents, or if no
time is specified, within a reasonable time, an adjustment in the Contract
Price or an extension of the Contract Time, or both, shall be made by Change
Order to compensate the Contractor for the costs and delays necessarily caused
by the failure of the Owner or Engineer.
19. Payments to Contractor
19.1 At least ten (10) days before each progress payment falls due
(but not more often than once a month), the Contractor will submit to the
Engineer a partial payment estimate filled out and signed by the Contractor
covering the Work performed during the period covered by the partial payment
estimate and supported by such data as the Engineer may reasonably require. If
payment is requested on the basis of materials and equipment not incorporated
in the Work but delivered and suitably stored at or near the site, the partial
payment estimate shall also be accompanied by such supporting data,
satisfactory to the Owner, as will establish the Owner's title to the material
and equipment and project his interests therein, including applicable
insurance. The Engineer will, within ten (10) days after receipt of each
partial payment estimate, either indicate in writing his approval of payment
and present the partial payment estimate to the Owner, or return the partial payment
estimate to the Contractor indicating in writing his reasons for refusing to
approve payment. in the latter case, the Contractor may make the necessary
corrections and resubmit the partial payment estimate. The Owner will, within
ten (10) days of presentation to him of an approved partial payment estimate,
pay the Contractor a progress payment on the basis of the approved partial
payment estimate. The Owner shall retain ten (10) percent of the amount of
each payment until final completion and acceptance of all work covered by the
Contract Documents. The Owner at any time, however, after fifty (50) percent
of the Work has been completed, if he finds that satisfactory progress is being
made shall reduce retainage to five (5%) percent on the current and remaining
estimates. When the Work is substantially complete (operational or beneficial
occupancy), the retained amount may be further reduced below five (5) percent
to only that amount necessary to assure completion. On completion and
acceptance of a part of the Work on which the price is stated separately in the
Contract Documents, payment may be made in full, including retained
percentages, less authorized deductions.
19.2 The request for payment also include an allowance for the cost
of such major materials and equipment which are suitably stored either at or
near the site.
19.3 Prior to Substantial Completion, the Owner, with the approval of
the Engineer and with the concurrence of the Contractor, may use any completed
or substantially completed portions of the Work. Such use shall not constitute
an acceptance of such portions of the Work.
19.4 The Owner shall have the right to enter the premises for the
purpose of doing work not covered by the Contract Documents. This provision
shall not be construed as relieving the Contractor of the sole responsibility
for the care and protection of the Work, or the restoration of any damaged Work
except such as may be cause by agents or employees of the Owner.
19.5 Upon completion and acceptance of the Work, the Engineer shall
issue a certificate attached to the final payment request that the Work has
been accepted by him under the conditions of the Contract Documents. The
entire balance found to be due the Contractor, including the retained
percentages, but except such sums as may be lawfully retained by the Owner,
shall be paid to the Contractor within thirty (30) days of completion and
acceptance of the Work.
19.6 The Contractor will indemnify and save the Owner or the Owner's
agents harmless from all claims growing out of the lawful demands of
Subcontractors, laborers, workmen, mechanics, materialmen, and furnishers of
machinery and parts thereof, equipment, tools, and all supplies incurred in the
furtherance of the performance of the Work. The Contractor shall, at the
Owner's request, furnish satisfactory evidence that all obligations of the
nature designated above have been paid, discharged, or waived. If the
Contractor fails to do so the Owner may, after having notified the Contractor,
either pay unpaid bills or withhold from the Contractor's unpaid compensation a
sum of money deemed reasonably sufficient to pay any and all such lawful claims
until satisfactory evident is furnished that all liabilities have been fully
discharged whereupon payment to the Contractor shall be resumed, in accordance
with the terms of the Contract Documents, but in no event shall the provisions
of this sentence be construed to impose any obligations upon the Owner to
either the Contractor, his Surety, or any third party. In paying any unpaid
bills of the Contractor, any payment so made by the Owner shall be considered
as a payment made under the Contract Documents by the Owner to the Contractor
and the Owner shall not be liable to the Contractor for any such payments made
in good faith.
19.7 If the Owner fails to make payment thirty (30) days after
approval by the Engineer, in addition to other remedies available to the
Contractor, there shall be added to each such payment interest at the maximum
legal rate commencing on the first day after said payment is due and continuing
until the payment is received by the Contractor.
20. Acceptance of Final Payment as Release
20.1 The acceptance by the Contractor of final payment shall be and shall
operate as a release to the Owner of all claims and all liability to the
Contractor other than claims in stated amounts as may be specifically excepted
by the Contractor for all things done or furnished in connection with this Work
and for every act and neglect of the Owner and others relating to or arising
out of this Work. Any payment, however, final or otherwise, shall not release
the Contractor or his sureties from any obligations under the Contract
Documents or the Performance Bond and Payment Bonds.
21. Insurance
21.1 The Contractor shall purchase and maintain such insurance as
will protect him from claims set forth below which may arise out of or result
from the Contractor's execution of the Work, whether such execution be by
himself or by any Subcontractor or by anyone directly or indirectly employed by
any of them, or by anyone for whose acts any of them may be liable:
21.1.1 Claims under workmen's compensation disability benefit and other
similar employee benefit acts;
21.1.2 Claims for damages because of bodily injury, occupational
sickness or disease, or death of his employees;
21.1.3 Claim for damages because of bodily injury, sickness or disease,
or death of any person other than his employees;
21.1.4 Claims for damages insured by usual personal injury liability
coverage which are sustained (1) by any person as a result of an offense
directly or indirectly related to the employment of such person by the
Contractor, or (2) by any other person, and
21.1.5 Claims for damages because of injury to or destruction of
tangible property, including loss of use resulting therefrom.
21.2 Certificates of Insurance acceptable to the Owner shall be filed
with the Owner prior to commencement of the Work. These Certificates shall
contain a provision that coverages afforded under the policies will not be
cancelled unless at least fifteen (15) days prior Written Notice has been given
to the Owner.
21.3 The Contractor shall procure and maintain, at his own expense,
during the Contract Time, liability insurance as hereinafter specified:
21.3.1 Contractor's General Public Liability and Property Damage
Insurance including vehicle coverage issued to the Contractor and protecting him
from all claims for personal injury, including death, and all claims for
destruction of or damage to property, arising out of or in connection with any
operations under the Contract Documents whether such operations be by himself
or by any Subcontractor under him or a Subcontractor under him. Insurance
shall be written with a limit of liability of not less than $500,00 for all
damages arising out of bodily injury including death, at any time resulting
therefrom, sustained by any one person in any one accident, and a limit of
liability of not less than $500,000 aggregate for any such damages sustained by
two or more persons in any one accident. Insurance shall be written with a
limit of liability of not less than $200,000 for all property damage sustained
by any one person in any one accident: and a limit of liability of not less
than $200,000 aggregate for any such damage sustained by two or more persons in
any one accident.
21.3.2 The Contractor shall acquire and maintain, if applicable, Fire
and Extended Coverage insurance upon the Project to the full insurable value
thereof for the benefit of the Owner, the Contractor, and Subcontractors as
their interest may appear. This provision shall in no way release the
Contractor or Contractor's surety from obligations under the Contract Documents
to fully complete the Project.
21.4 The Contractor shall procure and maintain, at his own expense
during the Contract Time, in accordance with the provisions of the laws of the
state in which the work is performed, Workmen's Compensation Insurance
including occupational disease provisions, for all of his employees at the site
of the Project and in case and work is sublet, the Contractor shall require
such Subcontractor similarly to provide Workmen's Compensation Insurance,
including occupational disease provisions for all of the latter's employees
unless such employees are covered by the protection afforded by the
Contractor. In case any class of employees engaged in hazardous work under
this contract at the site of the Project is not protected under Workmen's
Compensation statute, the Contractor shall provide, and shall cause each
Subcontractor to provide, adequate and suitable insurance for the protection of
his employees not otherwise protected.
21.5 The Contractor shall secure, if applicable, "All Risk"
type Builder's Risk Insurance for Work to be performed. Unless specifically
authorized by the Owner, the amount of such insurance shall not be less than
the Contract Price totaled in the Bid. The policy shall cover not less than
the losses due to fire, explosion, hail, lightning, vandalism, malicious
mischief, wind, collapse, riot, aircraft, and smoke during the Contract Time,
and until the Work is accepted by the Owner. The policy shall name the insured
the Contractor, the Engineer, and the Owner.
22. Contract Security
22.1 The Contractor shall within ten (10) days after the receipt of
the Notice of Award furnish the Owner with a Performance Bond and a Payment
Bond in penal sums equal to the amount of the Contract Price conditioned upon
the performance by the Contractor of all undertakings, covenants, terms,
conditions and agreements of the Contract Documents, and upon the prompt
payment by the Contractor to all persons supplying labor and materials in the
prosecution of the Work provided by the Contract Documents. Such Bonds shall be
executed by the Contractor and a corporate bonding company licensed to transact
such business in the state in which the Work is to be performed and named on
the current list of "Surety Companies Acceptable on Federal Bonds" as
published in the Treasury Department Circular Number 570. The expense of these
Bonds shall be borne by the Contractor. If at any time a surety on any such
Bond is declared a bankrupt or loses its right to do business in the state in
which the Work is to be performed or is removed from the list of Surety
Companies accepted on Federal Bonds, Contractor shall within ten (10) days
after notice from the Owner to do so, substitute an acceptable Bond (or Bonds)
in such form and sum and signed by such other surety and sureties as may be satisfactory
to the Owner. The premiums on such Bond shall be paid by the Contractor. No
further payments shall be deemed due nor shall be made until the new surety or
sureties shall have furnished an acceptable Bond to the Owner.
23 Assignments
23.1 Neither the Contractor nor the Owner shall sell, transfer,
assign or otherwise dispose of the Contract or any portion thereof, or of his
right, title or interest therein, or his obligations thereunder without written
consent of the other party.
24. Indemnification
24.1 The Contractor will indemnify and hold harmless the Owner and
the Engineer and their agents and employees from and against all claims,
damages, losses and expenses including attorney's fees arising out of or
resulting from the performance of the Work, provided that any such claims,
damage, loss or expense is attributable to bodily injury, sickness, disease or
death, or to injury to or destruction of tangible property, including the loss
of use resulting therefrom; and is caused in whole or in part by any negligent
or willful act or omission of the Contractor, and Subcontractor, anyone
directly or indirectly employed by any of them or anyone for whose acts any of
them may be liable.
24.2 In any and all claims against the Owner or the Engineer, or any
of their agents or employees, by any employee of the Contractor, any
Subcontractor, anyone directly or indirectly employed by any of them, or anyone
for whose acts any of them may be liable, the indemnification obligation shall
not be limited in any way by any limitation of the amount or type of damages,
compensation or benefits payable by or for the Contractor or any Subcontractor
under workmen's compensation acts, disability benefit acts or other employee
benefits acts.
24.3 The obligation of the Contractor under this paragraph shall not
extend to the liability of the Engineer, his agents or employees arising out of
the preparation or approval of maps, Drawings, opinions, reports, surveys,
Change Orders, designs or Specifications.
25. Separate Contracts
25.1 The Owner reserves the right to let other contracts in
connection with this Project. The Contractor shall afford other Contractors
reasonable opportunity for the introduction and storage of their materials and
the execution of their Work, and shall properly connect and coordinate his Work
with theirs. If the proper execution or results of any part of the
Contractor's Work depends upon the Work of any other Contractor, the Contractor
shall inspect and promptly report to the Engineer any defects in such Work that
render it unsuitable for such proper execution and results.
25.2 The Owner may perform additional Work related to the Project by
himself, or he may let other contracts containing provisions similar to these.
The Contractor will afford the other Contractors who are parties to such
contracts (or the Owner, if he is performing the additional Work himself)
reasonable opportunity for the introduction and storage of materials and
equipment and the execution of Work, and shall properly connect and coordinate
his Work with theirs.
25.3 If the performance of additional Work by other Contractors or
the Owner is not noted in the Contract Documents prior to the execution of the
Contract, written notice thereof shall be given to the Contractor prior to
starting any such additional Work. If the Contractor believes that the
performance of such additional work by the Owner or others involves him in
additional expense or entitles him to an extension of the Contract Time, he may
make a claim therefore as provided in Sections 14 and 15.
26. Subcontracting
26.1 The Contractor may utilize the services of specialty
Subcontractors on those parts of the Work which, under normal contracting
practices, are performed by specialty Subcontractors.
26.2 The Contractor shall not award Work to Subcontractor(s), in
excess of fifty (50%) percent of the Contract Price, without prior written
approval of the Owner.
26.3 The Contractor shall be fully responsible to the Owner for the
acts and omissions of his Subcontractors, and of persons either directly or indirectly
employed by them, as he is for the acts and omissions of persons directly
employed by him.
26.4 The Contractor shall cause appropriate provisions to be inserted
in all subcontracts relative to the Work to bind Subcontractors to the
Contractor by the terms of the Contract Documents insofar as applicable to the
Work of Subcontractors and to give the Contractor the same power or regards
terminating any subcontract that the Owner may exercise over the Contractor
under any provision of the Contract Documents.
26.5 Nothing contained in this Contract shall create any contractual
relation between any Subcontractor and the Owner.
27. Engineer's Authority
27.1 The Engineer shall act as the Owner's representative during the
construction period. He shall decide questions which may arise as to quality
and acceptability of materials furnished and Work performed. He shall
interpret the intent of the Contract Documents in a fair and unbiased manner.
The Engineer will make visits to the site and determine if the Work is
proceeding in accordance with the Contract Documents.
27.2 The Contractor will be held strictly to the intent of the
Contract Documents in regard to the quality of materials, workmenship and
execution of the Work. Inspections may be made at the factory or fabrication
plant of the source of material supply.
27.3 The Engineer will not be responsible for the construction means,
control, techniques, sequences, procedures, or construction safety.
27.4 The Engineer shall promptly make the decisions relative to
interpretation of the Contract Documents.
28. Land and Rights-of-Way
28.1 Prior to issuance of Notice to Proceed, the Owner shall obtain
all land and rights-of-way necessary for carrying out and for the completion of
the Work to be performed pursuant to the Contract Documents, unless otherwise
mutually agreed.
28.2. The Owner shall provide to the Contractor information which
delineates and describes the lands owned and rights-of-way acquired.
28.3 The Contractor shall provide at his own expense and without
liability to the Owner any additional land and access thereto that the
Contractor may desire for temporary construction facilities, or for storage of
materials.
29. Guaranty
29.1 The Contractor shall guarantee all materials and equipment
furnished and Work performed for a period of one (1) year from the date of
Substantial Completion. The Contractor warrants and guarantees for a period of
one (1) year from the date of Substantial Completion of the system that the
complete system is free from all defects due to faulty materials or workmanship
and the Contractor shall promptly make such corrections as may be necessary by
reason of such defects including the repairs of any damage to other parts of
the system resulting from such defects. The Owner will give notice of observed
defects with reasonable promptness. In the event that the Contractor should
fail to make such repairs, adjustments, or other Work that may be made
necessary by such defects, the Owner may do so and charge the Contractor the
cost thereby incurred. The Performance Bond shall remain in full force and
effect through the guarantee period.
30. Arbitration
30.1 All claims, disputes and other matters in question arising out
of, or relating to, the Contract Documents or the breach thereof, except for
claims which have been waived by the making and acceptance of final payment as
provided by Section 20 shall be decided by arbitration in accordance with the
Construction Industry Arbitration Rules of the American Arbitration Association
(140 W. 51
st
Street, N.Y., N.Y., 10020; 1986). This agreement to arbitrate
shall be specifically enforceable under the prevailing arbitration law. The
award rendered by the arbitrators shall be final, and judgement may be entered
upon it in any court having jurisdiction thereof.
30.2 Notice of the demand for arbitration shall be filed in writing
with the other party to the Contract Documents and with the American
Arbitration Association, and a copy shall be filed with the Engineer. Demand
for arbitration shall in no event be made on any claim, dispute or other matter
in question which would be barred by the applicable statue of limitations.
30.3 The Contractor will carry on the Work and maintain the progress
schedule during any arbitration proceedings, unless otherwise mutually agreed
in writing.
31. Taxes
31.1 The Contractor will pay all sales consumer use and other similar
taxes required by the law of the place where the Work is performed.