attachment_3_bid_2948_25.pdf

81351R, Contract A – Design/Build Sprinkler NHFG Region 3 December 15, 2022

General Conditions – DPW

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DOCUMENT 00708

GENERAL CONDITIONS – DPW

Issued 2-05-2004; Revised as noted

PART ITEM

1 DEFINITIONS

2 CONTRACT DOCUMENTS

3 NOTICE

4 ACCESS TO THE WORK

5 ACCIDENT PROTECTION

6 HAZARDOUS MATERIALS

7 SUBCONTRACTS

8 RESPONSIBILITY OF CONTRACTOR TO ACT IN EMERGENCY

9 MUTUAL RESPONSIBILITY OF CONTRACTORS

10 PAYMENTS TO CONTRACTOR

11 CONTRACTOR’S TITLE TO MATERIALS

12 CHANGES IN WORK

13 PATENTS

14 ASSIGNMENTS

15 SUPERINTENDENCE BY CONTRACTOR

16 FAILURE TO COMPLETE WORK ON TIME

17 SUBSTANTIAL COMPLETION AND FINAL INSPECTION

18 DEFAULT AND TERMINATION OF CONTRACT

19 TERMINATION OF CONTRACT WITHOUT FAULT

20 ASSIGNMENT PROVISION

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PART 1 DEFINITIONS

A. Addendum. Written and/or graphic information issued before opening Proposals that modifies or interprets the Bidding Documents by additions, deletions, clarifications or corrections.

B. Advertisement. A public announcement in the form of an Invitation to Bid, inviting Bids for Work to be performed and/or Materials to be furnished.

C. Alteration Order. A written agreement between the Contractor and the Department that amends the Contract and identifies Work that affects either the Contract Sum, Completion Date, Credit, or any combination thereof.

D. Alternate. A proposed change in the Work described in the Contract Documents providing the State with an option to select between alternative materials, products or systems, or to add or delete portions of Work.

E. Architect. As defined in RSA 310-A:28, a person who, by reason of having acquired through professional education and practical experience an advanced training in building construction and architectural design and an extensive knowledge of building standards created to safeguard the public from hazards such as fire, panic, structural failure, and unsanitary conditions, is technically and legally qualified to practice architecture and who is licensed by the State of New Hampshire Board of Licensure for Architects to engage in the practice of architecture. The Architect has no contractual agreement with the

Contractor and therefore shall not directly interact with the Contractor.

F. Award. The acceptance of a Bid prior to execution of Contract.

G. Bid. A complete and properly signed Proposal, submitted in accordance with the

Bidding Requirements, to perform the Work for the amount or amounts stipulated therein.

H. Bid Bond. A form of a Proposal Guaranty executed by the Bidder and a Surety to guarantee that the Bidder will enter into a Contract within a specified time.

I. Bid Opening Officer. An authorized representative of the Department, who is responsible for opening and reading of Bids.

J. Bidder. A Corporation, Partnership, or Proprietorship submitting a Proposal, subsequent to meeting the Department’s Bidding Requirements.

K. Bidding Documents. Collectively, the Invitation to Bid, Bidding Requirements, Specifications, Drawings, and Addendum.

L. Bidding Requirements. The documents that contain information regarding bidding procedures with which a Bidder must conform and a Proposal that a Bidder shall use to submit a Bid.

M. Builders Risk Insurance. A specialized form of property insurance that provides coverage for loss or damage during the course of construction.

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N. Calendar Day. A day shown on the calendar.

O. Certificate of Occupancy. A document issued by the Office of the State Fire Marshal or its authorized representative certifying that all of, or a designated portion of a building, is approved for its designated use.

P. Certificate of Full or Partial Substantial Completion. A document prepared by the

Department when the Project reaches Substantial Completion and only issued after review and acceptance of the Contractor’s Request for Certificate of Full or Partial

Substantial Completion.

Q. Change Order. A written agreement between the Contractor and the Department that identifies Work to be completed as part of an Allowance Item. Any change that affects either the Contract Sum, Contract Time or Credit shall be processed as an Alteration

Order.

R. Clerk of the Works. An authorized representative identified by the Department, responsible for observing construction on the State’s behalf for conformance with the

Contract Documents.

S. Commercial General Liability Insurance. A broad form of liability insurance covering claims for bodily injury and property damage which combines under one policy coverage for business liability exposures, except those specifically excluded.

T. Commissioner. The Commissioner of the State of New Hampshire Department of

Administrative Services.

U. Completion Date. The last day of the time allotted or the specific date established as identified in the Contract Documents for Substantial Completion of the Work, including any authorized extensions.

V. Consultant. The Architect, Engineer, and/or professional engaged to develop/provide

Drawings, Specifications and/or other services for the Project. The Consultant has no contractual agreement with the Contractor and therefore all interaction between any

Consultant and the Contractor shall be done thru the Contract Administrator.

W. Contract. The written agreement between the Department and the Contractor setting forth the obligations of the parties as outlined in the Contract Documents.

X. Contract Administrator. The Department’s Division of Public Works Project Manager or other appointed representative having specific authority per RSA 228:5 to act on the

Department’s behalf and shall be responsible for general supervision, control, and direction over all matters pertaining to design, construction, maintenance standards, preservation, and administration of the Contract.

Y. Contract Bond. The approved form of security in compliance with RSA 447:16 executed by the Contractor and their Surety or Sureties, guaranteeing complete execution of the contract and all supplemental agreements pertaining thereto including the payment of all legal debts pertaining to the construction of the Project.

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Z. Contract Documents. Collectively, the Invitation To Bid, Bidding Requirements, Contract Bond, Specifications, Drawings, Addendum, and other documents included in the Contract, and modifications, clarifications, authorized Alteration Orders and Change

Orders issued after the execution of the Contract, to complete the Project. All documents shall be written in English.

AA. Contract Sum. The amount stated in the Contract. This sum shall be derived from the

Lump Sum Base Bid, Lump Sum Grand Total, or Negotiated Price; modified to reflect the acceptance of any Alternates. The Notice to Proceed shall state the amount that the State is obligated to pay the Contractor.

BB. Contractor. The Corporation, Partnership, or Proprietorship, or any combination thereof, contracting with the State for performance of prescribed work.

CC. Contractor’s Request for Certificate of Full or Partial Substantial Completion. A document prepared by the Contractor when the Project reaches Substantial Completion.

DD. Contractual Liability. Liability assumed by the Contractor under a Contract.

EE. Corporation. A legal entity organized under the laws of a particular jurisdiction who is legally authorized to do business in the State.

FF. Credit. Any Change that results in a reduction in the Contract Sum or Lump Sum Grand

Total Items. All credits shall be processed by an Alteration Order and may include modifications to Lump Sum Grand Total Items.

GG. Day. Unless designated as a Working Day, or unless otherwise indicated, this term will mean a Calendar Day.

HH. Department. The State of New Hampshire Department of Administrative Services.

II. Drawings (Plans). The graphic and pictorial documents or reproductions thereof, which show the location, character, dimensions, and details of the prescribed work.

JJ. Final Completion. Term denoting that the Work has been completed in accordance with the terms and conditions of the Contract Documents and all Punch List items have been completed.

KK. Final Payment. Payment made by the State to the Contractor, upon Final Completion.

LL. General Conditions. The part of the Contract Documents establishing the rights, responsibilities and relationships of the parties.

MM. Hazardous Material. Shall include any material regulated by federal or state law and shall include but not limited to asbestos, toxic or hazardous waste, PCBs, combustible gases and materials, petroleum or radioactive material, or any other substances under any conditions and in such quantities as would pose a substantial danger to persons or property exposed to such substances.

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NN. Indemnification. A contractual obligation by which one person or entity agrees to reimburse others for loss or damage arising from specified liabilities.

OO. Invitation to Bid. A portion of the Bidding Documents; the Advertisement for Proposals for Work or Materials on which Bids are requested. The Advertisement will indicate the time and place of the opening of Proposals, the type and location of Work to be performed, the character and quantity of the Material to be furnished and provide information on how to obtain Drawings, Specifications and Proposal.

PP. Liability Insurance. A contract under which an insurance company agrees to protect a person or entity against claims arising from a real or alleged failure to fulfill an obligation or duty to a third party who is a named or an incidental beneficiary.

QQ. Lump Sum Base Bid. One type of Proposal where the Bid is established by a single item price to perform all Work excluding any Alternates that may or may not become part of the Contract.

RR. Lump Sum Grand Total. One type of Proposal where the Bid is established as a total of various items to perform all Work excluding any Alternates that may or may not become part of the Contract.

SS. Low Bid. The Bid stating the lowest price proposed for performance of the Work, conforming to the Bidding Documents.

TT. Lowest Responsible Bidder. The Bidder who submits the lowest bona fide Bid and is considered by the Department to be fully responsible and qualified to perform the Work for which the Bid is submitted.

UU. Material(s). Any substance and/or product specified for use in the construction of the

Project and its appurtenances.

VV. Negotiated Price. A Proposal modified by the Lowest Responsible Bidder thru communication with the Department and Using Agency(ies) in which changes are made to the Proposal and/or Completion Date as required to meet budget, funding or scheduling requirements.

WW. Notice to Proceed. A written notice to the Contractor to proceed with a portion of or all of the Contract Work; including the beginning of Contract time when applicable. The

Notice to Proceed shall act as the final step in awarding the Contract or portion thereof.

XX. Occurrence Policy. An insurance policy that covers acts or omissions occurring during the policy term, regardless of when a claim against the insured is first asserted, even if the policy is no longer in existence.

YY. Owner’s Protective Liability Coverage. Third-party legal liability insurance coverage protecting the State from claims arising from the construction process.

ZZ. Partnership. An association of two or more persons or entities to conduct a business that shares profits and losses at a certain proportion.

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AAA. Professional Engineer. Referred to as Engineer. As defined in RSA 310-A:2, a person who by reason of advanced knowledge of mathematics and the physical sciences, acquired by professional education and practical experience, is technically and legally qualified to practice engineering, and who is licensed by or otherwise authorized by State of New Hampshire Professional Engineers Board to engage in the practice of engineering. The Engineer has no contractual agreement with the Contractor and therefore shall not directly interact with the Contractor.

BBB. Project. The total construction of the Work to be performed.

CCC. Proposal. A Bidder’s offer, on Department prescribed forms, to perform stated work at the quoted price(s).

DDD. Proposal Guaranty. The security furnished with a Proposal, which shall be a Bid Bond, provides that the Bidder if awarded the Contract will execute such Contract in accordance with the requirements of the Bidding Documents.

EEE. Proprietorship (Individual). A form of business organization that is owned entirely by one person.

FFF. Provide. To furnish and install a product, materials, systems, and/or equipment, complete in place, fully tested and approved.

GGG. Punch List. A written document attached to the Certificate of Substantial Completion listing items to be completed or corrected prior to the State’s approval of Final Payment.

HHH. Specifications. The volume that is part of the Contract Documents which contain the

General Conditions, Supplementary General Conditions, Invitation to Bid, and individual sections that consist of written requirements for material, equipment, construction systems, standards and workmanship, and other documents or reports as applicable.

III. State. The State of New Hampshire.

JJJ. Subcontractor. A Corporation, Partnership, Proprietorship, Joint Venture or any combination thereof, to whom the Contractor sublets any part of the Contract.

KKK. Substantial Completion. As determined by an inspection by the Department that the work or portion thereof is substantially complete, in accordance with the Contract

Documents, such that the State may occupy or utilize the Work for its intended use without disruption or interference by the Contractor in completing or correcting any remaining unfinished or unacceptable Work.

LLL. Substitution. A Material, product or item of equipment in place of that specified.

MMM. Superintendent. The Contractor’s authorized representative responsible for field supervision, coordination, and completion of the Work.

NNN. Supplementary General Conditions. A part of the Contract Documents which supplements and may also modify, change, add to or delete from provisions of the

General Conditions.

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OOO. Surety. A Corporation, Partnership, or Proprietorship other than the Contractor, executing a bond furnished by the Contractor.

PPP. Umbrella Liability Insurance. Insurance providing coverage in an amount above existing liability policies.

QQQ. Unit Price. An amount stated in a Lump Sum Grand Total Bid as a price per unit for an item or portion of the contract or for specific materials and/or services described in the

Contract Documents.

RRR. Using Agency. The executive department, commission, independent establishment, public corporation which is an instrumentality of a state board, bureau, division, institution, service, office, officer, authority, administration or other establishment in the executive branch of the government, who are responsible for the facility and/or will occupy the facility after and/or during the Work. The Using Agency(ies) has/have no contractual agreement with the Contractor and therefore shall not direct the Contractor in any way.

SSS. Work. The construction and services required by the Contract Documents to furnish all labor, materials, equipment, and incidentals necessary to complete the duties, obligations, and requirements imposed by the Contract.

TTT. Workers’ Compensation Insurance. Insurance covering the liability of an employer to employees for compensation and other benefits required by workers’ compensation laws with respect to injury, sickness, disease or death arising from their employment.

UUU. Working Day. Any calendar day, except Saturdays, Sundays, and Contract designated legal holidays.

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PART 2 CONTRACT DOCUMENTS

2.1 The Contract Documents consist of the Invitation to Bid, Contract Agreement, General

Conditions, Supplementary General Conditions, Drawings and Specifications, including all

Addenda issued prior to execution of the Contract, wage scales where applicable, Bonds where required, insurance certificates, other documents listed in the Agreement and Modifications issued after the execution of the Contract, Change Orders and Alteration Orders issued in accordance with Part 12 of the General Conditions.

A. Hierarchy of the Contract Documents shall be interpreted according to the following classes:

1. Department approved modifications to the Contract Documents after execution of the Contract.

2. Addenda.

3. Supplemental General Conditions.

4. General Conditions.

5. Division 1 – General Requirements.

6. Remaining Specifications.

7. Larger Scale Drawings & Details.

8. Remaining Drawings.

2.2 A fully executed Contract shall not be in effect until approved by the Governor and Council and an issuance of the Notice to Proceed by the Division.

2.3 This Contract is executed in a number of counterparts, each of which is an original and constitutes the entire agreement between the parties. This Contract shall be construed according to the laws of the State. No portion of this Contract shall be understood to waive the sovereign immunity of the State. This Contract shall not be amended, except as specified in Parts 13 and

20.

2.4 The Contract Documents are complementary and anything called for by one of the Contract

Documents and not called for by the others shall be of like effect as if required by all.

2.5 Should the Contract Documents contain inconsistencies within a class identified in Item 2.1A, the

Contractor shall provide the better quality or greater quantity of work and/or materials. The

Contractor shall identify any perceived discrepancies to the Contract Administrator prior to proceeding.

2.6 The Contractors and all Subcontractors shall refer to all of the Contract Documents, including those not specifically showing the work of their specialized trades, and shall perform all work reasonably inferable from them as being necessary to produce the intended results in compliance with applicable Federal, State, and Local codes.

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2.7 All indications or notations which apply to one of a number of similar situations, materials or processes shall be deemed to apply to all such situations, materials or processes wherever they appear in the work, except where a contrary result is clearly indicated by the Contract

Documents.

2.8 Where codes, standards, requirements, and publications of public and private bodies are referred to in the Contract Documents, such references shall be understood to be to the latest final and complete revision at the time of receiving Bids unless specifically identified, except where otherwise indicated.

2.9 Where no explicit quality or standards for materials or workmanship is established for work, such work is to be consistent with the best quality workmanship standards of the applicable trade.

2.10 All manufactured articles, materials, and equipment shall be applied, assembled, installed, connected, erected, tested, cleaned, and conditioned in accordance with the manufacturer's written or printed directions and instructions, unless specifically indicated otherwise in the Contract

Documents.

2.11 The Drawings are made to scale as identified therein, but all working dimensions shall be taken from the figured dimensions and by actual measurements at the job; in no case by scaling. The

Contractor shall study and compare all of the Drawings and verify all figures before laying out or constructing work. The Contractor shall be responsible for errors in his/her work that might have been avoided thereby. Whether or not an error is believed to exist, deviation from the Drawings and the dimensions given thereon shall be made only after approval in writing from the Contract

Administrator.

2.12 All Drawings and Specifications and copies thereof are the property of the State and shall not be used by the Contractor or Subcontractor on other Projects.

PART 3 NOTICE

3.1 Any written notice by either party to the Contract shall be sufficiently given if delivered to or at the last known business address of the person, partnership or corporation constituting the other party to the Contract, or to his/her, their, or its duly authorized agent, representative, or officer, or when sent by registered mail to such last known business address. The last known business address shall be that location which is last provided in writing.

3.2 The parties shall provide their physical location/address, mailing address, telephone number, fax number, and, where available, pager number(s), email address(es), and other methods of contact for all persons associated with the Contract.

PART 4 ACCESS TO THE WORK

4.1 The Contractor shall provide for access to the work, at all times, for observation and/or inspection by the Department, Architect, Consultant, Engineer and government officials having jurisdiction.

The Contractor shall provide proper facilities for such access and inspection.

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PART 5 ACCIDENT PROTECTION

5.1 It is a condition of this Contract, and shall be made a condition of each subcontract entered into pursuant to the Contract, that the Contractor, any Subcontractors, or Independent Contractors shall not require any laborer or mechanic employed in the performance of the Contract to work in surroundings or under working conditions which are unsanitary, hazardous or dangerous to the laborer’s health or safety as determined by construction safety and health standards of the

Occupational Safety and Health Administration, United States Department of Labor, which standards include, by reference, the established Federal Safety and Health Regulations for

Construction. These standards and regulations comprise Part 1910 and Part 1926 respectively of

Title 29 of the Code of Federal Regulations, as may be revised from time to time. In the event any revisions in the Code of Federal Regulations are published, such revisions will be deemed to supersede the appropriate Part 1910 and Part 1926, and be effective as of the date set forth in the revised regulation.

PART 6 HAZARDOUS MATERIALS

6.1 The Contractor shall also be aware of laws and regulations relating to hazardous materials that may be encountered during construction operations, either within project limits or at material sites off the project. The health and safety of employees, the general public, and the potential of damage to the overall environment is possible if hazardous materials are not recognized, reported, and the appropriate action taken to dispose of, remove from the site, or otherwise contain the possible contaminants.

6.2 If any abnormal condition is encountered or exposed that indicates the presence of a hazardous material or toxic waste, construction operations shall be immediately suspended in the area and the Contract Administrator notified. No further work shall be conducted in the area of the contaminated material until the site has been investigated and the Department has given approval to continue the work in the area. The Contractor shall fully cooperate with the State and perform any remedial work as directed. Work shall continue in other areas of the Project unless otherwise directed.

6.3 Exposure to hazardous materials may result from contact with, but not necessarily limited to, such items as drums, barrels, and other containers, waste such as cars, batteries, and building construction debris. Containers leaking unknown chemicals or liquids, abandoned cars leaking petroleum products, batteries leaking acid, construction debris which may include asbestos, or any other source of suspected hazardous material found within excavation areas or stockpiled on land within construction limits shall be referred to the Department of Environmental Services and

Contract Administrator so that a proper identification of the materials may be made and disposal procedures initiated as required.

6.4 Disposition of the hazardous material or toxic waste shall be made under the requirements and regulations of the Department of Environmental Services. Work required to dispose of these materials and any remedial work shall be performed under a Supplemental Agreement or

Contract item, if included in the Contract.

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PART 7 SUBCONTRACTS

7.1 Nothing contained in the Specifications or Drawings shall be construed as creating any contractual relationship between any Subcontractor and the State. The Sections of the

Specifications are not intended to control the Contractor in dividing the work among

Subcontractors or to limit the work performed by any trade.

7.2 The Contractor shall be as fully responsible for the acts and omissions of Subcontractors and of persons employed by them, as he/she is for the acts and omissions of persons directly employed by him/her.

7.3 The Contractor shall, without additional expense to the State, utilize the services of specialty

Subcontractors, as required to complete the work.

7.4 The Commissioner will not undertake efforts to settle or resolve any differences between the

Contractor and Subcontractors or between Subcontractors.

7.5 The Contractor shall cause appropriate provisions to be inserted in all subcontracts relative to the work to bind Subcontractors to the Contractor by the terms of the General Conditions and other

Contract Documents insofar as applicable to the work of Subcontractors and to give the

Contractor the same power to terminate any subcontract that the Commissioner may exercise over the Contractor under any provisions of the Contract Documents.

PART 8 RESPONSIBILITY OF CONTRACTOR TO ACT IN EMERGENCY

8.1 In case of any emergency that threatens loss or injury of property, and/or safety of life, the

Contractor shall act as the situation may warrant. He/she shall notify the Contract Administrator thereof immediately thereafter. Any compensation claimed by the Contractor together with substantiating documents in regard to expense, shall be submitted to the Contract Administrator and the amount of compensation shall be determined by agreement.

8.2 In the event the Department learns of an emergency that threatens loss or injury of property, and/or safety of life, the Department shall notify the Contractor using the contact information provided pursuant to PART 3 herein. The Department may, but shall have no duty to take reasonable steps to mitigate the damage or loss to the Contractor. In either event, the Department shall have no duty to undertake any specific acts and shall have no liability for actions or inactions taken absent gross negligence.

PART 9 MUTUAL RESPONSIBILITY OF CONTRACTORS

9.1 If the Contractor or any of his/her Subcontractors or employees causes loss or damage to any separate Contractor or Subcontractor on the work, the Contractor or Subcontractor agrees to settle with such separate Contractor or Subcontractor by agreement, if he/she will so settle. If such separate Contractor or Subcontractor sues the State because of any loss so sustained, the

Commissioner shall notify the Contractor and/or their Subcontractors, who shall indemnify and hold harmless the State against any expenses or judgment arising therefrom.

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PART 10 PAYMENTS TO CONTRACTOR

10.1 The State will process payments to the Contractor each month on the basis of duly certified and approved estimates of the work performed during the preceding period. In preparing estimates, the material delivered on the site and any preparatory work done may be taken into consideration.

Payments will only be approved in an amount no greater than the percentage of project completion, as determined by the Contract Administrator.

10.2 At least ten (10) days before the end of the billing period, the Contractor shall submit to the

Contract Administrator, an itemized Requisition for Payment, supported by such data substantiating the Contractor's right to payment as the Commissioner may require. If payment is to be made for materials or equipment not incorporated in the work, but delivered and suitably stored at the site, or at some other location agreed upon in writing, such payment shall be conditional upon inspection and/or observation by the Department and submission by the

Contractor of bills of sale or such other procedure satisfactory to the Commissioner to establish the State's title to such materials or equipment or otherwise protect the State's interest including applicable insurance and transportation to the site.

10.3 Immediately upon receipt of the Monthly Requisition for Payment, Contractor shall post same at the Contractor’s Field Office or project site in a location where Subcontractors have clear access.

10.4 Retainage:

A. Contract Payment Withheld: A 5% retainage shall be withheld from each Progress

Payment until issuance of a Certificate of Substantial Completion.. The balance remaining after the specified percentage has been retained, less all previous payments, will be certified for payment on each partial estimate.

****** [OR] ******

B. Irrevocable Letter of Credit: In lieu of retainage for Projects amounting to Five Hundred

Thousand ($500,000.00) or more, the Contractor, with the approval of the Commissioner, may provide the Commissioner with a Letter of Credit in an amount equal to five percent

(5%) of the total adjusted Contract amount at the time of such request. Any such Letter of Credit must be irrevocable (that is, it may be modified or revoked only with the consent of the Commissioner). It shall have a termination date at least one hundred twenty (120) days after the completion date specified in the underlying Contract, or as may be altered in accordance with the Contract Documents, whichever is later. The

Letter of Credit shall authorize the Commissioner to require the issuing financial institution to deposit with the State an amount equal to the retainage that would have been deducted from payment to the Contractor, as specified in 10.4.A. The

Commissioner may utilize the amount so deposited in the same manner as retainage.

10.5 Retainage will be released at Final Payment.

A. After the Certificate of Substantial Completion has been issued, upon written application by the Contractor and with the approval of the Surety, the Commissioner may release a portion of the retained amount.

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10.6 Payment for Material On Hand:

A. Partial payments are made for materials to be incorporated in the Work, provided the materials meet the requirements of the Contract and are delivered on, or in the vicinity of, the Project site and stored in acceptable places. Partial payments will not exceed 90 percent of the Contract unit price for the item or the amount supported by copies of paid invoices, freight bills, or other supporting documents required by the Department. The quantity paid will not exceed the corresponding quantity estimate in the Contract. No partial payment will be made on living or perishable materials until incorporated in the

Work.

B. When material payments exceed $100,000 or 10 percent (10%) of the total contract amount, whichever is less, notarized copies of paid invoices or copies of canceled checks for all such materials must be submitted to the Contract Administrator within 45 days of the end date of the estimate on which the material allowance was paid. Failure to provide such documentation will result in the deduction of such material allowance from future estimates until documentation is provided.

C. All material and work covered by partial payments made shall thereupon become the sole property of the State, but this provision shall not be construed as relieving the Contractor of the sole responsibility of all materials and work upon which payments have been made or the restoration of any damaged work or as a waiver of the right of the State to require the fulfillment of all the terms of the Contract.

10.7 Payment for Material Not on Hand:

A. Upon receipt of a written request by the Contractor, partial payment may be made for acceptable, fully-fabricated, nonperishable materials not delivered that are unique to the

Project provided the materials meet the requirements of the Contract and are stored in excess of 30 days at locations approved by the Department, and provided all required certificates of compliance, mill test reports, shop inspector’s acceptance and any other required materials certification have been furnished. Materials shall be identifiable and accessible for inspection. Storage areas shall provide adequate protection so that such materials will meet the Contract requirements upon delivery to the site.

B. Partial payment will be based on the actual cost to the Contractor as indicated on invoices furnished to the Contract Administrator. When material payments exceed $100,000 or 10 percent of the total contract amount, whichever is less, notarized copies of paid invoices or copies of canceled checks for all such materials must be submitted to the Contract

Administrator within 45 days of the end date of the estimate on which the material allowance was paid. Failure to provide such documentation will result in the deduction of such material allowance from future estimates until documentation is provided.

Payment shall not exceed 90 percent of the bid price. NO payment will be made on materials for any item in the contract whose total dollar value is less than $5,000.

Approval of partial payment will not constitute final acceptance of the materials for use in completing items of work.

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10.8 Release of Claims:

A. Neither the final payment nor any part of the retained percentage shall become due until the Contractor shall deliver a complete release of all claims arising under and by virtue of this Contract, including claims for all Subcontractors and suppliers of either materials or labor, plus a release of the Contract Bond and a statement that all Subcontractors and suppliers have been paid. The Commissioner, may pay any and all such claims, in whole or in part, and deduct the amount or amounts so paid from any partial or final payment.

10.9 Final Payment:

A. Application for Final Payment received from the Contractor will be processed for payment not less than 90 days after project acceptance and final completion unless accompanied by a release of the Contract Bond. This payment shall be the amount of the

Contract, amended by approved alteration orders, less previous payments minus liquidated damages, additional penalties or holdbacks. All prior partial estimates and payments shall be subject to correction in the final estimate and payment.

10.10 Acceptance of Final Payment Constitutes Release:

A. The acceptance of the Final Payment by the Contractor shall be and shall operate as a release to the Contractor of all claims and of all liability to the State for all things done or furnished in connection with this work. No payment, however, final or otherwise, shall operate to release the Contractor and its Sureties from any obligations under this Contract or the Contract Bond. Acceptance of Final Payment shall not impact any warrantees provided by the Contractor with respect to this project.

PART 11 CONTRACTOR'S TITLE TO MATERIALS

11.1 No materials or supplies for the work shall be purchased by the Contractor or any Subcontractor subject to any chattel mortgage or under a conditional sale or other agreement by which an interest is retained by the seller. The Contractor warrants that good title has been obtained for all materials and supplies for which partial payment has been accepted. If any claim is made with respect to materials provided by the Contractor, Subcontractors, or Independent Contractors, the

Contractor shall defend any such claim and shall pay any judgment or settlement thereon.

PART 12 CHANGES IN WORK

12.1 No charge for any extra work or material will be allowed without a fully executed Alteration

Order. (Refer to Specification Section 01200-Price and Payment Procedures)

12.2 The Commissioner or his/her designee may, at any time, by a written order, and without notice to the Sureties, make changes in the Drawings and Specifications and Completion Date of the

Contract and within the general scope thereof.

12.3 If any part of the work as installed be at variance with the Contract requirements, the Department may allow all or any part of such work to remain in place, if found to be in the best interest of the

State, subject to proper adjustment in the Contract Price. Acceptance of installed work in one instance or in any instance does not constitute a waiver of Specifications, General Conditions or contract requirements.

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PART 13 PATENTS

13.1 The Contractor shall hold the State and its officers, agents, servants, and employees harmless from liability of any nature including cost and expenses, for or on account of any patented or unpatented invention, process, article or applicable items manufactured or used in the performance of the Contract, including its use, unless otherwise specifically stipulated in the

Contract Documents.

PART 14 ASSIGNMENTS

14.1 The Contractor shall not assign the whole or any part of this Contract or any monies due or to become due, hereunder, without the written consent of the Commissioner and of all Sureties executing any Bonds on behalf of the Contractor if in connection with said Contract.

PART 15 SUPERINTENDENCE BY CONTRACTOR

15.1 The Contractor shall have on the project site, at all times when work is being performed, a competent English speaking Superintendent capable of reading and thoroughly understanding the contract documents and thoroughly experienced in the type of work being performed, satisfactory to the Department. The Contractor shall not change superintendents without permission from the

Department and shall submit a request in writing with justification for such a change.

A. The Superintendent shall be responsible for verifying that all materials, installation, coordination, and workmanship are in conformance with the contract documents.

B. Unless the Department has granted prior written approval, the Superintendent shall not, himself, engage in "hands-on" construction work.

C. In the event the Superintendent fails or refuses to perform functions mentioned above as determined by the Department, the Contractor agrees to a stipulated penalty of $1,200.00 per day, in addition to any liquidated damages provided hereunder.

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PART 16 FAILURE TO COMPLETE WORK ON TIME

16.1 If the Contractor fails to complete all of the work or sections of the Project, if sections are indicated, within the time specified in the Contract or within any additional time allowed, for each working day the Liquidated Damages identified in 16.3 will be deducted from any money due the Contractor. This deduction will be made, not as a penalty, but as fixed, agreed liquidated damages for inconvenience to the State and for reimbursing the Department and Using Agency the cost of the Administration of the Contract, including personnel, time, engineering and inspection. Should the amount of money otherwise due the Contractor be less than the amount of such liquidated damages, the Contractor and its Surety shall be liable to the State for such deficiency.

16.2 If the Division of Public Works Design & Construction permits the Contractor to continue and finish the work after the time fixed for its completion, it shall in no way operate as a waiver on the part of the State of any of its rights under the Contract. When the final acceptance has been duly made by the Department, any liquidated damage charges shall end.

16.3 The fixed, agreed, liquidated damages shall be assessed in accordance with the following schedule:

Original Contract Amount, Plus Any Extras, Alteration Orders, and Alternates

Amount of Liquidated Damages

Per Working Day

From More Than: To and Including:

$0 $25,000.00 $200.00

$25,000.00 $50,000.00 $250.00

$50,000.00 $100,000.00 $400.00

$100,000.00 $500,000.00 $450.00

$500,000.00 $1,000,000.00 $800.00

$1,000,000.00 $2,000,000.00 $1,200.00

$2,000,000.00 $5,000,000.00 $1,600.00

$5,000,000.00 $10,000,000.00 $2,000.00

$10,000,000.00 and above $2,400.00

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PART 17 SUBSTANTIAL COMPLETION AND FINAL INSPECTION

17.1 The Contractor shall provide a signed Substantial Completion Application to the Contract

Administrator when the work is believed to be substantially complete, in accordance with specification section 01700, accompanied by a list of items, referred to as the Punch List, to be completed or corrected. The failure to include any items of such list does not alter the responsibility of the Contractor to complete all work in accordance with the Contract Documents.

On the basis of an inspection by the Department who determines that the work is substantially complete, a Certificate of Substantial Completion will be issued.

A. The Certificate of Substantial Completion shall:

1. Include any modifications to the Punch List or value as determined by the

Department.

2. Establish the Date of Substantial Completion.

a. Warranties required by the Contract Documents shall commence on the

Date of Substantial Completion unless otherwise provided in the

Certificate of Substantial Completion.

3. Identify the responsibilities of the State and the Contractor for security, maintenance, heat, utilities, and damage to the work and insurance.

4. Fix the time limit within which the Contractor shall complete the items listed herein.

17.2 Partial Occupancy or Use: The State may take occupancy or use of completed or partially completed portions of the work upon written agreement between the Commissioner and the

Contractor. Said partial occupancy or use shall have the approval of the insurer and Code enforcement authorities having jurisdiction. Said partial occupancy or use, (whether substantial completion has been obtained or not) provided the Department and Contractor have agreed upon written terms detailing each of the entities responsibilities in their entirety, may be exercised under these General Conditions.

A. A Written agreement shall stipulate the time period for completion of all Work and the commencement date for all applicable contract warranties. Said written agreement shall be preceded by a Contractor generated listing of all incomplete Work, meeting with the approval of the Department, before partial occupancy or use is taken by the State with prior approval of the Division.

17.3 If the Contractor fails to complete the items on the "punch list," by the date specified on the

Substantial Completion Certificate, then in addition to the corrective measures listed in the

Certificate of Substantial Completion, the State may use the monies still due the Contractor to have such items completed and the Contractor shall lose any claim to the monies so used. The

Surety may be notified of any delay or failure to complete the work.

17.4 Upon written notice that the work is ready for final inspection and acceptance, the Department shall promptly make such inspection, to determine the work is acceptable under the Contract

Documents and the Contract fully performed. The Contractor shall submit a request for payment, specifically identifying Final Payment. The Contractor shall provide all certificates and reports, as required, throughout the contract and shall coordinate their preparation and submission prior to request for final payment. Failure to submit such certificates and reports shall be considered default of contract.

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PART 18 DEFAULT AND TERMINATION OF CONTRACT

18.1 If the Contractor:

A. Fails to begin work under Contract within the time identified in specification section

01100.

B. Fails to perform the work with sufficient workers and equipment, or with sufficient materials to assume prompt completion of said work, or

C. Performs the work unsuitably or neglects or refuses to remove materials or to perform anew such work as may be rejected as unacceptable and unsuitable, or

D. Discontinues the prosecution of the work, or

E. Fails to resume work, which has been discontinued, within a reasonable time after notice to do so, or

F. Becomes insolvent or has declared bankruptcy, or commits any act of bankruptcy or insolvency, or

G. Makes an assignment for the benefit of creditors, or

H. For any other causes whatsoever, fails to carry on the work in an acceptable manner.

18.2 The Commissioner will give notice, in writing, to the Contractor and his Surety for such delay, neglect, and default for any item identified above.

A. Upon receipt of Notification of Default and the Contractor or Surety does not proceed in accordance with said Notification, then the Commissioner will Terminate the Contract.

Upon which, the Commissioner shall have full power and authority, without violating the

Contract, to assume the prosecution of the work. The Commissioner may enter into one or more agreements for the completion of said Contract according to the terms and conditions thereof, or use such other methods as will be required for the completion of said Contract in an acceptable manner.

1. All extra costs and charges incurred by the Department as a result of such delay, neglect or default, together with the cost of completing the work under the

Contract will be deducted from any monies due or which may become due said

Contractor. If such expenses exceed the sum that would have been payable under the Contract, then the Contractor and the Surety shall be liable and shall pay to the Department, the amount of such excess.

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PART 19 TERMINATION OF CONTRACT WITHOUT FAULT

19.1 Except in cases controlled by the preceding section, the Commissioner, for any cause, including, but not limited to an order of any Federal authority or petition of the Contractor due to circumstances beyond its control may, by written notice to the Contractor and the Surety, with the concurrence of the Governor and Council, terminate the Contract or any portion thereof subject to the Condition(s) A, B, C, and D provided below.

19.2 Notwithstanding anything to the contrary contained in these conditions, it is understood and agreed by the parties hereto that all obligations of the Department hereunder, including the continuance of payments, are contingent upon the availability and continued appropriation of

State and/or Federal Funds, and in no event shall the Department be liable for any payments hereunder in excess of such available or appropriated funds. In the event of a reduction, termination or failure to appropriate any or all such available funds or appropriations or a reduction of expenditures of State funds by the Advisory Budget Control Committee, the

Commissioner may, by written notice to the Contractor and Surety, immediately terminate this

Contract in whole or in part in accordance with the following conditions:

A. When a Contract, or portion thereof, is terminated before completion of all items of work in the Contract, payment will be made for the actual items of work completed. Payment of items of work not completed at time of termination shall be the greater of the following amounts:

1. A percentage of the Contract unit price, which percentage shall be the percentage of completion of the particular item at time of termination.

2. Such amount as shall be mutually agreed upon by the parties. No claim for loss of anticipated profits on items or units of work not completed will be allowed.

B. Reimbursement for organization of the work and mobilization, when not otherwise included in the Contract, shall be made where the volume of work completed is too small to compensate the Contractor for these expenses under the Contract; the intent being that an equitable settlement be made with the Contractor.

C. Acceptable materials, obtained or ordered by the Contractor for the work, and that are not incorporated in the work shall, at the option of the Contractor, be purchased from the

Contractor based upon the delivered cost of the materials at such points of delivery as may be designated by the Department. The Contractor shall do everything possible to cancel unfilled orders.

D. Termination of a Contract, or a portion thereof, shall not relieve the Contractor of its responsibilities for the work completed nor shall it relieve the Surety of its obligations for and concerning any claims arising out of the work performed.

PART 20 ASSIGNMENT PROVISION

20.1 The Contractor hereby agrees that it will assign to the State, all causes of action that it may acquire under the anti-trust laws of New Hampshire and the United States as a result of conspiracies, combinations of contracts in restraint of trade which affect the price of goods or services obtained by the State under this Contract, if so requested by the State.

END OF SECTION

81351R, Contract A – Design/Build Sprinkler NHFG Region 3 December 15, 2022

Supplementary Conditions – BPW

00818-1

DOCUMENT 00818

SUPPLEMENTARY CONDITIONS – DPW

PART 1 GENERAL

1.1 SUMMARY

A. The following supplements modify, change, delete or add to the General Conditions.

Where any part of the General…