Draft - IMD _Closed Loop Water Analysis Service Contract.pdf

Solicitation No: NGBID-26-B-003 Contract No: NGBID-26-C-003

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STATE OF IDAHO MILITARY DIVISION

CLOSED LOOP WATER ANALYSIS SERVICE CONTRACT

FORM OF AGREEMENT

BETWEEN OWNER AND CONTRACTOR

PROJECT NO. NGBID-26-C-003

DRAFT CLOSED LOOP WATER ANALYSIS SERVICE CONTRACT DRAFT

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TABLE OF CONTENTS

ARTICLE

1 CONTRACT DOCUMENTS

2 REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR

3 INTENT AND INTERPRETATION

4 OWNERSHIP OF DOCUMENTS

5 CONTRACTOR'S PERFORMANCE

6 TIME FOR CONTRACTOR’S PERFORMANCE

7 SERVICE CONTRACT PAYMENTS

8 INFORMATION AND MATERIAL SUPPLIED BY THE OWNER

9 STOP WORK ORDER

10 DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE CONTRACTOR

11 DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE OWNER

12 INDEMNITY

13 CLAIMS

14 RESOLUTION OF CLAIMS

15 SUBCONTRACTORS

16 CHANGES IN THE WORK

17 DISCOVERING AND CORRECTING DEFECTIVE OR INCOMPLETE WORK

18 TERMINATION BY THE CONTRACTOR

19 OWNER'S RIGHT TO SUSPEND CONTRACTOR'S PERFORMANCE

20 TERMINATION BY THE OWNER

21 CONTRACTOR'S LIABILITY INSURANCE

22 OWNER'S LIABILITY INSURANCE

23 PROPERTY INSURANCE

24 PERFORMANCE AND PAYMENT BONDS

25 PROJECT RECORDS

26 MISCELLANEOUS PROVISIONS

27 EQUAL OPPORTUNITY

28 SUCCESSORS AND ASSIGNS

29 SEVERABILITY

30 MEDIATION

31 WAIVER OF CONSEQUENTIAL DAMAGES

DRAFT

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EXHIBITS

A OWNER’S PROJECT IDENTIFICATION INFORMATION, DESCRIPTION, ADDENDA,

HOURLY RATES FOR LABOR, MATERIAL AND SUBCONTRACTOR COSTS, TIME FOR

PERFORMANCE AND LIQUIDATED DAMAGES AND DRAWINGS AND SPECIFICATIONS

B ADDRESSES AND REPRESENTATIVES

C CLOSED LOOP WATER ANALYSIS SERVICES SPECIFICATIONS

D STATE CONTRACTING PROVISIONS

E CONTRACTOR’S AFFIDAVIT CONCERNING TAXES

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HVAC SERVICE CONTRACT

BETWEEN OWNER AND CONTRACTOR

THIS HVAC SERVICE CONTRACT BETWEEN OWNER AND CONTRACTOR (the “Contract”) is by and between the State of Idaho, Military Division (the "Owner") and <Contractor Firm Name> (the "Contractor") and is for Project No. NGBID-26-C-003 CLOSED LOOP WATER ANALYSIS SERVICE CONTRACT, as more fully described in Exhibit A, and incorporated herein by reference. This Contract shall be effective on <day> (day) of <month> (month) 20XX (year), when executed by both parties.

In consideration of the mutual promises, covenants, and agreements stated herein, and for other good and valuable consideration, the sufficiency of which is hereby acknowledged, the Owner and the Contractor agree as set forth below:

ARTICLE 1

CONTRACT DOCUMENTS

1.1 The Contract Documents consist of this Contract, the Conditions of the Contract (General, Supplementary and other conditions) and any Addenda thereto issued prior to and all modifications issued after execution of this Contract, written amendments signed by both the Owner and the Contractor, Change Directives, Modifications, and any written orders by the Owner (the “Contract Documents”). Documents not included or expressly contemplated in this Article 1 do not, and shall not, form any part of the Contract Documents.

1.2 The term “Work” means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor’s obligations.

1.3 The Contractor will receive detailed information for each separate scope of work (each scope of work is a “Project”) and a separate Work Order, Purchase Order, or Notice to Proceed will be issued by the Owner describing each Project, including scope and method of compensation. Any Work Order, Purchase Order, or Notice to Proceed shall be incorporated into this Contract.

ARTICLE 2

REPRESENTATIONS AND WARRANTIES OF THE CONTRACTOR

In order to induce the Owner to execute this Contract and recognizing that the Owner is relying thereon, the Contractor, by executing this Contract, makes the following express representations to the Owner:

2.1 The Contractor is fully qualified to act as the Contractor for the Project and has, and shall maintain, any and all licenses, permits or other authorizations necessary to act as the Contractor for, and to construct the Project.

2.2 The Contractor has become familiar with the Project site and the local conditions under which the Project is to be constructed and operated particularly in correlation to the requirements of the Contract and subsequent information as provided in paragraph 1.3.

2.3 The Contractor has received, reviewed, compared, studied and carefully examined all of the documents which make up the Contract Documents, including the Specifications, Summary of Work, and any Addenda, and has found them in all respects to be complete, accurate, adequate, consistent, coordinated and sufficient for construction.

2.4 The Contractor warrants to the Owner that all labor furnished on this Project shall be competent to perform the tasks undertaken; materials and equipment furnished under the Contract will be new and of high quality unless otherwise required or permitted by the Contract Documents; that the Work will be complete, of high quality and

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free from defects not inherent in the quality required or permitted; and that the Work will strictly conform to the requirements of the Contract Documents. Any Work not strictly conforming to these requirements, including substitutions not properly approved and authorized, shall be considered defective. The Contractor’s warranty excludes remedy for damage or defect caused by abuse by Owner or its representatives, modifications not executed by the Contractor, improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty shall survive the completion of the Contract payment to the Contractor for any specific Project

2.5. Work done under this contract shall be performed by the least expensive labor category per Exhibit A.

qualified to do the work.

ARTICLE 3

INTENT AND INTERPRETATION

With respect to the intent and interpretation of this Contract, the Owner and the Contractor agree as follows:

3.1 This Contract constitutes the entire and exclusive agreement between the parties with reference to the Project, and supersedes any and all prior discussions, communications, representations, understandings, negotiations or agreements. This Contract also supersedes any bid documents.

3.2 The intent of the Contract is to include all items necessary for the proper execution and completion of the Project and anything that may be required, implied or inferred by the documents which make up this Contract, or any one or more of them, shall be provided by the Contractor for the Service Contract Amount(s). The Contract Documents are complementary, and what is required by one shall be as binding as if required by all.

3.3 Nothing contained in this Contract shall create, nor be interpreted to create, privity or any other relationship whatsoever between the Owner and any person or entity except the Contractor; provided, however, that the Owner is entitled to performance and enforcement of obligations under the Contract intended or necessary to facilitate its duties. Any reference to the Owner or the Contractor shall be deemed to include authorized representatives.

3.4 When a word, term or phrase is used in this Contract, it shall be interpreted or construed first as defined herein; second, if not defined, according to its generally accepted meaning in the construction industry; and third, if there is no generally accepted meaning in the construction industry, according to its common and customary usage.

3.5 The words "include," "includes," or "including," as used in this Contract, shall be deemed to be followed by the phrase "without limitation."

3.6 The specification herein of any act, failure, refusal, omission, event, occurrence or condition as constituting a material breach of this Contract shall not imply that any other, non-specified act, failure, refusal, omission, event, occurrence or condition shall be deemed not to constitute a material breach of this Contract.

3.7 The Contractor shall have a continuing duty to read, examine, review, compare and contrast each of the documents which make up this Contract, shop drawings and other submittals, and shall give timely written notice to the Owner of any conflict, ambiguity, error or omission which the Contractor may find with respect to these documents before proceeding with the affected Work authorized by each Work Order, Purchase Order, or Notice to Proceed.

3.8 The express or implied approval by the Owner of any shop drawings or other submittals shall not relieve the Contractor of the continuing duties imposed hereby, nor shall any such approval be evidence of the Contractor's compliance with this Contract. The Owner will prepare documents for the Project, including but not limited to

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Drawings and Specifications for the Project, which are accurate, adequate, consistent, coordinated and sufficient for construction. HOWEVER, THE OWNER MAKES NO REPRESENTATION OR WARRANTY OF ANY NATURE WHATSOEVER TO THE CONTRACTOR CONCERNING SUCH DOCUMENTS. The Contractor again hereby acknowledges and represents that it has received, reviewed and carefully examined such documents;

has found them to be complete, accurate, adequate, consistent, coordinated and sufficient for construction; and that the Contractor has not, does not and will not rely upon any representations or warranties by the Owner concerning such documents, as no such representations or warranties have been or are hereby made.

3.9 In the event of any conflict among any of the documents which make up this Contract, the Owner shall interpret the documents, and the interpretation shall be binding on both the Owner and Contractor; provided, however, that this does not change the Owner’s right to make decisions regarding Claims in accordance with Article 13 and Article 14. If no interpretation is provided by the Owner, the most stringent requirement in the Contract Documents will apply.

ARTICLE 4

OWNERSHIP OF DOCUMENTS

4.1 Unless otherwise agreed by the Owner and its consultants, the party that prepared the drawings, specifications and other documents is the author of such with all copyright, common law, statutory and other reserved rights. The Contractor may retain one (1) record set of the Drawings and Specifications and other documents but shall not own or claim any copyright in them.

4.2 The Drawings and Specifications and other documents, and any copies, are to be used solely for work to be done under this Contract, and not on any other project, or outside this Contract, without written consent of the Owner, and/or the Owner’s consultants; provided, however, that copies may be made of applicable portions as necessary for completion of the Work. Such copies shall include any copyright notice on the Drawings and Specifications and other documents. Submission to or use by a regulatory body related to this Project is an acceptable use.

ARTICLE 5

CONTRACTOR'S PERFORMANCE

The Contractor shall perform all of the Work required, implied or reasonably inferable from this Contract, including the following:

5.1 Construction of each Project as defined by each Work Order, Purchase Order, or Notice to Proceed.

5.2 The furnishing of any required surety bonds and insurance.

5.3 The provision or furnishing, and prompt payment therefore, of labor, supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, power, fuel, heat, light, cooling or other utilities required for construction and all necessary permits, required for the construction of the Project.

5.4 For projects exceeding $50,000, the creation and submission of a detailed and comprehensive set of marked up blue or black-lined record drawings. Said record drawings shall be submitted to and approved by the Owner as a condition precedent to payment to the Contractor, unless waived in writing by the Owner.

ARTICLE 6

TIME FOR CONTRACTOR’S PERFORMANCE

6.1 The Contractor shall commence performance of the work in accordance with each Work Order, Purchase Order, or Notice to Proceed issued by the Owner and shall diligently continue its performance to and until final

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completion of each Project. The Contractor shall accomplish Substantial Completion, as defined in Section 6.3 of each Project on or before the time indicated in each Notice to Proceed, Purchase Order or Work Order. The period of time including any adjustments made under this Contract, for the Contractor to reach Substantial Completion is the “Contract Time”.

6.2 The Contractor may be assessed by and be responsible to the Owner for an amount indicated in each Notice to Proceed, Purchase Order, or Work Order for each calendar day of unexecuted delay in achieving Substantial Completion beyond the date set forth for Substantial Completion. Any sums owed hereunder by the Contractor shall be payable not as a penalty but as liquidated damages, representing an estimate of delay damages likely sustained by the Owner estimated at the time of this Contract. When the Owner reasonably believes that Substantial Completion will be inexcusably delayed the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover indicated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving Substantial Completion, or any part thereof, for which the Owner has withheld payment the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as damages. The Owner shall retain all remedies at law or in equity for the delay or other breach.

6.3 The term “Substantial Completion” as used herein, shall mean that point at which, as certified in writing by the Owner, the entire project is at a level of completion in strict compliance with the Contract Documents, such that the Owner or its designee can enjoy the beneficial use or occupancy, and can use and operate it in all respects for its intended purpose. If in the reasonable determination of the Owner, receipt of operation and maintenance manuals or completion of training is necessary for such beneficial use or occupancy, then there shall be no Substantial Completion until such manuals are provided and such training is completed. If Contract Documents require a manufacturer’s warranty, then there shall be no Substantial Completion until such warranty has been provided. Partial use or occupancy of the project shall not result in the Project being deemed substantially complete, or accepted as substantially complete, and such partial use or occupancy shall not be evidence of Substantial Completion. The Project shall not be deemed accepted until it is finally complete.

6.4 Any request by the Contractor for an extension of the Contract Time must be made in accordance with, and is subject to, Article 13 and Article 14 related to claims.

6.5 The Owner shall have no liability of any kind to the Contractor if the schedule or other document submitted by the Contractor shows an intention to complete the Work prior to the substantial completion date.

ARTICLE 7

SERVICE CONTRACT PAYMENTS

7.1 The Owner shall pay, and the Contractor shall accept, as full and complete payment for the Contractor's timely performance of its obligations hereunder, the Service Contract Amount using the submitted labor rates. The Service Contract Amount shall not be modified except as provided in this Contract.

7.2 Prior to submitting its first pay application, the Contractor shall prepare and present to the Owner the Contractor's Schedule of Values apportioning the Service Contract Amount among the different elements of the Project for purposes of periodic and final payment. The Contractor's Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Owner reasonably requests. The Contractor shall not imbalance it’s Schedule of Values nor artificially inflate any element thereof.

The violation of this provision by the Contractor shall constitute a material breach of this Contract. The Contractor's Schedule of Values will be utilized for the Contractor's requests for payment but shall only be so utilized after it has been approved in writing by the Owner. A schedule of values is not required on projects with an authorized compensation amount less than $50,000.

7.3 The Owner shall pay the Service Contract Amount(s) to the Contractor in accordance with the procedures set forth in this Article. The Contractor shall submit a Contractor’s Request for Payment, after the effective date a

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commencement of performance, but no more frequently than once monthly. Said payment request shall be on Owner’s standard form, or an alternate form approved by the Owner, and shall include whatever supporting information as may be required by the Owner. Therein, the Contractor may request payment for one hundred percent (100%) of the Work satisfactorily completed to the date of the Contractor’s Request for Payment, based on the Service Contract Amount allocated on the Schedule of Values. The Contractor’s Request for Payment may include only: properly provided labor, materials or equipment properly incorporated into the Project, and time and materials or equipment necessary for the Project or that will be incorporated into the Project and are properly stored at the Project site. The Contractor’s Request for Payment must exclude the total amount of previous payments received from the Owner. Each such Contractor’s Request for Payment shall be signed by the Contractor and its submission shall constitute the Contractor's affirmative representation that the quantity of Work has reached the level for which payment is requested; that the Work has been properly installed or performed in strict compliance with the Contract; that all Work for which the Owner has previously paid is free and clear of any lien, claim or other encumbrance of any person whatsoever; and that the Contractor knows of no reason why payment should not be made as requested. As a condition precedent to payment, the Contractor shall, if required by the Owner, furnish to the Owner properly executed waivers or releases, in a form acceptable to the Owner, from all subcontractors, materialmen, suppliers or others having any claims or alleged claims, wherein said subcontractors, materialmen, suppliers or others shall acknowledge receipt of all sums due pursuant to all prior Contractor’s Requests for Payment, and waive and relinquish any rights or other claims relating to the Project or Project site.

The submission by the Contractor of the Contractor’s Request for Payment also constitutes the Contractor’s affirmative representation that, upon payment of the Contractor’s Request for Payment submitted, title to all Work included in such payment shall be vested in the Owner.

The Owner shall review the Contractor’s Request for Payment and may also review the Work at the Project site or elsewhere to determine whether the quantity and quality of the Work are as represented in the Contractor’s Request for Payment and as required by this Contract. The Owner shall approve in writing the amount which, in the opinion of the Owner, is properly owing to the Contractor and such approval is required before the Owner shall have any payment obligation. The Owner may withhold such approval, in whole or in part, as necessary to protect the Owner if it reasonably believes that the quantity or quality of the Work is not as represented in the Contractor’s Request for Payment or is not in strict conformance to the Contract Documents.

7.4 The Owner shall make payment to the Contractor no more than twenty-one (21) days following receipt by the Owner of the written approval of each Contractor’s Request for Payment. The amount of each such payment shall be the amount approved for payment by the Owner less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by this Contract. The Owner's approval of the Contractor's Request for Payment shall not preclude the Owner from the exercise of any of its rights it may have in this Contract, at law or in equity, as set forth in Paragraph 7.8 hereinafter.

7.5 Payment for Off-site storage will not be allowed under this Agreement.

7.6 When payment is received from the Owner, the Contractor shall immediately pay all subcontractors, materialmen, laborer and suppliers the amounts they are due for the Work covered by such payment. The Contractor shall not withhold from a subcontractor or supplier more than the percentage withheld from a payment certificate for the subcontractor’s or supplier’s portion of the Work. In the event the Owner becomes informed that the Contractor has not paid a subcontractor, materialmen, laborer or supplier as provided herein, the Owner shall have the right, but not the duty, to issue future checks and payment to the Contractor of amounts otherwise due hereunder naming the Contractor and any such subcontractor, materialmen, laborer or supplier as joint payees.

Such joint check procedure, if employed by the Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future.

7.7 Payment to the Contractor, utilization of the Project for any purpose by the Owner, or any other act or omission by the Owner shall not be interpreted or construed as an acceptance of any Work of the Contractor not strictly in compliance with this Contract.

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7.8 The Owner shall have and be entitled to the right to refuse to make any payment, including by reducing payment under any Contractor’s Request for Payment, and, if necessary, may demand the return of a portion or all of an amount previously paid to the Contractor for reasons that include the following:

.1 The quality of the Contractor's work, in whole or part, is not in strict accordance with the requirements of this Contract or identified defective work, including punch list work, is not remedied as required by the Contract Documents;

.2 The quantity of the Contractor's work, in whole or in part, is not as represented in the Contractor's Request for Payment or otherwise;

.3 The Contractor's rate of progress is such that, in the Owner's opinion, Substantial Completion or final completion, or both, may be inexcusably delayed or that the Owner will incur additional costs or expense related to repeated Substantial Completion or final completion inspections through no fault of the Owner;

.4 The Owner reasonably believes that the Contractor has failed to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor's project-related obligations, including subcontractors, laborers and material and equipment suppliers;

.5 There are Claims made or it seems reasonably likely that Claims will be made, against the Owner;

.6 The Contractor has caused a loss or damage to the Owner, or another contractor;

.7 The Owner reasonably believes that the Project cannot be completed for the unpaid balance of the Contract Amount or the Owner reasonably believes that the Project cannot be completed within the Contract Time and that the unpaid balance of the Contract Amount would be inadequate to cover the cost of actual or liquidated damages for the anticipated delay;

.8 The Contractor fails or refuses to perform any of its obligations to the Owner; or

.9 The Contractor fails to pay taxes as required by Title 63, Chapter 15, Idaho Code.

In the event that the Owner makes written demand upon the Contractor for amounts previously paid by the Owner as contemplated in Paragraph 7.8, the Contractor shall promptly comply with such demand.

7.9 If the Owner, without cause, fails to pay the Contractor any amounts due and payable thirty (30) days after those amounts are due pursuant to Paragraph 7.4, the Contractor shall have the right to cease the Work until receipt of proper payment. Contractor must first provide written notice to the Owner of the Contractor’s intent to cease the Work ten (10) days prior to stopping the Work under this Paragraph. If any amounts remain unpaid after fifty-one

(51) days after the Owner approves the Contractor’s Request for Payment under Paragraph 7.4, interest at the rate of four percent (4%) per annum shall accrue on those unpaid amounts.

7.10 When Contractor considers Substantial Completion has been achieved, the Contractor shall notify the Owner in writing and shall furnish to the Owner a listing of those matters yet to be finished. The Owner will thereupon conduct an inspection to confirm that the Work is, in fact, substantially complete. Upon its confirmation that the Contractor's work is substantially complete, the Owner will so notify the Contractor in writing and will therein set forth the date of Substantial Completion. The Owner and the Contractor must accept the date of Substantial Completion in writing. Guarantees and warranties required by this Contract shall commence on the date of Substantial Completion. At the Contractor’s Request for Payment following Substantial Completion, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to ninety-five percent (95%) of the Contract Amount, less any liquidated damages, less the reasonable costs as determined by the Owner for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work, and handling any outstanding or potential Claims. If the Owner determines that the Contractor has made or is making satisfactory progress on any uncompleted portions of the Work, the Owner may, at its discretion, release a portion of the retainage to the Contractor prior to the actual final completion of the conditions set forth in

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Paragraph 7.12. It is the intent of the parties that the Project will be accepted only in total (at Substantial Completion and final completion) and not in phases unless provided for. Any acceptance other than in total shall require written agreement by the Owner. For projects less than $50,000 the Contractor may submit a final billing as a means of establishing the date of Substantial Completion.

7.11 When Contractor considers the Project is at final completion, it shall notify the Owner thereof in writing.

Thereupon, the Owner will perform a final inspection of the Project. If the Owner confirms that the Project is complete in full accordance with the Contract Documents and that the Contractor has performed all of its obligations to the Owner, final approval for payment certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Amount, less any amount withheld pursuant to this Contract.

7.12 As a condition precedent to final payment, the Contractor must furnish the Owner, in the form and manner required by Owner the following:

.1 An affidavit that all of the Contractor's obligations to subcontractors, laborers, equipment or material suppliers or other third parties in connection with the Project have been paid or otherwise satisfied;

.2 A release by the Contractor of all Claims it has or might have against the Owner or the Owner's property;

.3 Contractor’s Affidavit of Debts and Claims (AIA Document G706);

.4 Consent of Surety to final payment (AIA Document G707);

.5 Confirmation of all required training, product warranties, operating manuals, instruction manuals and other record documents, drawings, shop drawings, as-builts, and things customarily required of the Contractor; and

.6 A Public Works Contract Tax Release issued by the Idaho Tax Commission, to be submitted by Contractor to the Idaho Tax Commission).

7.13 The Owner shall, subject to its rights set forth in this Contract, make final payment of all sums due the Contractor within thirty (30) days of the Owner's execution of a final approval for payment and receipt of documentation required by Paragraph 7.12, whichever is received later.

ARTICLE 8

INFORMATION AND MATERIAL SUPPLIED BY THE OWNER

8.1 The Contracting Officer of IMD or his designee shall be the sole representative of the State of Idaho. The Owner shall have authority to bind Owner only as specifically set forth in this Contract.

8.2 The Owner shall furnish to the Contractor, prior to the execution of this Contract, any and all written and tangible material in its possession concerning conditions below ground at the site of the Project. Such written and tangible material is furnished to the Contractor only in order to make complete disclosure of such material as being in the possession of the Owner and for no other purpose. By furnishing such material, the Owner does not represent, warrant or guarantee its accuracy, either in whole in part, implicitly or explicitly.

8.3 The Owner will secure and pay for all required easements, the plan check fee required by the Division of Building Safety, conditional use permits and any other permits and fees specifically indicated in the Contract Documents to be secured and paid for by the Owner. Contractor shall provide all other permits, including building permits from Division of Building Safety per paragraph 10.6 (if applicable)

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8.4 The Owner will provide the Contractor one (1) copy of this complete Contract and/or Drawings, and/or Project Manuals (including Specifications).

ARTICLE 9

STOP WORK ORDER

9.1 In the event the Contractor fails or refuses to perform the Work as required or fails or refuses to correct nonconforming Work, the Owner may instruct the Contractor to stop Work in whole or in part. Upon receipt of such instruction, the Contractor shall immediately stop as instructed by the Owner and shall not proceed further until the cause for the Owner's instructions has been corrected, no longer exists or the Owner instructs that the Work may resume. In the event the Owner issues such instructions to stop, and in the further event that the Contractor fails and refuses within seven (7) days of receipt of same to provide adequate assurance to the Owner that the cause of such instructions will be eliminated or corrected, then the Owner shall have the right, but not the obligation, to carry out the Work with its own forces or with the forces of another contractor, and the Contractor shall be fully responsible and liable for the costs of performing such Work by the Owner. Without limiting what else might constitute nonconforming Work, the existence of a gross safety violation or other situation or condition that creates, or could imminently create, a threat of serious harm to persons or property, shall constitute nonconforming Work and any order to stop the Work issued for such reason shall not be considered an interference with the Contractor’s performance of the Work or its means and methods. The rights set forth herein are in addition to, and without prejudice to, any other rights or remedies the Owner may have against the Contractor.

9.2 Any order to stop the Work issued pursuant to Paragraph 9.1 shall not be used to justify any Claim by the Contractor for additional time or money.

ARTICLE 10

DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE CONTRACTOR

In addition to any and all other duties, obligations and responsibilities of the Contractor set forth in this Contract, the Contractor shall have and perform the following duties, obligations and responsibilities to the Owner:

10.1 The Contractor's continuing duties set forth in Paragraph 3.7 are by reference hereby incorporated in this Paragraph 10.1. The Contractor shall not perform Work without adequate plans and specifications or, as appropriate, approved shop drawings or other submittals. If the Contractor performs Work knowing or believing it involves an error, inconsistency or omission in the Contract without first providing written notice to the Owner, the Contractor shall be responsible for such Work and shall pay the cost of correcting same.

10.2 The Contractor shall take field measurements and verify field conditions and shall carefully compare such field measurements and conditions and other information known to the Contractor with the Contract Documents before commencing Work. Errors, inconsistencies or omissions discovered shall be reported to the Owner and the Owner immediately. Such examination, review and comparison shall be a warranty that the Contract Documents are complete and the Project is buildable as described except as reported. Reported errors, inconsistencies or omissions will constitute a request for an interpretation by the Owner and may constitute a Claim pursuant to Article 13 hereof where appropriate.

10.3 The Contractor shall ensure that all Work shall strictly conform to the requirements of this Contract.

10.4 The Work shall be strictly supervised, the Contractor bearing full responsibility for any and all acts or omissions of those engaged in the Work on behalf of the Contractor.

10.5 All labor furnished on this Project shall be competent to perform the tasks undertaken; materials and equipment furnished under the Contract will be new and of high quality unless otherwise required or permitted by the Contract Documents; the Work will be complete, of high quality and free from defects not inherent in the quality required or permitted; and the Work will strictly conform to the requirements of the Contract Documents.

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Any Work not strictly conforming to these requirements, including substitutions not properly approved and authorized, shall be considered defective.

10.6 Except as provided in Paragraph 8.4, the Contractor shall secure or provide and pay for all licenses, permits required, governmental approvals and inspections, connections for outside services for the use of municipal or private property for storage of materials, parking, utility services, temporary obstructions, enclosures or opening and patching of streets, and for all other facilities and services necessary for proper execution and completion of the Project.

10.7 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public authorities bearing on performance of the Work.

10.8 The Contractor shall employ and maintain at the Project site only competent supervisory and necessary assistants, to oversee execution of the Work. The superintendent shall be in attendance at the Project site during the progress of the Work, unless deemed unnecessary by the Owner. The superintendent and any project manager, if the Contractor utilizes a project manager, shall be reviewed and must be approved by the Owner, and neither shall be changed except with the consent of the Owner, unless the superintendent and/or project manager cease to be employed by the Contractor. Under this circumstance, any new superintendent or new project manager must be satisfactory to the Owner. Such approval shall not be unreasonably withheld. The superintendent and any project manager shall represent the Contractor and all communications given to the superintendent or project manager are deemed given to the Contractor.

10.9 On projects where the Contract Sum exceeds $50,000, the Contractor shall provide to the Owner a schedule for completing the Work within a reasonable time, as agreed to by the Contractor and the Owner. Such schedule shall be in a form specified in Division 1 of the Specifications and be acceptable to the Owner. The schedule must be submitted to and accepted by the Owner prior to the first request for payment unless required earlier by the Specifications. The Contractor's schedule must be updated as required by the Owner to reflect conditions encountered and shall apply to the total Project. The Contractor's revisions to the schedule shall not constitute a waiver of the requirement to complete the Project in a timely manner or a manner allowed by the Contract, unless additional time for performance has been allowed pursuant to a Change Order. Any changes in milestone begin or end dates must be furnished to the Owner. Strict compliance with the requirements of this Paragraph shall be a condition precedent to the payment to the Contractor and failure by the Contractor to strictly comply with said requirements shall constitute a material breach of this Contract.

10.10 Once a month, or at intervals as required by the Owner, the Contractor shall advise the Owner of the status of the Work (in duplicate) on the current schedule. If any project dates are not met on schedule, the Contractor shall immediately advise the Owner in writing of the proposed action to bring the Work on schedule. The Contractor shall also submit a detailed short term schedule, as required by the Specifications. This short term schedule shall include a description of current and anticipated problem areas, delaying factors and their impact, and explanation of corrective action taken or proposed. If the Work is behind schedule, the Contractor shall indicate what measures it will take to put the Work back on schedule

10.11 If the Work is not progressing through no fault of the Owner, as shown on the schedule, as determined by the Owner, and the Owner does not believe the Contractor's proposed action to bring the Work on schedule is adequate, then the Contractor shall be deemed in default under this Contract and the progress of the Work shall be deemed unsatisfactory. In such event, the Owner, at its discretion, may require the Contractor to work such additional time over regular hours, including Saturdays, Sundays and holidays, without additional cost to the Owner to bring the Work on schedule.

10.12 The Contractor shall keep an updated copy of the Drawings and Project Manual (including Specifications) and Addenda at the site. Additionally, the Contractor shall keep a current submittal schedule and a copy of approved shop drawings and other submittals. All of these items shall be available to the Owner at all regular business hours. Upon final completion of the Work, all of these items must be updated by the Contractor and provided to the Owner and shall become the property of the Owner. This paragraph is not applicable to projects

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authorized through a Work Order, Purchase Order, or Notice to Proceed where there were no drawings, or project manuals are utilized.

10.13 The Contractor shall carefully review and inspect for compliance with the Contract Documents, the shop drawings and other submittals (including product data and samples) required by the Contract Documents and shall submit to the Owner only submittals approved in accordance with this Article. Such review and submittal shall be done promptly and in a sequence that will not delay its Work under this Contract or the activities of the Owner or of separate contractors. Shop drawings and other submittals from the Contractor do not constitute a part of the Contract. The Contractor shall not do any work requiring shop drawings or other submittals unless the Owner has verified compliance in writing. All Work requiring verified shop drawings or other submittals shall be done in strict compliance with such approved documents. However, verification of compliance by the Owner shall not be evidence that Work installed pursuant thereto conforms to the requirements of this Contract. The Owner shall have no duty to review submittals that are not Contractor approved, partial submittals or incomplete submittals. The Contractor shall maintain a submittal log which shall include, at a minimum, the date of each submittal, the date of any re-submittal, the date of any approval or rejection and the reason for any rejection

10.14 The Contractor shall maintain the Project site in a reasonably clean condition during performance of the Work. Upon final completion, the Contractor shall thoroughly clean the Project site of all debris, trash and excess materials or equipment

10.15 At all times relevant to this Contract, the Owner shall have a right to enter the Project site and the Contractor shall allow the Owner to review or inspect the work without formality or other procedure.

10.16 The presence or duties of the Owner’s personnel or representatives at the construction site does not make any of them responsible for those duties that belong to the Contractor or other entities and does not relieve the Contractor or any other entities of their obligations, duties, and responsibilities, including any obligation or requirement to have or to implement any health or safety plans or precautions. Except as provided in Paragraph 10.9, Owner's personnel have no authority to exercise any control over any Contractor or other entities or their employees in connection with their work or any health or safety precautions and have no duty for inspecting, noting, observing, correcting or reporting on health or safety deficiencies of the Contractor or other entities or any other persons at the site except their own personnel. The presence of Owner's personnel at a construction site is for the purpose of providing to Owner a greater degree of confidence that the completed Work will conform to the Contract Documents and that the integrity of the design concept as reflected in the Contract Documents has been implemented and preserved by the Contractor. For this Contract only, construction sites include places of manufacture for materials incorporated into the construction Work and Contractor includes manufacturers of materials incorporated into the construction Work.

10.17 All work completed by the Contractor shall be warranted for the period of one year from the date of Substantial Completion to be free from all defects in material, workmanship and quality. Contractor shall repair any items identified to be defective within the one year period at no additional cost to the Owner. Warranties in addition to those identified above in this section, including manufacturer’s warranties for equipment and materials shall be as identified in the project manuals, drawings or other documentation for each project as referenced in the Work Order, Purchase Order, or Notice to Proceed.

ARTICLE 11

DUTIES, OBLIGATIONS AND RESPONSIBILITIES OF THE OWNER

The Owner for this Project is identified in Exhibit B, incorporated herein by reference, along with any authorized representatives and any limitation of responsibility. The duties, obligation and responsibilities of the Owner shall be for contract administration and include the following:

11.1 The Owner shall draft proposed change authorization(s)

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11.2 The Owner shall review and verify compliance or respond otherwise as necessary concerning shop drawing or other submittals received from the Contractor.

11.3 The Owner shall be authorized to refuse to accept Work that is defective or otherwise fails to comply with the requirements of the Contract. If the Owner deems it appropriate, the Owner may, require extra inspections or testing of the Work for compliance with the requirements of this Contract.

11.4 The Owner shall review the Contractor’s Request for Payment and shall verify in writing those amounts which are properly owing to the Contractor as provided in the Contract.

11.5 The Owner may require the Contractor to make changes which do not involve a change in the Contract Amount or in the Contract Time consistent with the intent of this Contract. Such changes shall be given to the Contractor in writing under signature of the Owner, and may be in the form of a supplemental instruction

11.6 The Owner shall review and evaluate Claims and take other actions related to Claims in accordance with Articles 13 and 14

ARTICLE 12

INDEMNITY

12.1 The Contractor shall defend, indemnify and hold harmless the Owner, and their employees, officers and agents harmless from any and all claims, liabilities, damages, losses, costs and expenses of every type whatsoever, including attorney fees and expenses, arising out of or resulting from the Contractor's work, acts or omissions under or related to the Contract Documents, to the extent caused by the Contractor, or anyone for whose acts the Contractor may be liable, regardless of whether such liability, claim, damage, loss, cost or expense is caused in part by the Owner.

12.2 The limits of any insurance of the Contractor shall not be, and shall not be deemed to be, a limitation of the Contractor’s defense and indemnity obligations contained in this Article.

12.3 In claims against any person or entity indemnified under this Article by an employee of the Contractor, a subcontractor, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, the indemnification obligation under this Article shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a subcontractor under workers' or workmen's compensation acts, disability benefit acts, or other employee benefit acts.

12.4 Nothing in this Contract shall be a waiver of sovereign immunity or liability caps, which immunity and caps are hereby expressly reserved.

ARTICLE 13

CLAIMS

13.1 For purposes of this Contract, a “Claim” means a demand by the Contractor to the Owner, or by the Owner to the Contractor, for a change in the Contract Amount, an extension of the Contract Time, an adjustment to or interpretation of the Contract terms, or other relief with respect to the terms of the Contract, which demand the Contractor or Owner asserts is required or allowed under the Contract Documents and which the Contractor and the Owner have previously discussed and failed to agree upon.

13.2 For the Claim to be considered, it must meet the following requirements:

.1 The Claim must be in writing;

.2 The Claim by the Contractor must be signed by an authorized representative of the Contractor, and the Claim by the Owner must be signed by an authorized representative of the Owner;

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.3 The Claim by the Contractor must be provided to the Owner and the Claim by the Owner must be provided to the Contractor;

.4 The Claim must be made no later than ten (10) days after the event or first appearance of the circumstance giving rise to the Claim;

.5 The Claim must describe in detail all known facts and circumstances that the Contractor or Owner asserts support the Claim;

.6 The Claim must refer to the provision(s) of the Contract Documents that the Contractor or Owner asserts support the Claim;

.7 The Contractor or Owner must provide all documentation or other information to substantiate the Claim; and

.8 The Contractor or Owner must continue its performance under this Contract pending the resolution of any Claim; provided, however, that the Contractor shall not perform any additional or changed work not otherwise authorized in accordance with the Contract Documents.

13.3 The failure by the Contractor to meet any of the requirements of Paragraph 13.2 shall constitute a complete wavier by the Contractor of any rights arising from or related to the Claim. Similarly, the failure by the Owner to meet any of the requirements of Paragraph 13.2 shall constitute a complete waiver by the Owner of any rights arising from or related to the Claim.

13.4 If the Claim is made based on concealed or unknown site conditions, the following shall apply in addition to all other provisions applicable to the Claim:

.1 The condition must have been previously concealed and unknown or of a type not ordinarily encountered in the general geographic location of the Project and must not have been reasonably susceptible to discovery; and

.2 The Contractor shall notify the Owner of the condition and shall not disturb the condition until the Owner has observed it or have waived in writing the right to observe it.

13.5 If the Claim by the Contractor is for an increase in the Contract Amount, the following shall apply in addition to all other provisions applicable to the Claim:

.1 Any increase in the Contract Amount shall be strictly limited to the direct costs incurred by the Contractor and shall not include any other costs, indirect or other, including any costs for or related to lost productivity, profit, home office overhead and any other overhead, legal fees, Claim preparation, any matter previously resolved by a change order, equipment costs, costs related to the services of a project manager unless the project manager was required full time by the Owner or the Contract Documents, any costs associated with the failure to complete the Work early or in advance of the date required by the Contract Documents, it being specifically agreed to by the parties that there is no intention to have the Eichleay or other similar formula applicable to this Contract nor shall this Contract be deemed to be subject to any such formula; and

.2 The Owner shall have no liability for, and the Contract Amount shall not be increased related to, any claims of third parties, including subcontractors, unless and until the liability of the Contractor for such has been established in a court of competent jurisdiction and any such liability of the Owner shall be limited in the same manner as described in subparagraph 13.5.1.

13.6 If the Claim by the Contractor is for a change in the Contract Amount, all other applicable provisions to the Claim apply.

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13.7 If…