SAMPLE_Agreement_&_General_Conditions.pdf

STATE OF SOUTH CAROLINA )

COUNTY OF YORK )

THIS AGREEMENT (“City-Contractor Agreement”) is made and entered into as of the latest date of signature (“Effective Date”) between the City of Rock Hill, SC, (“City”) and ___________________________ (“Contractor”) (City and Contractor are hereafter referred to as the “Parties”).

WHEREAS, the Contractor intends to construct ____________________________ described within the Scope of Work (“Project”) on property owned by the City;

WHEREAS, the Contractor shall complete the Project in accordance with the terms and conditions of this City-Contractor Agreement utilizing funds provided by the City;

WHEREAS, in order to provide the funds to the Contractor necessary for the Project, the Contractor must comply with certain terms and conditions set forth in the Contract Documents.

NOW, THEREFORE, in consideration of the mutual covenants and agreements contained herein, the Parties hereby agree as follows:

1. Contract Documents. The “Contract Documents” consist of the following documents:

A. This City-Contractor Agreement B. Scope of Work, Table of Values, Construction Plans, and Drawings for the project entitled ______________ attached hereto as Exhibit A (“Scope of Work”).

C. City of Rock Hill General Conditions attached hereto as Exhibit B D. Payment and Performance Bonds E. Notice of Award F. Contractor Bid including Non-Collusion Affidavit G. Bid Bond H. Insurance Documents I. Contractor Qualification Statement J. Addenda

2. Provision of Work. The Contractor shall complete the Project in accordance with the Contract Documents. Any additions, revisions, or modifications to the Contract Documents must be approved in writing in advance by the City. Defined terms used herein may be defined within exhibits attached hereto.

3. Project Control; Coordination with Adjacent Property Owners. Notwithstanding anything to the contrary set forth in the Contract Documents, the Contractor shall adhere to all requirements and instructions of the City as to this Project. The architect for this Project shall have no control over any matter beyond what the City allows, which may change from time to time. In addition, the City must approve, in writing, any and all contracts between the Contractor and any other contractor(s), which approval shall not be unreasonably withheld. In the event coordination with adjacent property owners is necessary, the Contractor shall be responsible for facilitating such coordination.

4. Time is of the Essence. Notwithstanding anything to the contrary set forth in the Contract Documents, the Project must be substantially completed in accordance with the Contract Documents on or before the date that is __________________ (“Substantial Completion Date”) and the Project must have final completion on or before the date that is ___________ (“Final Completion Date”). Liquidated damages shall be assessed against the Contractor as follows: (i) the Contractor shall pay liquidated damages to the City in the amount of $________ per day in the event Contractor fails to achieve Substantial Completion by the Substantial Completion Date; (ii) the Contractor shall pay liquidated damages to the City in the amount of $_______ per day in the event Contractor fails to achieve Final Completion by the Final Completion Date; and (iii) the Contractor shall pay liquidated damages to the City in the amount of $____ per day for failure to clean up the work site at the end of each day, as determined by the City in its sole discretion. Time is of the essence.

5. Payment; Change Orders. The City shall pay the Contractor for the Project in a total amount not to exceed $ _____________________ (“Contract Sum”).

Notwithstanding anything to the contrary set forth herein, the Project shall be completed by the Contractor for a maximum payment not exceeding the Contract Sum, subject to the terms and conditions in this paragraph. The parties hereto agree that the Contractor’s compliance with all terms and conditions of the Contract Documents will comprise a complete Project with nothing further necessary. The Contractor shall obtain the prior written consent of the City prior to performing any additional or different work than is prescribed in the Contract Documents or prior to making any change orders to the Contract Documents. If the Contractor fails to obtain such prior written consent, the Contractor shall not be entitled to any additional compensation for such work. The City reserves the right to add enhancements and additions to the Scope of Work. Any additional enhancements or additions to the Scope of Work shall be performed by the Contractor at a mutually agreed upon price prior to the Contractor performing such work. Any further work or necessary changes to the design in order to complete the Project in accordance with the Contract Documents or due to unforeseen or unpredictable circumstances which increase the cost of the Project are items for which the Contractor must be solely responsible and pay for any increase in costs attributable to such matters. Examples of such matters are poor soil conditions, rock, inclement weather, and other adverse environmental issues. There shall be a ten percent (10%) retainage withheld from each payment until the Project is completed.

6. Cost Verification. Prior to any payment to the Contractor, the Contractor shall submit to cost verification for the Project so that the City will be assured that the Project value meets or exceeds the Contract Sum. To the extent the City requires, such verification shall be done by an independent third party chosen by the City.

7. Payment Conditions. In the event the Contractor accepts payment from the City, such payment shall be deemed an acceptance by the Contractor of full performance by the City of any and all conditions and terms of the Contract Documents through the date of such payment so that the Contractor waives any and all claims against City for any breach of the Contract Documents which may have occurred prior to such payment date to include claims for insufficient payment.

Prior to receipt of payment from the City, the Contractor and its subcontractors shall provide lien waivers, in a form and content satisfactory to the City through the date of such payment. The Contractor shall submit to the City no more frequently than once a month invoices which have been calculated for the Work that has been performed by the Contractor (“Invoices”). The Invoices will be in a form that is acceptable to the City. Invoices are due and payable within ____ days of receipt by the City so long as the Contractor has submitted the Invoices and all supporting documentation as required by the City, except as otherwise provided herein. In the event an Invoice is disputed or contested by the City, the City may withhold a sum of money equal to the disputed portion of the Invoice. There shall be a ten (10%) retainage from each payment until the Project is completed.

8. Warranties. As a condition of the Contract Documents, any and all manufacturer or third-party warranties concerning the Project, upon completion of the Project, shall be assigned and provided to the City regardless of the initial beneficiary of such matters. In addition, Contractor shall provide warranties to the City as set forth under the General Conditions.

9. Independent Contractor Status. The Parties hereby agree that the Contractor is an independent contractor of the City and that nothing in the Contract Documents shall be deemed to place the Parties in the relationship of employer/employee, partners, or joint venturers. Neither Party shall have the right to obligate or bind the other in any manner. Each Party agrees and acknowledges that it will not hold itself out as an authorized agent with the power to bind the other Party in any manner. The Contractor shall be responsible for payment of all withholding taxes, payroll taxes, disability insurance payments, unemployment taxes, or other similar taxes or charges with respect to its employees or activities in relation to the performance of its obligations under the Contract Documents.

10. No Subcontractors. The Contractor hereby agrees that the Contractor shall not delegate, subcontract, or assign all or any portion of the Project to any third party without the express written consent of the City.

11. Representations and Warranties of Contractor. The Contractor makes the following representations and warranties to the City:

A. Contractor has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents including technical data.

B. Contractor has visited the site and become familiar with and is satisfied as to the general, local, and site conditions that may affect cost, progress, performance, or furnishing of the Work.

C. Contractor is familiar with and is satisfied as to all federal, state, and local laws and regulations that may affect cost, progress, performance, and furnishing of the Work.

D. Contractor has carefully studied all reports of explorations and tests of subsurface conditions at or contiguous to the site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the site which have been identified.

E. Contractor accepts the extent of the technical data contained in such reports and drawings upon which Contractor is entitled to rely. The Contractor acknowledges that some of such reports and drawings may not be part of the Contract Documents and may not be complete for Contractor purposes.

F. Contractor acknowledges that Owner and Engineer do not assume responsibility for the accuracy or completeness of information and data shown, indicated in the Contract Documents with respect to Underground Facilities, or contiguous to the site. The Contractor has obtained and carefully studied (or assumes responsibility for having done so) all such additional supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the site or otherwise which may affect cost, progress, performance or furnishing of the Work or which relate to any aspect of the means, methods, techniques, sequences and procedures of construction to be employed by Contractor and safety precautions and programs incident thereto.

G. Contractor does not consider that any additional examinations, investigations, explorations, tests, studies, or data are necessary for the performance and furnishing of the Work at the Contract Sum, within the times set forth hereunder and in accordance with the other terms and conditions of the Contract Documents.

H. Contractor is aware of the general nature of work to be performed by the Owner and others at the site, if any, that relates to the Work as indicated in the Contract Documents.

I. Contractor has correlated the information known to the Contractor, information and observations obtained from visits to the site, reports and drawings identified in the Contract Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Contract Documents.

J. Contractor has given written notice of all conflicts, errors, ambiguities, or discrepancies that Contractor has discovered in the Contract Documents and the written resolution thereof is acceptable to Contractor, and the Contract Documents are generally sufficient to indicate and convey an understanding of all terms and conditions for performance and furnishing of the Work.

K. The execution and performance of the Contract Documents have been duly authorized by the Contractor and no other approval or authorization is required to be obtained or made in order for the Contractor to enter into and perform its obligations under the Contract Documents.

L. In connection with its obligations under the Contract Documents, the Contractor shall comply with all applicable federal, state, and local laws and regulations and shall obtain all applicable permits and licenses, including a City of Rock Hill Business License.

M. All employees and contractors provided by the Contractor to the City shall have the qualifications, skills, and experience necessary to perform his or her job in accordance with the requirements of the Contract Documents. Upon request by the City, Contractor shall remove or reassign its employee(s).

12. Termination; Assignment. In addition to its other rights under the Contract Documents, City may terminate the Contract Documents if City determines, in its sole discretion, that the services of Contractor are no longer needed or desired by City, for any reason or no reason, by providing Contractor ten (10) days advance notice of such termination and paying Contractor for the applicable portion of the Contract Sum due to Contractor for Work completed as of the date of termination in accordance with the Contract Documents; provided Contractor shall not be entitled to such payment if City terminates the Contract Documents pursuant to a default by Contractor as provided in the Contract Documents.

13. Default. The following events, if not cured within seven days of the City’s delivery of written notice to the Contractor, shall constitute a default of the Contract Documents by the Contractor:

(a) Failure of the Contractor or its contractors to perform the Work required under the Contract Documents at any time;

(b) Defects in materials and/or labor provided by the Contractor or its contractors pursuant to the Contract Documents which are recurring or substantial, in the sole opinion of the City;

(c) Defects or deficiencies in the provision of the Work which are recurring or substantial in nature, in the sole opinion of the City;

(d) Failure of Contractor to remedy any defects in materials or workmanship which are provided by Contractor or its contractors pursuant to the Contract Documents;

(e) Any affirmative act of insolvency by Contractor, or the filing by Contractor of any petition under any bankruptcy, reorganization, insolvency, or moratorium law, or any law for the relief of, or relating to, debtors;

(f) Any assignment by Contractor for the benefit of creditors;

(g) The filing of any involuntary petition under any bankruptcy statute against the Contractor; and/or

(h) The nonperformance by the Contractor or its contractors of any other term, covenant, or condition of the Contract Documents.

14. Remedies. The Contractor’s sole remedy against the City for any City breach or default hereunder shall be limited to the Contractor bringing an action against the City for the amount due and owing to the Contractor for Work completed by the Contractor as provided under the Contract Documents. However, in no event shall the City be liable to the Contractor for any other damages, including but not limited to consequential damages, incidental damages, punitive damages, or lost profits.

In addition to other remedies provided under the Contract Documents, City may without notice to or demand on Contractor, on the occurrence of any of the foregoing events of default:

(a) Terminate the Contract Documents, such termination to be effective five calendar days following written notice by City to Contractor of City’s election to terminate the Contract Documents;

(b) Sue for and collect all sums or amounts due City as a result of defaults of the Contract Documents by Contractor or its contractors, including incidental and consequential damages resulting therefrom;

(c) Exercise any remedy provided for by the Contract Documents;

(d) Correct, at the Contractor’s expense, the defective portion of the Work and collect from the Contractor all fees and costs incurred by the City in correcting the defective Work; and/or

(e) Exercise any applicable legal or equitable remedy.

15. Attorneys' Fees. In the event that the Contractor defaults on any of its obligations under the Contract Documents, the City shall be entitled to recover from the Contractor the reasonable costs and attorney’s fees incurred in the enforcement of any provision of the Contract Documents.

16. Indemnification. In addition to the other indemnities provided under the Contract Documents, the Contractor agrees, to the fullest extent permitted by law, to indemnify and hold harmless the City, its elected officials, and employees against all damages, liabilities or costs, including reasonable attorneys’ fees and defense costs, to the extent caused by the negligent performance under the Contract Documents by the Contractor or that of its sub-consultants, contractors or anyone for whom the Contractor is legally liable or engaged either in full or in part to perform Work on the Project.

17. Insurance; Bonds; Release of Liens. The Contractor agrees that the Contractor shall keep and maintain general automobile liability insurance in the amount of $1,000,000 per occurrence for each vehicle and $1,000,000 in the aggregate for all vehicles that the Contractor brings onto City property or uses in any manner in the provision of the services, including transportation to and from the site(s) where the services are rendered; and Contractor further agrees that Contractor shall maintain general liability insurance in the amount of at least $2,000,000 per incident/occurrence and $2,000,000 in the aggregate for all incidents/occurrences during a policy period; professional liability insurance including completed operations and pollution liability coverages of not less than $3,000,000 for all claims during the term of the policy; and Contractor agrees that Contractor shall maintain Worker’s Compensation Insurance on all of Contractor’s employees if such coverage is required under South Carolina law. The Contractor also agrees that the Contractor shall provide, in a form acceptable to the City, certificates of Worker’s Compensation Insurance (if applicable), Automobile Liability Insurance, and General Liability

Insurance.

Any insurance provider of Contractor shall be admitted and authorized to do business in the State of South Carolina and shall carry a minimum rating assigned by A.M. Best & Company’s Key Rating Guide of “A” Overall and a Financial Size Category of “X” (i.e., a size of $500,000,000 to $750,000,000 based on capital, surplus, and conditional reserves). Insurance policies and certificates issued by non-admitted insurance companies are not acceptable.

The Contractor agrees that the Contractor shall keep and maintain other insurance policies and payment and performance bonds in amounts and conditions as required by the City with loss payee provisions and policyholder provisions as required by the City. No self-insurance of any kind will be allowed unless by written permission of the City which may be withdrawn at any time for any reason or no reason. In the event that a subcontractor files a lien against any portion of the Property on which the Project is being constructed, the Contractor shall cause such lien to be removed within 10 days of the filing of such lien.

18. Caption Sections. Paragraphs, titles, headings, and captions contained in the Contract Documents are inserted only for convenience and for reference and in no way define, limit, extend, or describe the scope of the Contract Documents or the intent of any provision hereof.

19. Ownership and Use of Work Product. The Parties agree that the City shall retain possession and ownership of all test results, plans, drawings, specifications, and other documents produced by the Contractor or any other third party for the Project.

20. Assignment. The Contractor shall not assign any of its rights or obligations under the Contract Documents without the express written consent of the City. The City may, in its sole discretion and without the consent of the Contractor, assign its rights or obligations under the Contract Documents to a third party. The Contractor shall execute all consents reasonably required to facilitate any such assignment.

21. Waiver and Severability. If any part of the Contract Documents, for any reason, is declared invalid or void, such declaration shall not affect the remaining portions of the City- Contractor Agreement which shall remain in full force and effect as if the Contract Documents had been executed with the invalid portion eliminated. However, if any provision that has been declared invalid or unenforceable shall be a provision that would prevent the continued and complete performance of the Contract Documents by the Contractor and the City, then the Contractor and the City hereby agree that they will renegotiate that term or provision in order to otherwise render the City-Contractor Agreement valid and enforceable. If either the Contractor or the City decides not to enforce a provision of the Contract Documents, such decision in favor of non-enforcement shall not constitute a complete and full waiver of the right of that person or entity in the future to enforce that provision of the City-Contractor Agreement in the event of any subsequent breach or failure to comply in full with that provision of the City-Contractor Agreement.

22. Governing Law. Except to the extent that the Contract Documents may be governed by any federal law, including federal bankruptcy law, the Contract Documents shall be governed by, construed, and interpreted under, and enforced exclusively in an accordance with the laws of the state of South Carolina, and the courts in the state of South Carolina shall have jurisdiction with respect to any dispute arising hereunder.

23. Notices. All notices, certificates, or other communications hereunder shall be sufficiently given and shall be deemed given when mailed by certified or registered mail, postage prepaid, addressed as follows:

To the City:

City of Rock Hill Attn: City Manager P.O. Box 11706 Rock Hill, SC 29731-1706

To the Contractor:

24. No Construction Against Drafter. The City and Contractor hereby acknowledge that they have reviewed the Contract Documents and have been afforded an opportunity to consult with an attorney. City and Contractor concur that any rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not apply in the interpretation of any provision of the Contract Documents.

25. Compliance with Applicable Laws. In connection with its obligations under the Contract Documents, Contractor shall comply with all applicable federal, state and local laws, regulations and ordinances and shall obtain all applicable permits and licenses, including a City of Rock Hill business license. Contractor recognizes and agrees to comply with recent employment laws related to confirmation of an employee’s legal status and ability to work in the State of South Carolina under Title 41, Chapter 8 of the South Carolina Code of Laws.

26. Terms of this City-Contractor Agreement Controlling. In the event of any inconsistency or conflict between any term, covenant or condition of this Agreement and any other document pertaining to this Agreement, the Parties agree that the more stringent requirement, as determined by the City, shall apply and shall in all respects be controlling, and any contrary term, covenant or condition in the Contract Documents, or any amendment or modification thereof, is hereby displaced.

27. Entire Agreement; Modification. Except as otherwise provided herein, the Contract Documents shall constitute the entire and full agreement and understanding between Contractor and the City and shall supersede all prior and/or contemporaneous agreements, understandings and discussions between them, written and/or oral, all of which shall be deemed merged into the

Contract Documents and shall be of no further force and effect. No change, amendment or modification of the Contract Documents shall be made unless agreed to in writing by both Contractor and the City.

IN WITNESS WHEREOF, the Contractor and the City have caused their respective names to be subscribed hereto, all on the date set forth below. This City-Contractor Agreement may be executed in multiple counterparts, each of which shall be deemed an original and which together shall constitute one instrument. Facsimile or email signatures shall be deemed originals.

[SIGNATURE PAGE ATTACHED HERETO]

CITY OF ROCK HILL

By:____________________

Name:__________________

Its:___________________

Date: ___________

CONTRACTOR

By:____________________

Name:__________________

Its:___________________

Date:___________

EXHIBIT A

SCOPE OF WORK

TABLE OF VALUES

See Attached

CONSTRUCTION PLANS

DRAWINGS

EXHIBIT B

GENERAL CONDITIONS

See Attached

CITY OF ROCK HILL

GENERAL CONDITIONS

ARTICLE 1 - CONTRACT DOCUMENTS

1.1. DEFINITIONS

1.1.1. THE CONTRACT DOCUMENTS

The Contract Documents are defined in the City-Contractor Agreement. The Contract Documents do not include Bidding Documents such as the Advertisement or Invitation to Bid, the Instructions to Bidders, sample forms, the Contractors Bid or portions of Addenda relating to any of these, or any other documents, unless specifically enumerated in the City-Contractor Agreement.

1.1.2. THE CONTRACT

The Contract Documents form the Contract for Construction. This Contract represents the entire and integrated agreement between the parties hereto and supersedes all prior negotiations, representations, or agreements, either written or oral. The Contract may be amended or modified only by a Modification as provided under the City-Contractor Agreement. Nothing contained in the Contract Documents shall create any contractual relationship between the City and any Subcontractor or Sub-subcontractor.

1.1.3. THE WORK

The Work comprises the completed construction required by the Contract Documents and includes all labor necessary to produce such construction, and all materials and equipment incorporated or to be incorporated in such construction.

1.1.4. THE PROJECT

The Project is defined under the City-Contractor Agreement and such definition shall also include the total construction of which the Work performed under the Contract Documents may be the whole or a part.

1.1.5. PROJECT MANUAL

The Project Manual is the volume that includes bidding requirements and information, sample forms, and certain of those Contract Documents described in Subparagraph 1.1.1, such as the Conditions of the Contract, Specifications, and modifications or addenda.

1.1.6. PARTICULAR SPECIFICATION TERMS

1.1.6.1. Equal, Approved Equal: Materials or methods determined solely by the Engineer to have attributes equivalent to those described in the Contract Documents, to the extent that those materials or methods may be incorporated into the work in lieu of the materials or methods specified.

1.1.6.2. Provide: Supply all materials, labor, tools, transportation, supervision, temporary construction, services, and pay all insurance, taxes, tariffs and contributions, unless specifically exempted, necessary to furnish and install material or accomplish processes specified, complete, in place, and ready for use intended in accordance with the Contract Documents.

1.1.6.3. Required, Requirements: Shall be understood to refer to requirements of the Contract Documents, either explicitly stated or necessary to achieve indicated design and performance standards, unless another interpretation is clearly stated.

1.1.6.4. Shown, Indicated, Noted: Shall be understood to refer to information contained in the Contract Documents, unless another interpretation is clearly stated.

1.1.6.5. Necessary: Shall refer to that which, in the Engineer’s interpretation, is required for proper execution of the Work or performance of the material supplied, unless another interpretation is clearly stated.

1.1.6.6. Latest Edition: Shall mean the latest published edition of a document, excluding any editions published subsequent to 30 calendar days prior to the issue date of the Project Manual.

1.1.7. OTHER TERMS

1.1.7.1. Other technical terms not specifically defined within the Contract Documents shall have the meanings given in AIA Document "Glossary of Construction Industry Terms," 1991 edition. Technical terms not defined as above and used to describe items of the Work, and which so applied have a well-known technical or trade meaning, shall be deemed to have such recognized meaning."

1.1.7.2. Wherever in this Agreement a reference is made to the “Engineer” or "Architect/Engineer" or similar words, the submittal, question, or discussion shall be referred to the City. The City shall then refer the matter to the appropriate designer who shall act as if the referral via the City had not occurred. The City shall, in those instances, merely be acting for the convenience of all in coordinating such communications.

1.2. CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS

1.2.1. The Contract Documents shall be signed by the City and Contractor. If either the City or the Contractor both do not sign the Conditions of the Contract, Drawings, Specifications, or any of the other Contract Documents, the Engineer shall identify such Documents. When requested, the Engineer shall certify in writing to the City and Contractor those documents constituting the Contract Documents.

1.2.2. By executing the Contract, the Contractor represents that he has visited the site, familiarized himself with the local conditions under which the Work is to be performed, and correlated his observations with the requirements of the Contract Documents.

1.2.3. The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work. The Contract Documents are complementary, and what is required by any one shall be as binding as if required by all. Work not covered in the Contract Documents will not be required unless it is consistent therewith and is reasonably inferable therefrom as being necessary to produce the intended results. Words and abbreviations which have well-known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings. All work shall conform to the Contract Documents. No change therefrom shall be undertaken without prior review by the Engineer. When more detailed information is required for performance of the Work or when an interpretation of the Contract Documents is requested, the Contractor shall submit a written request to the Engineer, who shall furnish such information or interpretation in the form of an Engineer’s Supplemental Instruction or other written or drawn form or drawing. Where only part of the Work is indicated, similar parts shall be considered repetitive. Where any detail is shown and components thereof are fully described, similar details not fully described shall be deemed to incorporate similar material and construction.

1.2.4. The organization of the Specifications into divisions, sections, and articles and the arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade. The arrangement of Specifications and Drawings, and separations implied in such arrangements, are for convenience of reference only, and such separations or arrangements shall not operate to make the Engineer an arbiter to establish limits of Work between subcontractors or between the Contractor and subcontractor.

1.3.1. All Drawings, specifications, and copies thereof furnished are and shall remain the property of the City. They are to be used only with respect to this Project and are not to be used on any other project.

ARTICLE 2 - ENGINEER

2.1. DEFINITION

2.1.1 The Engineer is either a person lawfully licensed to practice Architecture/ Engineering or an entity lawfully practicing Architecture/Engineering. The Engineer will be identified as such in the City-Contractor Agreement or later selected by the City. If no Engineer is identified or later selected, “Engineer” shall mean the City or its designee. The Engineer is referred to throughout the Contract Documents as if singular in number and masculine in gender. The term “Engineer” means the Engineer or his authorized representative.

2.2. ADMINISTRATION OF THE CONTRACT

2.2.1. The Engineer shall provide administration of the Contract for Construction as set forth below.

2.2.2. The Engineer shall be the representative of the City during the Construction Phase and shall advise and consult with the City. Instructions to the Contractor shall be forwarded through the Engineer. The Engineer shall have authority to act on behalf of the City only to the extent provided in this Agreement.

2.2.3. The Engineer shall visit the site to observe the progress and quality of the Work and to determine if the Work is proceeding in accordance with the Contract Documents.

2.2.4. The Engineer shall not, in connection with the Work, have control or charge of construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs.

2.2.5. The Engineer shall at all times have access to the Work wherever it is with respect to preparation or progress.

2.2.6. The Engineer shall determine the amounts owing to the Contractor based on observations at the site and on evaluations of the Contractor's Applications for Payment, and shall issue Certificates for Payment in such amounts as provided in the Contract

2.2.7. The issuance of a Certificate for Payment shall constitute a representation by the Engineer to the City that the Work has progressed to the point indicated; that the quality of the Work is in accordance with the Contract Documents (subject to (i) an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, (ii) the results of any subsequent tests required by or performed under the Contract Documents,

(iii) minor deviations from the Contract Documents correctable prior to completion, and

(iv) any specific qualifications stated in the Certificate for Payment); and that the Contractor is entitled to payment in the amount certified.

2.2.8. The Engineer shall be the interpreter of the requirements of the Contract Documents and the judge of the performance thereunder by the Contractor. The Engineer shall render interpretations necessary for the proper execution or progress of the Work with reasonable promptness, on request of either the City or the Contractor, and shall render written decisions, within a reasonable time, on all claims, disputes, and other matters relating to the execution or progress of the Work or the interpretation of the Contract Documents.

2.2.9. Interpretations and decisions of the Engineer shall be consistent with the intent of and reasonably inferable from the Contract Documents and shall be in written or graphic form.

2.2.10. The Engineer’s decisions in matters relating to artistic effect shall be final if consistent with the intent of the Contract Documents.

2.2.11. The Engineer shall have authority to reject Work which does not conform to the Contract Documents. Whenever, in the Engineer’s reasonable opinion, it is necessary or advisable for the implementation of the intent of Contract Documents, the Engineer will have authority to require special inspection or testing of the Work in accordance with the provisions of the Contract Documents, whether or not such Work be then fabricated, installed, or completed.

2.2.12. The Engineer shall review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Job Mix Formulae, Product Data, and Samples, for conformance with the design concept of the Work and with the information given in the Contract Documents. Such action shall be taken with reasonable promptness so as to cause no delay.

2.2.13. The Engineer shall prepare Change Orders, in accordance with the Contract Documents, for the City's approval and execution and shall have authority to order changes in the Work which do not involve an adjustment in the Contract Sum or an extension of the Contract Time and which are not inconsistent with the intent of the Contract

2.2.14. The Engineer shall conduct inspections to determine the Dates of Substantial Completion and final completion; receive and forward to the City written warranties and related documents required by the Contract Documents and assembled by the Contractor;

and issue a final Certificate for Payment.

2.2.15. The Engineer, together with representatives of the City, shall observe the Work approximately 45 calendar days prior to expiration of the Contractor's general warranty.

2.2.16. If applicable, the Engineer’s other duties, responsibilities. and limitations are set forth in the City-Engineer agreement, a copy of which will be furnished to Contractor on his request.

ARTICLE 3- THE CITY

3.1. DEFINITION

3.1.1. The City is the person or entity identified as such in the City-Contractor Agreement and is referred to throughout the Contract Documents as if singular in number and masculine in gender. The term “City” means the City or his authorized representative.

3.2. INFORMATION AND SERVICES REQUIRED OF THE CITY

3.2.1. The City shall, at the request of the Contractor, at the time of execution of the City- Contractor Agreement, furnish to the Contractor reasonable evidence that it has made financial arrangements to fulfill his obligations under the Contract. Unless such reasonable evidence is furnished, the Contractor is not required to execute the City-Contractor Agreement or to commence the Work.

3.2.2. The Contractor shall furnish all surveys describing the physical characteristics, legal limitations, and utility locations for the site of the Project and also a legal description of the site.

3.2.3. Except as provided in Subparagraph 4.7.1, the City shall secure and pay for necessary approvals, assessments, and charges required for the construction, use, or occupancy of permanent structures or for permanent changes in existing facilities.

3.2.4. Information or services under the City's control shall be furnished by the City with reasonable promptness to avoid delay in the orderly progress of the Work.

3.2.4.1. The Contractor shall be furnished, free of charge, a reasonable number of sets of Drawings and Project Manuals to facilitate execution of the Work.

Additional sets will be furnished at the cost of reproduction and handling, plus postage or shipping charges. All sets furnished to the Contractor shall be returned to the Engineer upon completion of the Work.

3.2.4.2. The City specifically disclaims any warranty of the plans and specifications under the 'Spearin Doctrine' or any similar concept.

3.3. CITY'S RIGHT TO STOP THE WORK

3.3.1. If the Contractor fails to correct defective Work as required by Paragraph 13.2 or persistently fails to carry out the Work in accordance with the Contract Documents, the City, by a written order signed personally or by an agent specifically so empowered by the City in writing, may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of the City to stop the Work shall not give rise to any duty on the part of the City to exercise this right for the benefit of the Contractor or any other person or entity, except to the extent required by Subparagraph 6.1.3.

3.4. CITY'S RIGHT TO CARRY OUT THE WORK

3.4.1. If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails, within seven calendar days after receipt of written notice from the City, to commence and continue correction of such default or neglect with diligence and promptness, the City may, after seven calendar days following receipt by the Contractor of an additional written notice and without prejudice to any other remedy he may have, make good such deficiencies. In such case, an appropriate Change Order shall be issued deducting from the payments then or thereafter due the Contractor the cost of correcting such deficiencies, including compensation for the Engineer’s additional services made necessary by such default, neglect, or failure. Such action by the City and the amount charged to the Contractor are both subject to the prior approval of the Engineer. If the payments then or thereafter due the Contractor are not sufficient to cover such amount, the Contractor shall pay the difference to the City upon demand.

3.5. CITY'S REPRESENTATIVE

3.5.1. The City's Representative may be employed at the site, due to the City's ongoing activities in the immediate area of the Project or for other reasons. The City's Representative is employed to assist the City in meeting its responsibilities and shall be informed of the Contractor's schedule and any problems that may arise. The City's Representative shall provide coordination or liaison among the City, Contractor, and Engineer. The City's Representative shall not act to supervise the Contractor or any Subcontractors, nor shall the City's Representative provide any instructions to the Contractor.

ARTICLE 4– CONTRACTOR

4.1. DEFINITION

4.1.1. The Contractor is the person or entity identified as such in the City-Contract Agreement and is referred to throughout the Contract Documents as if singular in number and masculine in gender. The term “Contractor” means the Contractor or his authorized representative.

4.1.2. The Parties hereby agree that the Contractor is an independent contractor of the City and that nothing in the Contract Documents shall be deemed to place the Parties in the relationship of employer/employee, partners, or joint venturers. Neither Party shall have the right to obligate or bind the other in any manner. Each Party agrees and acknowledges that it will not hold itself out as an authorized agent with the power to bind the other Party in any manner.

4.2. REVIEW OF CONTRACT DOCUMENTS

4.2.1. Prior to commencement of and during execution of the Work, the Contractor shall carefully study and compare the Contract Documents and shall at once report to the Engineer any error, inconsistency, or omission he may discover. The Contractor shall perform no portion of the Work at any time without Contract Documents or, where required, approved Shop Drawings, Product Data, or Samples for such portion of the Work.

The Contractor shall request and receive from the Engineer, in writing, clarification of such error, omission, or inconsistency before proceeding with the Work. The Contractor shall not be liable to the City or the Engineer for any damage resulting from any such errors, inconsistencies, or omissions in the Contract Documents, except if he has proceeded with such Work before receiving written clarification from the Engineer.

4.2.2. Should the Contractor discover a conflict between the Specifications and Drawings, he shall request and receive clarification from the Engineer, in writing, before proceeding with any Work related to the conflicting documents, in accordance with Clause 4.2.1.

4.2.3. Should the Specifications fail to particularly describe the material or kind of goods to be used in any part of the Work, the Contractor shall request additional information of the Engineer prior to performing the Work. The material that would normally be used in such part of the Work to produce first quality finished work shall generally be considered the intended standard.

4.2.4. Prior to commencement of and during execution of the Work, the Contractor shall examine all Drawings and Specifications for all portions of the Work. All Work for which a particular trade is responsible is not necessarily shown on the section of the Drawings and Specifications primarily applying to that trade. No allowance shall be made for the Contractor's failure to familiarize himself with the complete documents and to adequately organize his forces.

4.3. SUPERVISION AND CONSTRUCTION PROCEDURES

4.3.1. The Contractor shall supervise and direct the Work, using his best skill and attention. He shall be solely responsible for all construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work under the Contract.

4.3.2. The Contractor shall be responsible to the City for the acts and omissions of his Subcontractors and of his and Subconstractors’ employees, sub-subcontractors, agents, and employees, and any other persons performing any of the Work under a contract with or at the direction of the Contractor.

4.3.3. The Contractor shall not be relieved from his obligations to perform the Work in accordance with the Contract Documents either by the activities or duties of the Engineer in his administration of the Contract, or by inspections, tests, or approvals required or performed under Paragraph 7.7 by persons other than the Contractor. The Engineer has no authority nor accepts any responsibility, either direct or implied, for construction superintendence of the Work. The Contractor shall be held to be directly responsible for programming of the Work; construction procedures; scheduling, coordination, inspections, and supervision of construction personnel; and insuring accurate construction and faithful performance of the Contract requirements. Any instruction which the Engineer may issue the Contractor shall be deemed an interpretation of the Contract requirements and not an act of supervision.

4.4. LABOR AND MATERIALS

4.4.1. Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for all labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for the proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated into the Work.

4.4.2. The Contractor shall, at all times, enforce strict discipline and good order among his employees and shall not employ on the Work any unfit person or anyone not skilled in the task assigned to such person. If, at any time during the construction and completion of the Work, the conduct of any worker on the Project be adjudged incompetent or detrimental to the Work, then the Contractor shall order such party immediately removed from the site.

4.4.3. Not later than 10 calendar days after the execution of the Contract, the Contractor shall provide a list of all manufacturers and suppliers whose products are proposed for inclusion in the Work and, where applicable, the names of installing Subcontractors, according to the provisions of the Specifications.

4.4.4. The Engineer shall promptly reply in writing to the Contractor stating whether he or the City, upon due consideration, has any reasonable objection to the proposed manufacturers, suppliers, or installers. If adequate data is not submitted with the Contractor's proposal, the Engineer reserves the right to defer consideration until the Contractor furnishes further information. Failure of the Engineer to reply upon further notice from the Contractor shall constitute notice of no objection. Failure to object to any manufacturer, supplier, or installer shall not constitute waiver of any Contract requirements, but shall be deemed as a proposal by the Contractor to enforce all Contract requirements upon the proposed manufacturers, suppliers, and installers.

4.4.4.1. Within 15 calendar days after the execution of the Contract, the City and the Engineer shall consider a formal request for the substitution of products and procedures specified, according to provisions of the Specifications.

4.4.4.2. By making any such request for substitution, the Contractor represents that:

a) he has personally investigated the proposed substitute and has determined that it is equal or superior to that specified for the use and quality intended;

b) he will provide or cause to be provided the same warranties and guarantees as provided for the specified product or procedure;

c) the cost data submitted with the proposed substitute is complete and correct and includes all related costs under the Contract, but excludes the Engineer’s redesign fees (which shall be borne by the Contractor), and that the Contractor waives all claims for additional costs related to the proposed substitution which subsequently arise or become apparent; and

d) he will coordinate the installation of the proposed substitution, making all changes (subject to prior review by the Engineer) in the Work as may be required to be complete and proper in all respects for the use intended.

4.4.4.3. The Contractor shall ensure that all materials incorporated into the Work shall conform to the Building Codes of the State of South Carolina and to all local codes, laws, and ordinances. All electrically-powered items shall bear the “Underwriters’ Laboratory” approval or UL Reexamination listing in every case where such approval has been established for that type of item. Where several materials or processes are listed by trade name, manufacturer’s name, or catalog number, the Contractor may select any of those so listed. Where an item or process is specified exclusively by trade name, manufacturer’s name, or catalog number, the Contractor shall use only such item or process unless the Engineer has approved substitution therefor in writing. The Contractor shall use all such products or processes in accordance with the manufacturer’s specifications unless otherwise stated. Should the Specifications fail to particularly describe the material or kind of goods to be used in any place, then it shall be the Contractor’s duty either to inquire of the Engineer as to his choice or procure such item which would be expected to provide a first-quality finished product.

4.4.4.4. Whenever a manufacturer, supplier, or installer shall provide particularized specifications, directions, or recommendations, the Contractor shall provide the Engineer with a copy of such document(s) and shall retain a copy at the site.

4.4.5. The Contractor shall be responsible for the safe, correct, and lawful (i) construction, maintenance, and use of all equipment required for the Work or otherwise placed at the site, and (ii) removal of same upon completion of the Work.

4.4.6. The Contractor shall…