General_Conditions.pdf

Project Name: G-1 CITY OF CARMEL 106th Street over Keystone Parkway Beam Replacement General Conditions

CITY OF CARMEL

GENERAL CONDITIONS FOR CONSTRUCTION CONTRACTS

ARTICLE 1 - ABBREVIATIONS AND DEFINITIONS

1.1 Abbreviations: The following abbreviations have the following meanings:

AA - Aluminum Association AASHTO - American Association of State Highway & Transportation Officials ACI - American Concrete Institute AFBMA - Anti Friction Bearing Manufacturers Association AGA - American Gas Association AGMA - American Gear Manufacturers Association AHDGA - American Hot Dip Galvanizer Association AISC - American Institute for Steel Construction AISI - American Iron and Steel Institute ANSI - American National Standards Institute ARI - American Refrigeration Institute ASCE - American Society of Civil Engineers ASHRAE - American Society of Heating, Refrigeration & Air Conditioning

Engineers ASME - American Society of Mechanical Engineers ASTM - American Society of Testing and Materials AWPI - American Wood Preservers Institute AWS - American Welding Society AWWA - American Water Works Association CBRI - Copper and Brass Research Institute CS - Commercial Standard (U.S. Department of Commerce) FTI - Facing Title Institute Fed. Spec.

FS - Federal Specification (U.S.)

IEEE - Institute of Electrical and Electronic Engineers IPCEA - Insulated Power Cable Engineers Association MSS - Manufacturers Standardization Society of the Valve and Fitting

Industry NCMA - National Concrete Masonry Association NEC - National Electric Code (U.S.)

NEMA - National Electrical Manufacturers Association NFPA - National Fire Protection Association NPC - National Plumbing Code PS - United States Product Standards SAE - Society of Automotive Engineers SCPI - Structural Clay Products Institute UL - Underwriters Laboratories

1.2 Definitions: Wherever used and not otherwise defined in these General Conditions or in other Contract Documents, the following terms have the meanings indicated which are applicable to both the singular and plural thereof:

Addenda/Addendum - Written or graphic instruments issued prior to the opening of Bids which clarify, correct or change the Bid Documents or the Contract Documents.

Agreement -The written Agreement between Owner and Contractor covering the Work to be performed; other Contract Documents are attached to the Agreement or incorporated by reference into and made a part thereof as provided therein sometimes referred to as the “Contract”.

Project Name: G-2 CITY OF CARMEL

Application for Payment - The form prescribed or approved by Owner and accepted by the Architect/Engineer which is to be used by Contractor in requesting progress or final payments and which is to include an approved schedule of values and/or such other supporting documentation as is required by the Contract Documents, including Affidavit and Waiver of Liens.

Architect or Architect/Engineer - The person or other entity designated as Engineer by the Contract Documents.

Bid Documents - Documents required to be submitted with the Bid.

Bids - The offer or proposal of the Bidder submitted on the prescribed form setting forth the prices for the Work to be performed.

Bonds - Bid, Performance, Payment and Maintenance Bonds and other instruments of suretyship. The term shall include letters of credit as applicable.

Change Order - A document issued on or after the Effective Date of the Agreement, recommended by the Engineer, which is signed by Contractor and Owner and which authorizes an addition, deletion or revision in the Work, or an adjustment in the Contract Price or the Contract Time.

Contract Documents - The Agreement and any exhibits thereto, Addenda (which pertain to the Contract Documents), Instructions to Bidders, Notice to Bidders, Contractor’s Bid (including documentation accompanying the Bid and any post-Bid documentation submitted prior to the Notice of Award), when attached as an exhibit to the Agreement, the Notice to Proceed, the Bonds, the General Conditions, the Additional Requirements Section, any Supplemental Conditions, the Specifications and the Drawings as the same are more specifically identified in the Agreement, together with all Amendments, Modifications, and Supplements, Change Order, Work Change Directives, Field Orders and Engineer’s written interpretations and clarifications issued pursuant to Sections 3.4 and 3.5 on or after the Effective Date of the Agreement.

Contract Price - The moneys payable by Owner to Contractor for completion of the Work in accordance with the Contract Documents as stated in the Agreement.

Contract Time - The number of days or the date stated in the Agreement for the completion of the Work.

Contractor - The person, firm or corporation with whom Owner has entered into the Agreement.

Defective - An adjective which when modifying the word Work refers to Work that is (i) unsatisfactory, faulty or deficient, in that it does not strictly conform to the requirements of the Contract Documents, (ii) does not meet the requirements of any inspection, reference standard, test or approval referred to in the Contract Documents, or (iii) has been damaged prior to Engineer’s recommendation of final payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion in accordance with Sections 13.10 or 13.12).

Drawings - The drawings which show the character, scope and extent of the Work to be furnished and performed by Contractor and which have been prepared or approved by Engineer and are referred to in the Contract Documents.

Project Name: G-3 CITY OF CARMEL

Effective Date of the Agreement - The date indicated in the Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign.

Engineer - The person, firm or corporation named, employed or designated as such by the Owner to act as such and designated to observe the Work, acting directly or through duly authorized representatives.

Engineer's Consultant -A person, firm or corporation having a contract with Engineer to furnish services as Engineer's independent professional associate or consultant with respect to the Project and who is identified as such in the Special Conditions.

Field Order - A written order issued by Engineer or Owner which orders minor changes in the Work in accordance with Section 8.5 but which does not involve a change in the Contract Price or the Contract Time.

Furnish - Purchase and deliver to the work site. When used in connection with the terms "Work” or services, the term shall also mean perform.

Install - Incorporate into the Work equipment and materials furnished by others or the Contractor.

Laws and/or Regulations – Any and all applicable laws, rules, regulations, ordinances, codes, administrative actions and/or orders of any court or governmental agency or unit having jurisdiction over the Work.

Liens - Liens, charges, security interests or encumbrances upon real property or personal property.

Milestone -A principal event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work.

Notice of Award - The written notice by Owner to the apparent successful Bidder stating that upon compliance by the apparent successful Bidder with the conditions precedent enumerated therein, within the time specified, Owner will sign and deliver the Agreement.

Notice to Proceed - A written notice given by Owner to Contractor (with a copy to Engineer) fixing the date on which the Contract Time will commence to run and on which Contractor shall start to perform Contractor's obligations under the Contract Documents.

Owner - The City of Carmel, Indiana, acting by and through the agency or Department designated in the Agreement or other documents issued in solicitation of Bids; and such term shall also include the Project Manager or other duly appointed representative of such agency or department but shall not include Engineer.

Partial Utilization - The placement of a portion of the Work in service, or beneficial occupancy and use thereof, for the purpose for which it is intended (or a related purpose) before Substantial Completion of all the Work.

Project - The total construction of one or more improvements or structures of which the Work to be provided under the Contract Documents may be the whole, or a part, as indicated elsewhere in the Contract Documents.

Project Name: G-4 CITY OF CARMEL

Provide - Furnish and install.

Resident Project Representative - The authorized representative of Engineer who is assigned to the site or any part thereof.

Samples - Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged.

Shop Drawings - All drawings, diagrams, illustrations, schedules and other data or information which are specifically prepared or assembled by or for Contractor, to illustrate some portion of the Work and all illustrations, diagrams and other information prepared by a Supplier and submitted by Contractor to illustrate material or equipment for some portion of the Work.

Special Conditions -The part of the Contract Documents which amends or supplements these General Conditions based on Project or Work specific requirements.

Specifications - Those portions of the Contract Documents consisting of written general or technical descriptions of materials, equipment, construction systems, standards, quality, quantity and workmanship as applied to the Work, including the performance thereof, and certain administrative details applicable thereto.

Subcontractor - An individual, firm or corporation having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the site.

Substantial Completion - The stage of construction where, in the opinion of Owner, the Work (or specified portion thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or specified part) can be occupied, placed into service or otherwise utilized by Owner for the purpose for which it was intended.

Substantial Completion may be evidenced by a certificate thereof issued by the Engineer and signed by the Owner.

Supplier -A manufacturer, fabricator, supplier. distributor, materialman or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or any Subcontractor.

Underground Facilities - All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other such facilities or structures, and any encasements containing such facilities, which have been installed at or below the surface of the ground for the purpose of furnishing, storing, removing or transmitting electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, computer signals or data, sewage, drainage, traffic or other control systems, or water.

Unit Price Work - Work to be paid for on the basis of unit prices established by the Contract Documents or by Change Order as an amount stated in the Bid as a price per unit of measurement for materials, equipment or services or a scope of work as described in the Bidding Documents.

Work - The entire completed construction, or the various separately identifiable parts thereof, required to be furnished under the Contract Documents. The Work includes and is the result and product of performing or furnishing labor and furnishing and

Project Name: G-5 CITY OF CARMEL incorporating materials and equipment into the construction, and performing or furnishing services and furnishing documents, all as required by the Contract Documents.

Work Change Directive - A written directive to Contractor, issued on or after the Effective Date of the Agreement and signed by Owner, making any change in the Work within the general scope of the Contract Documents, including but not limited to changes (i) In the Specifications (including drawings and designs), (ii) In the time, method or manner of performance of Work, (iii) in facilities, equipment, materials, services or site, and (iv) directing acceleration in the performance of the Work. A Work Change Directive will not by itself change the Contract Price or the Contract Time, but is evidence that the parties expect that the change directed or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order.

Written Amendment - A written amendment of the Contract Documents, signed by Owner and Contractor on or after the Effective Date of the Agreement and normally dealing with the non-engineering or non-technical rather than strictly Work-related aspects of the Contract Documents.

ARTICLE 2 - PRELIMINARY MATTERS

2.1 Delivery of Bonds. When Contractor delivers the executed Agreement to Owner, Contractor shall also deliver to Owner such Bonds as Contractor may be required to furnish in accordance with Article 5.

2.2 Delivery of Insurance. When Contractor delivers the executed Agreement to Owner, Contractor also shall deliver to Owner, with a copy to Engineer, certificates of Insurance (and other evidence thereof as requested by Owner) which Contractor is required to purchase and maintain in accordance with Article 5, and Owner shall deliver to Contractor certificates (and other evidence of insurance requested by Contractor) which, is required to purchase and maintain in accordance with Article 5.

2.3 Copies of Documents. Unless otherwise specified, Owner shall furnish to Contractor five (5) copies of the Contract Documents, or as many copies as are available from the printings made for bidding purposes and as are reasonably necessary for the execution of the Work. Additional copies will be furnished, upon request, at the cost of reproduction.

2.4 Commencement of Contract Times Notice to Proceed. Subsequent to or concurrently with the execution of the Agreement, Owner shall give Contractor a written Notice to Proceed specifying the date on which Contractor shall commence the Work. The date designated in the Notice to Proceed shall be the date on which the Contract Time will commence to run.

2.5 Starting the Work. Contractor shall start to perform the Work on the date designated In the Notice to Proceed, but no Work shall be done at the site prior to the date of the Notice to Proceed.

2.6 Before Starting Construction. Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures, standards, quantities, materials, field measurements, Project Name: G-6 CITY OF CARMEL access, and other requirements or conditions affecting the work, Contractor shall promptly report in writing to Engineer any conflict, error, discrepancy or other adverse condition or circumstance which Contractor may discover, and shall obtain a written interpretation or clarification from Engineer before proceeding with any Work affected thereby. Contractor shall assume all risks and bear all costs associated with any conflicts, errors, ambiguities, discrepancies or conditions which are not discovered due to his failure to conduct such study and comparison, or which are discovered but not reported as required by this Section.

2.7 Initial Schedule and Submissions. Within ten (10) days after the Effective Date of the Agreement Contractor shall submit to Engineer for review:

2.7.1 A proposed progress schedule indicating the starting and completion dates of the various stages of the Work to be performed under this Contract. This schedule shall be in the form of an Arrow Diagram and shall reflect the Contract completion date. Engineer will review the proposed progress schedule to determine conformity to the Contract Documents.

During the course of performing the Work, Contractor shall, at least monthly, submit to Engineer a revised progress schedule indicating any anticipated change from the original or previously revised progress schedule. The revised schedule shall include provisions for performing Work authorized under approved Change Orders. Engineer will review the original and revised progress schedules for general conformity with the Contract Documents and will make recommendations to the Owner concerning approval thereof; however the review, approval or other action taken by Engineer or Owner in respect of such schedules shall not relieve the Contractor of it’s obligations to perform the Work within the Contract Time. If Contractor shall fail to adhere to the approved original or revised progress schedule, except when due to Excusable Delays for which a claim has been submitted by Contractor and approved by Owner, he shall promptly adopt such other or additional means and methods of construction and commit such additional manpower, equipment and other resources as necessary to make up for the time lost and to assure completion of the Work in accordance with the Contract Documents.

2.7.2 A preliminary submittal schedule showing proposed dates for submission of required Shop Drawings, Samples and product data. Such schedule shall also include such durations as prescribed by Engineer to account for anticipated time allotments for review, approval or other action upon submittals by Engineer and additional allowances for resubmittals by Contractor; and

2.7.3 A preliminary schedule of values for all of the Work which will include quantities and prices of items aggregating the Contract Price and will subdivide the Work into component parts in sufficient detail to serve as the basis for progress payments during construction. Such prices will include an appropriate amount of overhead and profit applicable to each Item of Work, which will be confirmed in writing by Contractor at the time of submission.

Project Name: G-7 CITY OF CARMEL

2.7.3.1 Mobilization for Contractor and any tier of subcontractor(s) shall be considered collectively and shall not exceed 10 percent (10%) of the Contract Price. Mobilization shall be those costs associated with the initiation of the Project and sitework, including but not limited to, transporting of personnel, equipment, materials, supplies, incidental items;

establishment of the field offices, temporary facilities necessary for the project, bonds and insurances, submittal requirements, permits, field supervision, final cleanup and demobilization. Mobilization does not include such items as, contract negotiations and bid preparation. Where the Work is covered by Unit Price and no item has been included for mobilization, then this Work is considered incidental to the Work and will not be paid separately.

2.7.3.2. Where the work is covered by Unit Prices, and item(s) for mobilization, as described in 2.7.3.1 have been included, the maximum allowable amount shall be ten percent (10%) of the aggregate of all items excluding mobilization. Where mobilization is included in multiple items, then the aggregate amount of all mobilization items shall not exceed the allowable ten percent (10%).

2.7.3.3 Costs for submittal requirements, field office and

supervision, where identified separately in the schedule of values shall be considered for payment monthly. When the cost is a lump sum as submitted in accordance with 2.7.3, the monthly cost shall be established by dividing the lump sum by the number of monthly estimates based on the original Contract Time. No adjustments shall be made for any Contract Time extensions.

2.7.3.4 Mobilization shall be included in the progress payments, in accordance with the schedule of values and Unit Prices.

When the Work, excluding mobilization and inventory, has progressed to an amount equal to five percent (5%) or more of the Contract Price, then an amount of not more than fifty percent (50%) of the mobilization cost will be considered for inclusion in the progress payment. Prior to the established five percent (5%), Owner may consider payment on invoices for bonds and insurances and permits; this amount shall be subtracted from the total amount for mobilization. Not more than forty percent (40%) of the mobilization cost will be considered for inclusion in the progress payments once the Work, excluding mobilization and inventory, has progressed to an amount equal to fifty percent (50%) of the Contract Price. The remaining mobilization payment will be paid as part of the final payment.

Project Name: G-8 CITY OF CARMEL

2.7.4 Where the Work is covered by Unit Prices and there have been included lump sum items, the Contractor shall submit to Engineer a schedule of values in accordance with the paragraph 2.7.3 for those lump sum items.

2.8 Preconstruction Conference. Before Contractor starts the Work at the site, a conference attended by Contractor, Owner, Engineer, and others as appropriate will be held to discuss the schedules referred to in Section 2.7, to discuss procedures for handling Shop Drawings and other submittals and for processing Applications for Payment, and to establish other procedures and understandings bearing upon coordination and performance of the Work.

2.9 Finalizing Schedules. Unless otherwise provided in the Contract Documents, at least ten (10) days before submission of the first Application for Payment, a conference attended by Contractor, Engineer, and others as appropriate, will be held to finalize the schedules submitted in accordance with Section 2.7.

2.9.1 Contractor shall have an additional ten (10) days to make corrections and adjustments and to complete and resubmit the schedules. No progress Payment shall be made to Contractor until the schedules are submitted to and acceptable to Engineer as provided below.

2.9.2 The finalized progress schedule will be acceptable to Engineer as providing an orderly progression of the Work to completion within any specified Milestones and the Contract Times, but such acceptance will neither impose on Engineer responsibility for the sequencing, scheduling or progress of the Work nor interfere with or relieve Contractor from Contractor's full responsibility therefor.

2.9.3 Contractor's schedule of Shop Drawing and Sample submissions will be acceptable to Engineer as providing a workable arrangement for reviewing and processing the required submittals.

2.9.4 Contractor's schedule of values will be acceptable to Engineer as to form and substance.

ARTICLE 3 - CONTRACT DOCUMENTS

3.1 Integration of Contract Documents. The Contract Documents comprise the entire Agreement between Owner and Contractor concerning the Work. The Contract Documents are complementary; what is called for by one is as binding as if called for by all. The Contract Documents will be construed in accordance with the law of the State of Indiana and without regard to the party by or for whom they were prepared or drafted.

3.2 Intent and Meaning. It is the intent of the Contract Documents to describe a functionally complete Project (or part thereof) to be constructed in accordance therewith. Any Work, materials or equipment that may reasonably be inferred from the Contract Documents, as being required to produce the intended result will be supplied whether or not specifically called for. Notations, details or other descriptions, which apply to one of a number of situations, materials, processes or Work items, shall apply to all except as specifically stated otherwise. When words which have a well-known technical or trade meaning are used to describe

Project Name: G-9 CITY OF CARMEL

Work, materials or equipment, such words shall be given that meaning unless a different meaning is reasonably apparent as determined by the Engineer.

Reference to standard specifications, manuals or codes of any technical society, organization or association, or to the Laws or Regulations of any governmental authority, whether such reference be specific or by implication, shall mean the latest standard specification, manual or code or Laws or Regulations in effect at the time of opening of Bids. If said standard specification, manual or code or Laws or Regulations are promulgated, amended, revised or otherwise changed subsequent to the opening of Bids, Contractor shall notify Owner who may direct compliance under Section 9.1. However, no provision of any referenced standard specification, manual or code (whether or not specifically incorporated by reference in the Contract Documents) shall be effective to change the duties and responsibilities of Owner, Contractor or Engineer, or any of their consultants, agents or employees, or to limit or impair any right or remedy of the Owner, as set forth in the Contract Documents, nor shall it be effective to assign to the Owner, Engineer or any of their respective consultants, agents or employees any duty or authority to supervise or direct the furnishing or performance of the Work or any duty or authority to undertake responsibility, contrary to the provisions of Section 8.10 or 8.11.

3.3 Duty To Report Discrepancies. If, during the performance of the Work, Contractor discovers a conflict, error or discrepancy in the Contract Documents, Contractor shall so report to Engineer in writing at once and before proceeding with the Work affected thereby and shall obtain a written interpretation or clarification from Engineer.

3.4 Major Modification. The Contract Documents may be amended to provide for additions, deletions and revisions in the Work or to modify the terms and conditions thereof by (i) a formal Written Amendment, or (ii) a Change Order (pursuant to Section 9.4) or (iii) a Work Change Directive (pursuant to Section 9.1). As indicated in Sections 10.2 and 11.5, the Contract Price and Contract Time may only be changed by a Change Order or a Written Amendment.

3.5 Minor Deviations. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized by (i) a Field Order (pursuant to Section 8.5), or (ii) an Engineer’s approval of a Shop Drawing, Working Drawing, or Samples (pursuant to Section 6.22) or an Engineer’s written interpretation or clarification (pursuant to Section 8.4).

3.6 Reuse of Documents. Neither Contractor nor any Subcontractor or Supplier or other person or organization performing or furnishing any of the Work under a direct or indirect contract with Owner shall have or acquire any title to or ownership rights in any of the Drawings, Specifications or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer; and they shall not reuse any of them on extensions of the Project or any other project without written consent of Owner and Engineer and specific written verification or adaptation by Engineer.

Project Name: G-10 CITY OF CARMEL

ARTICLE 4 - AVAILABILITY OF LANDS; PHYSICAL CONDITIONS

4.1 Availability of Lands. Owner shall furnish, as indicated in the Contract Documents, the lands upon which the Work is to be performed, rights-of-way and easements for access thereto, and such other lands which are designated for the use of Contractor. Owner shall identify any encumbrances or restrictions not of general application but specifically related to use of lands so furnished with which Contractor will have to comply in performing the Work. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by Owner, unless otherwise provided in the Contract Documents. If Contractor believes that any delay in Owner furnishing these lands, rights-of-way or easements entitles Contractor to an extension of the Contract Time, Contractor may make a claim therefore as provided in Article 11. Contractor shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment.

4.1.1 The Owner shall provide permanent easements and temporary construction easements as shown on the Drawings for buried pipelines across private property. If the easements obtained are not sufficient for the Work, the Contractor shall obtain any additional easements required. There will be no additional compensation made for obtaining these easements, damages to private property outside easements, or additional cost to the Contractor because of the easements or lack thereof.

4.2 Subsurface and Physical Conditions (Excluding Underground Facilities). Reports of explorations and tests of subsurface conditions and drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the site (except Underground Facilities) have been utilized and relied upon by Engineer in preparing the Contract Documents. Contractor may rely upon the general accuracy of the “technical data” contained in such reports and drawings but such reports and drawings are not Contract Documents. Such "technical data” is identified in the Specifications. Except for reliance on such “technical data”, Contractor may not rely upon and may not make any claim against Owner, Engineer or any of Engineer's Consultants with respect to (i) the completeness of such reports and drawings for Contractor’s purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by Contractor and safety precautions and programs incident thereto, or (ii) other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings.

4.3 Differing Subsurface or Physical Conditions. If Contractor uncovers, observes or otherwise becomes aware of any subsurface or physical condition (other than Underground Facilities) at or contiguous to the site and believes that such condition either (i) differs materially from that shown or indicated in the Contract Documents, (ii) is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents, or (iii) is of such a nature as to establish that any "technical data" on which Contractor is entitled to rely as

Project Name: G-11 CITY OF CARMEL provided in paragraph 4.2 is materially inaccurate; then Contractor shall, immediately upon becoming aware thereof and before further disturbing or taking other action in respect thereof or performing any Work in connection therewith (except in an emergency as permitted by Section 6.21), notify Owner and Engineer in writing about such condition, which notice shall state the Contractor’s recommendations or proposals for taking action in connection with the conditions.

4.3.1 Contractor shall not further disturb such conditions or perform any Work in connection therewith (except as aforesaid) until receipt of a written directive from Owner or Engineer to do so, but to the fullest extent possible Contractor shall continue to prosecute all other Work not affected by the conditions;

4.3.2 Engineer will promptly review the pertinent conditions, determine the necessity of obtaining additional explorations or tests with respect thereto and advise Owner in writing (with a copy to Contractor) of Engineer's findings and conclusions;

4.3.3 If Owner in consultation with the Engineer concludes that a change in the Contract Documents or other action is required because of the conditions, a Work Change Directive or other instructions or interpretations may be issued as provided in Article 9 to reflect and document the consequences of the conditions;

4.3.4 In each such case, an increase or decrease in the Contract Price or an extension or shortening of the Contract Time, or any combination thereof, may be allowable, but only to the extent that (i) evidence of such conditions could not with the exercise of reasonable competence and diligence have been discovered or foreseen by Contractor prior to submission of the Contractor’s Bid, (ii) the Contractor, by the terms of the Contract Documents, has not assumed the risk of such conditions, and (iii) Contractor has explicitly fulfilled the written notice requirements provided by this Section 4.3. The Contractor shall in no event be entitled to an increase in the Contract Price in excess of direct costs to perform authorized additional or changed Work to address the conditions, without additional allowances for delays or suspension of Work. If Owner and Contractor are unable to agree as to the amount or length of the adjustment to the Contract Price or Time, a claim may be made there for as provided in Articles 10 and 11. However, Owner and Engineer shall not be liable to Contractor for any incidental or consequential damages, claims or costs including, but not limited to, costs, losses or damages incurred or sustained by Contractor on or in connection with any other project or anticipated project or home office overhead.

4.4 Underground Facilities.

4.4.1 Shown or Indicated: The information and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or contiguous to the site is based on information and data furnished to Owner

Project Name: G-12 CITY OF CARMEL or Engineer by the owners of such Underground Facilities or by others.

Owner and Engineer shall not be responsible for the accuracy or completeness of any such information or data. Contractor shall have the sole responsibility for reviewing and checking all such information and data, for locating all Underground Facilities, shown or indicated in the Contract Documents, for coordination of the Work with the owners of such Underground Facilities during construction, for the safety and protection thereof as provided in Section 6.20 and for repairing any damage thereto resulting from the Work or Contractor's operations, the cost of all of which having been included in the Contract Price.

4.4.2 Not Shown or Indicated. If an Underground Facility is uncovered or revealed at or contiguous to the site which was not shown or indicated in the Contract Documents and of which Contractor could not reasonably have been expected to be aware, Contractor shall promptly after becoming aware thereof and before further disturbing conditions affected thereby (except in an emergency as permitted by Paragraph 6.21), notify the owner of such Underground Facility and give written notice thereof to that owner and to Owner and Engineer. Engineer will promptly review the Underground Facility to determine the extent to which the Contract Documents should be modified to reflect and document the consequences of the existence of the Underground Facility, and the Contract Documents will be amended or supplemented to the extent necessary. During such time, Contractor shall be allowed an extension of the Contract Time, provided such delay affects the critical path, or both, to the extent that they are attributable to the existence of any Underground Facility that was not shown or indicated in the Contract Documents and of which Contractor could not reasonably have been expected to be aware. If the parties are unable to agree as to the amount or length thereof, Contractor may make a claim therefore as provided in Articles 10 and 11. However, Owner and Engineer shall not be liable to Contractor for any incidental or consequential damages, claims or costs, including but not limited to, losses or damages incurred or sustained by Contractor on or in connection with any other project or anticipated project, home office overhead, or for any claims, costs, losses or damages caused by or arising from any assessment, penalty or other liability imposed upon Contractor by utility companies or third parties.

4.5 Reference Points and Layout. Owner or other parties will provide engineering surveys for construction to establish reference points for construction as determined by Engineer to be necessary to enable Contractor to proceed with the Work unless otherwise specified. Contractor shall be responsible for laying out the Work, shall locate all mechanical and electrical services uncovered by excavation, shall establish all grades, lines, levels and bench-marks, and shall protect and preserve the established reference points and shall make no changes or relocations without the prior written approval of Owner. Contractor shall report to Engineer when any reference point is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be

Project Name: G-13 CITY OF CARMEL responsible for the accurate replacement or relocation of such reference points by professionally qualified personnel. Contractor shall maintain a bound surveyor's field notebook to accurately record all discrepancies, if any, discovered in Owner’s data. The field notebook shall be furnished to and become the property of Owner upon completion of the Work.

4.6 Lines and Grades.

4.6.1 All work under this Contract shall be constructed in accordance with the lines and grades shown on the Plans, or as given by Engineer. The full responsibility for keeping alignment and grade shall rest upon Contractor.

Contractor shall establish base line controlling points. Reference marks for lines and grades shall be set by Contractor as the Work progresses and will be located to cause as little inconvenience to the prosecution of the Work as possible. Contractor shall place excavation and other materials so as to cause no inconvenience in the use of the reference marks provided. Contractor shall remove any obstructions placed by Contractor contrary to this provision at no cost to Owner.

4.6.2 Contractor shall furnish and maintain, at his own expense, stakes and other such materials, and give such assistance, including qualified helpers, as may be required by Engineer for setting and checking line and grade reference marks. Contractor shall check such reference marks by such means as he may deem necessary and, before using the reference marks, shall call Engineer’s attention to any inaccuracies. Contractor shall, at his own expense, establish all working or construction lines and grades as required from the reference marks set by Engineer, and shall be solely responsible for the accuracy thereof. Contractor shall, however, be subject to the check and review of Engineer. Contractor shall keep Engineer informed a reasonable time in advance as to his need for line and grade reference marks, in order that they may be furnished and all necessary measurements made for record and payment with the minimum of inconvenience to Engineer or of delay to Contractor. When necessary, working operations shall be suspended for such reasonable time as Engineer may require for this purpose.

4.6.3 Contractor shall safeguard all points, stakes, grade marks, monuments and beach-marks made or established on the Work, bear the cost of reestablishing them if disturbed, and bear the entire expense of rectifying work improperly installed due to not maintaining or protecting or to removing without authorization such established points, stakes and marks.

Contractor shall safeguard all existing and known property corners, monuments and marks adjacent to but not related to the Work and, if required, shall bear the cost of reestablishing them if disturbed or destroyed.

4.6.4 All elevations indicated or specified refer to the Mean Sea Level Datum Plane, 1929 General Adjustment, of the United States Coast and Geodetic

Project Name: G-14 CITY OF CARMEL

Survey and are expressed in feet and decimal parts thereof, or in feet and inches.

4.7 Hazardous Materials.

4.7.1 For the purpose of this section, “Hazardous Material” means any hazardous, special, radioactive or toxic substance, material or waste which is or becomes regulated by any local government authority, the State of Indiana or the United States Government. The term “hazardous material” includes, without limitation, any material or substance which is (i) defined as a “hazardous substance” under I.C. 13-7-8.7-1 of the Indiana Hazardous Substance Response Trust Fund Act, (ii) petroleum, (iii) asbestos, (iv) designated as a hazardous substance pursuant to the Federal Water Pollution Control Act (33 U.S.C. § 1251 et. seq.), (v) defined as a “hazardous waste” pursuant to the Federal Resource Conservation and Recovery Act (42 U.S.C. § 6901 et seq.), (vi) defined as a “hazardous substance” pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. § 9601 et seq., (vii) defined as a “regulated substance” pursuant to the Solid Waste Disposal Act (42 U.S.C. § 6991 et seq.), (viii) defined as a toxic “chemical substance” pursuant to the Toxic Substance Control Act (7 U.S.C. § 136 et seq.), (ix) defined as a "hazardous chemical" or "hazardous substance" pursuant to the Emergency Planning and Community Right to Know Act (42 U.S.C. § 11001 et seq.) or (x) defined as a “radioactive waste” pursuant to the Atomic Energy Act (42 U.S.C. § 2011 et seq.)

4.7.2 Owner shall be responsible for the existence of any Hazardous Materials uncovered or revealed at the site, which were not shown or indicated in Drawings or Specifications or identified in the Contract Documents to be within the scope of the Work. Owner shall not be responsible for any such materials brought to the site by Contractor, Subcontractor, Supplier or anyone else for whom Contractor is responsible.

4.7.3 Contractor shall be the party responsible for reporting to the appropriate agencies and authorities any release or discharge of any Hazardous Materials.

4.7.4 Upon encountering any Hazardous Materials Contractor shall immediately

(i) stop all Work in connection with such Hazardous Materials and in any area affected thereby (except in an emergency as required by Section 6.21), (ii) notify the appropriate agencies or authorities, (iii) notify Owner and Engineer (and thereafter confirm such notice in writing), (iv) establish site security by excluding unnecessary traffic and personnel from the affected area, (v) conduct operations within the affected area to minimize exposure to personnel and the general public and to eliminate the potential for airborne dispersion, and (vi) as necessary to carry out the requirements of this section, handle, store and/or dispose of Hazardous Materials in a proper manner.

Project Name: G-15 CITY OF CARMEL

4.7.5 Contractor shall remain responsible for the jobsite until Owner has been notified of the uncovering or revealing of Hazardous Materials and Owner has assumed formal control of the worksite from Contractor.

4.7.6 After completing the above obligations, Contractor shall be required to resume Work in connection with such Hazardous Materials, if directed by Owner, after Owner has obtained any required permits related thereto and established any special terms or conditions under which said Work shall be performed.

4.7.7 Contractor claims qualifying under this section are intended to be treated as differing site condition claims and therefore the provisions of Sections

4.2 and 4.3 apply.

ARTICLE 5 – BONDS, INSURANCE AND INDEMNIFICATION.

5.1 Performance, Payment and Other Bonds. Contractor shall furnish Performance and Payment Bonds, each in an amount at least equal to one hundred percent (100%) of the Contract Price as security for the faithful performance and payment of all Contractor’s obligations under the Contract Documents. These Bonds shall remain in effect at least until one (1) year after final payment and settlement with the Contractor and as provided otherwise by Law or Regulation or by the Contract Documents. All Bonds shall be in the forms prescribed by Law, Regulation, and the Contract Documents and be executed by such Sureties as (i) are licensed to conduct business in the State of Indiana, and (ii) are named in the current list of “Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies” as published in Circular 570 (amended) by the Audit Staff Bureau of Government Financial Operations, U.S. Treasury Department. All Bonds signed by an agent must be accompanied by a certified copy of the power of attorney or other instrument establishing the such agent's authority to act.

5.2 Maintenance Bond. Contractor shall, as a condition to Owner’s obligation to make final payment, supply a three (3) year Maintenance Bond executed by a surety meeting the qualifications set forth in the preceding Section and in such form as prescribed by the Contract Documents, which bond shall secure the obligations contained in Section 12.7, beginning on the date of Final Acceptance in an amount equal to ten percent (10%) of the Contract Price as adjusted for Change Orders or such different percentage as may be specified by other Contract Documents.

5.3 Additional Requirements.

5.3.1 Substitute Bonds. If the Surety on any Bond furnished by Contractor becomes a party to a supervision, liquidation, rehabilitation or other similar action, or if its right or lawful authority to do business in the State of Indiana is terminated, Contractor shall, within ten (10) days thereafter substitute another Bond and Surety, both of which must be acceptable to Owner. Failure of Contractor to obtain a substitute Bond shall constitute a

Project Name: G-16 CITY OF CARMEL material breach of Contract and may at the option of Owner result in the termination of the Contract upon the ground of Contractor’s default.

5.3.2 Licensed Sureties and Insurers. All Bonds and Insurance required by the Contract Documents to be purchased and maintained by Owner or Contractor shall be obtained, from surety or insurance companies that are duly licensed or authorized in the jurisdiction in which the Project is located to issue Bonds or insurance policies for the limits and coverages so required. Such surety and insurance companies shall also meet such additional requirements and qualifications as may be provided in the Special Conditions, if any. The surety and insurance companies providing any coverages on this Project shall have and maintain during the term of this Agreement a minimum A.M. Best (Best's Key Rating Guide) rating classification of "A-".

5.3.3 Certificates of Insurance. Contractor shall deliver to Owner, with copies to each Additional Insured identified in the Contract Documents and Special Conditions, if any, certificates of insurance (and other evidence of insurance requested by Owner or any other additional insured) which Contractor is required to purchase and maintain in accordance with paragraph 5.4. The Contractor shall file policies and/or certificates of insurance, in duplicate, for all coverages required with the Owner and the Engineer, naming the Owner and the Engineer as Certificate Holders.

Addresses of Owner and Engineer must also be shown. The certificate of insurance shall show that all coverages are provided on an occurrence basis and shall indicate the aggregate limit available for this Project as of the date the certificate is issued. Binders will be accepted as evidence of coverage for only the first ninety (90) days and cannot be renewed or extended beyond that time. All insurance policies and certificates of insurance must include a provision stating a minimum thirty (30) days' prior written notice will be provided to the Owner and Engineer for any cancellation, non-renewal, material change, or reduction of coverage. The Contractor shall cease operations upon the occurrence of any such cancellation, non-renewal, material change, or reduction of coverage, and shall not resume operations until satisfactory replacement insurance is provided, coverage is effective and certificates of insurance are received.

5.4 Contractor’s Liability Insurance. Contractor shall purchase and maintain such commercial general liability and other insurance as is required for the Work being performed and furnished and as will protect Contractor, Owner and Engineer, their employees, officers, or agents from (i) claims under workers' or workmen's compensation, disability benefits and other similar employee benefit acts which are applicable to the Work to be performed including private entities performing Work at the site and exempt from the coverage on account of number of employees or occupation, which entities shall maintain voluntary compensation coverage at the same limits specified for the mandatory coverage for the duration of the Project; in case any such Work is sublet, the Contractor shall require the Subcontractor to provide insurance for all employees of the Subcontractor

Project Name: G-17 CITY OF CARMEL engaged in such Work unless such employees are covered by the coverage afforded by the Contractor's insurance; (ii) claims for damages because of bodily injury, occupational sickness or disease, or death of Contractor’s employees or persons or entities excluded by statute from the requirements of (i), but required by the Contract Documents to provide the insurance required therein; (iii) claims for damages because of bodily injury, sickness or disease, or death of any person other than Contractor’s employees; (iv) claims for damages insured by personal injury liability coverage which are sustained by any person as a result of an offense directly or indirectly related to the employment of such person by Contractor, or by any other person for any other reason; (v) claims for damages, other than to the Work itself, because of physical injury to or destruction of tangible property wherever located, including loss of use resulting there from; (vi) claims for bodily injury or property damage arising out of completed operations;

and (vii) claims involving contractual liability insurance applicable to the Contractor's obligations under the Indemnification requirements of Section 5.11.

i. Contractor shall purchase and maintain commercial general liability and commercial automobile liability insurance during the entire term of this Agreement.