5-General Project Conditions 2026.docx

General Conditions

GENERAL CONDITIONS

GENERAL CONDITIONS

1. DEFINITIONS

The TOWNSHIP is the party referred to in Section A, “Advertisement for the Bids”, and whenever the word “Township” is used herein it shall refer to and designate the party of the first part of the Contract contained herein. The TOWNSHIP shall refer to the Township of Tredyffrin (including its employees and legal representatives) as may be required.

The CONTRACTOR is the individual, group, partnership or corporation undertaking to do the work herein specified (including the Contractor’s heirs, legal representatives, successors or assigns) and is the party of the second part of the Contract contained herein.

The ENGINEER is the person, firm or corporation who represents the TOWNSHIP on the Contract contained herein.

The CONTRACT DOCUMENTS consist of the Advertisement, Instructions to Bidders, Form of Proposal, General and Special Conditions, Construction Specifications, Form of Agreement, bid Bond, Performance Bond, Payment Bond, and Plans/Drawings.

A SUBCONTRACTOR is an individual, group, partnership or corporation, having a direct Contract with the Contractor to furnish a special service, labor or materials towards the completion of the Contractor’s Contract.

An INSPECTOR is an authorized representative of the Township assigned to inspect the work performed and the materials supplied by the Contractor as to compliance with the Contractor’s Contract.

The term WORK, used herein, includes all labor and/or materials, equipment and any other facilities necessary for the Contractor to complete the Contract.

The term APPROVED, used herein, shall be held to mean as approved by the Engineer and/or Township.

The term SUBSTANTIAL COMPLETION used herein shall be held to mean construction that is sufficiently completed in accordance with the Contract Documents, certified in accordance with the Contract Documents and certified by the Engineer and Township, as modified by change orders agreed to by the parties, so that a project can be used, occupied or operated for its intended use. In no event shall a project be certified as substantially complete until at least 95% of the work on the project is completed.

NOTICE shall be deemed to have been duly served if written (electronic or hard copy) and delivered in person to the individual, to a member of the firm, or to an office of the corporation for whom it is intended, or if delivered at or sent by registered mail to the last business address known to the agent who gives notice.

2. OTHER CONTRACTS

The Township may award, or may have awarded, other contracts for additional work and the Contractor shall cooperate fully with such other contractors, by scheduling the Contractor’s own work with that to be performed under the other contracts as may be directed by the Township. The Contractor shall not commit or permit any act which will interfere with the performance of work by any other contractor as scheduled.

3. SUBCONTRACTS

No part of the Contract shall be sublet without prior written approval of the Township and its setting forth requirements to be met. The contractor shall remain liable, regardless of the Townships approval of the use of and identity of subcontractors, for the compliance with all of the terms of this contract by the subcontractors.

4. MUTUAL RESPONSIBILITY OF CONTRACTORS

If any other contractors or any subcontractor, through acts or neglect on the part of the Contractor, shall suffer loss or damage on the work, the Contractor shall settle with such other contractor or subcontractor by agreement or arbitration. If such other contractor or subcontractor shall assert any claim against the Township as a result of any damage alleged to have been so sustained, the Township will notify the Contractor, who shall defend any suit based upon, and be responsible for, any expense related to such claim. If any judgment or claims against the Township shall be allowed, the Contractor shall pay or satisfy such judgment or claim and pay all costs and expenses in connection therewith.

5. FITTING AND COORDINATION OF WORK

The Contractor shall be responsible for the proper fitting of all work and for the coordination of the operations of all trades, subcontractors, or persons supplying material engaged upon this Contract. The Contractor shall be prepared to guarantee to each of the subcontractors the locations and measurements which they may require for the fitting of their work to all surrounding work. The contractor shall fully familiarize themselves with the work site.

6. PERMITS, LICENSES AND TAXES

The Contractor shall give all notices required by, and comply with, all applicable laws, ordinances, and codes of the Local Government. All construction work and/or utility installations shall comply with applicable ordinances and codes including all written waivers. Before installing any work, the Contractor shall examine the Construction Specifications for compliance with applicable ordinances and codes and shall immediately report any discrepancy to the Township. Where the requirements of the Construction Specifications fail to comply with such applicable ordinances or codes, the Township will adjust the Contract by Change Order to conform to such ordinances or codes (unless waivers in writing covering the difference have been granted by the governing body or department) and make appropriate adjustment in the Price Proposal (stipulated unit prices).

Should the Contractor fail to observe the foregoing provisions and proceed with the construction varying from any applicable ordinance or code, including any written waivers (notwithstanding the fact that such installation is in compliance with the Construction Specifications) the Contractor shall remove such work without cost to the Township.

The Contractor shall be responsible for any expense necessary to secure and pay to the appropriate department of the Local Government the fees or charges for all permits required by the local regulatory body or any of its agencies.

Whenever the proposed construction requires a sales, consumers use, or other similar tax, the Contractor shall pay for same.

7. PROVISIONS REQUIRED BY LAW

Each and every provision of law and clause required by law to be inserted in this Contract shall be deemed to be inserted herein and the Contract shall be read and enforced as though it were included herein; and, if through mistake or otherwise, any such provision is not inserted or is not correctly inserted, then upon the application of either party the Contract shall forthwith be physically amended to make such insertion.

8. VERIFICATION OF FIELD CONDITIONS

The Contractor shall check and verify all field measurements and shall submit any errors and discrepancies found in writing to the Engineer and/or Township with such promptness as to cause no delay in the Contractor’s own work or in that of any other contractor. The Engineer’s/Township’s approval of such revised drawings or schedules shall not relieve the Contractor of responsibility for deviations from Contract Drawings or Specifications, unless the Contractor has secured the Engineer’s written approval for such deviations.

9. PROGRESS SCHEDULE

At the scheduled pre-construction meeting, which will be held after the award of the contract, the Contractor shall submit a complete and sufficiently detailed Progress Schedule with fixed dates for completion of the contract in its various stages..

10. SUPERINTENDENCE BY CONTRACTOR

At all times during which work is being performed under or affecting this Contract, the Contractor shall keep a competent superintendent that is acceptable to the Township constantly on the site from the commencement of work under this Contract until the completion thereof, who shall be constantly in touch with the work. The superintendent shall, in the absence of the Contractor, see that the instructions of the Engineer are carried out and all directions given such superintendent shall be as binding as if given directly to the Contractor.

11. LOCATION OF FACILTIES

The Contractor will be held responsible for locating, in advance of the work under this Contract, all items, including but not limited to: electric lines or conduit, sanitary sewer, gas lines, storm sewer, water lines, or other underground or overhead utilities which may be encountered during the constructing operation. If any items or conflicts are found, the contractor will notify the Owner, in writing, immediately. No work will take place until the issue is resolved. The Contractor shall not be entitled to any claim or damages due to these potential conflicts; plans and blueprints provided in the bid package are informational only.

12. PROTECTION OF FACILITIES

The Contractor shall exercise particular care with the construction work in order to avoid interference with existing facilities.

13. PROTECTION OF WORK AND PROPERTY

The Contractor shall provide adequate protection against injury or loss, arising in connection with this Contract, for all work and the property of the Township. The Contractor shall make good any such damage, injury or loss, except such as may be due directly to errors in the Contract Drawings or Specifications or caused by agents or employees of the Township. The Contractor shall adequately protect adjacent property as provided by law and the Specifications. The Contractor shall provide facilities for protection required by public authority or local conditions such as passageways, guard fences, lights, etc.

14. SAMPLES, CERTIFICATES AND TESTS

The Contractor shall submit all material or equipment samples, certificates, affidavits, etc., as called for in the Contract Documents or required by the Engineer/Township promptly after award of the Contract and acceptance of the Contractor’s bond. No such material or equipment shall be manufactured or delivered to the site, except at the Contractor’s own risk, until the required samples or certificates have been approved in writing by the Engineer/Township. Any delay in the work caused by late or improper submission of samples or certificates for approval shall not be considered just cause for an extension of the contract time.

Each sample submitted by the Contractor shall carry a label giving the name of the Contractor, the project for which it is intended, and the name of the producer. The accompanying certificates or letters from the Contractor shall state that the sample complies with contract requirements, shall give the name and brand of the product, its place of origin, the name and address of the producer and all specifications or other detailed information which will assist the Engineer in passing upon the acceptability of the sample promptly. It shall also include the statement that all materials or equipment furnished for use in the project will comply with the samples and/or certified statements.

Approval of any materials shall be general only and shall not constitute a waiver of the Township’s right to demand full compliance with Contract requirements. After actual deliveries, the Engineer/Township will have such check tests made as the Engineer/Township deems necessary in each instance and may reject materials and equipment and accessories for cause, even though such materials and articles have been given general approval. If materials, equipment or accessories which fail to meet check tests have been incorporated in the work, the Engineer will have the right to cause their removal and replacement by proper materials or to demand and secure such reparation by the Contractor as is equitable.

15. MATERIALS AND WORKMANSHIP

Unless otherwise specifically provided for in the Specifications, all workmanship, equipment, materials and articles incorporated in the work shall be new and the best grade of the respective kinds for their purpose. Where equipment, materials, articles or workmanship are referred to in the Construction Specifications as “Equal to” any particular standard, the Engineer/Township shall decide the questions of equality.

Materials specified by reference to the number or symbol of a specific standard, such as an A.S.T.M. Specification, a Federal Specification or other similar standard, shall comply with requirements in the latest revisions thereof and any amendment or supplement thereto in effect on the date of the Invitation for Bids, except as limited to type, class or grade, or modified in such reference. The standards referred to except as modified in the Construction Specifications, shall have full force and effect as though printed therein.

The Township may require the Contractor to dismiss from the work such employee or employees as the Township or the Engineer may deem incompetent, careless or insubordinate.

16. CHANGES IN EQUIPMENT AND/OR MATERIALS

In these Specifications there are specified certain pieces of equipment and/or materials which are deemed most suitable for service. This is not done to eliminate other equipment and material equally as good and efficient. The Contractor shall prepare the bond on particular material and equipment specified. Following award of the Contract, should the Contractor desire to use some other make of machinery, equipment or material, the Contractor shall submit to the Engineer/Township a written request for such change and, in same, shall state the advantage to the Township and the savings or additional cost involved by substitution. Determination as to whether or not such change will be permitted rests solely with the Engineer.

If the requested change results in added engineering costs, the Contractor and Township will be notified of the magnitude of same, by the Engineer, and the change will only be processed upon agreement by the Contractor to pay for the added engineering costs. If the Contractor refuses to pay said added costs, the Contractor must supply the equipment and/or materials specified.

17. WARRANTY OF TITLE

No material, supplies, or equipment for the work shall be purchased subject to any chattel mortgage or under a conditional sale or other agreement by which an interest therein, or in any part thereof, is retained by the seller or supplier. The Contractor shall warrant good title of all materials, supplies and equipment installed or incorporated in the work, and upon completion, of all appurtenances constructed or placed thereon, and guarantee the Township free from any claim, liens, or charges. Neither the Contractor nor any person, firm or corporation furnishing any material or labor for any work covered by this Contract shall have any right to a lien upon any improvement or appurtenance thereon. Nothing contained in this paragraph, however, shall defeat or impair the right of persons furnishing materials or labor to recover under any bond given by the Contractor for their protection or any rights under any bond permitting such persons to look to funds due the Contractor in the hands of the Township. The provisions of this paragraph shall be inserted in all subcontracts and material contracts and notice of its provisions shall be given to all persons furnishing materials for the work when no formal contract is entered into for such materials.

18. GENERAL GUARANTY

Neither the final certificate of payment nor any provision in the Contract nor partial or entire use of the work embraced in this Contract by the Township or the public shall constitute an acceptance of work not done in accordance with the Contract and relieve the Contractor of liability in respect to any express warranties or responsibility for faulty materials or workmanship. The Contractor shall promptly remedy any defects in the work to other work which shall appear within a period of two (2) years from the date of final approval and acceptance of the work by the Township. The Township will give notice of defective materials and work with reasonable promptness.

19. PATENTS

The Contractor shall hold and save the Township, its officers, and employees, harmless from liability of any nature or kind including costs and expenses for, or on account of, any patented or unpatented invention, process, article, or appliance manufactured or used in the performance of the Contract including its use by the Township unless otherwise specifically stipulated in the Construction Specifications.

20. PROGRESS MEETINGS

Regularly scheduled progress meetings shall be held at a location and time convenient to the Township’s representatives, the Engineer and the Contractor. The Contractor shall attend each and every meeting, or be represented by a person in authority who can speak for and make decisions for the Contractor. The project schedule will be discussed at this meeting. The provision in no way limits the Township’s representative and the Engineer from meeting with the several contractors or their representatives either singularly or jointly at any time during the course of the work to discuss any or all items of mutual interest which naturally arise from the course of the work.

21. TEMPORARY PROVISIONS FOR PUBLIC TRAVEL

The Contractor shall perform the work in such a manner so as not to interfere with the use of adjacent offices, meeting rooms, dining areas, or other work space. At the end of each shift, all areas will be left clean and in a usable condition. All Pennsylvania Department of Transportation traffic safety and work zone requirements are to be adhered to.

22. SANITARY FACILITIES

The Contractor shall furnish, install and maintain ample sanitary facilities for the construction workers. As the needs arise, a sufficient number of enclosed temporary toilets shall be conveniently placed as required by the sanitary codes of the State and Local Government.

23. WATER

All water for construction purposes will be provided for by the Contractor unless otherwise authorized by the Township in writing.

24. ELECTRICITY

All electricity required for construction purposes will be provided and paid for the Contractor. Temporary extensions shall be furnished by the Contractor as approved by the

25. AUTHORITY OF THE DIRECTOR OF PUBLIC WORKS

In case of termination of the employment of the Director/designee, the Township shall appoint a capable and reputable Director/designee against whom the Contractor makes no reasonable objection and whose status under the Contractor makes no reasonable objection and whose status under the Contract shall be that of the former Director. Any dispute, in connection with such appointment, shall be subject to arbitration.

26. INSPECTION OF WORK

The Township will appoint such persons as they deem necessary to inspect, at any time, materials and equipment furnished and work done under this Contract. The Director shall be notified of the time and place of all work performed in sufficient time to allow arrangements for the assignment of inspectors. Neither the inspection or surveillance of the work, nor the presence or absence of an inspector, shall relieve the Contractor of any of the obligations under the Contract or of making the work conform to the intent of the Contract Drawings and/or Specifications.

The Township’s inspectors shall be authorized to inspect all work done and materials furnished. Such inspection may extend to all or any part of the work and to the preparation or manufacture of the materials to be used. Inspectors will be stationed at the site to report to the engineer as to the progress of the work and the manner in which it is being performed; to report whenever it appears that the materials furnished and work performed by the Contractor fail to fulfill the requirements of the Contract, and to call to the attention of the Contractor any such failure or other default. However, no inspection nor any failure to inspect, at any time or place, shall relieve the Contractor from any obligation to perform all work strictly in accordance with the requirements of the Contract. In case of any dispute arising between the Contractor and any inspector as to materials furnished or the manner of performing the work, the inspector as to materials furnished or the manner of performing the work, the inspector shall have the authority to reject materials or suspend the work until the issue in question can be referred to and decided on by the Director. The inspectors shall not be authorized to revoke, alter, enlarge, relax or release any requirements of the Contract, nor to approve or accept any portion of work, nor to issue instructions contrary to the Drawings and Specifications. Inspectors shall in no case act as foreman or perform other duties for the Contractor, nor interfere with the management of the work by the latter. Any instructions which the inspectors may give the Contractor shall in no way be construed as releasing the Contractor from fulfilling the terms of the Contract.

When the Contractor has fully completed all work provided for under the Contract and so notified the Engineer in writing, the Director will make a final inspection of the completed work. If in the judgment of the Township, the Contractor has fully completed the work and it is in accordance with all terms, provisions and stipulations of the Drawings, Specifications and the Contract, the Township will issue a Certificate of Completion to the Township showing the entire amount of work performed and the compensation earned by the Contractor, including any approved extra work and the compensation therefore. If in the Director’s judgment, the Contractor has not fully completed the work or the final inspection reveals items which must be corrected, the Director will notify the Contractor, with copy to the Township, of the deficiencies. The Contractor shall notify the Engineer, in writing, that the deficiencies have been corrected and request a final inspection.

27. TERMINATION; DELAYS; LIQUIDATED DAMAGES

If the Contractor refuses or fails to perform the work with such diligence as will insure its completion within the time specified in the Contract Documents, or as modified as provided in these Contract Documents, the Township, by written notice to the Contractor, may terminate the Contractor’s right to proceed with the work. Upon such termination, the Township may take over the work and prosecute the same to completion by Contract or otherwise, and the Contractor and sureties shall be liable to the Township for additional cost incurred by the Township for liquidated damage for any delay in the completion of the work as provided below. If the Contractor’s right to proceed is so terminated, the Township may take possession of and utilize in completing the work such materials, tools, equipment and facilities as may be on the site of the work and necessary to complete the Contract as specified.

If the work is not completed within the time stipulated, including any extensions of time for excusable delays as herein provided, the Contractor shall pay to the Township Liquidated Damages for each calendar day or delay, as set forth in the “Penn DOT Form 944 - MS” , and the Contractor and sureties shall be liable to the Township for the amount thereof.

The right of the Contractor to proceed shall not be terminated nor shall the Contractor be charged with Liquidated Damages for any delays in the completion of work due to:

Any acts of the Government, including controls or restrictions upon or

General Conditions

And provided however, that the Contractor promptly notifies the Township within five (5) days in writing of the cause of the delay. Upon receipt of such notification, the Township shall ascertain the facts and the cause and extent of the delay. If, upon the basis of the facts and terms of this Contract, the delay is properly excusable, the Township shall extend the time for completing the work for a period of time commensurate with the period of excusable delay.

Should the completion of the work be delayed beyond the time herein specified for completion for any reason other than the act of neglect of the Township, or an approved extension of time, the Contractor shall pay the Township the actual engineering expenses incurred by the Township as a result of such delay and the Township may deduct such engineering costs from any payments due or to become due the Contractor.

28. USE OF PREMISES

The Contractor shall confine equipment, storage of materials and construction operations to the areas specified under this contract.

The Contractor shall comply with all reasonable instructions of the Township and the ordinances and codes of the Local Government regarding safe zones, access, egress, and cordoned off areas.

29. POSSESSION PRIOR TO COMPLETION

The Township shall have the right to take possession or use any completed or partially completed part of the work, but such possession or use shall not be deemed an acceptance of any work not completed in accordance with the Contract.

30. PAYMENT TO CONTRACTOR

a. Partial:

The total value of work completed as of any date of measurement shall be based on the estimated quantities of work completed and on the unit prices and lump sum prices contained in the Proposal. Payment for materials delivered and stored but not yet used will be made only as specifically provided for hereinafter under the “Special Conditions” . The Contractor shall prepare the requisition for partial payment as of the day of the month mutually agreed upon and submit same in quadruplicate to the Engineer for approval.

For contracts in excess of $50,000, the amount due the Contractor shall be determined by the total value of work completed to date less ten (10) percent of the total amount to be retained until fifty (50) percent of the work has been completed and five (5) percent shall be retained from that point until final payment. Provided, however, that in the event a dispute arises between the Township and any prime Contractor, which dispute is based upon increased costs claimed by one prime Contractor occasioned by delays or other actions of another prime Contractor, additional retainage in the sum of one and one-half times the amount of any possible liability may be withheld until such time as a final resolution is agreed to by all parties directly or indirectly involved, unless the Contractor causing the additional claim furnishes a bond satisfactory to the Township to indemnify such Township against the claim. However, all such monies retained by the Township may be withheld from the Contractor until substantial completion of the contract.

Within 20 days of the receipt of a retainage payment by the Contractor, the Contractor shall pay all subcontractors with whom the Contractor has contracted their earned share of the payments the Contractor received.

Monthly or partial payments made by the Township to the Contractor are monies advanced for the purpose of assisting the Contractor in expediting the work for construction. All material and completed work covered by such monthly or partial payments shall remain the property of the Contractor and the Contractor shall be responsible for the care and protection of all materials and work upon which payments have been made. Such payments shall not constitute a waiver of the right of the Township to require the fulfillment of all terms of the Contract and the delivery of all improvement embraced in this Contract complete and satisfactory to the Township in all details.

b. Final:

After final inspection and acceptance by the Township of all work under the Contract, the Contractor shall prepare the requisition for final payment which shall be based upon the carefully measured or computed quantity of each item of work at the applicable unit prices and lump sum prices stipulated in the “Price Proposal” ( “Form of Proposal”). The total amount of the final payment due the Contractor under this Contract shall be the amount computed as described less all previous payments. Final payment to the Contractor shall be made subject to furnishing the Township with the “Contractor’s Release” and “Maintenance Bond”.

The Township, before paying the final estimate, may require the Contractor to furnish individual releases or receipts from all subcontractors having performed any work and all persons having supplied materials, equipment (installed on the project), and services to the Contractor, if the Township deems the same necessary in order to protect its interest. The Township, however, may, if it deems such action advisable, make payment in part or in full to the Contractor without requiring the furnishing of such releases or receipts and any payments so made shall in no way impair the obligations of any surety or sureties furnished under this Contract. The foregoing provisions shall be construed solely for the benefit of the Township and will not require the Township to determine or adjust any claim or disputes between the Contractor and subcontractors or material dealers, or to withhold any monies for their protection unless the Township elects to do so. The failure or refusal of the Township to withhold any monies from the Contractor shall in no way impair the obligations of any surety or sureties under any bond or bonds furnished under this Contract.

On contracts in excess of $50,000, the Contractor shall be paid in full, except as otherwise provided in this section of “General Conditions”, within 30 days following the date of substantial completion, less only 1 and ½ times such amount as is required to complete any then remaining, uncompleted, minor items, which amount shall be certified by the Engineer and upon receipt by the Township of any guarantee bonds which may be required, in accordance with the contract documents, to insure proper workmanship for a designated period of time. The certificate given by the Engineer shall list in detail each and every uncompleted item and a reasonable cost of completion. Final payment of any amount so withheld for the completion of the minor items shall be paid forthwith upon completion of the items in the certificate of the Engineer.

31. CORRECTION OF WORK AFTER FINAL PAYMENT

Neither the final payment nor any provisions in the Contract shall relieve the Contractor of the responsibility for faulty materials or workmanship and the Contractor shall remedy any defects due thereto and pay any damage resulting there from which shall appear within a period of two (2) years from the date of completion and acceptance by the Township.

32. CHANGES IN THE WORK

The Township may make changes in the scope of the work required to be performed by the Contractor under the Contract or make additions thereto, or omit work there from, without invalidating the Contract, and without relieving or releasing the Contractor from any of the obligations under the Contract or any guarantee given by the Contractor pursuant to the Contract provisions, and without affecting the validity of the guaranty bonds, and without relieving or releasing the surety or sureties of said bonds. All such work shall be executed under the terms of the original Contract unless it is expressly provided otherwise.

Except for the purpose of affording protection against endangering life or property, the Contractor shall make no changes in the materials used or in the specified manner of constructing and/or installing the improvements or supply additional labor, services, or materials beyond that actually required for the execution of the Contract, unless in pursuance of a written order from the Township authorizing the Contractor to proceed with the change. No claim for an adjustment of the “Price Proposal” will be valid unless so ordered.

Where applicable, when unit prices are contained in the Proposal, the Township may order the Contractor to proceed with desired changes in the work. The value of such changes are to be determined by the measured quantities involved and the applicable unit prices specified in the Contract. The Township shall, before ordering the Contractor to proceed with desired changes, request an itemized proposal from the Contractor covering the work involved in the change, following which the procedure shall be as follows:

Payment under “Force Account” will be for the actual and necessary direct cost of the work in accordance with the orders of the Engineer, and in addition thereto the percentage of such cost hereafter stated. “Actual and necessary direct cost” shall be deemed to include the following:

The actual expenditure for labor of the time actually engaged in the

To the actual and necessary direct cost of the work done under “Force Account” as noted above, fifteen (15) percent will be added to the expenditure for labor as set forth above and ten (10) percent will be added to the expenditure for materials. No additions will be allowed to the rental of trucks and special equipment.

These percentages, and the rental price for equipment furnished, shall be deemed to cover the cost of heat, light, use and upkeep of small hand tools, administration, engineering, supervision, all loss, damage, risk, and expenses incidental to the work and profit. The Contractor shall have no claim in excess of the above, such payments being in full compensation for the performance of such work and the furnishing of such material and for all expense in connection therewith and incidental thereto.

Should the Contractor sublet any portion of the work to be executed under “Force Account” payment, that portion will be computed as the actual and necessary direct cost as defined above, exclusive of any profit to the subcontractor, plus the percentages allowed, plus five (5) percent of the total paid to the subcontractor.

The Contractor shall submit daily a statement in duplicate of work done on a “Force Account” basis within twenty-four (24) hours of the time the work is done, and representatives of the Engineer and the Contractor shall make daily comparison of the time and rates of labor, material used, etc., as given therein. After correction, if necessary, this comparison shall be signed by each and filed with the Engineer and the Contractor. The Contractor shall submit to the Engineer monthly, prior to each current estimate, four copies of an itemized statement of the amount and value of labor and materials furnished, accompanied by the original receipted bills for commodities purchased or work performed under a subcontract, and by an affidavit certifying the correctness of the said statement. The Engineer shall have access to any books, vouchers, records, and memoranda showing the labor employed and the materials actually used on the specific operation and the actual net cost thereof.

33. CLAIMS FOR EXTRA COST

If the Contractor claims that any instructions by the Contract Drawings or otherwise involve extra cost or extension of time, the Contractor shall within five (5) days after the receipt of such instructions, and in any event before proceeding to execute the work, submit a protest thereto in writing to the Township, stating clearly and in detail the basis of the objections. No such claim will be considered unless so made.

Any discrepancies which may be discovered between actual conditions and those represented by the Specifications or maps shall at once be reported to the Engineer and the Township and work shall not proceed except at the Contractor’s risk, until written instructions have been received by the Contractor from the Township.

If, on the basis of the available evidence, the Township determines that an adjustment of the Contract Price and/or time is justifiable, the procedure shall then be as provided herein.

34. DISPUTES

All disputes arising under this Contract or its interpretation, whether involving law or fact or both, or extra work and all claims for alleged breach of contract shall, within five (5) days of commencement of the dispute, be presented by the Contractor to the Township for decision. All papers pertaining to claims shall be filed in quadruplicate. Such notice need not detail the amount of the claim but shall state the facts surrounding the claims in sufficient detail to identify the claim, together with its character and scope. In the meantime, the Contractor shall proceed with the work as directed. Any claim not presented within the time limit specified within this paragraph shall be deemed to have been waived, except that if the claim is of a continuing character and notice of the claim is not given within five (5) days prior to the receipt by the Township of notice thereof.

The Contractor shall submit in detail the claim and the proof thereof. Each decision by the governing body of the Township will be in writing and will be mailed to the Contractor by registered mail, return receipt requested.

If the Contractor does not agree with any decision of the Township, the Contractor shall in no case allow the dispute to delay the work but shall notify the Township promptly that the work is proceeding under protest and the Contractor may then except the matter in question from the final release.

35. THE OWNER’S RIGHT TO DO WORK

If the Contractor should neglect to perform the work properly or fail to perform any provision of the Contract, the Township, after three days written notice to the Contractor may, without prejudice to any other remedy the Contractor may have, make good such deficiencies and may deduct the cost thereof from the payment then or thereafter due the Contractor, provided, however, that the Engineer shall approve both such action and the amount charged to the Contractor.

36. THE OWNER’S RIGHT TO TERMINATE CONTRACT

The Township, upon the certification of the Engineer that sufficient cause exists to justify such action, may, without prejudice to any other right of remedy and after giving the Contractor, and any surety, seven (7) days written notice, terminate the employment of the Contractor and take possession of the premises and of all materials, tools and appliances thereon and finish the work by whatever method the Contractor may deem expedient if the Contractor should be adjudged bankrupt or if a receiver should be appointed as a result of insolvency; if the Contractor should make a general assignment for the benefit of creditors; persistently or repeatedly refuse or should fail, except in cases for which extension of time is provided, to supply enough properly skilled employees or proper materials; should fail to make prompt payment to subcontractor or for material or labor; persistently disregard laws, ordinances or the instructions of the Engineer; or otherwise be guilty of a substantial violation of any provision of the Contract. In such case the Contractor shall not be entitled to receive any further payment until the work is finished. If the unpaid balance of the Contract Sum shall exceed the expense of finishing the work including compensation for additional managerial and administrative services, such excess shall be paid to the Contractor. If such expense shall exceed such unpaid balance, the Contractor shall pay the difference to the Township. The expense incurred by the Township as herein provided, and the damage incurred through the Contractor’s default, shall be certified by the Engineer.

37. DAMAGES

Should either party to the Contract suffer damages because of any wrongful act or neglect of the other party or of any of its employees, claim shall be made in writing to the party liable within a reasonable time of the first observance of such damage and not later than the final payment, except as expressly stipulated otherwise in the case of faulty work or material, and shall be adjusted by agreement or arbitration.

38. NO ESTOPPEL OR WAIVER OF LEGAL RIGHTS

The Township or the Engineer shall not be precluded or stopped by any measurement, estimate or certificate, made or given of them or by any agent or employee of the Township under any provision or revisions of the Contract at any time, either before or after the completion and acceptance of the work and payment thereof, pursuant to any measurements, estimate or certificate is untrue or incorrectly made in any particular or that the work or materials or any part thereof, do not conform in fact to the Contract. The Township shall have the right to reject the whole or any part of the aforesaid work or materials should the said measurements, estimate, certificate or payments be found or be known to be inconsistent with the terms of the contract or otherwise improperly given. The Township shall not be precluded or stopped notwithstanding any such measurement, estimate, certificate and payment in accordance therewith, from demanding and recovering from the Contractor and any surety such damages as the Contractor may sustain by reason of failure to comply with the terms of the Contract. Neither the acceptance by the Engineer, or any agent or employee of the Township nor any certificate by the Engineer for payment of money, nor any payment for, nor acceptance of the whole or any part of the work by the Township or the Engineer nor any extension of time, nor any possession taken by the Township or its employees, shall operate as a waiver of any portion of the Contract or of any power herein reserved by the Township, or any right to damages herein provided nor shall any waiver of any breach of contract be held to be a waiver of any other subsequent breach.

39. ARBITRATION

All claims, disputes and other matters in question arising out of, or relating to, this Contract or the breach thereof shall be decided by mutual agreement to arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association. This agreement so to arbitrate shall be specifically enforceable under the prevailing arbitration law. The award rendered by the arbitrators shall be final, and judgment may be entered upon it in any court having jurisdiction thereof except in disputes between the Contractor and the Township over the payment of retainage and final payment on contracts in excess of $50,000, either party shall have the right to appeal from any decision and award as provided by law.

Notice of the request for arbitration shall be filed in writing with the other party to the Agreement and with the American Arbitration Association, and a copy shall be filed with the Engineer. The request for arbitration shall be made within a reasonable time after the claim, dispute or other matters in question have arisen, and in no event shall it be made after institution of legal or equitable proceedings based on such claims, dispute or other matters in question that would be barred by the applicable statute of limitation.

The Contractor will continue the work and maintain the progress schedule during any arbitration proceedings, unless otherwise agreed by the Contractor and the Township in writing.

40. INDEMNIFICATION

The Contractor will indemnify and hold harmless the Township, the Director and their agents and employees from all claims, damages, losses and expenses including attorney’s fees arising out of or resulting from the performance of the Work, provided that any such claim, damage, loss or expense (a) is attributed to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the work itself) including the loss of use resulting therefrom and (b) is caused in whole or in part by any negligent act or omission of the Contractor, any subcontractor, anyone directly or indirectly employed by any of them or anyone for whole acts any of them may be liable, regardless of whether or not is caused in part by a party indemnified hereunder.

In any and all claims against the Township, the Director or any of their agents or employees by any laborer of the Contractor, and Subcontractor, anyone directly or indirectly employed by any of them or anyone for whose acts any of them may be liable, the indemnification obligation shall not be limited in any way by any limitation on the amount or type of damage, compensation or benefits payable by or for the Contractor or any Subcontractor under worker’s compensation acts, disability benefits acts or other employee benefit acts.

The obligations of the Contractor shall not extend to the liability of the Engineer, the Engineer’s agents or employees arising out of (a) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications or (b) the giving of or the failure to give directions or instructions by the Engineer, the Engineer’s agents or employees provided such giving or failure to give is the primary cause of injury or damage.

41. INCONSISTENT SPECIFICATIONS AND DRAWINGS

Anything mentioned in the Construction Specifications and not shown on the Drawings, or shown on the Drawings and not mentioned in the Construction Specifications, shall be of like effect as if shown on or mentioned in both. In the case of difference between Drawings and Construction Specifications, the better quality or great quantify or work or materials and the more stringent requirements shall be included in the proposal, and unless otherwise ordered in writing, shall be performed or furnished.