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HomeMy Public PortalAbout210-2017 - Finance - Renascent - Reidi TABLE OF ARTICLES 1 THE WORK OF THIS CONTRACT 2 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION 3 CONTRACT SUM 4 PAYMENT 5 DISPUTE RESOLUTION 6 ENUMERATION OF CONTRACT DOCUMENTS 7 GENERAL PROVISIONS 8 OWNER 9 CONTRACTOR 10 Not Used 11 SUBCONTRACTORS 12 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 13 CHANGES IN THE WORK 14 TIME 15 PAYMENTS AND COMPLETION 16 PROTECTION OF PERSONS AND PROPERTY 17 INSURANCE & BONDS 18 CORRECTION OF WORK 19 MISCELLANEOUS PROVISIONS 20 TERMINATION OF THE CONTRACT 21 CLAIMS AND DISPUTES ARTICLE 1 THE WORK OF THIS CONTRACT The Contractor shall execute the Work described in the Contract Documents, except as specifically indicated in the Contract Documents to be the responsibility of others. ARTICLE 2 DATE OF COMMENCEMENT AND SUBSTANTIAL COMPLETION § 2.1 The date of commencement of the Work shall be the date of this Agreement unless a different date is stated below or provision is made for the date to be fixed in a notice to proceed issued by the Owner. § 2.2 The Contract Time shall be measured from the date of commencement. § 2.3 The Contractor shall achieve Substantial Completion of the entire Work not later than eighteen (18) months from the date Contractor obtains the wrecking permit, subject to adjustments of this Contract Time as provided in the Contract Documents.' Contract 210-2017 .4 § 2.4 No performance of services shall commence until the following has been met: 1. The City is in receipt of any required certificates of insurance and/or warranties; 2. The City is in receipt of any required affidavit(s) signed by Contractor in accordance with I.C. § 22-5-1.7-11(a)(2); and 3. A purchase order has been issued by the Purchasing Department. ARTICLE 3 CONTRACT SUM § 3.1 The Owner shall pay the Contractor the Contract Sum in current funds for the Contractor's performance of the Contract. The Contract Sum shall: [Xi] Stipulated Sum, in accordance with Section 3.2 below § 3.2 The Sti ulated Sum shall be the!t�an��1% subject to additions and deductions as provided in the Contract Documents. § 3.2.1 The Stipulated Sum is based upon the following alternates, if any, which are described in the Contract Documents and are hereby accepted by the Owner: (State the numbers or other identification of accepted alternates. If the bidding or proposal documents permit the Owner to accept other alternates subsequent to the execution of this Agreement, attach a schedule of such other alternates showing the amount for each and the date when that amount expires.) IY� _.wzfi s� ."k § 3.2.2 Unit prices, if any: (Identijy and state the unit price, and state the quantity limitations, if any, to which the unit price will be applicable.) Item Units and Limitations Price Per Unit Nre .�..' Po tl 3 11 - I W N g § 3.2.3 Allowances included in the stipulated sum, if any: (Identify allowance and state exclusions, if any, from the allowance price.) Item Allowance ARTICLE 4 PAYMENTS § 4.1 PROGRESS PAYMENTS § 4.1.1 Based upon documentation submitted to the Owner by the Contractor, the Owner shall make progress payments on account of the Contract Sum to the Contractor as provided below and elsewhere in the Contract Documents. § 4.1.2 The Owner shall make monthly progress payments to the Contractor during the course of the Project. Each monthly payment shall be based on the incremental percentage of completion of the project that the contractor confirms in a written certificate to Owner has been substantially completed through the end of the preceding calendar month. Such progress payments shall not exceed the Contract Sum less Retainage. § 4.1.3 Retainage, if any, shall be withheld as follows: Contract 210-2017 § 4.1.4 Upon receipt of a written certificate described in Section 4.1.2, above, Owner shall have thirty (30) days to remit the progress payment to Contractor. Payments due and unpaid under the Contract shall bear interest from the date payment is due at the rate of 4.25% per annum. § 4.2 FINAL PAYMENT § 4.2.1 Final payment, constituting the entire unpaid balance of the Contract Sum, shall be made by the Owner to the Contractor when the Contractor has fully performed the Contract except for the Contractor's responsibility to correct Work as provided in Section 18.2, and to satisfy other requirements, if any, which extend beyond final payment. § 4.2.2 The Owner's final payment to the Contractor shall be made upon acceptance of the certificate of Substantial Completion as contemplated in Section 15.4.4 AM ARTICLE 5 DISPUTE RESOLUTION § 5.1 BINDING DISPUTE RESOLUTION For any claim subject to, but not resolved by, mediation pursuant to Section 21.3, the method of binding dispute resolution shall be as follows: (Check the appropriate box. If the Owner and Contractor do not select a method of binding dispute resolution below, or do not subsequently agree in writing to a binding dispute resolution method other than litigation, claims will be resolved in a court of competent jurisdiction.) [�] Arbitration pursuant to Section 21.4 of this Agreement [X] Litigation in a court of competent jurisdiction Other S eci ARTICLE 6 ENUMERATION OF CONTRACT DOCUMENTS § 6.1 The Contract Documents are defined in Article 7 and, except for Modifications issued after execution of this Agreement, are enumerated in the sections below. § 6.1.1 The Agreement is this executed AIA Document A107-2007, Standard Form of Agreement Between Owner and Contractor for a Project of Limited Scope. § 6.1.2 The Supplementary and other Conditions of the Contract: Document Title ►=?0 . Date Pages Contract 210-2017 § 6.1.3 The Specifications: list the Specifications here or refer to an exhibit attached to this § 6.1.4 The Drawings: (Either list the Drawings here or refer to an exhibit attached to this Agreement.) § 6.1.5 The Addenda, if any: Portions of Addenda relating to bidding requirements are not part of the Contract Documents unless the bidding requirements are enumerated in this Article 6. § 6.1.6 Additional documents, if any, forming part of the Contract Documents: .1 Other documents: (List here any additional documents that are intended to form part of the Contract Documents.) ARTICLE 7 GENERAL PROVISIONS § 7.1 THE CONTRACT DOCUMENTS The Contract Documents are enumerated in Article 6 and consist of this Agreement, other documents listed in this Agreement and Modifications issued after execution of this Agreement. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, or (3) a written order for a minor change in the Work issued by the Owner. The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all; performance by the Contractor shall be required to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the indicated results. § 7.2 THE CONTRACT The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind between any persons or entities other than the Owner and the Contractor. § 7.3 THE WORK The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project. ARTICLE 8 OWNER § 8.1 INFORMATION AND SERVICES REQUIRED OF THE OWNER § 8.1.1 The Owner shall furnish all necessary surveys and a legal description of the site. Contract 210-2017 § 8.1.2 The Contractor shall be entitled to rely on the accuracy of information furnished by the Owner but shall exercise proper precautions relating to the safe performance of the Work. § 8.1.3 Except for permits and fees that are the responsibility of the Contractor under the Contract Documents, including those required under Section 9.6.1, the Owner shall secure and pay for other necessary approvals, easements, assessments and charges required for the construction, use or occupancy of permanent structures or for permanent changes in existing facilities. § 8.2 OWNER'S RIGHT TO STOP THE WORK If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents, or repeatedly fails to carry out the Work in accordance with the Contract Documents, the Owner may issue a written order to the Contractor to stop the Work, or any portion thereof, until the cause for such order is eliminated; however, the right of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the Contractor or any other person or entity. § 8.3 OWNER'S RIGHT TO CARRY OUT THE WORK If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents, and fails within a ten-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner, without prejudice to any other remedy the Owner may have, may correct such deficiencies and may deduct the reasonable cost thereof, including Owner's expenses, from the payment then or thereafter due the Contractor. ARTICLE 9 CONTRACTOR § 9.1 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR § 9.1.1 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents. § 9.1.2 Because the Contract Documents are complementary, the Contractor shall, before starting each portion of the Work, carefully study and compare the various Contract Documents relative to that portion of the Work, as well as the information furnished by the Owner pursuant to Section 8.1.1, shall take field measurements of any existing conditions related to that portion of the Work and shall observe any conditions at the site affecting it. These obligations are for the purpose of facilitating coordination and construction by the Contractor and are not for the purpose of discovering errors, omissions, or inconsistencies in the Contract Documents; however, the Contractor shall promptly report to the Owner any errors, inconsistencies, or omissions discovered by or made known to the Contractor as a request for information in such form as the Owner may require. It is recognized that the Contractor's review is made in the Contractor's capacity as a contractor and not as a licensed design professional unless otherwise specifically provided in the Contract Documents. § 9.1.3 The Contractor is not required to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, but the Contractor shall promptly report to the Owner any nonconformity discovered by or made known to the Contractor as a request for information in such form as the Owner may require. § 9.2 SUPERVISION AND CONSTRUCTION PROCEDURES § 9.2.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters. § 9.2.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of its Subcontractors. Contract 210-2017 § 9.3 LABOR AND MATERIALS; SALVAGE § 9.3.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work whether temporary or permanent and whether or not incorporated or to be incorporated in the Work. § 9.3.2 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Work. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them. § 9.3.3 All material that is removed from the site as part of the demolition work, unless specifically noted otherwise, shall be the responsibility of the Contractor to either properly dispose of or sell for its salvageable value as the Contractor sees fit. Title of such materials disposed of or sold for salvageable value shall pass to Contractor upon removal from the site, at which point Contractor shall assume all risk of loss and all other risk or liability associated with the salvage removal from the site. § 9.4 WARRANTY The Contractor warrants to the Owner that materials and equipment furnished under the Contract will be of good quality and new unless the Contract Documents require or permit otherwise. The Contractor further warrants that the Work will conform to the requirements of the Contract Documents and will be free from defects, except for those inherent in the quality of the Work the Contract Documents require or permit for a period of one (1) year after the date of Substantial Completion. Work, materials, or equipment not conforming to these requirements may be considered defective. The Contractor's warranty excludes remedy for damage or defect caused by abuse, alterations to the Work not executed by the Contractor, improper or insufficient maintenance, improper operation or normal wear and tear under normal usage. § 9.5 TAXES The Contractor shall pay sales, consumer, use and other similar taxes that are legally enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to go into effect. § 9.6 PERMITS, FEES, NOTICES, AND COMPLIANCE WITH LAWS § 9.6.1 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the wrecking permit as well as other permits, fees, licenses and inspections by government agencies necessary for proper execution and completion of the Work that are customarily secured after execution of the Contract and legally required at the time bids are received or negotiations concluded. § 9.6.2 The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities applicable to performance of the Work. If the Contractor performs Work knowing it to be contrary to applicable laws, statutes, ordinances, codes, rules and regulations, or lawful orders of public authorities, the Contractor shall assume appropriate responsibility for such Work and shall bear the costs attributable to correction. § 9.7 ALLOWANCES The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. The Owner shall select materials and equipment under allowances with reasonable promptness. Allowance amounts shall include the costs to the Contractor of materials and equipment delivered at the site and all required taxes, less applicable trade discounts. Allowance amounts shall not include the Contractor's costs for unloading and handling at the site, labor, installation, overhead, and profit. Contract 210-2017 § 9.8 CONTRACTOR'S CONSTRUCTION SCHEDULES § 9.8.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's information a Contractor's construction schedule for the Work. The schedule shall not exceed time limits current under the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. § 9.8.2 The Contractor shall perform the Work in general accordance with the most recent schedule submitted to the Owner. § 9.9 Not Used § 9.10 USE OF SITE The Contractor shall confine operations at the site to areas permitted by applicable laws, statutes, ordinances, codes, rules and regulations, lawful orders of public authorities, and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. § 9.11 Not Used § 9.12 CLEANING UP The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At completion of the Work, the Contractor shall remove waste materials, rubbish, the Contractor's tools, construction equipment, machinery and surplus material from and about the Project. § 9.13 Not Used § 9.14 ACCESS TO WORK The Contractor shall provide the Owner access to the Work in preparation and progress wherever located. § 9.15INDEMNIFICATION § 9.15.1 To the fullest extent permitted by law but limited as provided in Section 21.8, the Contractor shall indemnify and hold harmless the Owner, and its employees, and officers, from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), but only to the extent of claims caused by the negligent acts or omissions, as well as intentional acts of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, regardless of whether or not such claim, damage, loss or expense is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section 9.15.1. § 9.15.2 In claims against any person or entity indemnified under this Section 9.15 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under Section 9.15.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts. ARTICLE 10 Not Used ARTICLE 11 SUBCONTRACTORS § 11.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. Contract 210-2017 § 11.2 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after award of the Contract, shall furnish in writing to the Owner the names of the Subcontractors or suppliers for each of the principal portions of the Work. The Contractor shall not contract with any Subcontractor or supplier to whom the Owner has made reasonable written objection within ten days after receipt of the Contractor's list of Subcontractors and suppliers. If the proposed but rejected Subcontractor was reasonably capable of performing the Work, the Contract Sum and Contract Time shall be increased or decreased by the difference, if any, occasioned by such change, and an appropriate Change Order shall be issued before commencement of the substitute Subcontractor's Work. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection. ARTICLE 12 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS § 12.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the site under conditions of the contract identical or substantially similar to these, including those portions related to insurance and waiver of subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make such claim as provided in Article 21. § 12.2 The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's activities with theirs as required by the Contract Documents. § 12.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner which are payable to a separate contractor because of delays, improperly timed activities or defective construction of the Contractor. The Owner shall be responsible to the Contractor for costs incurred by the Contractor because of delays, improperly timed activities, damage to the Work or defective construction of a separate contractor. ARTICLE 13 CHANGES IN THE WORK § 13.1 By appropriate Modification, changes in the Work may be accomplished after execution of the Contract. The Owner, without invalidating the Contract, may order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, with the Contract Sum and Contract Time being adjusted accordingly. Such changes in the Work shall be authorized by written Change Order signed by the Owner and § 13.2 Adjustments in the Contract Sum and Contract Time resulting from a change in the Work shall be determined by mutual agreement of the parties , by the Contractor's cost of labor, material, equipment, and reasonable overhead and profit, unless the parties agree on another method for determining the cost or credit. § 13.3 The Owner will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the Owner and Contractor. The Contractor shall carry out such written orders promptly. § 13.4 If concealed or unknown physical conditions are encountered at the site that differ materially from those indicated in the Contract Documents or from those conditions ordinarily found to exist, the Contract Sum and Contract 210-2017 Contract Time shall be equitably adjusted as mutually agreed between the Owner and Contractor; provided that the Contractor provides notice to the Owner with reasonable promptness. ARTICLE 14 TIME § 14.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement the Contractor confirms that the Contract Time is a reasonable period for performing the Work. § 14.2 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract Documents for Substantial Completion of the Work. § 14.3 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defined. § 14.4 The date of Substantial Completion is the date determined in accordance with Section 15.4.3. § 14.5 If the Contractor is delayed at any time in the commencement or progress of the Work by the Owner, changes ordered in the Work, by labor disputes, fire, unusual delay in deliveries, abnormal adverse weather conditions not reasonably anticipatable, unavoidable casualties, the work of Owner's separate contractors, or any causes beyond the Contractor's control, or by other causes which the Architect determines may justify delay, then the Contract Time shall be extended and the Contract Sum equitably adjusted by Change Order for such reasonable time as the Architect may determine, subject to the provisions of Article 21. ARTICLE 15 PAYMENTS AND COMPLETION § 15.1 PROGRESS PAYMENTS § 15.1.1 The Contractor shall pay each Subcontractor, no later than seven days after receipt of payment, the amount to which the Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of the Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to sub -subcontractors in similar manner. § 15.1.2 The Owner shall not have an obligation to pay or see to the payment of money to a Subcontractor except as may otherwise be required by law; however, Owner shall have the right to request, and Contractor shall furnish, any contracts between Contractor and any of its subcontractors, as well as contracts between subcontractors and any sub - subcontractors § 15.4 SUBSTANTIAL COMPLETION § 15.4.1 Substantial Completion is the stage in the progress of the Work when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. § 15.4.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall prepare and submit to the Owner a comprehensive list of items to be completed or corrected prior to final payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. § 15.4.3 Upon receipt of the Contractor's list, the Owner will make an inspection to determine whether the Work or designated portion thereof is substantially complete. When the Owner determines that the Work or designated portion thereof is substantially complete, the Owner will issue a Certificate of Substantial Completion which shall establish the date of Substantial Completion, establish responsibilities of the Owner and Contractor for security, maintenance, damage to the Work and insurance, and fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. § 15.4.4 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. Upon such acceptance and consent of surety, if Contract 210-2017 any, the Owner shall make payment of retainage applying to such Work or designated portion thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents. § 15.5 FINAL COMPLETION AND FINAL PAYMENT § 15.5.1 Making of the final payment by the Owner shall constitute a waiver of claims by the Owner except those previously made in writing and identified by the Owner as unsettled at the time of final Application for Payment. Such waiver does not include any subsequently discovered claims that could not be reasonably identified by Owner by the exercise of due diligence at the time the final payment is made. ARTICLE 16 PROTECTION OF PERSONS AND PROPERTY § 16.1 SAFETY PRECAUTIONS AND PROGRAMS The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the performance of the Contract. The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to .1 employees on the Work and other persons who may be affected thereby; and .2 other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. The Contractor shall comply with and give notices required by applicable laws, statutes, ordinances, codes, rules and regulations, and lawful orders of public authorities bearing on safety of persons and property and their protection from damage, injury or loss. The Contractor shall promptly remedy damage and loss to property caused in whole or in part by the Contractor, a Subcontractor, a sub -subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Section 16.1.3, except for damage or loss attributable to acts or omissions of the Owner or by anyone for whose acts either of them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Section 9.15. § 16.2 HAZARDOUS MATERIALS § 16.2.1 "Identified Materials" means materials containing asbestos or lead based paint known to exist at the project location and identified in the Contract Documents. Contractor shall be responsible for remediation and removal of Identified Materials to the extent provided in the Contract Documents. If the Contractor encounters any hazardous material or substance other than Identified Materials ("Unknown Hazardous Material"), the Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner in writing. Owner shall be responsible to remove or render harmless any unknown Hazardous Material so identified. When the Unknown Hazardous Material so identified has been rendered harmless and removed from the site, Work in the affected area shall resume upon written agreement of the Owner and Contractor. By Change Order, the Contract Time shall be extended appropriately and the Contract Sum shall be increased in the amount of the Contractor's reasonable additional costs of shutdown, delay and start-up. § 16.2.2 To the fullest extent permitted by law, the Owner shall indemnify and hold harmless the Contractor, Subcontractors, consultants and agents and employees of any of them from and against claims, damages, losses and expenses, including but not limited to attorneys' fees, arising out of or resulting from performance of the Work in the area affected by any Unknown Hazardous material, provided that such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself), except to the extent that such damage, loss or expense is due to the fault or negligence of the party seeking indemnity. § 16.2.3 If, without negligence on the part of the Contractor or breach of this agreement, the Contractor is held liable by a government agency for the cost of remediation of a hazardous material or substance solely by reason of performing Work as required by the Contract Documents, the Owner shall indemnify the Contractor for all cost and expense thereby incurred. Contract 210-2017 ARTICLE 17 INSURANCE AND BONDS § 17.1 The Contractor shall purchase from, and maintain in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, insurance for protection from claims under workers' compensation acts and other employee benefit acts which are applicable, claims for damages because of bodily injury, including death, and claims for damages, other than to the Work itself, to property which may arise out of or result from the Contractor's operations and completed operations under the Contract, whether such operations be by the Contractor or by a Subcontractor or anyone directly or indirectly employed by any of them. This insurance shall be written for not less than limits of liability specified in the Contract Documents or required by law, whichever coverage is greater, and shall include contractual liability insurance applicable to the Contractor's obligations under Section 9.15. Certificates of Insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work. Each policy shall contain a provision that the policy will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner. The Contractor shall cause the commercial liability coverage required by the Contract Documents to include the Owner as an additional insured for claims caused in whole or in part by the Contractor's negligent acts or omissions during the Contractor's operations. Contractor shall comply with all provisions of the Indiana Worker's Compensation law, and shall, before commencing work under this Agreement, provide the City a certificate of insurance, or a certificate from the industrial board showing that the Contractor has complied with Indiana Code Sections 22-3-2-5, 22-3-5-1 and 22-3-5-2. If Contractor is an out of state employer and therefore subject to another state's worker's compensation law, Contractor may choose to comply with all provisions of its home state's worker's compensation law and provide the City proof of such compliance in lieu of complying with the provisions of the Indiana Worker's Compensation Law. § 17.2 OWNER'S LIABILITY INSURANCE The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance. § 17.3 PROPERTY INSURANCE § 17.3.1 Unless otherwise provided, the Contractor shall purchase and maintain, in a company or companies lawfully authorized to do business in the jurisdiction in which the Project is located, property insurance on an "all-risk" or equivalent policy form, in the amount of the initial Contract Sum, plus the value of subsequent modifications and cost of materials supplied and installed by others, comprising total value for the entire Project at the site on a replacement cost basis without optional deductibles. Such property insurance shall be maintained, unless otherwise provided in the Contract Documents or otherwise agreed in writing by all persons and entities who are beneficiaries of such insurance, until final payment has been made as provided in Section 15.5 or until no person or entity other than the Owner has an insurable interest in the property required by this Section 17.3.1 to be covered, whichever is later. This insurance shall include interests of the Owner, the Contractor, Subcontractors and sub -subcontractors in the Project. § 17.3.2 The Contractor shall file a copy of each policy with the Owner before an exposure to loss may occur. Each policy shall contain a provision that the policy will not be canceled or allowed to expire, and that its limits will not be reduced, until at least 30 days' prior written notice has been given to the Owner. § 17.3.3 The Owner and Contractor waive all rights against (1) each other and any of their subcontractors, sub - subcontractors, agents and employees, each of the other, and (2) the separate contractors described in Article 12, if any, and any of their subcontractors, sub -subcontractors, agents and employees for damages caused by fire or other causes of loss to the extent covered by property insurance obtained pursuant to Section 17.3 or other property insurance applicable to the Work, except such rights as they have to proceeds of such insurance held by the Contractor as fiduciary. The Owner or Contractor, as appropriate, shall require of the consultants, separate contractors described in Article 12, if any, and the subcontractors, sub -subcontractors, agents and employees of any of them, by appropriate agreements, written where legally required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or indirectly, and whether or not the person or entity had an insurable interest in the property damaged. § 17.3.4 A loss insured under the Contractor's property insurance shall be adjusted by the Contractor as fiduciary and made payable to the Contractor as fiduciary for the insureds, as their interests may appear, subject to Contract 210-2017 requirements of any applicable mortgagee clause. The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their sub -subcontractors in similar manner. ARTICLE 18 CORRECTION OF WORK § 18.1 The Contractor shall promptly correct Work rejected by the Owner or failing to conform to the requirements of the Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed. Costs of correcting such rejected Work, including additional testing and inspections, the cost of uncovering and replacement, shall be at the Contractor's expense. § 18.2 In addition to the Contractor's obligations under Section 9.4, if, within one year after the date of Substantial Completion of the Work or designated portion thereof or after the date for commencement of warranties established under Section 15.4.3, or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition. The Owner shall give such notice promptly after discovery of the condition. During the one-year period for correction of Work, if the Owner fails to notify the Contractor and give the Contractor an opportunity to make the correction, the Owner waives the rights to require correction by the Contractor and to make a claim for breach of warranty. § 18.3 If the Contractor fails to correct nonconforming Work within a reasonable time, the Owner may correct it in accordance with Section 8.3. § 18.4 The one-year period for correction of Work shall not be extended by corrective Work performed by the Contractor pursuant to this Article 18. ARTICLE 19 MISCELLANEOUS PROVISIONS § 19.1 ASSIGNMENT OF CONTRACT Neither party to the Contract shall assign the Contract without written consent of the other, except that the Owner may, without consent of the Contractor, assign the Contract to a lender providing construction financing for the Project if the lender assumes the Owner's rights and obligations under the Contract Documents. The Contractor shall execute all consents reasonably required to facilitate such assignment. § 19.2 GOVERNING LAW The Contract shall be governed by the law of the place where the Project is located, except, that if the parties have selected arbitration as the method of binding dispute resolution, the Federal Arbitration Act shall govern Section 21.4. § 19.3 TESTS AND INSPECTIONS Tests, inspections and approvals of portions of the Work required by the Contract Documents or by applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of public authorities shall be made at an appropriate time. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals. The Contractor shall give the Owner timely notice of when and where tests and inspections are to be made so that the Owner may be present for such procedures. The Owner shall bear costs of (1) tests, inspections or approvals that do not become requirements until after bids are received or negotiations concluded, and (2) tests, inspections or approvals where building codes or applicable laws or regulations prohibit the Owner from delegating the costs to the Contractor. § 19.4 COMMENCEMENT OF STATUTORY LIMITATION PERIOD The Owner and Contractor shall commence all claims and causes of action, whether in contract, tort, breach of warranty or otherwise, against the other arising out of or related to the Contract in accordance with the requirements of the final dispute resolution method selected in the Agreement within the period specified by applicable law, but in any case not more than 10 years after the date of Substantial Completion of the Work. The Owner and Contractor waive all claims and causes of action not commenced in accordance with this Section 19.4, unless such claims could not have been reasonably discovered after the exercise of due diligence by the harmed party. Contract 210-2017 ARTICLE 20 TERMINATION OF THE CONTRACT § 20.1 TERMINATION BY THE CONTRACTOR If the Owner fails to make payment as provided in Section 4.1.3 for a period of thirty (30) days after the payment is due, the Contractor may, upon seven additional days' written notice to the Owner, terminate the Contract and recover from the Owner payment for Work executed, including reasonable overhead and profit, costs incurred by reason of such termination, and damages. § 20.2 TERMINATION BY THE OWNER FOR CAUSE § 20.2.1 The Owner may terminate the Contract if the Contractor .1 repeatedly refuses or fails to supply enough properly skilled workers or proper materials; .2 fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; .3 repeatedly disregards applicable laws, statutes, ordinances, codes, rules and regulations or lawful orders of a public authority; or .4 otherwise is guilty of substantial breach of a provision of the Contract Documents. § 20.2.2 When any of the above reasons exists, the Owner may, without prejudice to any other remedy the Owner may have and after giving the Contractor seven days' written notice, terminate the Contract and take possession of the site and may finish the Work by whatever reasonable method the Owner may deem expedient. Upon request of the Contractor, the Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work. § 20.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 20.2.1, the Contractor shall not be entitled to receive further payment until the Work is finished. § 20.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner. This obligation for payment shall survive termination of the Contract. § 20.3 TERMINATION BY THE OWNER FOR CONVENIENCE The Owner may, at any time, terminate the Contract for the Owner's convenience and without cause. The Contractor shall be entitled to receive payment for Work executed, and reasonable costs incurred by reason of such termination. ARTICLE 21 CLAIMS AND DISPUTES § 21.1 Not Used § 21.2 If a claim, dispute or other matter in question relates to or is the subject of a mechanic's lien, the party asserting such matter may proceed in accordance with applicable law to comply with the lien notice or filing deadlines. § 21.3 The parties shall endeavor to resolve their disputes by mediation which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association in accordance with their Construction Industry Mediation Procedures in effect on the date of the Agreement. A request for mediation shall be made in writing, delivered to the other party to this Agreement, and filed with the person or entity administering the mediation. The request may be made concurrently with the binding dispute resolution but, in such event, mediation shall proceed in advance of binding dispute resolution proceedings, which shall be stayed pending mediation for a period of 60 days from the date of filing, unless stayed for a longer period by agreement of the parties or court order. If an arbitration is stayed pursuant to this Section, the parties may nonetheless proceed to the selection of the arbitrator(s) and agree upon a schedule for later proceedings. § 21.4 If the parties have selected arbitration as the method for binding dispute resolution in the Agreement, any claim, subject to, but not resolved by, mediation shall be subject to arbitration which, unless the parties mutually agree otherwise, shall be administered by the American Arbitration Association, in accordance with the Contract 210-2017 Construction Industry Arbitration Rules in effect on the date of this Agreement. Demand for arbitration shall be made in writing, delivered to the other party to the Contract, and filed with the person or entity administering the arbitration. The award rendered by the arbitrator or arbitrators shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof. § 21.5 Either party, at its sole discretion, may consolidate an arbitration conducted under this Agreement with any other arbitration to which it is a party provided that (1) the arbitration agreement governing the other arbitration permits consolidation; (2) the arbitrations to be consolidated substantially involve common questions of law or fact; and (3) the arbitrations employ materially similar procedural rules and methods for selecting arbitrator(s). § 21.6 Any party to an arbitration may include by joinder persons or entities substantially involved in a common question of law or fact whose presence is required if complete relief is to be accorded in arbitration provided that the party sought to be joined consents in writing to such joinder. Consent to arbitration involving an additional person or entity shall not constitute consent to arbitration of a Claim not described in the written Consent. § 21.7 The foregoing agreement to arbitrate and other agreements to arbitrate with an additional person or entity duly consented to by parties to the Agreement shall be specifically enforceable under applicable law in any court having jurisdiction thereof. § 21.8 CLAIMS FOR CONSEQUENTIAL DAMAGES The Contractor and Owner waive claims against each other for consequential damages arising out of or relating to this Contract. This mutual waiver includes .1 damages incurred by the Owner for rental expenses, for losses of use, income, profit, financing, business and reputation, and for loss of management or employee productivity or of the services of such persons; and .2 damages incurred by the Contractor for principal office expenses including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit except anticipated profit arising directly from the Work. This mutual waiver is applicable, without limitation, to all consequential damages due to either party's termination in accordance with Article 20. Nothing contained in this Section 21.8 shall be deemed to preclude an award of liquidated damages, when applicable, in accordance with the requirements of the Contract Documents. ARTICLE 22 COMPLIANCE WITH INDIANA E•VERIFY PROGRAM REQUIREMENTS AND IRAN INVESTMENT ACTIVITIES § 21.1 E•VERIFY Pursuant to Indiana Code 22-5-1.7, Contractor is required to enroll in and verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program. Contractor is not required to verify the work eligibility status of all newly hired employees of the contractor through the Indiana E-Verify program if the Indiana E-Verify program no longer exists. Prior to the performance of this Agreement, Contractor shall provide to the City its signed Affidavit affirming that Contractor does not knowingly employ an unauthorized alien in accordance with IC 22-5-1.7-11 (a) (2). In the event Contractor violates IC 22-5-1.7 the Contractor shall be required to remedy the violation not later than thirty (30) days after the City notifies the Contractor of the violation. If Contractor fails to remedy the violation within the thirty (30) day period provided above, the City shall consider the Contractor to be in breach of this Agreement and this Agreement will be terminated. If the City determines that terminating this Agreement would be detrimental to the public interest or public property, the City may allow this Agreement to remain in effect until the City procures a new contractor. If this Agreement is terminated under this section, then pursuant to IC 22-5-1.7-13 (c) the Contractor will remain liable to the City for actual damages. §21.2 IRAN INVESTMENT ACTIVITIES Pursuant to Indiana Code (IC) 5-22-16.5, Contractor certifies that Contractor is not engaged in investment activities in Iran. In the event Board determines during the course of this Agreement that this certification is no longer valid, Board shall notify Contractor in writing of said determination and shall give contractor ninety (90) days within which to respond to the written notice. In the event Contractor fails to demonstrate to the Board that the Contractor has ceased investment activities in Iran within ninety (90) days after the written notice is given to the Contractor, the Contract 210-2017 Board may proceed with any remedies it may have pursuant to IC 5-22-16.5. In the event the Board determines during the course of this Agreement that this certification is no longer valid and said determination is not refuted by Contractor in the manner set forth in IC 5-22-16.5, the Board reserves the right to consider the Contractor to be in breach of this Agreement and terminate the agreement upon the expiration of the ninety (90) day period set forth above. ARTICLE 22 PROHIBITION AGAINST DISCRIMINATION §22.1 ACKNOWLEDGEMENT OF OBLIGATION Pursuant to Indiana Code 22-9-1-10, Contractor, any sub -contractor, or any person acting on behalf of Contractor or any sub -contractor shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement, with respect to hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of race, religion, color, sex, disability, national origin, or ancestry. Pursuant to Indiana Code 5-16-6-1, the Contractor agrees: That in the hiring of employees for the performance of work under this Agreement of any subcontract hereunder, Contractor, any subcontractor, or any person acting on behalf of Contractor or any sub -contractor, shall not discriminate by reason of race, religion, color, sex, national origin or ancestry against any citizen of the State of Indiana who is qualified and available to perform the work to which the employment relates; 2. That Contractor, any sub -contractor, or any person action on behalf of Contractor or any sub- contractor shall in no manner discriminate against or intimidate any employee hired for the performance of work under this Agreement on account of race, religion, color, sex, national origin or ancestry; 3. That there may be deducted from the amount payable to Contractor by the City under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of the Agreement; and That this Agreement may be canceled or terminated by the City and all money due or to become due hereunder may be forfeited, for a second or any subsequent violation of the terms or conditions of this section of the Agreement. Violation of the terms or conditions of this Agreement relating to discrimination or intimidation shall be considered a material breach of this Agreement. Any person executing this Contract in a representative capacity hereby warrants that he/she has been duly authorized by his or her principal to execute this Contract. In the event that an ambiguity, question of intent, or a need for interpretation of this Agreement arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any of the provisions of this Agreement. This Agreement entered into as of the day and year first written above. Contract 210-2017 "CITY" THE CITY OF RICHMOND, INDIANA by and through its Board of Public Works and Safety By:qj�Lk em&'l Vicki Robinson, President By: /7 Richard Foore, Member Date: APPROVED: Da ' S loayor Date: By: tractor (Signature) Printed name and title Contract 210-2017