5 - Supplementary Conditions - ATDM Building 2 General Construction Contractor (AIA 201-2017) (Ex C)(20591018.1).docx

EXHIBIT C

Institute for Advanced Learning and Research Accelerated Training in Defense Manufacturing Facility Building 2 General Construction Contract Invitation to Bid No. 57639

SUPPLEMENTARY CONDITIONS

The following Supplementary Conditions modify the “General Conditions of the Contract for Construction” AIA Document A201-2017 (“AIA General Conditions”). Where a portion of the AIA General Conditions is modified or deleted by these Supplementary Conditions, the unaltered portions of the AIA General Conditions shall remain in effect.

ARTICLE 1; GENERAL PROVISIONS

§ 1.1 BASIC DEFINITIONS

a. Delete Subparagraph 1.1.1 and replace it with the following:

§ 1.1.1 THE CONTRACT DOCUMENTS

The term “Contract” or “Contract Documents” shall mean and include: (i) the Invitation to Bid (“ITB”), the Instructions to Bidders, any subsequently issued Addenda to the ITB; (ii) the completed and signed Bid Form and Bid Bond; (iii) the Accelerated Training in Defense Manufacturing (“ATDM”) – Building 2 General Construction Contract attached as Exhibit A to the ITB (“Agreement”); (iv) the Owner’s General Conditions attached as Exhibit B to the ITB; (v) the AIA General Conditions (AIA Document A201-2017), as amended by these Supplementary Conditions attached as Exhibit C to the ITB; (v) the Drawings and Specifications prepared by Dewberry Engineers Inc. (“Dewberry”) and included with the ITB; (vi) the Performance and Payment Bonds; (vii) any Change Orders or Change Directives; and (viii) any Modifications to the Contract.

b. Delete Subparagraph 1.1.3 and replace it with the following:

c. Add the following Subparagraphs 1.1.5.1, 1.1.5.2, 1.1.5.3, and 1.1.5.4 to 1.1.5:

§ 1.1.5.1 Dimensions indicated on the Drawings shall be followed. Do not scale Drawings. Conflicts, discrepancies, and omissions shall be resolved prior to ordering or installing materials and equipment.

§ 1.1.5.2 Provide critical clearances, tolerances, and dimensions as indicated. These critical dimensions are not optional. The Architect shall be advised immediately if existing conditions do not permit critical dimensions as shown. No consideration will be given any claim based on differences between the actual dimensions and those indicated on the Drawings.

§ 1.1.5.3 Any modifications to the Drawings shall be approved by the Architect. The Architect's decision in matters relating to artistic effect and structural integrity will be final if consistent with the intent of the Contract Documents.

§ 1.1.5.4 The Drawings are developed to communicate design intent. Assemblies or components required to achieve this design intent are subject to approval by the Architect.

d. Delete the second sentence of Subparagraph 1.1.8.

§ 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS

a. Add the following language at the end of Subparagraph 1.2.1 after “results”:

and to perform the Work consistent with the provisions of Section 1.1.3 of these AIA General Conditions above. All Work mentioned or indicated in the Contract Documents shall be performed by or on behalf of Contractor as part of this Contract, unless it is specifically indicated in the Contract Documents that such Work is to be performed by others.

b. Delete the final sentence of Subparagraph 1.2.1.1 and replace it with the following:

In such case the Contract Documents shall be construed, to the fullest extent permitted by law, in favor of the interpretation that will provide for the more substantial and complete performance of the Work. If there is any conflict between the provisions of the Contract documents and any referenced standard specification, manuals, or codes of technical societies, organizations, or associations, the language of the Contract Documents will take precedence over that of any standard specification, manual, or codes.

c. Add the following Subparagraphs 1.2.1.2, 1.2.1.3, and 1.2.1.4 to 1.2.1:

§ 1.2.1.2 Wherever in the Contract Documents the words “as approved,” “as directed,” “as required,” “acceptable,” “satisfactory” and other similar words are used with reference to the Work or its performance, and without further qualification, they shall mean as approved, as directed, and as required by the Architect and Owner and acceptable, satisfactory, etc., to the Architect and Owner.

§ 1.2.1.3 In case of conflict in the Contract Documents, the Architect shall interpret or construe the Contract Documents so as to assure the most substantial and complete performance of the Work.

§ 1.2.1.4 The general character of the detailed work is shown on the Drawings, but the Contractor may propose minor modifications on the Shop Drawings or mark-ups. The Contractor shall work out any detail in relation to its location and its connection to other parts of the Work. Where on any drawings a portion of the Work is drawn out and the remainder is indicated in outline, the parts drawn out shall also apply to all other like portions of the Work. Where details or conditions are indicated, such details or conditions shall be continued throughout the courses or parts in which they occur and shall also apply to all other similar parts of the Work unless otherwise indicated or specifically noted.

d. Add the following Subparagraph 1.2.4 to 1.2:

§ 1.2.4 In the Contract Documents where discrepancies are apparent, detailed information is lacking, or interpretation is not clear, the Contractor shall secure required information from the Architect before proceeding with the Work. Items that are detailed and/or specified but not distinctly located on the Drawings shall be located by the Architect.

§ 1.5 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER

INSTRUMENTS OF SERVICE

a. Delete Subparagraph 1.5.1 and replace it with the following:

§ 1.5.1 Owner owns the Instruments of Service, including the Drawings and Specifications, and will retain all common law, statutory and other reserved rights, including copyrights. They may only be used for this Project. The Contractor, Subcontractors, Sub-subcontractors, and material or equipment suppliers shall not own or claim a copyright in the Instruments of Service. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Architect’s, Owner’s or Architect’s consultants’ reserved rights.

§ 1.6 NOTICE

a. Add the following sentence to the end of Subparagraph 1.6.1:

The foregoing notwithstanding, whenever the Contractor is required to notify or give notice to the Owner, all such notices to the Owner shall be provided in writing, shall be delivered to the Owner’s Authorized Representative identified in the Contract Documents, and, to be effective, shall be delivered in person, delivered by certified or registered mail, or delivered by courier providing proof of delivery. The intent of the foregoing sentence is to require written notice to Owner at all times and under all circumstances.

ARTICLE 2; OWNER

§ 2.1 GENERAL

a. Add the following at the end of Subparagraph 2.1.1:

All written communications on the Project shall be directed to and include the Owner and all significant issues with respect to the Work and/or this Contract shall be communicated by Contractor directly to Owner. Contractor acknowledges that neither Architect nor any other consultant to Owner has authority to authorize any increase in the Contract Sum, any adjustment to the Contract Time, or any additional compensation or payment to Contractor without the prior and written approval of Owner.

b. Delete Subparagraph 2.1.2 in its entirety.

§ 2.2 EVIDENCE OF THE OWNER’S FINANCIAL ARRANGEMENTS

a. Delete Section 2.2, including all Subparagraphs, in its entirety.

§ 2.3 INFORMATION AND SERVICES REQUIRED OF THE OWNER

a. Delete Subparagraph 2.3.1 in its entirety.

b. On lines 1 and 2 of Subparagraph 2.3.3, delete the words “to whom the Contractor has no reasonable objection and”.

c. Delete Subparagraphs 2.3.4 and 2.3.5 in their entirety.

d. Delete Subparagraph 2.3.6 and replace it with the following:

§ 2.3.6 The Contractor will be furnished free of charge 5 copies of Drawings and Project Manuals. Additional sets will be furnished at the cost of reproduction, postage, and handling.

§ 2.4 OWNER’S RIGHT TO STOP WORK

a. Delete “repeatedly” from the second line of Subparagraph 2.4.

§ 2.5 OWNER’S RIGHT TO CARRY OUT THE WORK

a. In Subparagraph 2.5, delete everything after the first sentence and replace it with the following:

The Owner will notify the Architect of such action and the amount to be charged to the Contractor and will consider any comments of the Architect. Thereafter, the Architect shall, pursuant to Section 9.5.1, withhold or nullify Certificates for Payment in whole or in part, to the extent necessary to reimburse the Owner for the cost of correcting such deficiencies, including Owner’s expenses and compensation for the Architect’s additional services made necessary by such default, neglect or failure. If current and future payment are not sufficient to cover amounts due to the Owner, the Contractor shall pay the difference to the Owner.

ARTICLE 3; CONTRACTOR

§ 3.1 GENERAL

a. Add the following language at the end of Subparagraph 3.1.1:

Contractor shall not assign or change supervisory personnel or utilize any organizational chain of command to the extent disapproved by Owner. Contractor’s Superintendent and Project Manager shall not be discontinued, replaced or re-assigned without the prior written consent of Owner, which such consent shall not be unreasonably withheld.

a. Edit Subparagraph 3.2.1 as follows:

On line 2, delete the word “generally.”

Add the following language to the end of the Subparagraph:

Contractor has evaluated and satisfied itself as to the conditions and limitations under which the Work is to be performed including, without limitation (1) the location, condition, layout and physical conditions of the Project site and surrounding area, (2) generally prevailing climatic conditions, (3) availability and cost of materials, tools and equipment, (4) geotechnical data, soil and subsurface conditions, (5) parking, traffic and logistics, and (6) other similar issues. Contractor shall not be entitled to any adjustment in the Contract Time in connection with any failure of Contractor or any Subcontractor to comply with the requirements, or on account of the conditions of this subparagraph 3.2.1.

b. After Subparagraph 3.2.2, add the following Subparagraphs:

§ 3.2.2.1 Dimensions of the Work shall not be determined by scale or rule. Figured dimensions shall be used at all times.

§ 3.2.2.2 The Contractor shall verify all dimensions by measurement at the job site and shall take any and all other measurements necessary to verify the Drawings and to properly lay out the Work.

§ 3.2.2.3 The Contractor shall study the Contract Documents sufficiently in advance of the actual layout of the Work to allow the Contact Documents to be interpreted or modified by the Architect.

c. On lines 3 and 4 of Subparagraph 3.2.3, add “and Owner” after “Architect”.

d. Add the following to the end of Subparagraph 3.2.4 after “public authorities”:

, unless Contractor recognized (or based on the standards of performance ordinarily provided by general contractors working under the same or similar conditions, should have recognized) such error, inconsistency, omission or difference and failed to report it to (and obtain direction from) Owner and Architect prior to proceeding with the affected Work.

e. Add Subparagraph 3.2.5 as follows:

§ 3.2.5 Owner shall be entitled to reimbursement from Contractor for amounts paid to the Architect for the Architect’s evaluating and responding to Contractor’s requests for information that are not prepared in accordance with the Contract Documents or where the requested information was available to Contractor from a careful study and comparison of the Contract Documents, field conditions other Owner-provided information, Contractor-prepared coordination drawings, or prior Project correspondence or documentation.

§ 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES

a. Delete “to the Owner” from the first line of Subparagraph 3.3.2.

§ 3.4 LABOR AND MATERIALS

a. Add the following Subparagraphs 3.4.1.1 and 3.4.1.2 to 3.4.1:

§ 3.4.1.1 The Contractor shall use only new materials for the Work of this Project. Reuse of existing materials or the use of other salvaged materials is acceptable only where specifically noted in the Construction Documents.

§3.4.1.2 The Contractor shall provide all special trims, moldings, and special shaped materials which are required for the satisfactory completion of the Work. The Contractor shall provide all necessary fasteners, bracing, and supports required for the stable and secure installation of the Work.

b. Add Subparagraph 3.4.2.1 as follows:

§ 3.4.2.1 After the Contract has been executed, the Owner and Architect will consider a formal request for the substitution of products in place of those specified only under the conditions set forth in the General Requirements (Division 01 of the Specifications). By making requests for substitutions, the Contractor:

c. Add Subparagraph 3.4.2.2 as follows:

§ 3.4.2.2 Owner shall be entitled to reimbursement from Contractor for amounts paid to the Architect for reviewing Contractor’s proposed substitutions and to make agreed-upon changes in the Drawings and Specifications resulting from such substitutions.

§ 3.5 WARRANTY

a. At the end of Subparagraph 3.5.1, add the following sentence:

All guarantees or warranties of equipment, systems or materials furnished to Contractor or Subcontractors by any manufacturer or supplier shall be deemed to run to the benefit of Owner and are (and shall be) assigned to Owner. These warranties are in addition to, not in lieu of, all other warranties and guarantees contained in or required by the Contract Documents.

§ 3.7 PERMITS, FEES, NOTICES, AND COMPLIANCE WITH LAWS

a. On line 1 of Subparagraph 3.7.3, delete the words “knowing it to be.”

b. Delete Subparagraph 3.7.4 and replace it with the following:

§ 3.7.4 Concealed or Unknown Conditions. By executing the Agreement, Contractor represents that it has visited the site where the Work is to be constructed, has examined carefully all the Contract Documents upon which the Contract Sum is based, has reviewed all information, data and documents regarding the conditions at the site made available to Contractor by Owner prior to the execution of the Agreement and has acquainted itself with all other conditions relevant to the Work, including, but not limited to any physical conditions or logistical restraints relating to or affecting the means, methods, staging, layout, delivery or performance of the Work. If the Contractor encounters conditions at the site that are different from those about which Contractor had notice based on the information made available to Contractor by Owner or Architect prior to the execution of the Agreement (including, but not limited to the information set forth in the Contract Documents or in reports, studies or evaluations referenced therein or provided by Owner or Architect to Contractor) and/or based on a reasonably prudent visit to and examination of the site prior to the execution of the Agreement and/or based on facts or circumstances disclosed by the information provided to Contractor by Owner or Architect or other conditions discovered at the site by Contractor prior to commencement of the Work, such as (1) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the information provided to Contractor or (2) undisclosed and unknown physical conditions of an unusual nature, that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, the Contractor shall provide notice to the Owner and the Architect before such conditions are disturbed and in no event later than fourteen (14) days after first observance of the conditions. The Contractor shall perform no Work involving or affected by such condition until after notifying Owner and receiving specific directions from Owner as to the performance of such Work. The Architect and Owner will then investigate such conditions and, if they differ materially from those about which Contractor had notice based on the information made available to Contractor by Owner or Architect prior to the execution of the Agreement and cause an increase in the Cost of the Work, or a delay in the performance of the Work, Contractor shall be entitled to an increase in the Contract Sum calculated pursuant to the applicable provisions of this Agreement, together with an extension of the Contract Time measured by the number of days or portions thereof, if any, that the Substantial Completion of the Work is actually delayed as a direct result of the existence of the obstruction, difficulty, or condition (provided, however, that if the required extension of time is not granted, Contractor shall be entitled only to the damage remedies set forth herein). If the conditions at the site are not materially different from those about which Contractor had notice based on the information made available to Contractor by Owner prior to the execution of the Agreement, Owner shall so notify Contractor, stating the reasons, and Contractor may thereafter dispute the determination as provided in the Contract Documents.

§ 3.8 ALLOWANCES

a. Delete the first sentence of Subparagraph 3.8.1 and replace it with the following:

§ 3.8.1 The Contractor shall include in the Contract Sum only those allowances expressly identified in (and allowed by) the Agreement.

b. In Subparagraph 3.8.3, add “after notice to the Owner by the Contractor.” at the end of the sentence.

§ 3.9 SUPERINTENDENT

a. In Subparagraph 3.9.2, delete “as soon as practicable after” and replace it with “within 14 days of the” in the first line.

b. Delete “and timely” from the second line of Subparagraph 3.9.3.

§ 3.10 CONTRACTOR’S CONSTRUCTION AND SUBMITTAL SCHEDULES

a. Delete “general” from the first line of Subparagraph 3.10.3.

b. Add the following Subparagraphs to Article 3.10:

§ 3.10.4 In the event that the Contractor should ever determine during the course of the Project that its prosecution of the Work has fallen behind the current schedule, it shall prepare a recover schedule to permit completion of the Project within the Contract Time. The Contractor shall devote all required labor, materials, and equipment to comply with the recovery schedule, including, if necessary, the employment of additional Subcontractors and/or manpower and the scheduling of additional shifts, overtime, and weekend Work, all at the Contractor’s sole expense. TIME IS OF THE ESSENCE.

§ 3.10.5 In the event that the Project is delayed beyond the Contract Time, the Contractor will be obligated to pay the Owner, in addition to any liquidated damages called for in the Contract Documents or any delay damages permitted pursuant thereto, a sum equal to the Owner’s obligation to pay the Architect for providing additional Construction Contract Administration services beyond the Contract Time set forth in the Contract Documents.

§ 3.11 DOCUMENTS AND SAMPLES AT THE SITE

a. Add the following sentences to the end of Subparagraph 3.11:

Among other things, the marked documents shall reflect (i) all deviations from the Drawings made during construction, (ii) details in the Work not previously shown on the Drawings, (iii) changes to existing conditions or existing conditions found to differ from those shown on the Drawings, and (iv) the actual installed position of equipment, controls and other system information required for Owner’s use and maintenance of the Work. These shall be delivered to Owner and Architect upon Substantial Completion of the Work (or any termination of this Contract).

§ 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES

a. Add the following at the end of Subparagraph 3.12.6:

All copies of Shop Drawings submitted for approval shall bear the following statement: “Checked and certified correct for conformance with the Contract Documents.” This statement shall be dated and signed by the Contractor and shall appear on each submittal. One copy of each approved submittal shall be kept at the job site at all times.

b. On line 1 of Subparagraph 3.12.10, delete the word “not.” On line 2 of Subparagraph 3.12.10, replace the word “unless” with the word “when” and delete the word “specifically.” On line 3 of Subparagraph 3.12.10, replace the words “or unless” with the words “and when.”

c. Delete the word “specifically” on line 2 of Subparagraph 3.12.10.1, and delete the second sentence of Subparagraph 3.12.10.1.

d. Add Subparagraph 3.12.11 as follows:

§ 3.12.11 The Architect’s review of Contractor’s submittals will be limited to examination of an initial submittal and one (1) resubmittal. Owner shall be entitled to obtain reimbursement from Contractor for amounts paid to the Architect for evaluation of any additional resubmittals.

e. Add Subparagraph 3.12.12 as follows:

§ 3.12.12 The Contractor shall not reproduce all or any portion of the Contract Documents. Unless otherwise directed or specified, three (3) copies of each Shop Drawing shall be submitted with each submittal or re-submittal. Unless otherwise directed or specified, three (3) copies of Product Data shall be submitted with each submittal or re-submittal. Unless otherwise directed or specified, samples shall be submitted in duplicate and shall be properly labeled, bearing the name and quality of material, name of manufacturer, name of Project, name of Contractor, and date of submission.

§ 3.14 CUTTING AND PATCHING

a. Add the following Subparagraph 3.14.3 to 3.14:

§ 3.14.3 All patching shall be performed by mechanics of the trades dictated by the materials used in the patching operations.

§ 3.15 CLEANING UP

a. Add the following sentences at the end of Subparagraph 3.15.1:

Contractor shall maintain corridors, common areas, parking lots and sidewalks around the Project site in a clean condition and shall comply with all erosion control, stormwater runoff and dust control ordinances and regulations. Contractor shall remove all spillage and tracking arising from performance of the Work from such areas and shall establish a regular maintenance program to minimize accumulation of dirt and dust upon such areas.

b. Add the following Subparagraph 3.15.3 to 3.15:

§ 3.15.3 The Contractor shall leave the completed Work in conditions for occupancy by the Owner such that no cleaning, waxing, polishing, or other janitorial operations are required. The Contractor shall provide an onsite waste receptacle or receptacles of sufficient size and capacity to dispose of waste materials and rubbish that accumulate on the site. These receptacles shall be emptied on a regular basis, as needed. The Contractor shall dispose of all waste materials and rubbish at approved site for waste disposal.

c. Add the following Subparagraph 3.15.4 to 3.15:

§ 3.15.4 The Contractor shall leave the completed Work in conditions for occupancy by the Owner such that no cleaning, waxing, polishing, or other janitorial operations are required.

d. Add the following Subparagraph 3.15.5 to 3.15:

§ 3.15.5 Contractor shall be solely responsible for protecting and securing materials and equipment stored on the site. Contractor shall require all persons performing work on the Project to comply with any and all policies and rules established by Owner relating to access or behavior on the Project site including any policies or rules regulating parking, access to the building, emergency ingress, egress or parking, noise, smoking, hygiene, food services, visitor privileges, restricted areas and elevator use, and privacy and confidentiality. The duty of Contractor to maintain discipline and good order in compliance with Owner’s policies rules and regulations pursuant to the Contract Documents shall apply to Contractor’s employees and to Subcontractors, sub-subcontractors, materialmen and suppliers, and their respective employees.

§ 3.18 INDEMNIFICATION

a. Delete Subparagraph 3.18.1 and replace it with the following:

§ 3.18.1 To the fullest extent permitted by law the Contractor shall indemnify and hold harmless the Owner, Architect, and each of their respective directors, trustees, agents, officers, officials, employees, consultants, and contractors of any of them from and against all claims, costs, losses, fines, penalties, expenses, judgments, claims, liabilities and damages, (including but not limited to all fees and charges of engineers, architects, attorneys’ and other professionals and all court or other dispute resolution costs) arising out of or relating to: (i) the performance of the Work, if and to the fullest extent that any such claim, damage, loss or expense is caused, in whole or in part, by the acts, omissions, breach of contract or negligence of the Contractor, any Subcontractor or anyone for whose acts any of them may be liable; (ii) any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device, not specified in the Contract Documents (iii) any Work performed by Contractor that it is contrary to laws or regulations, including without limitation (a) any violation of or failure to comply with any law, statute, ordinance, rule, regulation, code or requirement of the Work by Contractor, any Subcontractor or any person or entity for whom either is responsible; (b) any means, methods, techniques, procedures or sequences of execution or performance of Work; and/or (c) any failure to secure or pay for any permits, fees, licenses, approvals and inspections Contractor is required to provide by the Contract Documents, or any violation of any permit or other approval of a public authority applicable to the Work, by Contractor, any Subcontractor or any person or entity for whom either is responsible; (iv) any claim or action, legal or equitable, brought by other occupants or adjacent landowners against Owner or any other party indemnified hereunder to the full extent caused, in whole or in part, by or based upon Contractor’s performance of the Work or failure to perform the Work; (v) any claim, damage, loss or expense attributable to bodily injury, sickness, disease or death, or injury to or destruction of tangible property, if and to the full extent that any such claim, damage, loss or expense is caused, in whole or in part, by the acts, omissions, breach of contract or negligence of the Contractor, any Subcontractor, or anyone for whose acts any of them may be liable; and (vi) the failure of Contractor to pay any Subcontractor, sub-subcontractor, materialman or supplier as provided in this Contract for Work performed by such person or entity. If any such claim, damage, loss or expense is caused in part by the Owner (or another person or entity for whom Owner is responsible) Contractor shall not be responsible to indemnify Owner for those specific damages, losses or expenses caused by the acts or omissions of Owner (or such other person or entity for whom Owner is responsible) but only to the extent they are so caused by the acts of omissions of Owner or other persons or entities for whom Owner is responsible. The indemnity obligation in this Section shall not be construed to negate, abridge, or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this Section 3.18. This indemnification shall survive acceptance and/or completion of the Work and any termination of this Contract. Nothing herein shall limit Contractor’s other indemnification obligations as stated in the Contract Documents.

§ 3.19 DEMOLITION/REMEDIATION

a. Add new § 3.19 DEMOLITION/REMEDIATION and new Subparagraph 3.19.1 as follows:

§ 3.19.1 If the Work involves demolition and/or remediation or disposal of hazardous materials, then Contractor shall ensure that all required approvals, permits, licenses and surveys have been obtained prior to commencing with the applicable Work and shall handle, transport, remove and dispose of all such items in accordance with all applicable EPA, OSHA and other local, municipal, state or federal requirements (using properly licensed and certified personnel as necessary) and shall maintain (and provide to Owner upon request) all documents, manifests and other information reflecting the use, handling and disposal of such materials in accordance with such laws and requirements. Contractor shall be responsible for, and shall indemnify and hold Owner harmless from, all costs, fines, penalties or damages arising from Contractor’s failure to comply with the provisions of this Section 3.19.1.

ARTICLE 4; ARCHITECT

§ 4.1 GENERAL

a. On line 2 of Subparagraph 4.1.2, delete the word “Contractor,”.

§ 4.2 ADMINISTRATION OF THE CONTRACT

a. On line 2 of Subparagraph 4.2.2, delete the word “generally.”

b. Add new Subparagraph 4.2.2.1 as follows:

§ 4.2.2.1 Owner is entitled to reimbursement from Contractor for amounts paid to the Architect for site visits made necessary by the fault of Contractor or by defects and deficiencies in the Work.

c. On line 1 of Subparagraph 4.2.9, replace the word “determine” with “assist the Owner in determining”.

d. In Subparagraph 4.2.11, revise the first sentence to read as follows: “The Architect will provide Owner with an initial interpretation and decision, subject to final determination by Owner, of matters concerning performance under, and the requirements of, the Contract Documents on written request of either Owner or Contractor.”

e. Delete the last sentence of Subparagraph 4.2.12, which begins with the word “When”, and replace it with the following sentence: “In its capacity as interpreter and judge, the Architect shall use its best efforts to secure faithful performance by the Contractor.”

f. In Subparagraph 4.2.13, delete the word “Architect’s” and replace it with the word “Owner’s.”

ARTICLE 5; SUBCONTRACTORS

§ 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK

a. Add the following Subparagraph 5.2.1.1 to 5.2.1:

§ 5.2.1.1 The list of Subcontractors and material suppliers shall be submitted to the Architect not later than 10 calendar days after receipt of Notice to Proceed.

b. On line 2 of Subparagraph 5.2.2, delete the words “and timely.”

§ 5.3 SUBCONTRACTUAL RELATIONS

a. Add new Subparagraph 5.3.1 as follows:

§ 5.3.1 The Contractor shall not be released from any part of its liabilities or obligations under the Contract should any Subcontractors or material suppliers fail to perform in a satisfactory manner the Work undertaken by him.

b. Add new Subparagraph 5.3.2 as follows:

§ 5.3.2 Except as provided in Paragraph 5.4, nothing contained in this Contract shall be construed as creating a contractual relationship between the Owner and any Subcontractor. The Specifications do not control the Contractor in dividing the Work among Subcontractors, nor do they limit the work performed by trade.

c. Add new Subparagraph 5.3.3 as follows:

§ 5.3.3 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor’s employees, and of all Subcontractors and their employees and Sub-subcontractors. The Contractor shall also be responsible for the coordination of the work of the Subcontractors, Sub-subcontractors, and suppliers.

d. Add new Subparagraph 5.3.4 as follows:

§ 5.3.4 The Architect will not undertake to settle any differences between or among the Contractor and its Subcontractors, Sub-subcontractors, and suppliers.

e. Add new Subparagraph 5.3.5 as follows:

§ 5.3.5 The Contractor shall employ specialty subcontractors when required by the Specifications, at no additional expense to the Owner. “Specialty subcontractors” are subcontractors regularly engaged in the manufacture or installation of Contract items. Specialty subcontractors shall select and combine the materials involved and maintain and have available workmen skilled in the specified work. Specialty subcontractors shall be the manufacturer, licensed by the manufacturers as installers, or work under the direct supervision of the manufacturers.

f. Add new Subparagraph 5.3.6 as follows:

5.3.6 All work shall be performed by workers skilled in the trade to which they are assigned in performance of the Work.

§ 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS

a. Revise the last sentence of Subparagraph 5.4.1 to read:

When the Owner accepts the assignment of a subcontract agreement, the Owner assumes the Contractor’s rights under the subcontract and any obligations under the subcontract accruing after the date of the assignment.

b. Delete Subparagraph 5.4.2 in its entirety.

c. In Subparagraph 5.4.3, delete the second sentence.

ARTICLE 7; CHANGES IN THE WORK

§ 7.1 GENERAL

a. Delete Subparagraph 7.1.2 and replace it with the following:

§ 7.1.2 A Change Order shall be based upon agreement among the Owner and Contractor; a Construction Change Directive may be issued by the Owner and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Architect alone.

b. Add the following Subparagraph 7.1.4 to 7.1:

§ 7.1.4 If changes in the work provide for an adjustment in the Contract Sum, the adjustment (increase or decrease) shall be based on the following, unless otherwise noted:

.1 Material quantities and unit prices (separated into trades; include sales tax).

.2 Labor costs (employees hourly pay rate not billing rate).

.3 Labor burden, applied to labor only, including but not limited to, worker’s compensation insurance, applicable payroll taxes, and fringe benefits required by agreement or custom. Contractor shall be required to substantiate the labor burden percentage applied to any change in contract amount. Labor burden percentage shall not exceed 30 percent of Labor costs in any case.

.4 Construction equipment cost.

.5 Overhead and profit combined (on claims for net increase only), as defined in Subparagraph 7.3.11.

.6 Cost of Premiums/Bonds directly related to the change (for General Contractor only). Evidence of additional premium/bond costs shall be submitted with claim.

c. Add the following Subparagraph 7.1.5 to 7.1:

§ 7.1.5 Any change in the Work which will result in an increase or decrease in the Contract Sum or a change in the Contract Time must be approved in writing by the Owner’s Authorized Representative.

§ 7.2 CHANGE ORDERS

a. In Subparagraph 7.2.1, delete “prepared by the Architect and signed by the Owner, Contractor, and Architect” and replace it with “between the Owner and Contractor”.

§ 7.3 CONSTRUCTION CHANGE DIRECTIVES

a. In Subparagraph 7.3.1, delete “prepared by the Architect and signed by the Owner and Architect,” and replace it with “from the Owner”.

b. In the first sentence of Subparagraph 7.3.4, delete the words “an amount for overhead and profit as set forth in the Agreement, or if no such amount is set forth in the Agreement, a reasonable amount” and substitute “an allowance for overhead and profit in accordance with Clause 7.3.11.1 through 7.3.11.6 below.”

c. Add the following Subparagraph 7.3.11 to 7.3:

§ 7.3.11 In Subparagraph 7.3.4, the allowance for the combined overhead and profit included in the total cost to the Owner shall not exceed the following:

.1 For the Contractor, for Work performed by the Contractor’s own forces, 20 percent of the cost.

.2 For the Contractor, for Work performed by the Contractor’s Subcontractors, 10 percent of the amount due the Subcontractor.

.3 For each Subcontractor or Sub-subcontractor involved, for Work performed by that Subcontractor’s or Sub-subcontractor’s own forces, 15 percent of the cost.

.4 For each Subcontractor, for Work performed by the Subcontractor’s Sub-subcontractors, 10 percent of the amount due the Sub-subcontractor.

.5 Cost to which overhead and profit is to be applied shall be determined in accordance with Subparagraph 7.3.4.

.6 In order to facilitate checking of quotations for extras or credits, all proposals, except those so minor that their propriety can be seen by inspection, shall be accompanied by complete itemization of costs including labor, materials, and Subcontracts. Labor and materials shall be itemized in the manner described above. Where major cost items are Subcontracts, they shall be itemized also. In no case will a change involving over $100 be approved without such itemization.

ARTICLE 8; TIME

§ 8.1 DEFINITIONS

a. Delete Subparagraph 8.1.2 and replace it with the following:

§ 8.1.2 The Commencement Date for the Work is the date established in the Notice to Proceed. The date shall not be postponed by the failure to act of the Contractor or of persons or entities for whom the Contractor is responsible.

§ 8.2 PROGRESS AND COMPLETION

a. On line 2 of Subparagraph 8.2.2, delete the words “and Owner.”

§ 8.3 DELAYS AND EXTENSIONS OF TIME

a. In Subparagraph 8.3.1, on line 4 delete the words “by delay authorized by the Owner pending mediation and binding dispute resolution;” and, on lines 6 and 7, after the words “Architect may determine,” insert the words “with the agreement of the Owner.”

b. In Subparagraph 8.3.2, delete “Article 15” and replace it with “the Contract Documents.”

c. Add the following Subparagraphs 8.3.2.1 and 8.3.2.2 to 8.3.2:

§ 8.3.2.1 Weather will be considered for purposes of ascertaining delays to the extent that actual construction operations are delayed. “Adverse weather” is defined as weather which is more severe than the average weather for the particular time(s) and date(s) in question as compared to the last 5-year average. The “average” shall be based on the “local climatological data” published by the National Oceanic and Atmospheric Administration for the Project area. It shall be the responsibility of the Contractor to furnish all data necessary to support his request.

§ 8.3.2.2 The Architect shall have sole discretion in appraising the request for time extensions and any extensions granted will be prorated to reflect the actual delay caused by that individual increment of construction relative to the overall progress of the Project. For example, a 3-day extension due to weather, affecting the site work, will be prorated based on the percentage of site work relative to the total Project.

d. Add the following Subparagraph 8.3.4 to 8.3:

§ 8.3.4 The Contractor shall not be entitled to additional compensation as a result of time extensions approved by the Architect or Owner.

ARTICLE 9; PAYMENTS AND COMPLETION

§ 9.2 SCHEDULE OF VALUES

a. In Section 9.2, add “or the Owner” after “unless objected to by the Architect” on line 7.

§ 9.3 APPLICATIONS FOR PAYMENT

a. Add the following sentence at the end of Subparagraph 9.3.1:

The form of Application for Payment shall be a current authorized edition of the AIA Document G 702-1992, Application Certification for Payment, supported by a current authorized edition of AIA Document G 703-1992, Continuation Sheet.

b. Add the following Subparagraph 9.3.1.3 to 9.3.1:

§ 9.3.1.3 Until Substantial Completion, the Owner shall pay 95 percent of the amount due the Contractor on account of progress payments.

§ 9.5 DECISIONS TO WITHHOLD CERTIFICATION

a. On line 8 of Subparagraph 9.5.1, delete the words “for which the Contractor is responsible.”

b. In Subparagraph 9.5.2, delete “Article 15” and replace it with “the Contract Documents.”

c. Add the following Subparagraph 9.5.5 to Section 9.5:

§ 9.5.5 Notwithstanding any other provision of this Contract, and notwithstanding the issuance of a Certificate for Payment by the Architect, the Owner may decide to deny or withhold payment or, because of subsequently discovered evidence or subsequent observations, may nullify payment previously made, for any of the reasons set forth in Section 9.5.1 above. If Contractor and Owner cannot agree on a revised amount, Owner will make payment for the amount for which Owner agrees. When the reasons for not making payment are removed, payment shall be made for amounts withheld because of them in response to the next filed Application for Payment.

§ 9.6 PROGRESS PAYMENTS

a. Add the following to the end of the last sentence of Subparagraph 9.6.1: “, if approved by the Owner. Owner will make payments, less 5% retainage, to the Contractor approximately 30 days after the Contractors Application for Payment has been approved by the Architect.”

b. At the end of Subparagraph 9.6.2, add the following sentence: “Contractor shall additionally comply with each and every requirement of Section 2.2-4354 of the Code of Virginia, 1950, as amended.”

§ 9.7 FAILURE OF PAYMENT

a. In Subparagraph 9.7, on lines 3 and 4, delete the words “or awarded by binding dispute resolution.” Delete the last sentence in Subparagraph 9.7.

§ 9.8 SUBSTANTIAL COMPLETION

a. Delete Subparagraph 9.8.1 and replace it with the following:

§ 9.8.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is: (i) sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use, except and only for minor items that may be completed without disruption or interference to the ability to use the Work; (ii) all required approvals and permits for occupancy, use and completion of the Work (including a temporary or permanent certificate of occupancy) shall have been issued by appropriate governmental authorities; (iii) the Architect has certified that the Work is complete as required by subsection (i) above; and (iv) all operational systems and elements that are part of the Work, including mechanical, electrical and support systems, are functioning as required by the Contract Documents.

b. Add new Subparagraph 9.8.1.1 as follows:

§ 9.8.1.1 With respect to subsection (ii) in Section 9.8.1 above, if any approval, permit or certificate of occupancy issued as part of Substantial Completion is temporary or conditional, Contractor shall be responsible to perform, subsequent to Substantial Completion and as a condition to Final Completion and Final Payment, all Work required to satisfy the conditions set forth in any such temporary or conditional approval, permit or certificate. In this regard, the Contractor shall not be responsible for assuring the actual issuance of a final approval or certificate by the applicable governmental authority, but shall be responsible for the performance of all Work and any other obligations of Contractor under this Contract or applicable law that are required to satisfy the conditions set forth in the temporary or conditional approval or certificate.

c. Add new Subparagraph 9.8.1.2 as follows:

§ 9.8.1.2 The Owner’s receiving a Certificate of Occupancy for the entire Facility is a condition precedent to Contractor’s achieving Substantial Completion.

d. Add new Subparagraph 9.8.3.1 as follows:

§ 9.8.3.1 The Architect will perform no more than one (1) inspection to determine whether the Work or a designated portion thereof has attained Substantial Completion in accordance with the Contract Documents. Owner is entitled to reimbursement from Contractor for amounts paid to the Architect for any additional inspections.

e. Add the following sentence to Subparagraph 9.8.5:

The payment shall be sufficient to increase the total payments to 100 percent of the Contract Sum, less such amounts as the Architect shall determine for complete Work and unsettled claims.

f. Add new Subparagraph 9.8.6 as follows:

§ 9.8.6 When Contractor considers the entire Work ready for its intended use, Contractor shall, in writing to Owner and Architect, certify that the entire Work is substantially complete and request that Architect issue a Certificate of Substantial Completion. Within a reasonable time thereafter, Owner, Contractor, and Architect shall inspect the Work to determine the status of completion.

§ 9.9 PARTIAL OCCUPANCY OR USE

a. Delete Subparagraph 9.9.1 and replace it with the following:

§ 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when Owner determines it is in the Owner’s best interest, provided such occupancy or use is consented to by the insurer and authorized by public authorities having jurisdiction over the Project. Such partial occupancy or use may commence whether or not the portion is Substantially Complete, provided that if, as a result of Owner’s interference with the completion or correction of Work that is Contractor’s responsibility, such occupancy or use by the Owner increased the cost of the Work or delayed its Substantial Completion, then Contractor shall be entitled to make a Claim for such costs or delay pursuant and subject to the applicable provisions of the Contract Documents. When the Contractor considers a portion Substantially Complete, the Contractor shall prepare and submit a list to the Owner and Architect as provided under Section 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld, conditioned, or delayed. The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor.

§ 9.10 FINAL COMPLETION AND FINAL PAYMENT

a. Add new Subparagraph 9.10.1.1 as follows:

§ 9.10.1.1 The Architect will perform no more than one (1) inspection to determine whether the Work or designated portion thereof has attained Final Completion in accordance with the Contract Documents. Owner is entitled to reimbursement from Contractor for amounts paid to the Architect for any additional inspections.

b. Delete Subparagraph 9.10.2 and replace it with the following:

§ 9.10.2 As used herein, “Final Completion” shall require final payment and payment of any remaining retained percentage only if: (1) the proper and full completion of all of the Work, including but not limited to satisfactory operation of all equipment and systems and completion or correction of all punch list items, (2) delivery of all maintenance and operations manuals, the as-built drawings required by Section 3.11, and all warranties and guarantees (and assignments thereof) as required by the Contract Documents; (3) delivery of all documentation confirming and conveying any warranties, such as manufacturer’s warranties or specific Subcontractor warranties; (4) issuance of all final and unconditional approvals and certificates required from any authorities with jurisdiction over the Work, including final and unconditional certificates of occupancy (subject only to the provisions of Section 9.8.1.1 above); (5) removal of all rubbish, tools, scaffolding and surplus materials on the site and correction of all property damage that is the responsibility of Contractor pursuant to the Contract Documents; (6) delivery of final as-built survey of the Work as situated on the site; (7) delivery of executed releases (effective upon receipt of final payment) signed by all Subcontractors who may be entitled to a claim against Owner or the Project; (8) delivery of an executed release signed by Contractor discharging and waiving all claims, damages, causes of action, and/or suits which Contractor may have against Owner or Owner’s property relating to the Project or the Work effective upon receipt of the final payment; (9) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner’s property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied; (10) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least 30 days’ prior written notice has been given to the Owner; (11) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents; (12) consent of surety, if any, to final payment; and (13), if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or…