Section D - Construction General TCs.pdf

IFB#24106 SECTION

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GENERAL CONDITIONS

SECTION D

TABLE OF CONTENTS

ARTICLE 1 - CONTRACT DOCUMENTS

1.1 DEFINITIONS

1.2 EXECUTION, CORRELATION AND INTENT

1.3 OWNERSHIP AND USE OF DOCUMENTS

ARTICLE 2 - ARCHITECT/ENGINEER/CONSTRUCTION MANAGER

2.1 DEFINITIONS

2.2 ADMINISTRATION OF THE CONTRACT

ARTICLE 3 - OWNER

3.1 DEFINITION

3.2 INFORMATION POSSESSED BY OWNER

3.3 OWNER-PAID PERMITS AND FEES

3.4 OWNER'S RIGHT TO STOP WORK

3.5 OWNER'S RIGHT TO CARRY OUT THE WORK

3.6 SUSPENSION OF WORK

3.7 USE AND OCCUPANCY PRIOR TO FINAL ACCEPTANCE BY OWNER

3.8 RIGHT TO AUDIT AND PRESERVATION OF RECORDS

3.9 RIGHT TO REVIEW DOCUMENTS AND OTHER MATERIALS

ARTICLE 4 - CONTRACTOR

4.1 DEFINITION

4.2 REVIEW OF CONTRACT DOCUMENTS

4.3 CONTRACTOR'S REPRESENTATIONS

4.4 SUPERVISION AND CONSTRUCTION PROCEDURES

4.5 LABOR, MATERIALS, AND EQUIPMENT

4.6 WARRANTY

4.7 CONTRACTOR-PAID TAXES, PERMITS, FEES AND NOTICES

4.8 COMPLIANCE

4.9 ALLOWANCES

4.10 SUPERINTENDENT

4.11 CONSTRUCTION SCHEDULE

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4.12 RESPONSIBILITY FOR COMPLETION

4.13 DOCUMENTS AND SAMPLES AT THE SITE

4.14 SHOP DRAWINGS, PRODUCT DATA, SAMPLES AND MANUALS

4.15 EQUAL PRODUCTS:

4.16 USE OF SITE

4.17 CUTTING AND PATCHING OF WORK

4.18 RIGHT TO PUBLISH

4.19 SITE CLEAN UP

4.20 PATENTS, ROYALTIES, ETC

4.21 INDEMNIFICATION

4.22 NON-DISCRIMINATION IN EMPLOYMENT

4.23 CONTRACT SECURITY

4.24 DRUG-FREE WORK PLACE

ARTICLE 5 - SUBCONTRACTORS

5.1 DEFINITIONS

5.2 AWARD OF SUBCONTRACT AND OTHER CONTRACTS FOR PORTIONS OF THE WORK 35

5.3 SUBCONTRACTUAL RELATIONS

5.4 QUALIFICATION SUBMITTALS

ARTICLE 6 - WORK BY OWNER OR BY SEPARATE CONTRACTORS

6.1 OWNER'S RIGHT TO PERFORM WORK AND TO AWARD SEPARATE CONTRACTS

6.2 MUTUAL RESPONSIBILITY

6.3 OWNER'S RIGHT TO CLEAN UP

ARTICLE 7 - MISCELLANEOUS PROVISIONS

7.1 GOVERNING LAW

7.2 PROVISIONS REQUIRED BY LAW DEEMED INSERTED

7.3 SUCCESSORS AND ASSIGNS

7.4 CONTRACT CLAIMS AND DISPUTES

7.5 ATTORNEYS' FEES AND OTHER EXPENSES

7.6 RIGHTS AND REMEDIES

7.7 TESTS

ARTICLE 8 - CONTRACT TIME

8.1 DEFINITION

8.2 PROGRESS AND COMPLETION

8.3 CLAIMS FOR TIME EXTENSIONS

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8.4 CHANGE ORDER WORK

8.5 LIQUIDATED DAMAGES FOR DELAY

8.6 TIME EXTENSIONS FOR WEATHER

ARTICLE 9 - PAYMENTS AND COMPLETION

9.1 CONTRACT SUM

9.2 SCHEDULE OF VALUES

9.3 APPLICATION FOR PAYMENT

9.4 CERTIFICATES FOR PAYMENT

9.5 PROGRESS PAYMENTS

9.6 PAYMENTS WITHHELD

9.7 FAILURE OF PAYMENT

9.8 SUBSTANTIAL COMPLETION AND GUARANTEE BOND

9.9 FINAL COMPLETION AND FINAL PAYMENT

ARTICLE l0 - PROTECTION OF PERSONS AND PROPERTY

10.1 SAFETY PRECAUTIONS AND PROGRAMS

10.2 SAFETY OF PERSONS AND PROPERTY

10.3 OBLIGATION OF CONTRACTOR TO ACT IN AN EMERGENCY

ARTICLE 11 - INSURANCE

11.1 CONTRACTOR'S INSURANCE REQUIREMENTS FOR CONTRACTS $1 MILLION OR

GREATER IN VALUE

11.2 CONTRACTOR'S INSURANCE REQUIREMENTS FOR CONTRACTS UNDER $1 MILLION

IN VALUE

ARTICLE 12 - CHANGES AND MODIFICATIONS IN THE WORK

12.1 CHANGES IN THE WORK

12.2 CLARIFICATIONS BY FIELD ORDER OR A/E/CM’S SUPPLEMENTAL INSTRUCTIONS

12.3 REQUEST FOR PROPOSAL

12.4 PROPOSED CHANGE ORDER

12.5 CHANGE ORDER

12.6 UNILATERAL CHANGE ORDER AND/OR CONSTRUCTION CHANGE DIRECTIVE

12.7 DECREASES AND WORK NOT PERFORMED

12.8 CHANGES IN LINE AND GRADE

12.9 SUBSURFACE CONDITIONS FOUND DIFFERENT

12.10 CLAIMS FOR ADDITIONAL COST AND/OR TIME

ARTICLE 13 - UNCOVERING AND CORRECTION OF WORK

13.1 UNCOVERING OF WORK

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13.2 WARRANTY AND CORRECTION OF WORK

13.3 ACCEPTANCE OF FAULTY, DEFECTIVE OR NON-CONFORMING WORK

13.4 NO LIMITATION OF LIABILITY

ARTICLE 14 - TERMINATION OF THE CONTRACT

14.1 CONTRACTOR'S RIGHT TO STOP WORK OR TERMINATE CONTRACT

14.2 OWNER'S RIGHT TO TERMINATE CONTRACT FOR CAUSE

14.3 OWNER'S RIGHT TO TERMINATE CONTRACT FOR CONVENIENCE

14.4 CONTRACTOR'S RESPONSIBILITIES UPON TERMINATION

14.5 DISPUTES UPON TERMINATION

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SECTION D

(Revised April 2016)

GENERAL CONDITIONS

ARTICLE 1 - CONTRACT DOCUMENTS

1.1 DEFINITIONS

1.1.1 CONTRACT DOCUMENTS:

The Invitation for Bid, Information for Bidders, Bid Form, Owner-Contractor Agreement, Drawings, General Conditions and Special Conditions (if any) and any supplements thereto, Specifications and all Addenda issued prior to and all Modifications issued after execution of the

Contract, shall form part of this Contract and the provisions thereof shall be as binding upon the parties hereto as if they were herein fully set forth. Any soils, geotechnical or other reports, surveys and analyses which may be made available to the Contractor for review or information under this Contract, are not adopted by reference into, nor are they part of the Contract

Documents. A Modification is (1) a written Amendment to the Contract signed by both parties,

(2) a written Change Order signed by both parties (3) a written Field Order or A/E/CM’s

Supplemental Instructions, 4) a Unilateral Change Order or Construction Change Directive issued by the Owner. The table of contents, titles, headings, running headlines and marginal notes contained herein and in said documents are solely to facilitate reference to various provisions of the Contract Documents and in no way affect, limit or cast light upon the interpretation of the provisions to which they refer.

1.1.2 CONTRACT:

The Contract Documents form the Contract. 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 changed only by a

Modification. Nothing contained in the Contract Documents shall create any contractual relationship between the Owner, or any agent, consultant, or independent contractor employed by the Owner and any Subcontractor, Sub-subcontractor, supplier or vendor of the Contractor, but the

Owner shall be entitled to performance of all obligations intended for its benefit, and to enforcement thereof.

1.1.3 WORK:

The term "Work" as used herein refers to work at the site of the project, is that normally done at the location of the project and includes all plant, labor, materials, supplies, equipment, and other facilities and things necessary or proper for or incidental to the carrying out and completion of this contract. The term "Work" shall be construed to include material suitably stored and protected.

1.1.4 PROJECT:

The Project is the total construction of which the Work performed under Contract Documents may be the whole or a part.

1.1.5 FURNISH, INSTALL, PROVIDE:

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The terms "Furnish" or "Install" or "Provide", unless specifically limited in context, mean:

furnishing and incorporating a specified item, product or material in the work, including all necessary labor, materials, and equipment to perform the work required, ready for use.

1.1.6 EXTRA WORK:

The term "Extra Work" as used herein, refers to and includes work required by the Owner, which, in the judgment of the Owner and A/E/CM, involves changes in or additions to that required by the drawings, specifications and addenda in their present form.

1.1.7 NOTICE TO PROCEED:

The written notice to the Contractor indicating the date of commencement of the Work. The date of commencement of the Work shall be the date of the Owner-Contractor Agreement unless a different date is stated in a Notice to Proceed issued by the Owner. Owner may, at its option, and prior to issuance of a Notice to Proceed, issue a Limited Notice to Proceed for any portion of the

Work.

1.1.8 NOTICE:

The term "Notice" as used herein shall mean and include written notice. Written notice shall be deemed to have been duly served when delivered by U. S. Postal Service or commercial carriers to or at the last known business address of the person, firm or corporation for whom intended, or to his/her, their or its duly authorized agent, representative or officer.

1.1.9 MISCELLANEOUS WORDS OR TERMS:

1.1.9.1 Whenever they refer to the work or its performance, "Directed", "Required", "Permitted", "Ordered", "Designated", "Prescribed", and words of like import shall imply the direction, requirements, permission, order, designation or prescription of the Owner or A/E/CM, and

"Approved", "Acceptable", "Satisfactory", "in the judgment of" and words of like import shall mean approved by or acceptable to or satisfactory to or in the judgment of the Owner or A/E/CM.

1.1.9.2 The words, “shall”, “will”, or “must” as used in the Contract Documents indicate a requirement that is contractually binding, mandatory and requires strict compliance.

1.2 EXECUTION, CORRELATION AND INTENT

1.2.1 The Owner-Contractor Agreement shall be signed in not less than the number of copies specified in the said Agreement.

1.2.2 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 anyone shall be as binding as if required by all. Words and abbreviations which have well-known technical or trade meanings are used in the Contract Documents in accordance with such recognized meanings.

1.2.3 Anything shown on the drawings and not mentioned in the specifications or mentioned in the specifications and not shown on the drawings shall have the same effect as if shown or mentioned respectively in both. Technical specifications take priority over general specifications and detail drawings take precedence over general drawings. Special Conditions take precedence over

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General Conditions. Any conflict or inconsistency in the drawings shall be submitted by the

Contractor to the A/E/CM, with a copy to the Owner, whose decision thereon shall be conclusive.

In case of conflict or inconsistency between the drawings and the specifications, the specifications shall govern.

1.2.4 Should any work or material be required which is not denoted in the drawings and specifications either directly or indirectly, but which is, nevertheless, necessary for the proper carrying out of the intent thereof, it is understood and agreed that the same is implied and required and that the

Contractor shall perform such work and furnish such materials as fully as if they were completely delineated and prescribed.

1.2.5 The Contractor may be furnished additional instructions and detail drawings to carry out the work included in the Contract. The additional drawings and instructions thus supplied to the Contractor will coordinate with the Contract Documents and will be so prepared that they can be reasonably interpreted as a part thereof. The Contractor shall carry out the work in accordance with the additional detail drawings and instructions.

1.2.6 The drawings and specifications are divided into sections for convenience and clarity only. The

Contractor shall not construe this as a division of the work into various subcontractor units. The

Contractor may subcontract the Work in such divisions as he/she sees fit, and in accordance with

Article 5, but he/she is ultimately responsible for furnishing all work shown on the drawings and in the specifications.

1.2.7 The provisions of this Contract cannot be amended, modified, varied or waived in any respect except by a Modification. The Contractor is hereby given notice that no person has authority to orally waive, or to release the Contractor from any of the Contractor's duties or obligations under or arising out of this Contract. Any waiver, approval or consent granted by Modification to the

Contractor shall be limited to those matters specifically and expressly stated thereby to be waived, approved or consented to and shall not relieve the Contractor of the obligation to obtain any future waiver, approval or consent.

1.3 OWNERSHIP AND USE OF DOCUMENTS

1.3.1 All Drawings, Specifications, and memoranda relating to the Work are the property of the Owner and are to be used only for the Project.

1.3.2 The Contractor shall be furnished the number of sets of drawings and specifications, as set forth in the Owner-Contractor Agreement, free of charge by the Owner for use in construction. Additional sets of drawings and specifications may be obtained by paying printing, mailing, and handling charges.

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ARTICLE 2 - ARCHITECT/ENGINEER/CONSTRUCTION MANAGER

2.1 DEFINITIONS

2.2.1 The term Architect/Engineer/Construction Manager, hereinafter "A/E/CM" or "Architect", "Engineer", or “Construction Manager (or “CM”)” shall mean the consulting firm, or Stafford

County agency, or their duly authorized representative, that is responsible for designing or engineering or administering the work, and performing the activities specified herein. Such firm or agency and its representatives shall act severally within the scope of particular duties entrusted to them, unless otherwise provided for in the Contract.

2.2.2 The A/E/CM is/are identified in the Owner-Contractor Agreement and is referred to throughout the Contract Documents as if singular in number and masculine in gender. The A/E/CM is further described as one of the following:

2.1.2.1 ARCHITECT, a person or other legal entity lawfully licensed to practice architecture in

Virginia; or

2.1.2.2 ENGINEER, a person or other legal entity lawfully licensed to practice engineering in

Virginia; or

2.1.2.3 CONSTRUCTION MANAGER (or “CM”), a person or other legal entity practicing management and/or inspection of construction in Virginia; or

2.1.2.4 If all or a portion of A/E/CM functions applicable to the Contract are provided by any

County agency, the County Administrator, or its duly authorized designee.

2.2 ADMINISTRATION OF THE CONTRACT

2.2.1 The A/E/CM will provide services as hereinafter generally described.

2.2.2 The A/E/CM will advise and consult with the Owner during construction and until the end of the one-year guarantee period. The A/E/CM will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents, unless otherwise changed by Modification.

2.2.3 The A/E/CM will visit the site at intervals appropriate to the stage of construction to familiarize himself generally with the progress and quality of the Work and to determine in general if the

Work is proceeding in accordance with the Contract Documents. However, the A/E/CM will not be required to make exhaustive or continuous on-site inspections to check the quality or quantity of the Work. On the basis of his/her on-site observations as an Architect, Engineer or

Construction Manager, he/she will keep the Owner informed of the progress of the Work, and will endeavor to guard the Owner against defects and deficiencies in the Work of the Contractor.

2.2.4 The A/E/CM will not be responsible for and will not have control or charge of construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and he/she will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. The A/E/CM will not be responsible for or have control over the acts or omissions of the Contractor, Subcontractors, or any of their agents or employees, or any other persons performing any of the Work.

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2.2.5 The A/E/CM will immediately inform the Owner and Contractor whenever in the reasonable opinion of the A/E/CM any of the Work is proceeding contrary to the requirements of the Contract

Documents and will be unacceptable. Failure of the Contractor to take corrective action to make the Work conform to the Contract Documents will subject the Contractor to any and all remedies available to the Owner, including, without limitation, termination pursuant to Article 14 hereof.

Such notification by the A/E/CM will not be a cause for the Contractor to claim either delay of the

Work or any increase in the Contract Sum.

2.2.6 The A/E/CM, the Owner and other governmental representatives shall at all times have access to the Work wherever it is in preparation and progress. The Contractor shall provide facilities for such access so that the A/E/CM, the Owner and other governmental representatives may perform their functions under the Contract Documents.

2.2.7 Where applicable, based on the A/E/CM's observations and an evaluation of the Contractor's

Applications for Payment, the A/E/CM will recommend the amounts owing to the Contractor and will issue Certificates for Payment in such amounts, as provided in Article 9.

2.2.8 The A/E/CM will be an interpreter of the requirements of the Contract Documents. The A/E/CM will render interpretations necessary for the proper execution and progress of the Work, with reasonable promptness and in accordance with any time limit agreed upon. Either party to the

Contract may make written request to the A/E/CM for such interpretations. All interpretations of the A/E/CM shall be consistent with the intent of and reasonably inferable from the Contract

Documents and will be in writing and/or in the form of drawings.

2.2.9 The A/E/CM will have authority to reject work which does not conform to the Contract

Documents. Whenever, in his/her opinion, he/she considers it necessary or advisable for the implementation of the intent of the Contract Documents, he/she will have authority to require special inspection or testing of the work in accordance with Subparagraph 7.7.2 whether or not such Work be then fabricated, installed or completed.

2.2.10 The A/E/CM will review and approve or take other appropriate action upon Contractor's submittals such as Shop Drawings, Product Data, Samples and Manuals, but only 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. The A/E/CM approval of a specific item shall not indicate approval of an assembly of which the item is a component.

2.2.11 The A/E/CM's acceptance of materials or products on behalf of the Owner shall not bar future rejection of such items if they are subsequently found to be defective or inferior in quality or uniformity to the materials or products specified by the Contract, or if such items are not as represented by the Contractor.

2.2.12 When authorized by the Owner, the A/E/CM will prepare Change Orders and will have authority to order minor changes in the Work as provided in Article 12.

2.2.13 As required, the A/E/CM will conduct inspections to assist the Owner in determining the dates of

Substantial Completion and Final Completion, will receive and forward to the Owner for the

Owner's review written warranties and related documents required by the Contract and assembled by the Contractor, and will recommend final Certificate for Payment upon compliance with the requirements of Article 9.

2.2.14 All claims, disputes, or other matters or questions between the Contractor and Owner or A/E/CM

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Owner or A/E/CM, the matter shall first be submitted to the Department Director identified in the

Owner-Contractor Agreement, or his/her designee, who shall review the matter and render a written interpretation, evaluation or decision, as appropriate, within 30 days of his/her receipt of the claim, dispute or other matter. If the Department Director or his/her designee agrees with the

Contractor, the matter shall be resolved in accordance with their agreement. If the Department

Director or his/her designee disagrees with the Contractor, the Contractor may then present the matter to the County Administrator or his/her designee as set forth in Article 7.4

2.2.15 In case of the termination of the employment of the A/E/CM, the Owner shall appoint a new

A/E/CM, who shall have the same status under the Contract Documents as the former A/E/CM.

2.2.16 Notwithstanding anything to the contrary contained herein, Contractor expressly agrees that

A/E/CM has no authority to make any changes in the scope, quantities of work, or to the terms and conditions of the Contract Documents. To the extent the A/E/CM directs the Contractor with regard to any such changes, Contractor assumes sole risk for any costs, expenses and/or damages incurred by Contractor, Owner and any other affected party, for following such direction, unless such direction was approved by County, in writing, in advance of performance of the work associated with the direction by the A/E/CM. Contractor expressly waives any right to claim for additional compensation or additional time for performance of the Work to the extent it fails to comply with the obligations of this Article 2.2.16.

2.2.17 With regard to unit price items of the Work identified in the Contract Documents, any individual item of work that, when the quantity is multiplied by the unit price, is in excess of five (5) percent of the Contract Sum upon Contract execution, or if such unit price item has been designed a

“Major Item” in the Bidding Documents, the quantity of such unit price items may not be exceeded without the express written approval of the County, which approval must be provided in advance of Contractor’s exceeding the unit quantity. Contractor expressly waives its right to claim for any increase in quantity, and any associated compensation, for any unit price quantity changes subject to this Article 2.2.17 unless Contractor seeks (by written notice to County) and receives written approval from County to perform the additional quantity of work. Contractor assumes sole risk, including any additional costs, associated with exceeding the unit quantities identified by this Article 2.2.17 unless the notice required herein has been provided prior to performance of the additional quantities of work.

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ARTICLE 3 - OWNER

3.1 DEFINITION

3.1.1 The Owner is the Board of Supervisors of Stafford County, Virginia and is referred to throughout the Contract Documents as if singular in number and masculine in gender. The term Owner means the Owner or its authorized representative. The County Administrator, or his/her authorized designee, is the authorized representative of the Board of Supervisors for this contract.

3.1.2 The Owner will designate a single Owner's representative, with the title of Project Manager, who will have the power to act, within the scope of his/her delegated authority, for and on behalf of the

Owner, in accordance with the terms of the Contract.

3.1.3 The term "Owner" or "Owner's representative" specifically excludes any and all inspectors having building code or County ordinance responsibilities or jurisdiction under the requirements of the

Building Permit and/or Site Permit.

3.2 INFORMATION POSSESSED BY OWNER

3.2.1 The Owner will make available for the Contractor's reasonable review, at the Owner's offices or together with the Contract Documents, certain boring logs, geotechnical, soils and other reports, surveys and analyses pertaining to the Contract site of which the Owner is aware and has in its possession. Any boring logs that are provided to the Contractor, are only intended to reflect conditions at the locations of the borings and do not necessarily reflect site conditions at other locations. Owner only warrants the accuracy of the boring logs actually provided to Contractor.

Any reports surveys and analyses provided by Owner are for the Contractor's information only, and their accuracy and completeness are not guaranteed or warranted by the Owner or the

A/E/CM, and such reports are not adopted by reference into, nor are they part of the Contract

Documents.

3.2.1.1 Notwithstanding any factual statement, conclusion, or any language or recommendations contained in such reports, the Contractor assumes full responsibility for inspection of the site and for the means and methods of construction that he/she employs when performing the work. The Owner shall not be liable for any additional work or costs arising as a result of any conclusions reached or assumptions derived by the Contractor from or based upon any such geotechnical, soils and other reports, surveys and analyses which the

Owner makes available for the Contractor's information and review.

3.3 OWNER-PAID PERMITS AND FEES

3.3.1 Unless otherwise specified in the Owner-Contractor Agreement or Special Conditions, the Owner will, if applicable, secure and pay for:

3.3.1.1 Sanitary Sewer availability fees/front footage fee and any tap fee for permanent sanitary sewer service;

3.3.1.2 Water availability/water meter/water meter connection fee for permanent water service;

3.3.1.3 Installation charges from related utility company for permanent electrical, telephone, cable TV or gas service;

3.3.1.4 Any easements required; and

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3.3.1.5 Virginia Stormwater Management Program (VSMP) Permit. The Contractor will be responsible for the Contractor Certification statement and for implementing and maintaining all required controls related to the VSMP permit.

3.3.2 The Contractor's attention is directed to Article 4 describing other permits to be obtained and fees to be paid by the Contractor.

3.3.3 The foregoing are in addition to other duties and responsibilities of the Owner enumerated herein including, but not limited to, Articles 6, 9 and 11.

3.4 OWNER'S RIGHT TO STOP WORK

If the Contractor fails to correct defective Work as required herein or persistently fails to carry out the

Work in accordance with the Contract Documents, the Owner, by a written order, 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 Owner to stop the Work shall not give rise to any duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity.

3.5 OWNER'S RIGHT TO CARRY OUT THE WORK

3.5.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract

Documents and fails within seven (7) days after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the

Owner may, without prejudice to any other remedy he/she 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 A/E/CM's additional services made necessary by such default, neglect or failure. If the payments then or thereafter due the Contractor are not sufficient to cover such amount, the Contractor shall pay the difference to the Owner.

3.5.2 Neither the Owner nor the A/E/CM nor their officers, agents, assigns or employees are in any way liable or accountable to the Contractor or his/her surety for the method by which work performed by the Owner, or at the Owner's direction, or any portion thereof, is accomplished or for price paid therefor. Notwithstanding the Owner's right to carry out a portion of the Work, maintenance and protection of the Work remains the Contractor's and Surety's responsibility as provided for in the

Performance Bond and Guarantee of Contractor, pursuant, but not limited, to Articles 4 and 13.

3.6 SUSPENSION OF WORK

3.6.1 The Owner shall have the authority to suspend the Work, in whole or in part, for such periods and such reasons as the Owner may deem necessary or desirable, in its sole discretion, including without limitation:

3.6.1.1 Unsuitable weather;

3.6.1.2 Other conditions considered unfavorable for the suitable prosecution of the Work; and/or

3.6.1.3 Other conditions considered adverse to the best interests of the Owner.

3.6.2 Any such suspension shall be in writing to the Contractor. The Contractor shall obey immediately such orders of the Owner and shall not resume the Work until so ordered in writing by the Owner.

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No such suspension of the Work shall be the basis of a claim by the Contractor for any increase in the Contract Sum or for any other damages, losses, costs or expenses whatsoever, if the suspension is for a reasonable time, under the circumstances then existing and the cause thereof is beyond the control and is without the fault or negligence of the Owner. The Contractor shall be entitled to an extension of the Contract Time subject to the provisions of Article 8 herein.

Reasonable time as referred to in this article is defined as a period of time that could not result in any significant adverse monetary impact to the Contractor’s forces as determined on a case by case basis.

3.6.3 In the event of suspension of Work, the Contractor will and will cause his/her subcontractors to protect carefully his/her, and their materials and work against damage or injury from the weather and maintain completed and uncompleted portions of the work as required by the Contract

Documents. If, in the opinion of the, A/E/CM, any work or material shall have been damaged or injured by reason of failure on the part of the Contractor or any of his/her subcontractors to so protect same, such work and materials shall be removed and replaced at the expense of the

Contractor.

3.7 USE AND OCCUPANCY PRIOR TO FINAL ACCEPTANCE BY OWNER

The Owner has the right to take possession of and use any completed or partially completed portions of the Work, notwithstanding that the time for completing the entire Work or any portions thereof may, or may not, have expired. The taking of possession and use by the Owner shall be in accordance with the provisions regarding Substantial Completion in Article 9. If such prior use delays the Work, the

Contractor may submit a request for a time extension in accordance with the requirements of Article 8.

The Contractor hereby waives any claims for additional costs, expenses or damages associated with the

Owner's prior use and occupancy.

3.8 RIGHT TO AUDIT AND PRESERVATION OF RECORDS

3.8.1 The Contractor shall maintain books, records and accounts of all costs in accordance with generally accepted accounting principles and practices. The Owner or its authorized representative shall have the right to audit the books, records and accounts of the Contractor under any of the following conditions:

3.8.1.1 f the Contract is terminated for any reason in accordance with the provisions of these

Contract Documents in order to arrive at equitable termination costs;

3.8.1.2 In the event of a disagreement between the Contractor and the Owner on the amount due the Contractor under the terms of this Contract;

3.8.1.3 To check or substantiate any amounts invoiced or paid which are required to reflect the costs of the Contractor, or the Contractor's efficiency or effectiveness under this Contract or in connection with extras, changes, claims, additions, back charges, or other, as may be provided for in this Contract; and/or

3.8.1.4 If it becomes necessary to determine the Owner's rights and the Contractor's obligations under the Contract or to ascertain facts relative to any claim by or against the Contractor which may result in a charge against the Owner.

3.8.2 These provisions for an audit shall give the Owner unlimited access during normal working hours to the Contractor's books and records under the conditions stated above.

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3.8.3 Unless otherwise provided by applicable statute, the Contractor, from the effective date of final payment or termination hereunder, shall preserve and make available to the Owner for a period of five (5) years thereafter, at all reasonable times at the office of the Contractor but without direct charge to the Owner, all his/her books, records, documents, and other evidence bearing on the costs and expenses of the Contractor under this Contract and relating to the Work hereunder, or to the extent approved by the A/E/CM, photographs, micro-photographs, or other authentic reproductions thereof.

3.8.4 The Owner will make all payments required of it under this Contract subject to audit, under circumstances stated above, which audit may be performed at the Owner's option, either during the

Contract time period or during the above record retention time period. Regardless of authorization, approval or acceptance, signatures or letters which are given by the Owner and are part of the Owner's control systems or are requested by the Contractor, the payments made under this Contract shall not constitute a waiver of the Owner's right to audit, nor shall payments constitute a waiver or agreement by the Owner that it accepts as correct the billings, invoices or other charges on which the payments are based. If the Owner's audit produces a claim against the

Contractor, the Owner may pursue all its legal remedies even though it has made all or part of the payments required by this Contract.

3.8.5 If any audit by the Owner or the Owner's representative discloses an underpayment by the Owner, the Owner shall have the duty to pay any amounts found by the audit to be owed to the Contractor.

If such audit discloses an overpayment, the Contractor shall have the obligation to reimburse the

Owner for the amount of the overpayment. The Owner's right to reimbursement from the

Contractor of the overpayment and the duty of the Owner and the Contractor to make reimbursements or payments as described in this Article shall not be terminated or waived until the Owner has completed its audit.

3.8.6 The Owner's right to audit and the preservation of records shall terminate at the end of five (5) years as stated hereinabove. The Contractor shall include this "Right to Audit and Preservation of

Records" clause in all subcontracts issued by him and he/she shall require same to be inserted by all lower tier Subcontractors in their subcontracts, for any portion of the work. Should Contractor fail to include this clause in any such Contract or lower tier Contract, or otherwise fail to insure the Owner's rights hereunder, Contractor shall be liable to Owner for all cost, expenses and attorney's fees which Owner may have to incur in order to obtain an audit or inspection of or the restoration of records which would have otherwise been available to Owner from said persons under this clause. Such audit may be conducted by the Owner or its authorized representative.

3.9 RIGHT TO REVIEW DOCUMENTS AND OTHER MATERIALS

In addition to the rights granted to the Owner under Article 3.8, the Owner shall have the right to review and copy any and all of the Contractor's records pertaining to or relating in any way to this Project, including, but not limited to, correspondence, e-mail and/or any other electronic documents of any type or format, memoranda, minutes, reports, intra- and inter-office communications, work papers, estimating sheets, progress reports, job cost reports, forecasts, audio or video recordings, computer disks, films, or any other materials, regardless of physical form or characteristics, which were prepared by or in the possession of, or obtainable by, the Contractor. The Contractor shall make all such documents and records available to the Owner upon ten (10) days written notice to the Contractor of the Owner's intent to review such documents. The Contractor shall include this "Right to Review Documents and Other

Materials" clause in all subcontracts issued by him and he/she shall require same to be inserted by all lower-tier subcontractors in their subcontracts for any portion of the Work. The Contractor hereby waives any right he/she may have to additional compensation or time extensions in the event he/she fails

St. Clair Brooks Park Skatepark Construction D-15 or refuses to produce records pertaining to any such claim as requested by the Owner pursuant to this paragraph. In addition, the Owner may withhold all or any portion of any progress payments which may be otherwise due in the event Contractor refuses to comply with his/her obligations under this paragraph.

The review of documents and other records under this clause may be conducted by the Owner or its authorized representatives.

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ARTICLE 4 - CONTRACTOR

4.1 DEFINITION

4.1.1 The Contractor is the person or entity identified in the Owner-Contractor 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/her authorized representative.

4.1.2 This entire Contract is not one of agency by the Contractor for Owner but one in which the

Contractor is engaged independently in the business of providing the services and performing the

Work herein described as an independent Contractor.

4.2 REVIEW OF CONTRACT DOCUMENTS

4.2.1 The Contractor and his/her Subcontractors shall keep at the site of the Work at least one (1) copy of the drawings and specifications and shall at all times give the A/E/CM, inspectors, as well as representatives of the Owner access thereto. Further, said drawings shall be the approved sets issued to the Contractor by the appropriate County Permit agencies. The Contractor shall perform no portion of the Work at any time without the Contract Documents or, where required, approved

Shop Drawings, Product Data, Samples or Manuals for such portion of the Work.

4.3 CONTRACTOR'S REPRESENTATIONS

4.3.1 By entering into this Contract with the Owner, the Contractor represents and warrants the following, together with all other representations and warranties in the Contract Documents:

4.3.1.1 That he/she is experienced in and competent to perform the type of work required and to furnish the plant, materials, supplies or equipment to be so performed or furnished by him;

4.3.1.2 That he/she is financially solvent, able to pay his/her debts as they mature, and possessed of sufficient working capital to initiate and complete the Work required under the

Contract;

4.3.1.3 That he/she is familiar with all Federal, State, County, municipal and department laws, ordinances, permits, regulations and resolutions which may in any way affect the Work or those employed therein, including but not limited to any special acts relating to the

Work or any part thereof;

4.3.1.4 That such temporary and permanent work required by the Contract Documents which is to be done by him will be satisfactorily constructed and fit for use for its intended purpose and that such construction will not injure any person, or damage any property;

4.3.1.5 That he/she has carefully examined the Contract Documents and the site of the Work and that from his/her own investigations, he/she has satisfied himself and made himself familiar with: (1) the nature and location of the Work, (2) the character, quality and quantity of materials likely to be encountered, including, but not limited to, all structures and obstructions on or at the Project site, both natural and man-made; (3) the character of equipment and other facilities needed for the performance of the Work, (4) the general and local conditions including without limitation its climatic conditions, the availability and cost of labor and the availability and cost of materials, tools and equipment; (5) the quality and quantity of all materials, supplies, tools, equipment, labor and professional

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Documents;

4.3.1.6 That he/she will fully comply with all requirements of the Contract Documents;

4.3.1.7 That he/she will perform the Work consistent with good workmanship, sound business practice, and in the most expeditious and economical manner consistent with the best interests of the Owner;

4.3.1.8 That he/she will furnish efficient business administration, an experienced superintendent and an adequate supply of workmen, equipment, tools and materials at all times;

4.3.1.9 That he/she will complete the Work within the Contract Time and within Contract

Milestones;

4.3.1.10 That his/her Contract price is based upon the materials, systems and equipment required by the Contract Documents, without exception; and

4.3.1.11 That he/she has satisfied himself as to the feasibility and correctness of the Contract

Documents for the construction of the Work.

4.3.1.12 The Contractor accepts the relationship of trust and confidence established by this

Agreement and acknowledges its duty to cooperate with the Owner and the A/E/CM and to exercise the Contractor’s best skill and judgment in furthering the best interests of the

Owner; to furnish efficient business administration and supervision; to furnish at all times an adequate supply of workers and materials; to perform the Work in an expeditious and economical manner consistent with the Owner’s best interests; to perform the Work with quality and workmanship consistent with the highest applicable industry standards; and not to take any action stemming from or related to this

Agreement that shall be adverse or detrimental to the Owner. Any information provided to the Contractor for the performance of this Contract shall not be used for any other purpose without the written consent of the Purchasing Agent; provided, however, that nothing herein shall be construed to prevent the Contractor from exercising any of the rights granted to it under other specific provisions of the Agreement.

4.4 SUPERVISION AND CONSTRUCTION PROCEDURES

4.4.1 The Contractor shall supervise and direct the Work, using his/her best skill and attention. He/she shall be solely responsible for all construction means, methods, techniques, sequences and procedures and for coordinating all portions of the Work under the Contract; subject, however, to the Owner's right to reject means and methods proposed by the Contractor which are unsafe or otherwise not in compliance with the Contract Documents.

4.4.2 The Contractor shall be responsible to the Owner for the acts and omissions of his/her employees, Subcontractors and Sub-subcontractors, suppliers, their agents and employees, and of other persons performing any of the Work and for their compliance with each and every requirement of the Contract Documents, in the same manner as if they were directly employed by the Contractor.

4.4.3 The Contractor understands and agrees that he/she shall not be relieved of his/her obligations to perform the Work in accordance with the Contract Documents either by the activities or duties of the Owner or the A/E/CM in their administration of the Contract or by inspections, tests, or approvals required or performed under Article 7 by persons other than the Contractor.

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4.4.4 Before starting a section of work, the Contractor shall carefully examine all preparatory work that has been executed to receive his/her Work to see that it has been completed. He/she shall check carefully, by whatever means are required, to ensure that his/her Work and adjacent, related work will finish to proper quality, contours, planes, and levels.

4.4.5 The Contractor understands and agrees that the Owner and A/E/CM will not be responsible for and will not have control or charge of construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection with the Work, and they will not be responsible for the Contractor's failure to carry out the Work in accordance with the Contract

Documents. The Owner and the A/E/CM will not be responsible for or have control or charge over the acts or omissions of the Contractor, Subcontractors, or any of their agents or employees, or any other persons performing any of the Work.

4.4.6 The Contractor shall employ no plant, equipment, materials, methods or persons to which the

Owner objects and shall remove no portion of the Work or stored materials from the site of the

4.5 LABOR, MATERIALS, AND EQUIPMENT

4.5.1 The Contractor will furnish all plant, labor, materials, supplies, equipment and other facilities and things necessary or proper for or incidental to the Work contemplated by this Contract, as required by and in strict accordance with the applicable Contract Documents and required by and in strict accordance with such changes as are ordered and approved pursuant to the Contract and will perform all other obligations imposed on him by this Contract. Final payment will not be made until the Work is so completed.

4.5.2 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 in the Work.

4.5.3 Work and materials which are necessary in the construction but which are not specifically referred to in the specifications or shown in the drawings but implied by the Contract shall be furnished by the Contractor at his/her own cost and expense. Such work and materials shall correspond with the general character of the Work as may be determined by the A/E/CM subject to review as provided in Article 2.2.11.

4.5.4 The Contractor shall perform at least that percentage of the Work specified in the

Owner-Contractor Agreement (if so specified) with forces that are in the direct employment of the

Contractor's organization. The Contractor shall submit to the Owner within thirty (30) calendar days after award of the Contract for the Work, a designation of the Work to be performed by the

Contractor with his/her own forces. The percentage of the Work to be performed under subcontract, shall be calculated by adding the amounts of all subcontracts and dividing this sum by the total amount of the Contract. No portion of the Contract shall be subcontracted or otherwise performed by a party not the Contractor, except with the written consent of the Owner.

4.5.5 The Contractor shall at all times enforce strict discipline, safety and good order among his/her employees and shall not employ on the Work any unfit person or anyone not skilled in the task assigned to him.

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4.5.5.1 If any person employed on the Work by the Contractor or any subcontractor shall appear to the Owner to be incompetent or to act in a disorderly or improper manner, such person shall be removed immediately at the request of the Owner, and shall not be reemployed except on written consent of the Owner.

4.5.6 No materials or supplies for the Work shall be purchased by the Contractor or by any subcontractor subject to any chattel mortgage, or under a conditional sale or other agreement by which an interest is retained by the seller. The Contractor warrants that he/she has good title to all materials and supplies used by him in the Work.

4.5.7 The Contractor shall provide approved sanitary accommodations. All wastes shall be covered, disinfected, incinerated or otherwise disposed of legally.

4.5.8 All equipment, apparatus and/or devices of any kind to be incorporated into the Work that are shown or indicated on the drawings or called for in the specifications or required for the completion of the Work shall be entirely satisfactory to the Owner as regards operations, capacity and/or performance. No approval, either written or verbal, of any drawings, descriptive data or samples of such equipment, apparatus, and/or device shall relieve the Contractor of his/her responsibility to turn over the same in good working order for its intended purpose at the completion of the Work in complete accordance with the Contract Documents. Any equipment, apparatus and/or device not fulfilling these requirements shall be removed and replaced by proper and acceptable equipment, etc., or put in good working order satisfactory to the Owner without additional cost to the Owner.

4.6 WARRANTY

4.6.1 The Contractor warrants to the Owner that all materials and equipment furnished under this

Contract will be new unless otherwise specified, and that all workmanship will be of first-class quality, free from faults and defects and in conformance with the Contract Documents and all other warranties and guaranties specified therein. Where no standard is specified for such workmanship or materials, they shall be the best of their respective kinds. All Work not conforming to these requirements, including products not properly approved and authorized, may be considered defective.

4.6.2 If required by the Owner, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. This warranty is not limited by the provisions of Article 13.

4.6.3 The Work included in this Contract is heretofore specified. The Contractor will be required to complete the Work specified and to provide all items needed for construction of the Project, complete and in good order.

4.7 CONTRACTOR-PAID TAXES, PERMITS, FEES AND NOTICES

4.7.1 The Contractor shall pay all sales, consumer, use and other similar taxes for the Work or portions thereof provided by the Contractor which are legally enacted at the time bids are received, whether or not yet effective.

4.7.2 Except as provided in Article 3, the Contractor will be responsible for obtaining and paying for all other fees, permits and licenses necessary for the proper execution of the work, including but not limited to:

4.7.2.1 Plumbing, Electrical, Mechanical, Fire Marshall Permits, and inspections;

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4.7.2.2 Temporary water and meter, temporary electrical and telephone installations and temporary utility usage;

4.7.2.3 Temporary security lighting;

4.7.2.4 All other permits necessary in order to perform the…