1-General Provisions.pdf

General Provisions

GENERAL

PROVISIONS

101 - DEFINITIONS AND TERMS

101.01 General

101.02 Abbreviations

101.03 Definitions

101.04 Interpretations

101.01 General. These Construction and Material Specifications are written to the Bidder before award of the Contract and to the Contractor after award of the Contract. The sentences that direct the Contractor to perform Work are written as commands. For example, a requirement to provide cold-weather protection would be expressed as, “Provide cold-weather protection for concrete,” rather than “The Contractor shall provide cold-weather protection for concrete.” In the imperative mood, the subject “the Bidder” or “the Contractor” is understood.

All requirements to be performed by others have been written in the active voice. Sentences written in the active voice identify the party responsible for performing the action. For example, “The Engineer will determine the density of the compacted material.” Certain requirements of the Contractor may also be written in the active voice, rather than the active voice and imperative mood, if the sentence includes requirements for others in addition to the Contractor.

For example, “If the Contractor, at any time, fails to comply with the provisions of 105.14, the Engineer will immediately notify the Contractor of such non-compliance.”

Sentences that define terms, describe a product or desired result, or describe a condition that may exist are written in indicative mood. These types of sentences use verbs requiring no action.

For example, “The characteristics of the soils actually encountered in the subgrade may affect the quality of the cement and depth of treatment necessary.”

101.02 Abbreviations. The following abbreviations, when used in the Contract Documents, represent the full text shown below.

AAN American Association of Nurserymen AASHTO American Association of State Highway and Transportation

Officials ACI American Concrete Institute AIA American Institute of Architects AISC American Institute of Steel Construction AISI American Iron and Steel Institute ANSI American National Standards Institute AREA American Railway Engineering Association ASA American Standards Association ASCE American Society of Civil Engineers ASME American Society of Mechanical Engineers ASTM American Society for Testing and Materials AWG American Wire Gage AWPA American Wood Preservers’ Association AWS American Welding Society AWWA American Water Works Association

BMP Best Management Practice (erosion) BUSTR Bureau of Underground Storage Tank Regulations (Division of Fire) CCC Columbus City Codes, 1959 CCRL Cement and Concrete Reference Laboratory CFR Code of Federal Regulations CMS Construction and Material Specifications- as referenced in Bid Schedule COLS Columbus Construction and Material Specifications CPESC Certified Professional in Erosion and Sediment Control CRSI Concrete Reinforcing Steel Institute EEI Edison Electric Institute EIA Electronic Industries Alliance EPA Environmental Protection Agency FEMA Federal Emergency Management Agency FHWA Federal Highway Administration, Department of Transportation FSS Federal Specifications and Standards, General Services

Administration

GFRP GLASS-FIBER-REINFORCED POLYMER

ICEA Insulated Cable Engineers Association IEEE Institute of Electrical and Electronic Engineers IES Illuminating Engineering Society IME Institute of Makers of Explosives IMSA International Municipal Signal Association IPCEA Insulated Power Cable Engineering Association IPS International Pipe Standard ISSA International Slurry Seal Association ITE Institute of Transportation Engineers JMF Job Mix Formula MSDS Material Safety Data Sheets NACE National Association of Corrosion Engineers NCHRP National Cooperative Highway Research Program NEMA National Electrical Manufacturers Association NHI National Highway Institute NIST National Institute of Standards and Technology NOI Notice of Intent NPDES National Pollutant Discharge Elimination System OAC Ohio Administrative Code ODNR Ohio Department of Natural Resources ODOT Ohio Department of Transportation Construction and Material

Specifications OEPA Ohio Environmental Protection Agency OMUTCD Ohio Manual of Uniform Traffic Control Devices ORC Ohio Revised Code ORDC Ohio Rail Development Commission OSHA Occupation Safety & Health Act OWPCA Ohio Water Pollution Control Act PCC Portland Cement Concrete PCI Precast/Prestressed Concrete Institute QA Quality Assurance QC Quality Control

QPL Qualified Products List or Approved Producers and Products List RAP Recycled Asphalt Pavement RH Relative Humidity RPCC Recycled Portland Cement Concrete SAE Society of Automotive Engineers SSPC Society for Protective Coatings SWPPP Storm Water Pollution Prevention Plan UL Underwriters' Laboratories, Inc.

USACE United States Army Corps of Engineers

101.03 Definitions. The following terms or pronouns, when used in the Contract Documents, are defined as follows:

Addendum or Addenda. Written or graphic instructions issued by the City prior to the closing date and time for Bids, as identified in the Contract Documents, for the purpose of varying, modifying, interpreting, clarifying, rescinding or adding to portions of the Contract Documents.

Advertisement. The public announcement, as required by law, inviting Proposals for Work to be performed or materials and equipment to be furnished. Such Advertisement will indicate with reasonable accuracy the type, quantity and location of the Work to be done or the character and quality of the materials to be furnished and the time and place of the opening of Proposals. The Advertisement may have a heading of “Notice to Bidders.”

Agreement. See Contract.

Allowance. A non-biddable amount of money established by the City and included in the contract, which is set aside for a specific purpose, when the exact quantity of work for that specific purpose is not known at the time of bid.

Award. The written acceptance by the City of a bid, in accordance with Section 132.06 of the

Codified Ordinances of Westerville, Ohio.

Bid. Same as Proposal

Bid Schedule. See Proposal Form.

Bid Guaranty. See Proposal Guaranty.

Bidder. An individual, firm, partnership, or corporation submitting a Proposal for the advertised work, acting directly or through its duly authorized representative.

Borrow Area. The locations outside the right-of-way from which natural materials are removed for use in the work.

Bridge. A structure, including supports, erected over a depression or an obstruction, such as water, highway, or railway, and having a track or passageway for carrying traffic or other moving loads and having a length measured along the center of roadway of more than 10 feet between the center line of bearing of abutments or extreme limits of openings for multiple boxes.

A. The length of a bridge structure is the over-all length measured between centerline of abutments.

B. The roadway width of a bridge structure is the clear width measured at right angles to the longitudinal centerline of the bridge between the bottom of curbs or guardrails or, in the case of multiple height of curbs, between the bottoms of the lower risers. For curb widths of one foot or less, the roadway width shall be measured between parapets or railings.

Business Day. Wherever indicated inside these specifications, business days are defined as:

Monday, Tuesday, Wednesday, Thursday, and Friday, excluding National Holidays and, if applicable, the day that a National Holiday is observed.

Calendar Day or Day. Every day shown on the calendar.

Certified Test Data. A test report from a manufacturer's laboratory or independent laboratory listing actual test data for the specified City requirements for the samples tested and a statement by a person having legal authority to act for the supplier and/or manufacturer of the material that the test report furnished represents the material delivered to the City of Westerville project. The certification shall include the Laboratory Report No. and the name of the project to which the material is delivered. Laboratory reports signed by a Registered Professional Engineer and those signed by other personnel and notarized will be accepted for this purpose.

Change Order. A written order issued by the Owner to the Contractor covering changes to the terms and conditions, plans and/or quantities, within or beyond the scope of the Contract and establishing the basis of payment from existing funding and any time adjustments for the Work affected by the changes.

City. The City of Westerville, acting through its City Manager or properly authorized agents thereof; such agents acting severally within the scope of the particular duties entrusted to them.

Claim(s). A request, by the Contractor, for adjustment in Contract Sum or Time, or both, when resolution is not reached using other provisions of the Contract.

Clean Hard Fill. Construction and demolition debris which consists only of reinforced or nonreinforced concrete, asphalt concrete, brick, block, tile, and/or stone which can be reutilized as construction material. Brick in clean hard fill includes, but is not limited to, refractory brick and mortar.

Clean hard fill does not include materials contaminated with hazardous wastes, solid wastes, or infectious wastes. (OAC 3745-400-01(E))

Clean Soil. Clean soil consists of soil, rock, sand, and other unaltered nontoxic geological materials that are not contaminated with petroleum, PCB’s, hazardous wastes (as defined in ORC 3734.01(J)), raw sewage, trash or other solid wastes (as defined in ORC 3734.01(E)), or mixed with vegetative debris, asphalt, concrete, scrap metal, bricks, pavement, or other man-made materials constituting construction and demolition debris.

Completion Date (Interim or Final). The date, as shown in the Contract Documents, by which the

Work shall be completed (Final) or the date by which a portion of the Work defined by the Contract shall be completed (Interim).

Conduit. Any pipe or similar passageway for electricity, gas, water or other utility.

Construction Limits. These limits encompass all Work which includes removals, room for construction equipment to complete work, site access, etc.

Construction and Demolition Debris. Materials resulting from the alteration, construction, destruction, rehabilitation, or repair of any physical structure that is built by humans, including, without limitation, houses, buildings, industrial or commercial facilities, or roadways. Construction and Demolition Debris includes particles and dust created during demolition activities. “Materials resulting from the alteration, construction, destruction, rehabilitation, or repair of any man-made physical structure,” are those structural and functional materials comprising the structure and surrounding site improvements, such as brick, concrete and other masonry materials, stone, glass, wall coverings, plaster, drywall, framing and finishing lumber, roofing materials, plumbing fixtures, heating equipment, electrical wiring and components containing no hazardous fluids or refrigerants, insulation, wall-to-wall carpeting, asphaltic substances, metals incidental to any of the above, and weathered railroad ties and utility poles. “Materials resulting from the alteration, construction, destruction, rehabilitation, or repair” do not include materials whose removal has been required prior to demolition, and materials which are otherwise contained within or exist outside the structure such as solid wastes, yard wastes, furniture, and appliances. Also excluded in all cases are liquids including containerized or bulk liquids, fuel tanks, drums and other closed or filled containers, tires, and batteries. (ORC 3714.01(C))

Contract Documents. The Contract Documents include the General Provisions, Advertisement, Invitation for Bid, Notice to Bidders, Proposal Form (Bid Schedule), Addenda, Bidders Checklist, Affidavits (e.g. Prevailing Wage Rate, Non-Collusion, and Personal Property Tax), Experience Record, Subcontractor’s Form, Contract, Contract forms and required Bid Guaranty (as specified in the Bidding Requirements and Forms), Notice of Award, Agreement, Specifications, Supplemental Specifications, Supplements, Technical Specifications, Special Provisions, Plans, Plan Notes, Standard Drawings, “Accepted” and “Accepted as Noted” Working Drawings, Principal Work Locations, Contract Performance and Payment Bond(s), Request for Information and the City’s response thereto, Notice to Proceed, Notice of Commencement, Fiscal Officer’s Statement, Change Orders, Contract Modifications, Appendix, and any other document included by reference by the City as a Contract Document, all of which constitute one instrument.

Contract Item (Pay Item). A specifically described unit of Work for which a price is provided in the

Contract.

Contract Modification. A change to the terms and conditions of the executed Contract Documents beyond that approved by the City at the time of Contract award. A Contract Modification must be authorized by the City.

Contract Performance and Payment Bond(s). The approved form of security, executed by the

Contractor and its surety or sureties, guaranteeing complete execution of the Work as required by the Contract Documents and the payment of all legal debts pertaining to the construction of the Project.

Contract Price. The amount of compensation bid by the Contractor for a Contract Item in the

Proposal or the amount of compensation established for a Contract Item added or modified pursuant to the Contract Documents.

Contract Sum. The Contract Sum is stated in the Contract and, including authorized adjustments thereto, is the maximum amount payable by the City to the Contractor for the performance of the Work under the Contract Documents. The Contract Sum may include a contingency amount; however, the contingency amount is not due to the Contractor unless approved by Change Order.

Contract Time. The number of workdays or calendar days, including authorized adjustments, allowed for completion of the Project. When a specified Completion Date is shown in the Contract Documents instead of the number of workdays or calendar days, completion of the Project shall occur on or before that date. Specified Completion Date and Calendar Day Contracts shall be completed on or before the day indicated even when that date is a Saturday, Sunday, or Holiday.

Contract. The written agreement between the City and the Contractor setting forth the obligations of the parties, including, but not limited to, legal terms and conditions, the performance of the Work, the furnishing of labor and materials, and the basis of payment.

Contractor. The individual, firm, partnership, corporation, or other entity contracting with the City for performance of prescribed Work, acting directly or through a duly authorized representative and qualified under the requirements of the Contract Documents.

Culvert. Any structure not classified as a Bridge that provides an opening under the roadway and/or recreational pathway.

Department. The Department of the City of Westerville under which the Project is being performed.

Director. See Engineer

Engineer. The City Engineer of the City of Westerville working under the supervision of the

Director of the Planning & Development Department and the Fire Chief under which the Project is being performed. The Engineer, or the Engineer’s authorized representative, is the duly authorized agent of the City acting within the scope of its authority for purposes of engineering and administration of the Contract.

Engineered Drawings. A type of Working Drawing that requires the practice of engineering as defined in ORC 4733.01 (E). Examples of Engineered Drawings include: Excavation Bracing Plans, Demolition Plans, Erection Plans, Falsework Plans, Cofferdam Plans, Causeway Plans, Jacking and Temporary Support Plans, Plans for Heavy Equipment on Structures, Plans for structures for Maintaining Traffic, and Corrective Work Plans.

Equipment. All machinery and equipment, together with the necessary supplies for upkeep and maintenance, and also tools and apparatus necessary for the proper construction and acceptable completion of the Work.

Extra Work. An item of Work not provided for in the Contract as awarded but found necessary to the satisfactory completion of the Contract within its intended scope.

Fabricator. The individual, firm, or corporation that fabricates structural metals or prestressed concrete members as an agent of the Contractor.

Field Order. A written order to the Contractor directing a minor change in the Work but that does not involve an adjustment in the Contract Sum or an extension of the Contract Time and is not inconsistent with the intent of the Contract Documents.

Inspector. The Engineer’s authorized representative assigned to make detailed inspections of

Contract performance.

Invitation for Bid. A written invitation to contractors or equipment suppliers to submit a Proposal on a specific project to be realized or a product or service to be furnished. The Invitation for Bid may have a heading of “Notice to Bidders.”

Laboratory. The testing laboratories of the City or a reputable testing laboratory that is designated by or acceptable to the Engineer for rendering testing and inspection services.

Materials. Any materials or products specified for use in the construction of the Project and its appurtenances.

National Holidays. New Year’s Day, January 1; Martin Luther King's Birthday - the Third Monday in

January; Presidents' Day, the Third Monday in February; Memorial Day, the last Monday in May;

Juneteenth, June 19; Independence Day, July 4; Labor Day, the First Monday in September; Indigenous People’s Day/Columbus Day, the Second Monday in October; Veterans Day, November 11; Thanksgiving Day, the fourth Thursday in November; Christmas Day, December 25.

Notice of Award. Written notice by the City to the apparent successful bidder stating that upon compliance with the conditions enumerated therein, the City intends to enter into a Contract, in accordance with Chapter 132 of the Codified Ordinances of Westerville, Ohio.

Notice of Commencement. Legal notice by the City indicating the beginning of construction on a public improvement.

Notice to Bidders. A document that is prepared under a title of Notice to Bidders, but is published as the Advertisement and/or used as the Invitation for Bid.

Notice to Proceed. Written notice to the Contractor, by the Owner, authorizing the beginning of

Work and setting forth the Completion Date.

Owner. See “City”.

Plans. The drawings, standard drawings, and supplemental drawings, as provided by the City, that show the location, character, dimensions and details of the Work. Plans do not include any electronic data provided as information to the Bidder and expressly identified as “for informational purposes only”.

Prebid Question. A written inquiry submitted by a prospective Bidder.

Profile Grade. The trace of a vertical plane intersecting the top surface of the proposed wearing surface, usually along the longitudinal centerline of the roadway, or as indicated in the plans. Profile grade means either elevation or gradient of such trace according to the context.

Project. The Work together with all appurtenances and construction to be performed under the

Project Limits. Project limits are points on the mainline centerline of construction where the proposed improvement, as described in the project description on the Title Sheet (excluding incidental construction), begins and ends.

Proposal (or Bid). The offer of a Bidder, on the prescribed forms properly signed and guaranteed, to perform the Work and to furnish the labor and materials at the prices quoted. Throughout the Contract, the terms Proposal and Bid are used interchangeably

Proposal Form (Bid Schedule). The approved form on which the City requires Proposals to be prepared and submitted for the Work.

Proposal Guaranty (Bid Guaranty). The approved form of security furnished with a Proposal to guarantee that the Bidder will enter into the Contract if its Proposal is accepted. Reasonably Close Conformity. Compliance with reasonable and customary manufacturing and construction tolerances where working tolerances are not specified. Where working tolerances are specified, reasonably close conformity means compliance with such working tolerances and the completed Work or portion of Work functions or performs as intended. Without detracting from the complete and absolute discretion of the Engineer to insist upon such tolerances as establishing reasonably close conformity, the Engineer may accept variations beyond such tolerances as reasonably close conformity where they will not materially affect the value or utility of the Work and the interests of the City.

Registered Architect. An Architect registered with the Ohio Architects Board to practice architecture in the State of Ohio.

Registered Professional Engineer. An engineer registered with the Ohio State Board of

Registration for Professional Engineers and Surveyors to practice professional engineering in the State of Ohio.

Registered Surveyor. A surveyor registered with the Ohio State Board of Registration for

Professional Engineers and Surveyors to practice professional surveying in the State of Ohio.

Resident Project Representative. See Inspector.

Request for Information (RFI). Request from Contractor seeking interpretation or clarification of the Contract Documents.

Right-of-Way. A general term denoting land, property, or interest therein, acquired for or devoted to Project purposes and extending to the limits under the control of the state or local authority.

Road. A general term denoting a public way for purposes of vehicular travel, including the entire area within the Right-of-Way.

Roadbed. The graded portion of a highway within top and side slopes, prepared as a foundation for the pavement structure and shoulder.

Roadside. The areas between the outside edges of the shoulders and the Right-of-Way boundaries. Unpaved median areas between inside shoulders of divided highways and infield areas of interchanges are included.

Roadway. The portion of a highway or street within limits of construction.

Sewer. Pipe or conduit intended for carrying storm or sanitary flow.

Shoulder. The portion of the roadway contiguous to the traveled way for accommodation of stopped vehicles, for emergency use, and for lateral support of base and surface courses.

Shop Drawings. The drawings provided by the Contractor or Supplier that describe any portion of the Work that will remain in place permanently.

Sidewalk. The facility within the public Right-of-Way primarily constructed for the use of pedestrians.

Special Provisions. Additions and revisions to the standard and Supplemental Specifications covering conditions applicable to an individual Project.

Specialty Items. Work specified by the Contract Documents that requires specialized knowledge and/or equipment and materials to perform.

Specifications. A part of the Contract Documents consisting of written descriptions of a technical nature of materials, equipment, construction systems, standards, and workmanship.

State. The State of Ohio acting through its authorized representative.

Street. A general term denoting a public way for purpose of vehicular, bicycle and pedestrian travel, including the entire area within the Right-of-Way.

Structures. Bridges, culverts, catch basins, curb inlets, drop inlets, retaining walls, cribbing, manholes, endwalls, buildings, curbs, pavements, sewers, water mains, service pipes, underdrains, foundation drains, and other features that may be encountered in the Work and not otherwise classified herein.

Subcontractor. An individual, firm, partnership or corporation to whom the Contractor sublets part of the Contract to be performed on the job site.

Subgrade. The surface upon which a structure or work and appurtenances are to be constructed.

Substantial Completion. The date at which the Project is complete and ready for beneficial use, as determined by the Engineer, such that it can be safely and effectively used by the public without further delays, disruption, or impediments.

Substructure. All of that part of the structure below the bearings of simple and continuous spans, skewbacks of arches, and tops of footings of rigid frames, together with backwalls and wings.

Superintendent. The Contractor’s authorized representative in responsible charge of the Work.

Superstructure. The entire structure except the Substructure.

Supplement. A list of requirements for fabrication plants, methods of test, or other miscellaneous requirements that are maintained on file with either the City, the City of Columbus or the Ohio Department of Transportation.

Supplemental Specifications. Detailed specifications supplemental to or superseding the

Specifications.

Surety. The corporation, partnership, or individual, other than the Contractor, executing a bond

(or bonds) furnished by the Contractor.

Technical Specification. Written depiction of design drawings and a detailed and exact statement of particulars, especially a statement prescribing materials, dimensions, and workmanship for something to be built or installed.

Titles (or Headings). The titles or headings of the sections and subsections herein are intended for convenience of reference and shall not be considered as having any bearing on their interpretation.

Waste Area. Locations outside the right-of-way upon which materials from the Work are to be deposited as waste.

Water Line. Conduit for carrying public water supply.

Work. The furnishing of all labor, services, materials, equipment, and other incidentals necessary or convenient to the successful completion of the Project and the carrying out of all duties and obligations imposed by the Contract Documents.

Work Days. Wherever indicated inside the specifications, workdays are defined as: Monday, Tuesday, Wednesday, Thursday, Friday, and Saturday, excluding National Holidays and, if applicable, the day that a National Holiday is observed.

Work Limits. The farthest limits of the Contractor’s responsibility on a project, including all temporary and incidental construction, with the exception of work zone traffic control devices required for maintenance of traffic. The Contractor is restricted from working beyond the limits shown in the Contract Documents without approval by the City.

Working Drawings. Stress sheets, shop drawings, submittals, Engineered Drawings, erection plans, falsework plans, installation plans, certified drawings, frame work plans, cofferdam plans, bending diagrams for reinforcing steel, or any other supplementary plans or similar data that the Contractor is required to submit in order to describe any portion of the Work.

101.04 Interpretations. In order to avoid cumbersome and confusing repetition of expressions in these Specifications, it is provided that whenever anything is, or is to be, done, if, as, or, when, or where “contemplated, required, determined, directed, specified, authorized, ordered, given, designated, indicated, considered necessary, deemed necessary, permitted, reserved, suspended, established, approval, approved, disapproved, acceptable, unacceptable, suitable, accepted, satisfactory, unsatisfactory, sufficient, insufficient, rejected, or condemned,” unless expressly otherwise provided, it shall be understood as if the expression were followed by the words “by the Engineer” or “to the Engineer”.

ITEM 102 BIDDING REQUIREMENTS AND CONDITIONS

See “Bidding Requirements and Forms” attached hereto and incorporated herein by reference.

ITEM 103 AWARD AND EXECUTION OF CONTRACT

See “Bidding Requirements and Forms” attached hereto and incorporated herein by reference.

104 - SCOPE OF WORK/CHANGES

104.01 Intent of the Contract

104.02 Modifications of the Contract Documents

104.03 Contractor Notification, Continuation of Work, and Claims

104.04 Maintenance of Traffic and Accessibility to Utilities

104.05 Rights In and Use of Materials Found on the Work Site

104.06 Right of Property in Materials

104.07 Final Cleaning Up

104.08 Recordkeeping/Audit

104.01 Intent of the Contract. The intent of the Contract is to provide for the construction, execution and completion in every detail and element of the work in accordance with the Contract Documents. The Contractor shall perform all items of work covered and stipulated in the Proposal and perform altered and extra work, and furnish all labor, materials, equipment, tools, transportation and supplies required to complete the Work in accordance with the Contract Documents. Should any dispute or misunderstanding arise as to the intent or meaning of any of the Contract Documents, or any discrepancy therein, the decision of the City shall be final and conclusive as to the requirements for performance of the Work; provided, however, if the Contractor disagrees with such decision, it may dispute the decision in accordance with 104.03.

The price for items of work or materials shown or provided for in the Contract Documents for which no separate line item unit price is given shall be distributed among the various Bid items.

Submission of a Proposal shall be considered evidence and acknowledgement that the Bidder is satisfied with the Contract Documents and the conditions as shown therein. No additional compensation shall be paid or time given to the Contractor for compliance with the Contract Documents, except as and to the extent expressly provided in the Contract Documents.

104.02 Modifications of the Contract Documents.

A. General. The City may at any time, without invalidating the Contract and without notice to or release of the sureties, by written Change Order or Contract Modification, as applicable, make any change or modification in the Work or add to the Work within the general scope of the Contract, including, but not limited to, changes in the Contract Documents; in the sequence of the Work; or in the City-furnished facilities, equipment, materials, services, or site. The Contractor shall ensure that the amount of the surety bonds is modified as necessary from time to time to be consistent with any changed Contract scope, Sum or Time in accordance with any Change Order(s) or Contract Modification(s).

The Contractor shall have no right to compensation above the Contract Sum until the extra work is included in a written Contract Modification approved by the City.

B. Differing Site Conditions. If subsurface or latent physical conditions are encountered at the

Project site that (i) differ materially from those indicated in the Contract Documents or (ii) if unknown physical conditions of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in the Work provided for in the Contract Documents are encountered at the Project site, the Contractor shall notify the Engineer in accordance with the process and timeline set forth in 104.03, before the conditions are disturbed or the affected Work is performed.

Upon notification, the Engineer will investigate the conditions to determine whether (1) the conditions meet the requirements of a differing site condition as defined herein, and (2) cause an increase or decrease in the cost and/or time required for the performance of any Work under the

The Engineer will notify the Contractor in writing whether the condition is determined to be a differing site condition as defined herein. If the Engineer determines that there is a differing site condition, the City will adjust the Contract as specified in 108.06 and 109.05.

If the Contractor disagrees with the Engineer’s determination, the Contractor must provide notice and bring a Claim in accordance with the process and timeline set forth in 104.03.

C. Written Delay or Suspension of Work. The Engineer may direct the Contractor, in writing, to delay its start of operations or to suspend its operation for the length of time that the Engineer deems necessary.

If the performance of all or any portion of the Work is delayed or suspended by the Engineer, in writing, for an unreasonable period of time (i.e. a period of time not originally anticipated, customary, or inherent to the construction industry or the Work involved) and the Contractor believes that additional compensation or time is due as a result of such delay or suspension, the Contractor must provide notice and bring a Claim in accordance with the process and timeline set forth in 104.03.

The Engineer will evaluate the Contractor’s request in accordance with 104.03. If the Engineer agrees that the cost and/or time required for the performance of the Work has increased as a result of an unreasonable delay or suspension and such delay or suspension was caused by conditions beyond the control of and not the fault of the Contractor, its subcontractors at any tier, or its suppliers, the Engineer will notify the Contractor in writing and the City will adjust the Contract as specified in 108.06 and 109.05; provided, however, the City will not make an adjustment under this Section in the event that the Contractor’s performance is delayed or suspended by any other cause or for which a Contract adjustment is provided or excluded under any other term or condition of the Contract.

If the Contractor disagrees with the Engineer’s determination, the Contractor must provide notice and bring a Claim in accordance with the process and timeline set forth in 104.03.

D. Significant Changes in Character of the Work. The City may increase or decrease quantities and alter the Work as necessary or desirable to complete the Project.

The Engineer will make appropriate adjustments to the Contract in accordance with 108.06, 109.04, and 109.05, if such alterations constitute a significant change in the character of the Work. A “significant change” as used in this Section is defined as:

1. When the character of the Work as altered differs materially in kind or nature from that involved or included in the original Contract, or

2. Where the quantity of a Unit Price pay item in the Contract is an estimated quantity and when the actual quantity of such pay item varies more than twenty-five percent above or below the estimated quantity stated in the Contract. An adjustment in the Contract Price for such a pay item may be made in accordance with 109.04 upon demand from either party.

If a quantity variation in excess of 125% of the estimated quantity also causes an increase in the

Contract Time(s), the Contractor shall demonstrate the time impact, if any, by an analysis in accordance with 108.03 and in accordance with the requirements of 108.06. If the Engineer concludes that the Contract Time(s) should be adjusted as a result of such quantity overrun, the City will issue a Change Order to adjust the Contract Time(s) as the Engineer determines.

The Contractor shall give the Engineer prompt written notice when it is aware, or has reason to believe, that quantities will overrun or underrun by 25% or more of the estimated quantity so that the City will have the opportunity to mitigate the effect, if any, on the scope, cost or time of the Project.

This notice obligation shall be in addition to any notice of claim for additional compensation or time pursuant to 104.03.

If the Contractor believes that an alteration constitutes a significant change as defined by this

Section, the Contractor must provide notice and bring a claim in accordance with the process and timeline set forth in 104.03. If the City believes that there has been a significant change as defined by the Section, the City shall provide written notice to the Contractor that it is seeking an adjustment of the Contract Sum or Time, which shall be determined in accordance with 109.04.

The unit prices for the following items are not subject to adjustment under 104.02.D:

1. Contingency

2. Allowances

3. Erosion Control Items under Item 207; and

4. Any other item not bid by the Contractor

E. Eliminated Items. Should any items contained in the Contract be found unnecessary for the proper completion of the Work, the Engineer may, upon written deductive Change Order to the Contractor, eliminate such items from the Contract, and such action shall in no way invalidate the Contract. The pricing adjustment for any eliminated items of Work shall be determined according to

109.04. If the Contractor disagrees with the Engineer’s determination, the Contractor must provide notice and bring a Claim in accordance with the process and timeline set forth in 104.03.

F. Extra Work. The Engineer may direct the Contractor to perform Extra Work. If the Extra Work will result in an increase in the Contract Sum or Time, the City shall have the right to require the performance thereof on a lump sum basis. If the City elects to have the Extra Work performed on a lump sum basis, the Contractor shall submit to the Engineer a proposal for such change within ten days of the Contractor’s receipt of a Request for Proposal (RFP). The Contractor’s response to the City’s RFP shall be itemized and segregated by labor, materials, equipment, subcontractors, supplies and appurtenances for various components of the change in the Work and shall be accompanied by signed proposals of any subcontractors that will perform any portion of the change in the Work and of any suppliers that will furnish materials or equipment for incorporation therein. Pricing of the Extra Work shall be done in accordance with 109.05. The proposal shall also include the Contractor’s estimate of any impact to the Project’s critical path as shown on the last accepted progress schedule at the time of the proposal or any non-critical path changes to the accepted progress schedule that may be required to perform the proposed change.

The Contractor, subcontractors and suppliers shall assure that the costs, pricing and schedule data submitted for evaluation with the Contractor’s proposal are based on current, accurate and complete data supported by their books and records. If the City later determines that any cost or time negotiated in connection with the Extra Work decreased by any material amount because the data provided was incomplete, inaccurate or not current at the time of submission, then such price or time shall be reduced accordingly and the Engineer shall issue a written Change Order to reflect such action. Failure to agree on a reduction shall be subject to the Unilateral Change Order provisions of this Contract.

In the event that the Contractor fails to submit its proposal in response to the City’s RFP within the designated ten day period, or in the event that the parties are unable to agree as to the reasonable cost and time to perform the change, the Engineer shall either direct the Contractor to perform the Extra Work on a Force Account Basis in accordance with 109.05.C, or shall make a determination of the reasonable cost and time to perform the Extra Work, based upon its own estimate, the Contractor’s submission (if any), or a combination thereof.

Failure of the parties to reach agreement regarding the cost and time of performing the Change

Order or any pending Claim shall not relieve the Contractor from performing the Extra Work promptly and expeditiously as directed by the Engineer.

The City will determine whether a time extension related to Extra Work is warranted in accordance with 108.06.

If the Contractor believes that any Work it is performing is Extra Work as defined by the Contract, the Contractor must provide notice and bring a Claim in accordance with the process and timeline set forth in 104.03.

G. Unilateral Change Orders. In the event that the City and Contractor are unable to agree as to the reasonable cost and time to perform Extra Work, the City has the authority to direct the Contractor to perform the Extra Work. The City will issue a Unilateral Change Order to the Contractor for any cost or time it determines to be due to the Contractor in connection with the Extra Work performed on the Project.

The issuing of a Unilateral Change Order by the City will not preclude or limit the rights of City and

Contractor to negotiate and agree to the amounts to be paid or time extension given to the Contractor.

If the Engineer issues a Unilateral Change Order directing a change for the amounts of cost and/or time determined by the Engineer, it shall become binding upon the Contractor unless the Contractor submits a Claim in accordance with the process and timeline set forth in 104.03. If the Contractor does not submit a timely Notice of Claim, the Contractor shall be deemed to be in agreement with the Unilateral Change Order as issued and the Contractor expressly waives its right to contest such Change Order, including the amount of cost and/or time provided therein.

H. Minor Changes/Clarifications to the Work. The Engineer shall have authority to issue Field

Orders for minor changes or clarifications to the Work. The Contractor shall carry out such Field Orders promptly and as directed by the Engineer. Such Field Orders shall be considered incidental to the Work.

104.03 Contractor Notification, Continuation of Work, and Claims.

A. General. The Contractor shall provide timely notice and complete the Claim resolution process as provided in this Section as a condition precedent to filing an action in the Franklin County Court of Common Pleas seeking additional compensation or time. The Contractor’s failure to provide timely notice or meet any of the timeframes set forth below, or to request and receive written agreement from the City for an extension of such timeframes, shall terminate further review of the Claim and shall be deemed to be a waiver and release of the Contractor’s right to pursue the Claim. Without limiting the generality of the foregoing, the City will not make the adjustments allowed by 104.02.B through 104.02.F if the Contractor did not give notice as specified in this Section; provided, further, no Claim may be made after the City makes final payment under this Contract.

In addition to any specific notice requirements set forth elsewhere in the Contract, if the

Contractor believes that any event or circumstance or action or inaction of the City gives the Contractor the right to additional compensation or time, it shall provide timely notice and complete the Claim resolution process as provided in this Section.

B. Notice

1. Initial Oral Notification. The Contractor shall provide immediate oral notification to the

Engineer upon discovering an event or circumstance that may require a modification to the Contract Documents or may result in a claim for additional compensation and/or time. Upon such notification, the Engineer will attempt to resolve the identified issue as quickly as possible. The Contractor is advised that oral notice must be followed up by a written notice as provided in 104.03.B.2 in order for the Contractor to preserve its right to make and pursue a Claim; if the Contractor fails to do so, it shall be a waiver and release of the Claim.

2. Written Notice. If the issue has not been resolved, the Contractor must submit Written Notice no later than five working days after the Initial Oral Notification stating that the event or circumstances may require a modification to the Contract Documents or may result in a Claim for additional compensation and/or time.

The written notice shall contain:

a. A description of the circumstance giving rise to the Claim or the potential Claim, including the time, date and location the event or circumstance was first identified.

b. An explanation why the event or circumstance represents a change to the Contract, with reference to the pertinent sections or parts of the Contract Documents.

c. An estimate of the revisions considered necessary to the Contract Sum or Time.

d. An estimate of the time within which the City needs to respond to the notice in order to minimize or mitigate additional cost or delay to the Project.

e. As to any Claim on which the Contractor has provided written notice, it shall from the date of the written notice keep books and records of labor, equipment and materials detailing any costs or delays associated with such claim or the circumstances giving rise to the claim or potential claim. The keeping of such books and records shall be done in accordance with 109.05.C.8 and the Contractor acknowledges and agrees that the City’s participation in this recordkeeping process and acceptance of those records is solely for recording costs incurred and not an acknowledgment of the merit, if any, of a Claim for additional compensation or time, which shall be determined in accordance with the process set forth in this Section.

Because of its preliminary nature, the City will require only the Contractor’s best estimate based on available information at the time of first written notice; provided, however, the Contractor shall keep the Engineer regularly informed in writing of any on-going cost or time issues and shall, within thirty days after the end of the Claim event or circumstances, supplement its prior submissions identified as its final cost and time information, as applicable.

C. Continuation of Work. The Contractor shall continue with all Work, including the Work that is the subject of a Claim or potential Claim, unless specifically directed otherwise by the Engineer. The City shall continue to pay the Contractor for all non-disputed work performed during the pendency of any Claim.

D. Claims. Claims by subcontractors and suppliers may be pursued by the Contractor on behalf of subcontractors or suppliers if and to the extent the Contractor is entitled to relief under the Contract.

Any Claims brought by the Contractor, on behalf of itself or any subcontractor or supplier, shall be subject to all requirements of this Section. The Contractor shall provide with each Claim a Certification of Claim that:

1. The Claim is made in good faith and is fully documented and supported in accordance with the terms of the Contract.

2. The supporting data is accurate and complete to the best of the Contractor’s knowledge and belief after appropriate inquiry and review.

3. The Claim amount or time requested accurately reflects the Contractor’s actual incurred costs or additional time, or its best estimate of costs or additional time to be incurred if it is not known at the time the Claim is made. (In the event an estimate is provided initially, the Contractor will be required to re-certify, as provided herein, the accuracy of the Claim when the final costs and time are presented to the City.)

4. Acknowledgement by the signatory that the Certification is signed under penalty of law for perjury or falsification with specific reference to Chapter 521, Offenses Against Justice and Public Administration, Sub Section 521.02(a)(3) of the Westerville Codified Ordinances.

E. Dispute Resolution Process

1. Step 1 (On-Site Determination). Within five calendar days of receipt of the Contractor’s Written Notice as required under 104.03.B.2, the Engineer will meet with the Contractor’s representative(s) to review all pertinent information and contract provisions and negotiate in an effort to reach a resolution in accordance with the Contract Documents. Within fourteen calendar days of the Step 1 meeting, the Engineer will issue a written Step 1 decision describing the decision and reasoning for it. If the dispute is not resolved at Step 1, the Contractor must either abandon the Claim or continue pursuing the Claim by proceeding to Step 2 within the required timeframe.

These time-frames may be extended by the Engineer, in writing, as needed for the Contractor to provide merit, cost and time information regarding the dispute, as requested by the Engineer.

2. Step 2 (Claim Resolution Committee). Within seven calendar days of receipt of the Step 1 decision, the Contractor must submit a written request for a Step 2 meeting to the City. The City will promptly establish within the applicable City Department, and Division if applicable, a Claim Resolution Committee (CRC). Within fourteen calendar days after the City’s receipt of the Contractor’s request for a Step 2 meeting, the Contractor shall submit (or supplement) documentation that describes the Claim, the monetary amount or time extension sought, the basis for Contractor’s Claim under the Contract Documents, and copies of any applicable parts of the Contract Documents and project records, all in accordance with 104.03.B.2.

Within fourteen calendar days after receipt of the Contractor’s documentation, the Engineer will send to the Contractor and the CRC his/her written response. Within fourteen calendar days after receipt of all documentation, the CRC will meet with the Contractor and the Engineer (or designee) to discuss the Claim.

If the Claim is not resolved at the meeting, within fourteen calendar days after the meeting, the City will issue to the Contractor a written decision.

The time periods under this Section may be revised by written approval of the City.

3. Alternative Dispute Resolution (ADR). If the Contractor does not accept the City’s Step 2 decision, within fourteen calendar days of its receipt of the Step 2 decision, the Contractor may submit to the City a written Notice of Intent to Pursue a Claim.

The Contractor’s Notice of Intent to Pursue a Claim shall advise the City whether the Contractor wishes to resolve the Claim using either mediation or arbitration.

If the Contractor proposes mediation, within thirty calendar days after receipt of the Contractor’s Notice of Intent to Pursue a Claim, the City shall advise the Contractor in writing whether the City accepts the Contractor’s proposal.

If the Contractor proposes arbitration, it shall be subject to approval of the City Council or such other conditions that are necessary to comply with City Code. Within thirty calendar days after either the City Council acts on the matter or the Contractor advises the City that it will accept any conditions that are necessary to comply with City Code, the City shall advise the Contractor in writing whether the City accepts the Contractor’s proposal to…