Condiciones Generales Uniformes para la Contratación de Obras Pública en Puerto Rico. Incluye Analisis de Flexibilidad

13.2.4. Payments Becomes Due 13.2.4.1. Unless otherwise specified in the Contract Documents, forty (40) days after Owner's approval of the Application for Payment, with Owner's Representative's recommendation, the amount recommended will become due, and when due, shall be paid by Owner to Contractor. - 83 - UNIFORM GENERAL CONDITIONS FOR PUBLIC WORKS CONTRACTS 13.2.5. Reduction in Payment 13.2.5.1. The Owner's Representative, without incurring in liability, may decline to approve any Application for Payment or, because of subsequently discovered evidence or subsequent inspection, he may nullify the whole or any part of any Application for Payment previously issued, to such extent as may be necessary in his opinion to protect the Owner from loss because of: 13.2.5.1.1. Deficient Work not remedied; or 13.2.5.1.2. Failure of the Contractor to comply with any requirements of the Contract Documents. 13.2.5.2. Owner may refuse to make payment of the full amount recommended by Owner's Representative because: 13.2.5.2.1. claims have been made against Owner on account of Contractor's performance or furnishing of the Work; 13.2.5.2.2. Liens have been filed in connection with the Work, except where Contractor has delivered a specific Bond satisfactory to Owner to secure the satisfaction and discharge of such Liens; 13.2.5.2.3. there are other items entitling Owner to a set-off against the amount recommended; or 13.2.5.2.4. Owner has actual knowledge of the occurrence of any of the events enumerated in Article 13.2.3.6 or 15.2.1. 13.2.5.3. If Owner refuses to make payment of the full amount recommended by Owner's Representative, Owner must give Contractor immediate written notice (with a copy to Owner's Representative) stating the reasons for such action and promptly pay Contractor any amount remaining after deduction of the amount so withheld. 13.2.5.3.1. Owner shall promptly pay Contractor the amount so withheld, or any adjustment thereto agreed to by Owner and Contractor, when Contractor corrects to Owner's Representative's satisfaction the reasons for such action. 13.2.5.3.2. If it is subsequently determined that Owner's refusal of payment was not justified, the amount wrongfully withheld shall be treated as an amount due as determined by Article 13.2.4. 13.2.5.4. Partial payments may be suspended when in the judgment of the Owner the Work has not proceeded according to the terms of the Contract Documents. 13.2.5.5. If at any time during the construction of the Project, the Owner receives proper notice from a third party stating a claim under Civil Code Article 1489, the Contractor shall settle the claim with the third party within fifteen (15) calendar days from the notice to the Owner and inform the Owner of said settlement or otherwise if Contractor disputes the validity of said claim, post a bond, acceptable to Owner, for the benefit of Owner to protect Owner against liability for payment to the third party under Civil Code Article 1489 in which case partial payment therefore will not be withheld. This will apply in any project where there is no Payment or Performance Bond, or the penal sum of such bond is an amount less than one hundred (100) percent of the Contract Sum. - 84 - UNIFORM GENERAL CONDITIONS FOR PUBLIC WORKS CONTRACTS 13.2.5.5.1. If no settlement is reached or a bond is not posted and accepted, the Owner, the Contractor, and the claimant third party shall meet within thirty (30) days after the expiration of the fifteen (15) calendar days to ascertain the amount of the alleged debt. 13.2.5.5.2. Contractor shall then pay within five (5) calendar days the undisputed amount. If no payment is made, the Owner shall retain said amount from the next partial payment and proceed to pay directly the undisputed amount to the third party. If the Contractor posts a bond as provided in Article 13.2.5.5 the Owner will not withhold said amount from Contractor and will not pay the amount to the third party claimant until the Contractor or the third party claimant notify Owner that the dispute among them has been resolved at which time Owner will act accordingly. 13.2.6. Scope of Payment 13.2.6.1. The payment of any partial estimate or of any retained percentage, in no way shall release the obligation of the Contractor to renew or repair any deficient materials used in the construction, or to be responsible for all damage due to such deficiencies. 13.2.6.2. No payment will be made for any unauthorized work. 13.2.6.3. No certificate for a progress payment, nor any progress payment, or any partial or entire use or occupancy of the Project by the Owner shall constitute an acceptance of any Work not in accordance with the Contract Documents. 13.3 Contractor's Warranty of Title 13.3.1. Contractor warrants and guarantees that title to all Work, materials, and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to Owner no later than the time of payment, and will pass free and clear of all Liens, Claims, security interests or encumbrances. Contractor also warrants and guarantees that no Work, materials, or equipment covered by an Application for Payment has been acquired by the Contractor, subject to an agreement under which an interest therein, or an encumbrance thereon, is retained by the seller or otherwise imposed by the Contractor or such other person. This will also apply to any other person performing the Work for the Project on behalf of Contractor , or furnishing materials and equipment for the Project. 13.4 Substantial Completion 13.4.1. When Contractor considers the entire Work ready for its intended use Contractor shall notify Owner and Owner's Representative in writing that the entire Work is Substantially Complete (except for items specifically listed by Contractor as incomplete) and request that Owner's Representative issue a Certificate of Substantial Completion. Owner may, at its sole option, request that part of the Work be declared Substantially Complete as provided in Article 13.5.1. 13.4.1.1. Within five (5) working days after such request, Owner, Contractor and Owner's Representative shall make an inspection of Work to determine the state of completion. If within this time period, the Owner's Representative fails to make objections or respond, the Contractor shall request the approval of the Chief of Construction or equivalent division head of Owner which shall have fifteen (15) working days to issue its approval or disapproval of the Certificate of Substantial Completion. 85 - - UNIFORM GENERAL CONDITIONS FOR PUBLIC WORKS CONTRACTS 13.4.1.1.1. If Owner's Representative does not consider the Work substantially complete, Owner's Representative will notify Contractor in writing, within five (5) working days after the inspection, giving the reasons therefore. 13.4.1.1.2. If Owner's Representative considers the Work substantially complete, Owner's Representative will prepare and deliver to Owner, within ten (10) working days after the inspection, a tentative certificate of Substantial Completion which shall fix the date of Substantial Completion. 13.4.1.1.3. There shall be attached to the certificate a tentative list of items (punch list) to be completed or corrected before final payment. 13.4.1.2. Owner shall have ten (10) working days after receipt of the tentative certificate during which to make written objection to Owner's Representative as to any provisions of the certificate of Substantial Completion or attached list. 13.4.1.3. If, after considering such objections, indicated on Article 13.4.1.2, Owner's Representative concludes that the Work is not substantially complete, Owner's Representative will within fifteen (15) working days after submission of the tentative certificate of Substantial Completion to Owner notify Contractor in writing, stating the reasons therefore. 13.4.1.4. If, after consideration of Owner's objections, indicated on Article 13.4.1.2, Owner's Representative considers the Work Substantially Complete, Owner's Representative will, within said fifteen (15) working days, execute and deliver to Owner and Contractor a definitive certificate of Substantial Completion (with a revised final punch list of items to be completed or corrected). Such final certificate will reflect such changes from the tentative certificate as Owner's Representative believes justified, after consideration of any objections from Owner. 13.4.1.5. At the time of issuance of the certificate of Substantial Completion, Owner will assume all responsibilities with respect to security, operation, safety, and protection of the Work, maintenance, utilities, insurance, and Contractor warranties and guarantees periods will start to run. 13.4.1.6. Unless Owner and Contractor agree otherwise in writing and inform Owner's Representative also in writing prior to Owner's Representative's issuing the definitive certificate of Substantial Completion, Owner's Representative's aforesaid recommendation will be binding on Owner and Contractor until final payment is made. 13.4.2. 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 final punch list. 13.5 Partial Utilization 13.5.1 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, Owner's Representative, 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 effected (put to such use) prior to Substantial Completion of all the Work subject to the following: 13.5.1.1. Owner at any time may request Contractor in writing to permit Owner to use any such part of the Work which Owner believes to be ready of its intended use and substantially complete. - 86 - UNIFORM GENERAL CONDITIONS FOR PUBLIC WORKS CONTRACTS 13.5.1.1.1. If Contractor agrees that such part of the Work is substantially complete, Contractor will certify to Owner and Owner's Representative that such part of the Work is substantially complete and request Owner's Representative to issue a certificate of Substantial Completion for that part of the Work. 13.5.1.1.2. Contractor at any time may notify Owner and Owner's Representative in writing that Contractor considers any such part of the Work ready for its intended use and substantially complete and request Owner's Representative to issue a certificate of Substantial Completion for that part of the Work. 13.5.1.1.2.1. Within a reasonable time (not more than fifteen (15) days) after either party's request, Owner, Contractor, and Owner's Representative shall make an inspection of that part of the Work subject to the request to determine its state of completion. 13.5.1.1.2.2. If Owner's Representative does not consider that part of the Work to be substantially complete, Owner's Representative will notify Owner and Contractor in writing giving the reasons therefore. 13.5.1.1.2.3. If Owner's Representative issues a certificate of Substantial Completion for said part of the Work thereupon all applicable provisions of Article 13.4 shall apply. 13.5.1.1.3. No occupancy or separate operation of part of the Work may occur prior to compliance with the requirements of Article 13.4.1.5 regarding property insurance. 13.6 Final Inspection 13.6.1. Upon written notice from Contractor that the entire Work or an agreed portion thereof is complete, Owner's Representative will, within five (5) working days, make a final inspection with Owner and Contractor and will notify Contractor in writing of all particulars this inspection reveals with regard to incomplete or deficient Work. 13.6.1.1. Contractor shall immediately take measures to complete such Work and remedy such deficiencies. 13.7 Final Payment 13.7.1. Application for Payment 13.7.1.1. After Contractor has, in the opinion of Owner's Representative, satisfactorily remedied all incomplete and deficient Work identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, Bonds, certificates or other evidence of insurance, certificates of inspection, marked-up record documents, and other documents required by the Contract, Contractor may make application for final payment following the procedure for progress payments. 13.7.1.2. The final Application for Payment shall be accompanied, except if previously delivered to Owner's Representative, by: 13.7.1.2.1. all documentation, guarantees, Bonds and insurance called for in the Contract; and. 13.7.1.2.2. consent of the surety, if any, to final payment; and 13.7.1.2.3. 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. - 87 - UNIFORM GENERAL CONDITIONS FOR PUBLIC WORKS CONTRACTS 13.7.1.3. In lieu of the releases or waivers of Liens specified in Article 13.7.1.2.3, if approved by Owner, Contractor may furnish payment receipts or releases in full as part of an affidavit executed by Contractor to the effect that: 13.7.1.3.1. the releases and receipts include all liabilities related to labor, services, material, and equipment for which a Lien could be filed; and 13.7.1.3.2. all payrolls, material and equipment bills, and other indebtedness connected with the Work for which Owner and Owner's property might in any way be responsible, have been paid or otherwise satisfied. 13.7.1.3.3. 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 liability related to any such Lien. 13.7.2 Review of Final Application for Payment and Acceptance of the Work. 13.7.2.1. If, on the basis of Owner's Representative's observation of the Work during construction and final inspection, and Owner's Representative's review of the final Application for Payment and accompanying documentation as required by the Contract Documents, Owner's Representative is satisfied that the Work has been completed and Contractor's other obligations under the Contract Documents have been fulfilled, Owner's Representative will, within fifteen (15) days after receipt of the final Application for Payment, indicate to Owner in writing Owner's Representative's recommendation regarding payment and if payment is recommended present the Application for Payment to Owner, for payment. 13.7.2.1.1. At the same time, Owner's Representative will also give written notice to Owner and Contractor that the Work is acceptable subject to the provisions of Article 13.9. 13.7.2.1.2. Otherwise, within the time specified in Article 13.7.2.1, Owner's Representative will return the Application for Payment to Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case Contractor shall make the necessary corrections and resubmit the Application for Payment. If within said fifteen (15) days after submittal of the final Application for Payment by Contractor the Owner's Representative fails to make objections or respond, the Contractor shall request approval directly from the Owner who shall have fifteen (15) working days to issue approval or disapproval, provided Contractor has also given the same timely notice directly to Owner as required in Article 17.3.2. If no reply is forthcoming from the Owner within the stated time, the final Application for Payment shall be deemed approved. 13.7.3. Final Payment Becomes Due 13.7.3.1. Unless otherwise specified in the Contract Documents, forty (40) days after Owner's approval of the Application for Final Payment, with accompanying documentation, the amount recommended by Owner's Representative will become due, and when due, shall be paid by Owner to Contractor. 13.7.3.2. If payment is not made within the time stated in Article 13.7.3.1., thereafter Owner will pay Contractor interest at the legal rate on the amount due. 13.8 Final Completion Delayed 13.8.1. If, through no fault of the Contractor, final completion of the Work is significantly delayed, and if Owner's 88 - UNIFORM GENERAL CONDITIONS FOR PUBLIC WORKS CONTRACTS Representative so confirms, Owner shall, upon receipt of Contractor's final Application for Payment and recommendation of Owner's Representative, and without terminating the Agreement, make payment of the balance due for that portion of the Work fully completed and accepted. 13.8.2. If the remaining balance to be held by Owner for Work not fully completed, or corrected, is less than the retainage stipulated in the Agreement, and if Bonds have been furnished as required in Article 3, the written consent of the surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by Contractor to Owner's Representative with Application for such payment. 13.8.2.1. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of any claim or of any right under the Contract. 13.9 Waiver of Claims 13.9.1. The making and acceptance of final payment will constitute: 13.9.1.1. a waiver of all Claims by Owner against Contractor, except for Claims arising from unsettled Liens, from deficient Work appearing after final inspection as the result of failure to comply with the Contract Documents, from special guarantees or from Contractor's continuing obligations under the Contract Documents; and 13.9.1.2. a waiver of all other unsettled Claims by Contractor against Owner, other than those previously made in a timely manner in writing. 13.10 Unilateral Liquidation 13.10.1. The procedures established in this section will be applicable whenever the Contractor is not available in order for the Owner to issue the final payment in accordance with Article 13.7. 13.10.1.1. For purposes of this section, the term "unavailable" shall meant that the Contractor repeteadly fails to answer Owner's requests to meet with the Owner and/or to submit the required documentation under Article & 13.7 in order to proceed with the final payment and Project liquidation. 13.10.2. If Contractor is unavailable, Owner shall proceed to issue and process the final application for payment. In order to accomplish this, whenever possible, the Owner will seek to obtain the documentation required under Article 13.7.1.2 and 13.7.1.3. 13.10.2.1. When Owner can not obtain documentation required under Article 13.7.1.2 and 13.7.1.3 such documentation it may be waived by Owner in order to proceed to the issuance of final payment. However, in case of such waiver, Owner may impose those reasonable conditions Owner deems relevant in order to protect Owner's interests and safeguard against claims by third parties. 13.10.3. If after finalizing liquidation of the Contract, payment is due Contractor and Contractor remains unavailable, Owner will retain such payment until Contractor is available to collect such payment. If the Final Payment is negative (i.e., the balance is in favor of the Owner), the Owner shall compensate such amount from any other payment in favor of Contractor, if any, and/or proceed to collect it by any means available. - - 89 - UNIFORM GENERAL CONDITIONS FOR PUBLIC WORKS CONTRACTS