4-5- ATTACHMENT D.pdf

Version 31March2023

Salt Lake County Contract No. _________________________

Salt Lake County Project Name and No._______________________________________________

CONSTRUCTION AGREEMENT

This Agreement is entered into this ________ day of _________________, 20_____, between Salt Lake County, a body corporate and politic of the State of Utah (“County”) and ____________________________ (“Contractor”), a(n) (check the applicable designation) [ ] individual [ ] limited partnership [ ] proprietorship [ ] corporation of the State of _______________ [ ] general partnership [ ] limited liability company of the State of _______________ [ ] other: __________________________________________ with its principal place of business address: __________________________________________.

County and Contractor may be referred to jointly as “the parties.”

THEREFORE, in exchange for valuable consideration, including the mutual covenants contained in this Agreement, the parties covenant and agree as follows:

1. SCOPE OF SERVICES

1.1 Contractor hereby agrees to furnish all of the materials and all of the equipment and labor necessary, and to perform all of the work in accordance with the requirements and provisions of the following Construction Documents, which are incorporated by reference to this Construction Agreement: General Conditions, Specifications, including Amendments to the Specifications, the Salt Lake County Design and Construction Standards and Procedures, the Project Manual, Plans, and Drawings (the “Work”).

1.2 Contractor has examined the site of the proposed Project and has read and understood all of the Construction Documents. Contractor has had the opportunity to consult with legal counsel regarding the Construction Documents. Contractor agrees to all of the terms and conditions contained in said Construction Documents. Contractor agrees to perform all the Work specified in the Construction Documents and complete the same within the time specified in this Agreement. Contractor will furnish the required payment and performance bonds within ten days after the effective date of this Agreement, and prior to the commencement of Work.

2. TIME OF COMPLETION

2.1 County and Contractor agree that all Work shall be completed within _____ calendar days (the “Contract Time”) after the Notice to Proceed has been received by Contractor. The County may issue a Materials Notice to Proceed (MNTP), as outlined in section 6.4 of the General Conditions. Said Notice shall be sent by County to Contractor by electronic mail to the email address provided by Contactor in Contractor’s bid. The Contract Time may be extended consistent with the General Conditions. County and Contractor agree that the Contract Time includes days for delays caused by, in whole or in part, the COVID-19 virus. County and Contractor agree that the Contract Time includes days for delays caused by, in whole or in part, materials shortages and/or supply chain issues.

Attachment D

2.2 Contractor will conduct a Punch List walk with the County no later than ____ calendar days prior to the expiration of the Contract Time and will have all punch list items complete on or before the expiration of the Contract Time.

2.3 Failure by Contractor to complete the Work within the time stated above shall entitle County to collect liquidated damages, as set forth hereafter, for all calendar days which elapse between the expiration of the above-stated time and Final Completion.

3. LIQUIDATED DAMAGES

3.1 Should Contractor fail to complete the Work within the Contract Time, there shall be deducted from any monies due, or that may become due Contractor, the sum of $ _______________________ for each and every calendar day beyond the said completion date that any Work remains uncompleted. Such sum is fixed and agreed upon by County and Contractor for the following reasons: Late completion of the Work will cause damage to County and to the public which County serves due to inability to provide services necessary for proper governance and efficient use of tax monies provided by said public, inconvenience, increased costs of administration and supervision, additional architectural or engineering costs, and the fact that an exact determination of the monetary value of said damages is extremely difficult to ascertain. If County terminates Contractor’s right to proceed under this agreement, due to delays in completion of the Work, the resulting damage will consist of the aforementioned liquidated damages until such reasonable time as may be required for final completion of the Work. The parties stipulate and agree that the amount of liquidated damages set forth herein is the result of the parties’ joint discussion of liquidation of damages, and said damages are not a penalty for noncompliance with the requirements of the Construction Documents. The Parties agree that liquidated damages are necessary to cure Contractor’s breach or default.

3.2 Permitting Contractor to continue and finish the Work or any part of it after the time fixed for its completion, or after the expiration of the Contract Time, shall serve only to determine the total amount of liquidated damages, and shall not be construed in any way as a waiver on the part of County of any of its rights under the Construction Agreement to terminate for default or of any other contract rights.

3.3 The above-stated liquidated damages provisions shall remain in effect and continue until final acceptance of the project by County. Contractor hereby authorizes County to retain sufficient amounts of monies due Contractor and remaining in the hands of County to pay the damages caused by any such default or defaults.

4. CONSIDERATION

4.1 County shall pay to Contractor for the performance of the Construction Agreement the fixed sum price offered by the bidder in the bidding schedule. If unit prices are called for, any change order(s) to this Construction Agreement shall be priced according to the unit prices bid by Contractor. If the bidding schedule calls for unit prices and includes a specified number of units, Contractor acknowledges the number of units contained in the bidding schedule is approximate only, and the final payment shall be determined by the actual number of units that are incorporated into or made necessary by the work covered by the Construction Agreement. If it reasonably appears that Contractor has substantially overpriced any unit in the bidding schedule, then the unit price to be paid under the Construction Agreement on any change order(s) shall be readjusted to conform to standard market prices for the unit.

4.2 Should the number of units of completed work of any individual item of the schedule vary twenty-five percent (25%) or more from the number of units stated in the bidding schedule, either County or Contractor may request a revision of the unit price for the item so affected, and both parties agree that under such conditions an equitable revision of the price shall be made.

4.3 Extra work not included in plans and specifications which describe the work of the Construction Agreement, but authorized after the date of the Construction Agreement, that cannot be classified as coming under any of the units, may be done at mutually agreed-upon unit prices, or on a lump sum basis, or under the provisions of Section 18.0 of the General Conditions entitled, “CHANGES IN THE WORK.”

4.4 County shall pay to Contractor for the performance of all the obligations set forth herein the fixed sum of $ ___________________________________________ (the “Contract Price”) for (select one):

□ the base bid; or

□ the base bid plus alternates____________________________________________________.

5. ACCEPTANCE AND FINAL PAYMENT

5.1 Upon receipt of written notice from Contractor that the Work is ready for final inspection and acceptance, County shall promptly make such inspection, and when it finds the work acceptable under the Construction Agreement, and the Construction Agreement fully performed, it will promptly issue a Certificate of Final Acceptance, over its signature, stating that the Work required by this Construction Agreement has been completed, including all punch list items, and is accepted by County under the terms and conditions thereof, and the entire balance found to be due Contractor, including the retained percentage, plus interest earned upon said retention as required by law, shall be paid to Contractor by County within thirty (30) days after the date of said certificate.

5.2 Before issuance of the Certificate of Final Acceptance Contractor shall submit evidence satisfactory to County that all payrolls, materials bills, and other indebtedness connected with the Work have been paid, except that in case of disputed indebtedness or disputed mechanics liens Contractor may submit, in lieu of evidence of payment, a surety bond satisfactory to County guaranteeing payment, if necessary, of all such disputed amounts or liens when adjudicated.

5.3 The making and acceptance of the final payment shall constitute a waiver of all claims by County against Contractor other than those arising from unsettled indebtedness or liens, and except for faulty work appearing within twelve (12) months after County issues the Certificate of Final Acceptance. This clause shall not be considered as a waiver of claims related to manufacturers’ guarantees. Acceptance of final payment by Contractor shall constitute a complete waiver of all claims by Contractor under the Construction Agreement.

IN WITNESS WHEREOF, the parties execute this Agreement the day and year recited above.

Salt Lake County

Signature:

Mayor or Designee

Division Approval

Division Director or Designee

Department Approval (if 100,000.00 or more)

Signature: ___________________________ Department Director or Designee

Reviewed as to form and legality for Salt Lake County:

Signature: ___________________________

Contractor: _________________________

Title:

Date: _______________________________

The individual signing above hereby represents and warrants that s/he is duly authorized to execute and deliver this Agreement on behalf of Contractor by authority of law and that this Agreement is binding upon Contractor. A person who makes a false representation of authority may be subject to criminal prosecution under Utah Code Ann. § 76-8-504 (1973).

SALT LAKE COUNTY GENERAL CONDITIONS FOR CONSTRUCTION

AGREEMENTS

1.0 DEFINITIONS

As used throughout this contract, the following terms shall have the meaning set forth below:

1.1. “County” shall mean Salt Lake County, a body corporate and politic of the State of Utah.

1.2. “Contractor” shall mean the individual, firm, partnership, corporation, or association contracting to perform the Work outlined herein.

1.3. “Construction Documents” means collectively Contractor’s Construction Agreement, these Salt Lake County General Conditions for Construction Agreements (“General Conditions”), applicable Supplemental General Conditions if identified during the Project solicitation, the Design Standards, Drawings, Specifications, Addenda, performance bond, payment bond, other documents listed in the Contractor’s Agreement, authorized Amendments and Supplementary Conditions and change orders issued after execution of the Contractor’s Agreement. The Construction Documents shall also include the bidding/proposal documents, including the Instructions to Bidders/Proposers, Notice to Contractors and the Bidding Schedule, to the extent not in conflict with the other above-stated Construction Documents and other documents and oral representations which are memorialized in writing and documented as an attachment to the Contractor’s Agreement.

1.4. “County-Owned Building” shall mean buildings or structures owned by Salt Lake County where any portion of the building or structure is climate controlled.

1.5. “Design Standards” means:

1.5.1. For the construction of a County-Owned Building, “Design Standards” refers to the current Salt Lake County Design and Construction Standards (“Design Standards”) on file with the COUNTY, (https://www.slco.org/globalassets/1-site-files/facilities/slcodesignconstrstdproc.pdf) which is incorporated by reference as if fully set forth in this Agreement.

1.5.2. For a Parks Project, the “Design Standards” refers to the standards included in the solicitation documents.

1.6. “Subcontractor” shall mean those having a direct contract with Contractor for the performance of Work called for hereunder, including one who furnishes material worked to a special design according to the plans and/or specifications of this Work but shall not include one who merely furnishes material not so worked. A subcontractor shall not have any contractual relationship with County.

1.7. “Contract” shall mean the Construction Documents, the Performance Bond, Payment Bond, Specifications including Addenda, Plans and Drawings, and Change Orders.

1.8. “general site conditions” intentionally lowercase to avoid confusion with General Conditions, means the Contractor’s responsibilities and labors, both manual and non-manual, and activities necessary to facilitate the prosecution of the Work, that are NOT otherwise specified in the Construction Documents. The general site conditions include without limitation house-keeping, site management/supervision (superintendent labor for site personnel only and should exclude overhead and profit), supervision costs, rental rates, safety measures, temporary utilities, trailers, snow removal, weather proofing, debris removal, fencing, cranes, office equipment, computers, phones, water, heat, temporary toilets, project manager, estimators, bookkeeping, administrative personnel, etc

1.9. “Site” shall mean the property as described in the Contract upon which the project shall be constructed.

1.10. “Park Project” shall mean parks, trails, and park or recreational related structures that do not qualify as a County-Owned Building.

1.11. “Punch List” shall mean a list of items Contractor must repair or replace prior to the County issuing a Certificate of Final Acceptance and final payment by County. The Punch List is created by County and Contractor during a walk through of the Project when the Parties believe the Project is complete, as provided in the Construction Agreement.

1.12. “Project” shall mean the complete construction and related activities required to accomplish the intent and meaning of the Construction Agreement.

1.13. “Parties” shall mean County and Contractor.

1.14. “Work” shall mean the construction, services, supervision, labor, tools, equipment, materials, products, and transportation, to be furnished by Contractor, to fulfill the Contractor’s obligations as required by the Construction Documents.

2.0 COUNTY REPRESENTATIVE

County will designate, and make known to the Contractor, a representative with respect to the Work to be performed under the agreement and shall have complete authority to transmit instruction, receive information, interpret and define County policy and decisions, with respect to materials, equipment, elements and systems pertinent to the Work covered by this agreement.

3.0 SITE INVESTIGATIONS, REPRESENTATIONS, AND PHOTOGRAPHIC SURVEY

3.1 Contractor acknowledges that Contractor is satisfied as to the nature and location of the Work, the general and local conditions particularly those bearing upon transportation, disposal, handling and storage of materials, availability of labor, water, electric power, road, uncertainties of weather, the conformation and condition of the ground, the character, quality and quantity of surface and subsurface materials to be encountered, the character of equipment and facilities needed preliminary to and during the prosecution of the Work and all other matters which can in any way affect the Work or the cost thereof under this contract. Any failure by Contractor to become acquainted with all the available information concerning these conditions shall not relieve Contractor from responsibility for performing the Work.

3.2 County assumes no responsibility for any understanding or representations made by any of its officers or agents during or prior to the execution of this contract, unless such understandings and representations by County are expressly stated in the contract. Representations made, but not so expressly stated and for which liability is not expressly assumed by County in the contract, shall be deemed to be for the information of Contractor and County shall not be liable or responsible therefore.

3.3 Contractor shall give all notices and comply with all federal, state, and local laws, ordinances and regulations in any manner effecting the conduct of the Work, and all such orders and decrees as exist or may be enacted by bodies or tribunals having any jurisdiction or authority over the Work, and shall indemnify and save harmless County against any claim or liability arising from or based on, the violation of any such law, ordinance, regulation, order, or decree, whether by Contractor or Contractor’s employees.

3.4 Prior to beginning Work, photograph existing site, walks, curbs, roadways, etc. in area of project. Purpose of these photographs is to establish existing conditions prior to construction. Photographs shall be by a photographer experienced in construction photography.

Photographs shall show existing conditions, details and close-ups at each level.

3.5 One copy of all photographs shall be labeled and correlated to plan views on contract drawings. Deliver to County prior to commencing Work under the contract. Format shall be as follows: digital color prints clearly marked to identify exact location and view of each print, and date photo was taken. Failure to comply with this requirement may result in Contractor being responsible for all damage to surface or structure in the Work area, whether new or existing.

4.0 INTERPRETATION OF SPECIFICATION AND DRAWINGS

4.1 The Construction Documents are complementary and what is called for by any one shall be as binding as if called for by all.

4.2 In the event of an inconsistency between provisions of the Construction Documents, the inconsistency shall be resolved by giving precedence in the following order:

(1)Change Orders, (2)Construction Agreement, (3) General Conditions, (4) Specifications including attached addenda, and (5) Drawings.

4.3 Within the working drawings, the larger scale takes precedence over smaller;

figured dimensions over scaled; and noted materials over graphic indications.

4.4 Within the working drawings, the architectural drawings shall take precedence over the other drawings and shall govern in all cases where discrepancies occur.

4.5 For convenience or reference and to facilitate letting of subcontracts, the specifications are separated into respective divisions and sections. The forming of these separations shall not operate to make County or any of its representatives any arbiter to establish subcontract limits between Contractor and Subcontractors or suppliers.

4.6 The intention of the Documents is to include all labor and materials, equipment and transportation necessary for the proper execution of the Work. Materials or Work described in words which so applied have a well-known technical or trade meaning shall be held to refer to such recognized standards.

4.7 In case of discrepancy either in the figures, in the drawings, or in the specifications, the matter shall be promptly submitted to County by Contractor or such discrepancy shall be deemed to have been waived. County shall promptly make a determination in writing. Any adjustment by Contractor without this determination shall be at their own risk and expense.

4.8 County shall furnish from time to time such detail drawings and additional information as it may consider necessary for clarification of Contract Documents.

4.9 Omissions from the drawings or specifications, or the inaccurate description of details of Work which are manifestly necessary to carry out the intent of the drawings or specifications, or which are customarily performed, shall not relieve Contractor from performing such omitted or inaccurately described details or Work, but they shall be performed as if duly and clearly set forth and described in the drawings and specifications.

5.0 MATERIALS AND WORKMANSHIP

5.1 Unless otherwise specifically provided for in the specifications, all equipment, materials and articles incorporated in the Work covered by this Construction Agreement are to be new, of the most suitable grade of their respective kinds for the purpose, free from defects, and all workmanship shall be first class. Where equipment, materials, or articles are referred to in the specifications as "equal to" any particular standard, County shall decide the question of equality.

The Contractor shall furnish to County for approval the name of the manufacturer of machinery, mechanical and other equipment which Contractor contemplates incorporating in the Work, together with their performance capacities and other pertinent information. When required by the specifications or when called for by County, Contractor shall furnish to County for approval full information concerning the materials or articles which Contractor contemplates incorporating in the Work.

5.2 Samples of materials shall be submitted for approval when so directed. Machinery, equipment, materials and articles installed or used without such approval shall be at the risk of subsequent rejections by County.

5.3 Specific reference in the specifications or drawings to any article, device, product, material, fixture, form or type of construction, etc. by name, make or catalogue number shall be interpreted as establishing a standard of quality and shall not be construed as limiting competition.

Contractor may at Contractor’s option use any articles, device, product, material, fixture, form or type of construction, etc., but only after approval by County of Contractor use. When three or more names are mentioned in the specifications and Contractor desires to use a product of another manufacturer Contractor shall state the name of the substituted manufacturer or supplier in a request for approval and shall also state the addition or deduction from the contract amount if the product submitted is accepted.

6.0 DELIVERY OF MATERIALS

6.1 Unless otherwise provided in this contract, all materials to be furnished by Contractor shall be delivered to the Site. Contractor assumes risk of loss for all materials purchased and stored at the Site.

6.2 Materials purchased by the Contractor but stored off-site must be stored at Contractor’s sole cost and expense in a bonded and insured storage facility. Contractor bears risk of loss for all property stored off-site.

6.3 Contractor may submit a pay request for materials purchased by Contractor and stored as described in Section 6.2. Payment by County does not transfer risk of loss to County for such materials.

6.4 County may issue a Materials Notice to Proceed (MNTP). The MNTP will not start the Contract Time. Contractor will only be paid for the materials specified in the MNTP, and any work directly related to the order of such materials.

6.5 Contractor understands that unforeseen materials shortages that create a longer lead time than originally contemplated may qualify for Excusable Delay under Section 10.0. Under no circumstances will material shortages entitle Contractor to Compensable Delay under 10.3.

6.6 For large systems or material orders where the supplier will not process and fill the order without a downpayment, Contractor may submit to County documentation verifying supplier’s requirements and requesting County pay the downpayment. County, in County’s sole discretion, may pre-pay for such materials/systems.

7.0 OTHER CONTRACTS

County may undertake or award other contracts for additional work upon the project, and Contractor shall fully cooperate with such other Contractors and County employees and carefully fit Contractor’s own Work to such additional work as may be directed by County. Contractor shall not commit or permit any act which shall interfere with the performance of work by any other Contractor or by County employees.

8.0 ROYALTIES AND PATENTS

For any design, device, material or process covered by letters patent or copyright, or for which letters patent or copyright have been applied, as used by Contractor, Contractor shall provide for such use by legal agreement with County of the patent or proposed patent or copyrights or a duly authorized licensee of such by County, and shall hold harmless County from any and all loss or expense or account thereof including its use by County.

9.0 LABOR REGULATIONS AND REQUIREMENTS

9.1 Contractor shall comply with current existing federal and state laws applicable to contracts on public construction.

9.2 County may in writing require Contractor to remove from the Work such employee as County deems incompetent, careless, insubordinate, or otherwise objectionable, or whose continued employment on the Work is deemed by County to be contrary to the public interest.

10.0 EXCUSABLE DELAY

10.1 Excusable Delay Generally. If Contractor is delayed at any time in the progress of the Work on the critical path schedule by causes beyond the Contractor’s control or by other causes which County determines may justify delay, then the Contract Time shall be extended by County Change Order. Contractor shall immediately take all steps reasonably possible to mitigate the adverse impact of such delay. Notwithstanding the above and except as set forth in Subsection 10.2, to the extent any of the causes for delay were caused by Contractor, reasonably foreseeable by Contractor or avoidable by Contractor, then to such extent the delay shall not be cause for extension of Contract Time. For purposes of this Subsection, Contractors shall include all Subcontractors and others under the responsibility of Contractor. The determination of a total number of days extension, if any, shall be based upon the current construction schedule in effect at the inception of the change and/or delay and upon all data relevant to the extension as it exists in the project record. Once approved, such data shall be incorporated in the next monthly update of the schedule. Contractor acknowledges and agrees that delays in Work items which, according to the schedule analysis, do not affect milestones dates or the Contract completion dates shown on the schedule at the time of the delay, shall not be the basis for a contract extension.

10.2 Weather-Related Excusable Delay. The Contract Price shall not be increased and the completion time shall not be extended for normal bad weather or any weather that is reasonably foreseeable at the time of entering into the contract. The time for completion as stated in the Contract Documents includes due allowance for calendar days on which Work cannot be performed out of doors. Contractor acknowledges that it may lose days due to weather conditions.

County Project Manager must be notified via email by Contractor within 24-hours of the notification for the weather delay. Acknowledgment of the notification shall be provided by County Project Manager. Contract time may be extended at no cost to County if all of the following criteria are met as established by Contractor:

10.2.1 The weather prevented Work that is on the critical path for the project based upon a critical path schedule submitted to County and to the extent accepted by the County;

10.2.2 There are no concurrent delays (see Subsection 10.3 for concurrent delay) attributed to the Contractor;

10.2.3 The Contractor took all reasonable steps to alleviate the impact of the weather and took reasonable attempts to prevent the delay and despite such reasonable actions of the Contractor, the weather impacted the critical path as described above; and one of the following occurred:

10.2.3.1 The weather was catastrophic, such as tornado, severe blizzard, severe windstorm, severe hail storm (severe weather is defined as dangerous meteorological phenomena with the potential to cause damage, serious social disruption, or loss of human life); or

10.2.3.2 Based on the full history of information published from the closest station as indicated from the Western Region Climate Center (Desert Research Institute, 2215 Raggio Parkway, Reno, Nevada 89512, and as may be described on the website at http://www.wrcc.dri.edu/summary/), one or more of the following occurred: (a) For any day between November 1 and March 31, the minimum temperature fell below the average minimum temperature plus the extreme low temperature recorded for the month divided by 2; (b) For any day between November 1 and March 31, the maximum temperature fell below the monthly average for the minimum temperature; (c) The daily precipitation exceeded 75% of the historical one day maximum for the month; or (d) The snow fall for the month exceeded 175% of the historical average snow fall for the month.

10.3 Compensable Delay.

10.3.1 Basic Conditions. In addition to the other requirements of the

Construction Documents for excusable delay, a compensable delay, suspension, or interruption of the Work occurs only when the following are met: (1) The delay is caused by the breach of a fundamental obligation of the Construction Documents attributable to County; AND (2) Contractor shall provide a written notice to County within seven (7) calendar days that Contractor knows or should have known of the condition giving rise to the purported compensable delay, disruption, suspension or interruption, and said continuation affects the Contract Time as indicated by the last submitted and reasonable critical path schedule.

10.3.2 Compensable Delay Formula. If there is a compensable delay, the Contractor’s total entitlement for the compensable delay damages is the computed result of the following formula: Original Contract Amount divided by the Original Contract Time (in calendar days); the result of which is then multiplied by 0.05 and the result of which is multiplied by the number of calendar days of compensable days allowed under these General Conditions that are beyond the Contract Time. Notwithstanding any other provisions of these General Condition or the Construction Documents, to the extent the Contractor is entitled to receive a markup under Section 18.3, this Section 10.3.2 shall be inapplicable, and the markup provided under Section 18.3 shall be deemed to include all the compensable delay damages provided by this Section 10.3.2.

10.3.3 Period of Compensable Delay, Suspension, or Interruption. The length and extent of compensable delay shall be determined by ascertaining the number of additional days to the Contract Time that are needed to perform the Work. This determination shall be made in accordance with the Contract Documents and after County’s receipt of the written notice under Subsection 10.3.1.

10.3.4 Concurrent Delay. Notwithstanding any other provisions of these General Conditions, to the extent a non-compensable delay occurs at the same time as a compensable delay, County shall not be responsible for any compensation for the non-compensable delay period. County shall only compensate Contractor for the time period applicable to the compensable delay.

10.3.5 Time Extension Request. Time extension requests with support documentation shall be requested within 21 days after Contractor knew or should have known about the delay and shall be supported by the project critical path schedule analysis.

11.0 POSSESSION PRIOR TO COMPLETION

County shall have the right to take possession of or use any completed or partially completed part of the Work. Such possession or use shall not be deemed an acceptance of any Work not completed in accordance with the contract. If such prior possession or use by County delays the progress of the Work or causes additional expense to Contractor, an equitable adjustment in the Contract Price and/or the time of completion shall be made and the contract shall be modified in writing accordingly.

12.0 COUNTY-FURNISHED PROPERTY

County shall deliver to Contractor for use in connection with and under the terms of the contract only such County property as may be specified in the schedule or specifications, together with such related data and information as may reasonably be required for the intended use of such property. The delivery or performance dates for supplies or services to be furnished by Contractor under this contract are based upon the expectation that County-furnished property suitable for use shall be delivered to Contractor to meet such delivery or performance dates. In the event that the County-furnished property is not delivered to Contractor by such time or times, County shall, upon timely written request made by Contractor make a determination of the delay occasioned Contractor and shall equitably adjust the Contract Price, or delivery or performance dates, or all of them, and any other contractual provisions affected by such delay. In the event that the County-furnished property is received by Contractor in a condition not suitable for the intended use, Contractor shall, upon request thereof, notify County of such fact and, as directed by County either

(1) return such property at the County's expense or otherwise dispose of the property, or (2) effect repairs or modifications. Upon completion of (1) or (2) above, County shall, upon written request of Contractor, equitably adjust the Contract Price, or delivery or performance dates, or all of them, and any other contractual provisions affected by the return or disposition, or the repair or modification. The foregoing provisions for adjustment are exclusive and County shall not be liable to suit for breach of contract by reason of any delays in delivery of County-furnished property or delivery of such property in a condition not suitable for its intended use.

13.0 SCHEDULE REPORT

Contractor shall within five (5) working days after receiving the Notice To Proceed, prepare and submit to County for approval, a critical path schedule to include all Work required by the contract. The schedule shall be prepared in the form prescribed by County and of suitable scale to indicate appropriately the percentage of the actual progress at each weekly meeting or at such intervals as directed by County, and shall immediately deliver to County six (6) copies thereof.

County reserves the right to accept or reject the critical path schedule, which right shall be exercised in a reasonable manner. If Contractor fails to submit its critical path schedule as required herein, they may be subject to a Work stoppage by County until such schedule is provided.

County shall not be liable for a delay claim as a result of such a stoppage.

14.0 PROSECUTION OF WORK

14.1 Contractor shall keep on the site a copy of the drawings and specifications and shall at all times, give County access thereto.

14.2 Contractor shall furnish sufficient forces, construction plant, and equipment, and shall work such hours, including night shifts, overtime operations, weekend, and holiday work, as may be necessary to ensure the prosecution of the Work in accordance with the approved progress schedule. If, in the opinion of County, Contractor falls behind the progress schedule, Contractor shall take such steps as may be necessary to improve Contractor’s progress, and County may require Contractor to increase the number of shifts, and/or overtime operation days of work, and/or the amount of construction plant, all without additional cost to County.

14.3 Failure of Contractor to prosecute the Work pursuant to Section 14.0 shall be grounds for “Termination for Default” and County may terminate Contractor rights to proceed with the Work, or any separable part, thereof, in accordance with Section 29.0.

15.0 CHANGED CONDITIONS

Contractor shall promptly, and before such conditions are disturbed, notify County in writing of: (a) subsurface or latent physical conditions at the site differing materially from those indicated in this contract, or (b) 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 this contract. County shall promptly investigate the conditions, and if they find that such conditions do so materially differ and cause an increase or decrease in the cost of, or the time required for, performance of this contract, an equitable adjustment shall be made and the contract modified in writing accordingly. Any claim for adjustment hereunder shall not be allowed unless Contractor has given notice as required above.

16.0 NOTICE OF LABOR DISPUTES

Whenever Contractor has knowledge that any actual or potential labor dispute is delaying or threatens to delay the time of performance of this contract, Contractor shall immediately give notice thereof, including all relevant information with respect thereto, to County.

17.0 CERTIFICATION

Contractor shall furnish written certification in the form required by County, that the Work was completed in compliance with the plans and specifications.

18.0 CHANGES IN THE WORK

18.1 Minor Changes. County or the Architect shall issue supplemental instructions authorizing minor changes in the Work which the parties agree do not involve adjustment to the Contract Sum or Contract Time.

18.2 Types of Changes in the Work. Changes in the Work that require an adjustment to the Contract Sum or Contract Time shall be initiated in one of the following manners:

18.2.1 County Initiated Changes. When County requests a change to the Work, County shall direct the Architect to issue a numbered Proposal Request (PR) to Contractor. It shall include a detailed description of proposed changes in the Work and may include supplemental or revised drawings and specifications.

18.2.1.1 A request issued by County may be either a directive to perform the Work described therein (this request shall only be issued if in its sole discretion deems the Work thereof to be required by an exigency situation or otherwise not suitable to the delay inherent in requesting Contractor’s response) or, the request by County may be designated as one for information only. In such a case, Contractor should not consider a request as instructions either to stop work in progress or to execute the proposed change. However, Contractor should inform County of any impact to work or schedule.

18.2.1.2 Contractor shall respond to the latter type of request with a written, itemized proposal within 14 calendar days of receipt a Proposal Request.

18.2.2 Contractor Initiated Changes. When latent or unforeseen conditions require modifications to the contract or Contractor initiates changes through a value engineering proposal, Contractor must propose said changes by submitting a request to County. Contractor shall:

18.2.2.1 Include a statement outlining the reason for the change and the effect of the change on the Work.

18.2.2.2 Provide a complete description of the proposed change and indicate the effect of the proposed change on the Contract Sum and Contract Time.

18.2.2.3 Provide all information about the change as outlined below (Subsection 18.3) for “Contractor Proposal.”

18.2.2.4 Notify County of changes requiring immediate action to prevent injury or loss of property. Contractor shall complete such changes as soon as reasonably possible and as appropriate under the circumstances.

18.3 Contractor Proposal-required elements. Contractor shall submit a proposal of changes and costs to County and Architect for review. The Proposal shall completely itemize all quantities of materials, unit costs, labor estimates, hourly rates, delivery charges, taxes, and markup factors in the overall costs. Costs for the purpose of the changes shall be limited to the following:

18.3.1 All site direct and indirect costs of labor, including workers compensation insurance, social security and other federal and state payroll based taxes, and payroll based fringe benefits paid by Contractor so long as they are reasonable and no higher than those charged to other clients. Labor rates shall not exceed those listed at Journeyman schedules as established for this region by R.S. Means;

18.3.2 Costs of materials, on-site temporary facilities, supplies, and equipment (except hand tools) required for or incorporated into the Work. Materials costs shall not exceed those listed at established market levels;

18.3.3 Rental costs of machinery, equipment, tools (except hand tools), and on-site temporary facilities, whether rented from Contractor or others;

18.3.4 Costs of permits and other fees, sales, use or similar taxes related to the Work;

18.3.5 Additional costs of field supervision and field office personnel directly attributed to the change;

18.3.6 Overhead and profit by the following formula which is not a penalty but a reasonable calculation agreed upon at the time of execution of Contractor’s Agreement, and provided by formula herein due to the fact that the actual amount due for said overhead and profit cannot easily be ascertained at the time of such execution. The markups in Subsections

18.3.6.1 and 18.3.6.2 are to cover Contractor’s additional payment and performance bond premiums, insurance premiums not specified under Subsection 18.3.1, home office and on-site overhead and profit. Overhead and profit includes, but is not limited to, Contractor’s Project

Manager and Cost Estimator. Each request for pricing shall stand on its own and not be combined with other requests for pricing in determining the allowed markup described below. A particular request for pricing shall include all items reasonably related together and determinable at the time of the request. If several unrelated requests for pricing are grouped together in a single County Change Order, each request for pricing shall be considered separately for purposes of calculating the markup under the following formula:

18.3.6.1 A markup in 15% shall be applied to the cost of each individual change up to and including $20,000.00 in cost, but in no case shall the markup be less than $150;

18.3.6.2 A markup of 10% shall be applied to the portion of the cost of each individual change in excess of $20,000.00;

18.3.6.3 Subcontractors at any tier shall be entitled to markup their costs related to a change with the same percentages as specified in Subsections 18.3.6.1 and 18.3.6.2, except that the minimum markup shall be $50 for any individual change.

18.3.7 Contractor shall notify County Project Manager in writing if it determines that a proposed change shall affect the contract duration. In the notice, Contractor shall identify how much time it needs to complete the Work, and explain the reasons why the proposed change shall extend the contract duration. If Contractor fails to submit this notice to County Project Manager, County shall not grant any additional time to complete the Work.

18.3.8 Changes in Contract Time. The critical path schedule as the term is used herein shall be based on the current version of Contractor’s schedule for the project and accepted by County just prior to the commencement of the modification, asserted delay, suspension or interruption. Contractor may request a Change Order for an extension of time, which shall be accompanied by a critical path impact analysis reflecting the added or changed work including an analysis of the impact on unchanged activities.

18.4 Change Authorization Proposals. When it has been determined that a change to the Contract is necessary, but exact terms and conditions and/or plans and specifications are impossible to ascertain due to time constraints, County may issue a Change Authorization.

18.4.1 County shall issue a Proposal Request to Contractor. This request shall include a detailed description of proposed changes in the Work.

18.4.2 Contractor shall respond to the Proposal similar to that outlined above, but rather than a fixed price, the proposal may include any of the following: Estimated price, unit costs, equipment costs, hourly rates or a not to exceed amount.

18.4.3 After review of the Proposal, County may issue a Change Authorization which shall authorize Contractor to begin Work on the proposed changes. This shall allow full compensation of properly documented Work performed by Contractor.

18.4.4 At completion of the changed Work or at times allowed by County, costs shall be totaled, documented, reviewed and executed as a Change Order.

18.5 Execution of Change Orders. No application for payment on a change order item may be made until the Change Order has been fully executed by County. Any Work performed prior to the issuance of a Change Authorization or Change Order signed by an authorized agent of County is at Contractor’s risk.

19.0 PAYMENTS

19.1 County shall make monthly progress payments to Contractor in an amount of money equal to ninety-five (95) percent of incurred costs for labor expended and materials, including overhead on such labor and materials supplied to the job site during the month next proceeding. However, in no event shall the cumulative total of progress payments exceed County’s estimate of the percentage of Work completed. Said payments shall be made upon submission of a progress payment report in the form prescribed by County. Progress payment requests should be submitted to the Project Manager. Contractor shall keep and maintain books and records available to audit by County or its representatives at all reasonable hours.

19.2 In making any progress payments as provided in Subsection 19.1, County may retain five (5) percent of the payment amount until final completion and acceptance of all Work covered by the contract pursuant to Utah Code Ann. § 13-8-5 (as in effect at any given time). It is expressly agreed by Contractor that all funds withheld or retained from payment by County because of faulty Work, materials, or equipment or for contract items not provided or installed by Contractor in accordance with the plans, specifications, drawings, and other Contract Documents or any amount in dispute shall not be considered as retained amounts under Utah Code Ann. § 13- 8-5 and shall not be subject to the provisions of this Subsection 19.2. It is also agreed that this Subsection shall not be construed so as to prevent the County from waiving the requirement for retainer under the contract or to prevent Contractor from waiving the requirement that any retained amounts be placed in an interest-bearing account. Any waiver by Contractor, however, must be in writing and furnished to County prior to being given the notice to proceed under the contract.

19.3 All rights, title and interest in and to material and Work covered by partial payments made shall thereupon become the sole property of County, but this provision shall not be construed as relieving Contractor from the sole responsibility for all materials and Work upon which payments have been made or the restoration of any damaged Work, or as a waiver of the right of County to require the fulfillment of all of the terms of the contract.

19.4 Upon completion and acceptance of all Work required hereunder, the amount due Contractor under this contract shall be paid upon the presentation of a properly executed final payment application and a Claim Release and Waiver, releasing County from all Claims arising under or by virtue of this contract. If Contractor’s claim to amounts payable under the contract has been assigned, a release may also be required of the assignee at the option of County.

20.0 ACCEPTANCE FOR PAYMENT

20.1 Upon completion of all and any Work under this contract, the Work shall be given a punch-list walk through by County. When all of the Work including punch-list items is found to be satisfactorily completed in accordance with the contract, and the entire Work is accepted by County, final payment shall be made to Contractor.

20.2 For purposes of this clause, final acceptance refers only to final acceptance which shall allow Contractor to be paid and does not release Contractor of warranty requirements.

21.0 INSPECTION

21.1 When special inspections or testing are required, County shall employ an independent, qualified testing agency for all special inspections and testing required. Contractor shall be responsible for coordinating and scheduling all inspections with a minimum advance notice of 24 hours. The testing agency shall be responsible for disseminating all required reports to the proper parties.

21.2 Contractor shall be responsible for setting up a meeting which Contractor, County, and the testing agency shall attend before construction begins. The purpose of this meeting shall be to establish the testing requirements and the frequency of testing including, but not limited to, the testing and inspection specified in the Construction Documents.

21.3 Except as otherwise provided herein all material and workmanship, if not otherwise designated by the specification, shall be subject to inspection, examination, and test by County at any and all times during manufacture and/or construction at any and all places where such manufacture and/or construction are carried on. County shall have the right to reject defective material and workmanship or require its correction. Rejected workmanship shall be satisfactorily corrected and rejected material shall be satisfactorily replaced with proper material without charge therefore, and Contractor shall promptly segregate and remove the rejected material from the premises. If Contractor fails to proceed at once with the replacement of rejected material and/or the correction of defective workmanship County may, by contract or otherwise, replace such material and/or correct such workmanship and charge the cost thereof to Contractor, or may terminate the right of Contractor to proceed as provided in Sections 29.0 or 30.0.

21.4 Contractor shall furnish promptly without additional charge, all reasonable facilities, labor, and materials necessary for the safe and convenient inspection and tests that…