6-00800 ATTACHMENT F General Conditions for Construction-R1.pdf

ATTACHMENT “F”

CONTRACT GENERAL CONDITIONS

The following General Conditions constitute the provisions of the Agreement to be executed between the Maricopa County Community College District (“District” or “Owner’) and the

Roofing Contractor (RC). The District reserves the right to negotiate with the Contractor and modify any of the provisions of the agreement prior to execution.

Upon the Award of a Contract and Purchase Order to the Contractor, the following Conditions will also be in force. All work shall be in compliance with applicable laws, ordinances, regulations and building codes. All work and material shall be the best of the respective kinds specified or indicated. Should any workmanship or materials be required which are not directly or indirectly called for in the Specifications and/or shown on the Drawings but are consistent with the Contract Documents and reasonably inferable by them or industry standard practice, the workmanship or materials shall be the same as similar parts that are detailed, indicated or specified, or shall match or exceed the quality of existing for remodeling and restoration work, and the Contractor shall understand the same to be implied and provide for it in his price proposal as fully as if it were particularly described or delineated.

DEFINITIONS

The term "Contractor" means the Contractor or the Contractor's authorized representative. The Contractor shall perform the Work in accordance with the Contract Documents (or if none are provided, the scope document/description as provided by the campus). The Contractor is responsible for construction in accordance to the highest quality standards, independent of observations by the Owner.

The term "Work" means the construction and services required by the Contract Documents or Scope description, and includes all other labor, materials, equipment, transportation and services provided or to be provided by the Contractor to fulfill the Contractor's obligations.

The term “Direct Cost” means The Contractor’s costs, sub-contractor costs and supplier costs, including materials, wages of construction labor, along with labor/fringe benefits and burden for that labor; equipment used to perform construction of Work, including rental or use of Contractor-owned equipment; rental or purchased small tools used to perform construction of Work; municipal fees and costs for permits, development fees, installation and meters associated with water and sewer facilities; cranes, elevators, lifts and other lifting equipment including rental, operator costs and safety inspections; delivery, erecting and dismantling; fuel, normal repairs, maintenance and service costs; and surveyor services.

The term “Project” is the total construction of the Work performed under the Contract Documents or Scope Description that may be constructed entirely or in part by the Contractor, and also may include construction by the Owner or by separate contractors.

The term “Architect” or “Consultant” shall mean the registered design professional, architect or engineer, preparing the Contract Documents for this Work. The terms Architect, Engineer or Consultant may be used interchangeably. When the Owner provides the professional design services, the word “Architect” shall refer to the Owner as it relates to design or engineering services.

The term “Contract Documents” includes the Agreement between Owner and Contractor (“Agreement”), Conditions of the Contract Drawings, Specifications, applicable Terms and Conditions stated in the original Request for Proposal, Addenda issued prior to the pricing for the Work, other documents listed in the Agreement and Modifications issued after execution of the Contract. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Architect.

Where a written description of the Project is provided by the Owner to the Contractor in lieu of drawings and specifications, and the written description becomes the basis for the Contractor’s cost proposal, that written description shall be considered as “Contract Documents” for the purposes of this Agreement.

CONTRACT TERMS AND CONDITIONS

PARTIES TO AGREEMENT: The Agreement shall be between the District and the Contractor .

LIABILITY FOR TAXES: The Contractor assumes complete liability for all taxes applicable to the operations, income, and transactions of the Contractor. The District/Institution shall not be liable for, and will not make reimbursement to the Contractor, any tax imposed either directly or indirectly upon the Contractor by any authority by reason of the Contract or otherwise.

FEDERAL EXCISE TAX: The Maricopa County Community College District is exempt from Federal Excise Tax.

USE TAX: The Maricopa County Community College District pays out-of-state Use Tax directly to the State of Arizona.

CATASTROPHES: If because of riots, war, public emergency or calamity, fire, earthquake, act of God, government restriction, labor disturbance or strike, business operations at the District are interrupted or stopped, performance of this Contract, with the exception of moneys already due and owing, shall be suspended and excused to the extent commensurate with such interfering occurrence; and the expiration date of this Contract may by mutual agreement of `both parties be extended for a period of time equal to the time that such default in performance is excused.

TIME OF COMPLETION: The Contractor and the Owner understand and mutually agree that the date of beginning, rate of progress, and the time for Substantial Completion of the Work are ESSENTIAL CONDITIONS of this Contract; and it is further mutually understood and agreed that time for completion of this Contract shall be commenced on the date of 'Notice to Proceed” or receipt of the purchase order for the Work

This Work is critical to the day to day operations of the Community College. All work must be accomplished with minimum interruption of the District’s on-going operations. Utility outages impacting occupied areas outside of the Work area must be minimized. This will include scheduling shut downs and associated work in evenings or weekends. All overtime premiums necessary to accomplish this must be contained within the Contractor’s initial pricing.

The completion date for this work will be determined by mutual agreement of the Contractor and the College based upon equipment or material delivery times, available outage or shut down periods and other college operational issues. Once the proposed price is accepted, the Contractor and College will work together to determine a completion date, which will then become part of this Agreement for the Work.

Should it become necessary for a consultant to incur additional costs during the course of construction, or subsequent to the final inspection, due to the Contractor’s failure to maintain required quality control or schedule, or the Contractor’s acts, omissions or negligence, the Consultant will provide all necessary additional services at his standard hourly rate and will charge the Owner as part of an Additional Service Request, and such costs will be reimbursed by the Contractor or deducted from monies still due the Contractor. These costs are in addition to any liquidated damages.

The Contractor shall furnish such manpower, materials, facilities, and equipment and shall work such hours, including night shifts, overtime operations and Sunday and holidays, as may be necessary to insure the prosecution and completion of the Work in accordance with the approved and currently updated progress schedule. If Work in place falls behind the currently updated and approved schedule by seven (7) days or more and it becomes apparent from the current schedule that the Work will not be completed within the Contract Time or that the performance of the Work is not satisfying the requirements of the accepted schedule, the Contractor agrees that he will, as necessary, take some or all of the following actions at no additional cost to the Owner to improve his progress and expedite the progress of the Work:

1. Increase manpower, equipment or facilities in such quantities and crafts as will substantially eliminate the backlog of work;

2. Increase the number of working hours per shift, shifts per working day, working days per week, the amount of equipment, or any combination of the foregoing, sufficient to substantially eliminate the backlog of Work; and,

3. Reschedule activities to achieve maximum practical concurrence of accomplishment of activities.

LIQUIDATED DAMAGES: Should the Contractor fail to substantially complete the Work on or before the date stipulated for Substantial Completion (or such later date as may result from extension of time granted by Owner), the Contractor shall pay the Owner, as liquidated damages, for each consecutive calendar day that terms of the contract remain unfulfilled beyond the date allowed by the Contract. This sum is agreed upon as a reasonable and proper measure of damages which the Owner will sustain per day by failure of the Contractor to complete work within time as stipulated. The Owner and Contractor agree that the injury to the Owner that could result from a failure of the Contractor to complete on schedule is uncertain and cannot be computed exactly. In no way shall costs for liquidated damages be construed as a penalty on the Contractor.

ALLOWANCES and CONTINGENCIES: Furnish and install the Work described in the allowances or contingencies proposed on the Schedule of Values that is submitted with the Project Scope Document. Include the total of the cash amounts in the Contract Sum. Furnish materials by suppliers and/or contractors as directed by the Owner. The Contract Sum includes all costs related to the work to be provided on the basis of cash value. Where cash allowances are for materials only, allowances will include all costs of delivery to the job site and taxes. The Contractor is to include in his base bid all overhead and profit markups, and all markups related to bonds, insurance, taxes, etc., to be applied to direct contractor labor and materials or subcontractor work, including markups,, for performing allowance account work as directed by the Owner. Unused allowance or contingency amounts will be deducted from the contract amount by Change Order at project close-out.

UNIT PRICES: If Unit Prices are proposed for the project, each Unit Price represents the aggregate lump-sum cost to the Owner, per unit of measure stated, including, but not limited to, materials, delivery, handling, on-site labor and installation, adjustments to related Work overhead, profit and similar fees for administration/supervision, and proportionate shares of such general expenses as bond and insurance premiums, temporary construction facilities, and temporary controls. If unit priced quantities are used with an allowance amount provided above, all mark- ups including overhead, profit, etc., shall be applied against the Allowance value. The unit price shall then be the total cost, before mark-ups, including, but not limited to labor, material, delivery, handling and adjustments to related work.

PERFORMANCE BOND AND PAYMENT BOND: If required, the Contractor shall provide a performance bond and a payment bond on DISTRICT approved forms in the full amount of the Contract pursuant to A.R.S. 41-2574. The cost of the bonds shall be included in the Contract Sum, and the bonds shall be payable to the Maricopa County Community College District. The Contractor shall require the attorney-in-fact that executes the required bonds on behalf of the surety to affix thereto a certified and current copy of the Power of Attorney. The bonds required by this section shall be provided solely by one or more surety companies holding a Certificate of Authority to transact surety business in this State issued by the Director of the Department of Insurance pursuant to A.R.S. 20, Chapter 2, Article 1. Individual surety or sureties shall not execute the surety bond or bonds, even if the requirements of A.R.S. 7-101 are satisfied.

Upon request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall permit copies to be made.

PERMITS, FEES AND NOTICES: Work on any of the Maricopa campuses is under the jurisdiction of the State Fire Marshall or some local municipalities for Fire Code review only.

The contractor shall confirm the Authority Having Jurisdiction prior to the start of the Work.

Any new construction or remodeling work shall be reviewed and receive permits from the Fire Marshall’s office or that local authority, including final inspection at their option. At the District’s option, and additional code review will be provided by a consultant furnished by the Owner at his cost. Any work in public or off-campus rights-of-way, attaching to the rights-of-way or within public utility easements within the campus, needs proper notification, permits and coordination with the appropriate City agencies, including fire, water and sewer lines. The cities generally have no other jurisdiction on the college site. The County Health Department retains review and jurisdiction for food service. Maricopa County dust control ordinances and procedures are required for this work, as applicable, including filing required plans and obtaining required permits. State of Arizona, Department of Environmental Quality, storm water planning and AZPDES permitting also is required as appropriate.

***For Scottsdale Community College, The Salt River Pima-Maricopa Indian Community (SRPMIC) has building code, inspection, business license and tax, and preferred employment and materials purchase jurisdiction for this project.

Unless specifically stated as “To Be Paid by Owner”, the Contractor shall be responsible for obtaining and paying for all required permits, licenses, and bonding to comply with all pertinent municipal, county, state and federal laws, and assume liability for all applicable taxes including, but not restricted to, sales and personal property taxes. The Owner will reimburse the Contractor for the cost of the permits and fees through a change order or request that an allowance for this purpose be included in the contract price.

Contractor shall be an Arizona licensed Contractor and be appropriately licensed for the intended work at the time of price submission. It is the contractor’s responsibility to assure that the State of Arizona Registrar of Contractor’s license proposed for this project allow the contractor to perform the full scope of work if it is not a B-01 or B-02 General Commercial Contractor license. In general interpretation, a Specialty Commercial Contracting license will allow a minor amount of subcontracted work to trades outside the specialty license if that work is both directly related to the main work of the project, does not represent a significant percentage of the total contract value (usually 15% or less) and is, in itself, not significant. Examples of what has been allowed is subcontracting of concrete work for concrete patching or concrete pole bases for an exterior electrical lighting contract, or extension of or new electrical circuits from existing circuit breakers needed in an HVAC renovation project. Examples of what has not been allowed to be subcontracted under a Specialty Commercial Contractor license would be providing new electrical panels in the same HVAC renovation project, installing new lay-in ceiling tile throughout a large area when only a small portion was needed in the immediate area of a small replacement air handler, etc.)

Contact Blue Stake ahead of any excavation to mark all public utility positions, such as gas, sewer, fire and water line, etc. Buildings and Grounds will assist in locating any College utilities in the area with five days advance notice. .

The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury or loss. If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a two day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may without prejudice to other remedies the Owner may have, correct such deficiencies. If the Contractor performs Work contrary to laws, statutes, ordinances, building codes, and rules and regulations without such notice to the Consultant and

Owner, the Contractor shall assume full responsibility for such Work and shall bear the attributable costs including all penalties and fines.

Written notice shall be deemed to have been duly served if delivered in person to the individual or a member of the firm or entity or to an officer of the corporation for which it was intended, or if delivered at or sent by registered or certified mail to the last business address known to the party giving notice. Notices sent to the District shall be received by the Facilities and Planning Department at the District Office, in care of the project manager for the contract. Failure of the Owner to act or provide written notice to the Contractor regarding the Contractor's failure to comply with any specific requirement of the Contract or Contract Documents shall not constitute Owner's waiver of the requirement. The Owner's waiver of any requirement will occur only in writing which expressly states that it is a waiver of the specific requirement described in that writing.

Dust and Storm Water Run-off Control: The Contractor is responsible for complying with all federal, State and local requirements and laws for temporary construction related issues related to dust control and erosion control for the site related to his Work. This includes all necessary permits, notices, plans (including Storm Water Pollution Prevention Plans), and termination of coverage, along with enforcement of all of these requirements with sub-contractors and suppliers.

Provide dust control for all outdoor work, including demolition, earthwork, landscaping, etc.

CONSTRUCTION STAKING: Any construction staking required for this Work shall be supplied by the Contractor.

SEPARATE CONTRACTS BY THE OWNER: The Owner may provide work related to a project through separate direct contracts with other vendors including energy management controls, building security, audio;/visual systems, voice/ data system, FF&E,etc. The Contractor shall coordinate and cooperate with those other contractors in the Work.

MODIFICATIONS TO THE CONTRACT: No modifications of the issued Contract or Purchase Order shall be made unless the Owner authorizes the modifications by a properly signed and executed Change Order or purchase order amendment.

COSTS OF EXTRA WORK: When authorized in writing by the Owner, along with the Consultant if one is used, extra work may be ordered. Claims for additional compensation, on account of extra work done, will not be recognized unless such extra work has been authorized in advance and in writing by the Owner and the Consultant. Any change in the project that results in a change of the cost or time will be agreed to in a written change order. The Contractor shall perform such extra work and charge the Owner at the actual cost of labor and materials plus mark-ups as provided in the Project Scope Document.

All pricing submitted by the Contractor for change orders exceeding $1000 shall have back-up information attached that provides a breakdown of materials, labor hours and rates, equipment rental, etc. Sub-contractors shall provide this same break down to the general contractor to substantiate their cost proposals. The Owner will not accept Contractor requests for extensions, extra compensation for delays, overtime or extra costs associated with the lack of, or incomplete, submittal of this back up material on a timely basis. At the Owner’s sole discretion, he may direct the contractor to proceed with the Work immediately through a Construction Change Directive (CCD) if the Contractor fails to provide sufficient detail or agreement cannot be reached as to price or terms of the requested change.

Where extra work involves both added and omitted work, the overhead, profit, taxes and bond figures specified above shall be added to only the net increased amount over the original Contract Amount.

Work omitted from Contract: If Contract Amount has been previously increased by Change Order for additional work, then overhead, bond and taxes will be deducted for omitted work. Profit will not be deducted as part of a deductive Change Order unless the credit amount is due to the final reconciliation of contract allowance or contingency amounts, in which case, all mark-ups shall be applied. Taxes and bonds shall always be based upon the current Contract Amount, whether more or less than the original Contract Amount. The units costs for labor and materials used in change orders shall be the same in added work as they are for deleted work, modified only to include quantity discounts or similar adjustments for materials, and added charges for premium time for labor costs.

Change Orders: The Contractor will be issued a proposal request describing the intended change upon which, and within ten (10) calendar days, he shall indicate his proposed price to be added or deducted from the contract sum due to the change, supported by full and completely detailed estimates of cost by the Contractor, Subcontractor, vendor, or supplier, and any adjustment in time of final completion of the entire work that is directly attributable to changed work.

Upon request by Owner, Contractor shall permit inspection of his original contract estimate, subcontract agreements or purchase orders relating to the change. If agreement is reached as to the adjustment in compensation for performance of changed work, but agreement is not reached as to the time adjustment for such work, upon written authorization by the Owner, the Contractor shall proceed with the work at the agreed price reserving to Contractor the right to further pursue his claim for time adjustment.

While the Owner retains the right to order the Contractor to proceed with changes in the Work at any time through a Construction Change Directive; if the Contractor fails to submit his cost estimate within a seven (7) calendar day period, or there is a failure to agree to such costs, the Owner has the right to order the Contractor, in writing, to commence work immediately and the contract price shall be adjusted in accordance with the Owner’s estimated cost, unless, within seven (7) calendar days following completion of added work or with written notice to delete work, Contractor presents proof that the Owner’s estimate was in error. Final cost will be based upon actual documented materials, labor and equipment costs, marked up as previously defined.

CLAIMS FOR ADDITIONAL COST AND/OR TIME EXTENSION: If the Contractor wishes to make a claim for an increase in the Contract Sum and/or Time Extension, he shall give the Owner written notice thereof within seven (7) days after the occurrence of the event giving rise to such claim. The Contractor shall give notice before executing the Work, except in an emergency endangering life or property, in which case the Contractor shall proceed. No claim shall be valid unless so made. Contractor hereby waives all claims not so made. Any change in the Contract Sum resulting from such claim shall be authorized by a Change Order.

If the Contractor incurs damages related to expenses caused by a delay for which the Owner is responsible, which is unreasonable under the circumstances, and which was not reasonable contemplated by the parties at time of formation of this Contract, then the parties shall resolve the Contractor’s claim pursuant to A.R.S. §41-2617. The Contractor shall notify the Owner in writing within five working days of such delay, specifying why the Owner is believed by the Contractor to be responsible for the delay and the percentage extent to which the Contractor believes the Owner is responsible. Failure to provide such timely notice constitutes a waiver of all rights under A.R.S. §41-2617.

Contract time shall not be adjusted unless a change affects the critical path of the Work, per the most recent approved schedule. An analysis of the changes in the Work schedule must be submitted as part of the change request in order to consider a Contract time adjustment. While a critical path schedule is not required for most RC projects, a simplified, reasonable and logical critical path through the Work components will be constructed and considered as part of any time extension request.

In every such written claim, the Contractor shall provide the following information:

a. Nature of the delay;

b. Date (or anticipated date) of commencement of delay;

c. Activities on the progress schedule affected by the delay and/or new activities created by the delay and their relationship with existing activities;

d. Identification of person(s) or organization(s) or events(s) responsible for the delay including weather reports;

e. Anticipated extent of the delay;

f. Recommended action to avoid or minimize the delay, including the contractor’s efforts to resolve the issue or minimize the delays undertaken to the date of the extension request.

g. Recommended solution or action required by the Contractor.

Any claims for extensions of time for delays in transportation or for failures of suppliers or subcontractors shall be supported by facts demonstrating that the delays are beyond the Contractor’s control, including his efforts to overcome such delays. All costs related to delay claims by the Contractor must be supported by records and documentation demonstrating the actual cost directly related to the delay or time extension.

If adverse and unusually severe weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data substantiating that weather conditions were abnormal for the period of time, and had an adverse effect on the critical path of the scheduled construction.

Unusual or inclement weather as used herein means weather that results in a minimum of a five hour delay or loss of work for at least 75% of the labor force working on critical path work that day.

Claims for rain days must be received by the Owner by 10:00 a.m. of the day that the rain or muddy condition occurs.

If an extension claim is made due to mud or other job site conditions related to the unusual weather, the Owner shall be notified on the day for which the site condition is being claimed to substantiate the condition(s). Claims for time extensions due to weather related mud or other site conditions will be granted only where the required notification is given and unusual weather conditions prevented execution of items within the critical path of the work or otherwise significantly hindered the accomplishment of work. Partial day extensions may be granted when some portion of the daily work could be accomplished, though not at full efficiency or capacity.

CLAIMS FOR CONCEALED OR UNKNOWN CONDITIONS: If conditions are encountered at the Work site that are (1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, which 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, then notice by the Contractor shall be given to the Owner promptly before conditions are disturbed and in no event later than three (3) days after first observance of the conditions, and in any case, prior to altering or removing the differing condition. The Owner will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor's cost of, or time required for, performance of any part of the Work, will negotiate an equitable adjustment in the Contract Sum or Contract Time, or both. If the Owner determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Owner shall notify the Contractor in writing stating the reasons. Claims by either party in opposition to such determination must be made within 21 days after the Owner has given notice of the decision.

DESIGN CLARIFICATION, ERRORS AND OMISSIONS:

Should the Contractor require clarification or interpretation of the Contract, or become aware of any claimed error or omission, he shall immediately inform the Consultant in writing. The Owner or Consultant shall promptly review the circumstances and determine the appropriate corrective action, if any, and so advise the Contractor.

MEASUREMENT AND PAYMENT:

Schedule of Values: The Schedule of Values submitted as part of the Project Scope Proposal shall be used as the basis for the Contractor’s Applications for Payment. At a minimum, the Schedule of Values shall be broken down by trade. For the purposes of the Schedule of Values, the Contractor certifies that the cost or value listed for the line item represents the true and accurate cost of the proposed Work. The value shown can be used for any future change order or bond valuation adjustment based upon the scope of the work proposed within the line item.

Applications for Payment: The Contractor’s Application for Payment shall be submitted on the AIA document G702 form and shall include the Owner’s Project number and Purchase Order number. Invoices for payment should be sent to:

(a) For projects managed by the District’s Facility Planning office, send payment applications to the Project Manager, Ted Dick, Maricopa Community College District, Facilities Planning & Development, 2411 West 14th St., Tempe, AZ 85281.

(b) For projects managed by the College, send the payment applications to the College Director of Facilities or Project Manager responsible for the Work.

The Contractor’s Application for Payment shall show the percentage of work completed for each application, total percentage or work completed for each application, total percentage complete-to-date and the balance of work remaining for each cost identified in the Schedule of Values.

Payment will be made to the Contractor in compliance with Arizona Revised Statute unless specifically noted on the documents. The Contractor shall promptly pay each sub-contractor (including suppliers, laborers and material men) performing labor or furnishing material for the Work upon receipt of payment from the Owner out of the amount paid to the Contractor on account of the Work of such Subcontractor, supplier, laborer, or material man. The Contractor shall, by an appropriate agreement with each Subcontractor, also require each Subcontractor to make payment to his sub-subcontractors in a similar manner.

The Owner may, on request and his discretion, furnish to any subcontractor, if practicable, information regarding the percentages of completion or the amounts applied for by the Contractor and the action taken thereon by the Owner on account of Work done by such Subcontractors.

Neither the Owner nor the Consultant shall have any obligation to pay, nor to see to the payment, of any moneys to any sub-contractor, except as may otherwise be required by law.

No Certificate for a progress payment, nor any partial or entire use of occupancy of the Project by the Owner, shall constitute an acceptance of any Work which is not in accordance with the Contract Documents. Use or occupancy shall not, in and of itself, constitute Substantial Completion.

The Owner or Consultant may decline to certify payment and may withhold the Certificate in whole or in part, to the extent necessary to protect the Owner, if in their opinion they are unable to make correct and accurate representations to the Owner as to the completeness or acceptability of the work in place.

Approval of Allowance and Contingency Uses: At least monthly, and more often if requested, an “Allowance and Contingency Use Authorization” form shall be filled out and signed by the Owner, Architect and Contractor that describes every use of allowances and contingencies made that month.

Use of any and all allowance or contingency funds, including those included in the Contractor’s contract, require this approval. This form should be attached to the monthly payment application.

WARRANTY:

The Contractor guarantees that the Work will conform to the Contract Documents. Buildings shall be weathertight, watertight, and leak-proof at every point in every area, except where leaks can be attributed to damage to the building by external forces beyond the Contractor’s control. The Contractor also shall repair or replace any damaged material, finishes or fixtures damaged as a result of this water penetration. The Work shall be mold free at the time of Final Completion.

If, within two years after the Date of Substantial Completion of the Work, or a longer period if such time is part of the manufacturer’s standard warranty, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition. This period of two years shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. The Owner shall give such notice promptly after discovery of the condition. During this guarantee period, if any faulty or defective materials or workmanship is discovered, the Owner will provide notice to the Contractor requesting the Contractor repair or remedy the defect at the sole expense of the Contractor.

The Contractor agrees that he shall respond to the warranty request within forty-eight (48) hours, and then commence and diligently pursue remedy or repair within five work days.

Warranty requests which adversely affect the operation of critical building systems or life safety issues shall be responded to immediately and corrected as quickly as possible.

Neither final payment nor any other provision in this Contract shall relieve the Contractor of the sole responsibility to such corrective work.

If the Contractor fails to timely commence the corrective work, the Owner, at his option, may perform the corrective work or have the same performed at the expense of the Contractor, with payment due to the Owner by the Contractor, or his surety, upon receipt for the expenses.

Corrective Work shall be warranted to be free of defects for a period equal to the longer of six months after completion of the corrective Work or for the remainder of the warranty period otherwise applicable.

SUBSTANTIAL COMPLETION is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete so the Owner can occupy and utilize the Work.

Full or partial occupancy or use of the facility by the Owner shall not constitute or be sufficient for determining Substantial Completion. All of the following are conditions precedent for Substantial Completion:

1. Inspection, approval, occupancy and other permits issued by regulatory agencies having jurisdiction and without conditions. Conditional permits do not satisfy Substantial Completion requirements.

2. As applicable, the HVAC system is tested and balanced with a preliminary balance report submitted to, and accepted by, the Consultant and the Owner.

3. Facilities are able to be secured by the Owner and any Contractor installed building security systems are complete and functioning.

4. Odor and fume generating activities are complete. This includes work such as painting, staining, floor installation, etc. This also includes odor generating activity that originates in non-occupied spaces, but could enter and impact occupied areas.

5. All dust generating activity within occupied spaces has been completed. This includes dust generating activity that originates in non-occupied spaces, but could enter and impact occupied areas.

6. All mechanical, plumbing, electrical, and life safety or other special systems and equipment are complete, operational, inspected and have received all required final operating permits, to the extent that the Owner can safely and legally use and occupy the facility.

7. Remaining punch-list items do not represent a hazard or create an adverse impact to the

Owner and occupants in order for the contractor and his subcontractors to complete.

Completion of punch-list items should not cause interruption or disruption to the Owner’s functions due to noise, dust, odor, fumes, etc., or they must be undertaken and completed during off-hours convenient to the Owner’s operations and at no added cost to the Owner.

8. Final cleaning is complete.

9. The Owner is able to fully occupy and utilize all portions of the Work.

INDEMNIFICATION

To the fullest extent permitted by law, the Contractor shall defend, indemnify and hold harmless the Owner, Architect, Architect‘s Consultants, and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, court costs and the cost of appellate proceedings, arising out of the negligent acts or omissions of the Contractor, a its Subcontractors, anyone directly or indirectly employed by them or anyone for whose acts they may be liable. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to any party or person.

ADMINISTRATIVE RESOLUTION OF CLAIMS AND DISPUTES

Any claim or dispute between the Contractor and the Owner arising out of or relating to this Contract, which has not been resolved by the Architect in a manner acceptable to both the Contractor and the Owner shall be resolved pursuant to the Maricopa County Community College District Purchasing Procedures Manual, Section 902, “Contract Claims and Dispute Resolution”, with the addition that if there is any cost incurred in providing an outside hearing officer, the District and the Contractor will split the cost in proportion of the actual award made versus the value of the claim being made . A copy of this section can be found at http://www.maricopa.edu/purchasing/pmanual/902.htm. The parties agree that the Claims Procedures and Legal Remedies set forth or identified in this Paragraph shall be the exclusive means for resolving disputes arising under the Contract. Contractor acknowledges and understands that it must follow this process before instituting any judicial proceeding and that all decisions reached, along with their reasoning, shall become part of the legal record of any proceeding. In agreeing to this Contract Claims Process, all parties to the hearings and decisions agree that this process must be followed prior to any formal litigation and that all decisions reached, along with their reasoning, become part of the legal record of that litigation filing.

http://www.maricopa.edu/purchasing/pmanual/902.htm

No suit or action shall be commenced hereunder by any claimant other than in the Arizona Superior Court for Maricopa County. The procedures described in this Paragraph for resolving claims shall be exhausted before any lawsuit may be filed.

Nothing in this Contract shall be construed to waive the requirements of Arizona Revised Statutes Sections 12-820 et seq. The Contractor shall file any notice of claim under this Contract within the time limits and in the manner specified in Arizona Revised Statutes Section 12-

821.01. Unless otherwise agreed in writing, the shall carry on the Work and maintain its progress during the resolution of any claim or controversy and the Owner shall continue to make payments that are due and owing to the Contractor in accordance with this Contract

SUSPENSION, TERMINATION and DEFAULT All requirements of the termination, suspension or default paragraphs shall be included as flow-down requirements in all sub-contracts and supplier purchase orders.

TERMINATION BY THE OWNER FOR CAUSE

The Owner may terminate or default the Contractor upon actual or anticipated, persistent or repeated occurrence of, or failure to, correct any one or more of the following: (1) If the Contractor fails to supply, or fails to cause to supply, sufficient skilled workman or suitable materials or equipment required for the timely and proper progress and/or completion of the Work; (2) If the Contractor, upon payment by the Owner, fails to make prompt payment to Subcontractors or suppliers at any tier, for materials, labor or equipment due, or approved in the Application for Payment, in accordance with the respective agreements between the Contractor and the Subcontractors; (3) If the Contractor fails to comply with laws, ordinances, rules, codes, regulations, orders or similar requirements of any public entity having jurisdiction or specified by this Contract; (4) If the Contractor refuses or fails to prosecute the work, or any separable part, with such diligence as will ensure its completion within the agreed upon time; or if the Contractor fails to produce and pursue the required recovery schedules; or if the Contractor fails to complete the Work within contract dates of Substantial or Final Completion; (5) If the Contractor fails to follow any reasonable instruction by the Architect or Owner; (6) If the Contractor performs Work that deviates from the Contract Documents, or fails to remove, replace or repair improper or inadequate Work when directed by the Architect; (7) If the Contractor fails to obtain or maintain required bonds, insurance, licenses or permits; (8) If the Contractor has repeated or excessive safety violations, whether officially reported or not, or fails to remedy serious safety violations; (9) If the Contractor otherwise breeches or violates in any material way any provision or requirements of these Contact Documents or of any other contract between the Owner and Contractor.

Once the Owner determines that sufficient cause exists, the Owner may terminate or default the Contract without prejudice to any other right or remedy the Owner may have in the Contract Documents or in law. Once the Owner determines that sufficient cause exists, the Owner may terminate or default the Contract after giving the Contractor and its surety notice by issuing a written Declaration of Default. If Contractor fails to cure, or demonstrate reasonable effort to cure, such problem within three Days, and completely cure such problem within seven Days, then Owner may give a second written notice to Contractor and surety of its intent to terminate the Agreement within seven Days. If Contractor, within such second seven Day period, fails to cure such problem, then Owner may declare the Agreement immediately terminated for default by providing written notice to Contractor and surety of such declaration. After expiration of this seven day period, the Owner shall have the sole discretion to permit the Contractor to remedy the cause for the contemplated termination without waiving the Owner’s right to terminate the Contract.

In the event that the Contract is terminated or defaulted, the Owner may take over the Work and prosecute to completion, by contract or otherwise, and may exclude the Contractor from the site.

The Owner may take possession of the Work and all tools, construction equipment, machinery and plant which may be on site of the Work, and the use of same to the full extent that they can be used by the Contractor, and without liability to the Contractor except to return them undamaged, reasonable wear and tear excepted, at such time as any such item no longer has utility for completion of the Work. The Owner may also take possession of all material and appliances stored at the site and finish the Work as the Owner deems expedient. In such case, the Contractor shall not be entitled to receive any further payment until the Work is completed.

Immediately upon Termination for Cause or Default, title to all completed work, work in progress and stored materials passes to the Owner. If the unpaid balance of the Contract Sum exceeds the Owner’s direct and indirect cost and expenses of completing the Work, including compensation for the additional professional, consultant, internal or additional procurement costs, lost revenue, interest, legal or other required services and damages incurred by the Owner and not expressly waived, such excess shall be used to pay the Contractor for the Work it performed. If such costs exceed the unpaid balance, the Contractor or its surety shall pay the difference to the Owner, or at the sole discretion of the Owner, the difference due may be deducted from balances due on other contracts between the Owner and Contractor. In exercising the Owner’s right to prosecute the completion of the Work, the Owner shall have the right to exercise its sole discretion as to the manner and methods of completing the Work. In the event that the Owner accepts bids for corrective Work or completion of the Project, or the Surety assumes responsibility for corrections or completion of the Work, the Contractor shall not be eligible for the award of such contracts or work at the Owner’s sole option.

The Owner shall have the option of requiring any, all or none of the Subcontractors or suppliers to perform according to their subcontracts and purchase orders, and may assign any or all of the subcontracts to a general contractor selected to complete the Work.

If the Owner takes over the Work, unexecuted orders entered into by the Contractor for performance of any part of the Work will be effective upon acceptance by the Owner in writing, and only as to those subcontracts and purchase orders which the Owner designates in writing. The Owner may accept assignment at any time during the course of construction prior to Final Completion. All subcontracts and purchase orders shall provide that they are freely assignable by the Contractor to the Owner and its assigns. The assignment is part of the consideration to the Owner for entering into this Contract and may not be withdrawn prior to Final Completion of the Work.

In the event the Contract is terminated and it is determined for any reason that the Contractor was not in default, the termination shall be deemed a suspension for Convenience of the Owner. This Contract may be terminated by the Owner under the conditions stated in A.R.S. § 38-511.

SUSPENSION BY THE OWNER FOR CONVENIENCE

The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for such period of time as the Owner may determine. The Contract Sum and the Contract Time shall be adjusted for increases in the cost and time caused by suspension, delay or interruption. Adjustment of the Contract Sum shall include pro-rated profit for the Work completed at the time of the Suspension. No adjustment shall be made to the extent:

.1 that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the Contractor is responsible; or

.2 that an equitable adjustment is made or denied under another provision of the Contract.

If funds approved by the Legislature, by public vote, or by the District Governing Board to perform this Work become unavailable for payment under this Contract, the Owner may delay the Work for a period up to six months, after which date if no approved or apportioned funds are made available, this Contract shall terminate at the option of the Owner. In the event of such delay or termination, the Owner shall pay the Contractor under the Contract through the date of Work stoppage, but only direct job site costs may be recovered by the Contractor for damages reasonably incurred after the date of Work stoppage.

TERMINATION BY THE OWNER FOR CONVENIENCE

For its own convenience upon seven days’ written notice, the Owner may, at any time, terminate the Contract in whole or in part for the Owner’s convenience and without cause. Such Termination shall be effective at the time and manner specified in the Notice. In such case, the Contractor shall be paid in accordance with provisions of this section. Such termination shall be without prejudice to any claims which the Owner may have against the Contractor. In case of such termination for the Owner’s convenience, the Contractor shall be entitled to receive payment for Work executed, which shall be the unpaid progress payments from the Schedule of Values for completed work or work in progress plus the proportional overhead and profit from the Schedule of Values due on that Work only, materials and equipment stored on the site but not yet installed in the Work, plus the retention held to date along with reasonable, direct job site costs incurred by reason of such termination. No payment will be made for items such as home office overhead and profit, anticipated profit, or profit on work not yet performed.

TERMINATION INFORMATION REQUIRED FROM THE CONTRACTOR

In the event of termination, for any reason, or default by the Contractor, the following shall be supplied to the Owner and bond company, or their representative, as requested, within seven calendar days of the request: (1) subcontract information, including copies of all subcontracts, and both successful and unsuccessful subcontract proposals, including all accounting information related to the subcontracts; (2) purchase order information, including full copies…