HomeMy Public PortalAboutAB 04-160 attch - Hazardous Fuels Reduction Project ContractCONTRACT
THIS CONTRACT, made and entered into this ____ day of ________, 2004, between the CITY OF
McCALL, Valley County, Idaho, a municipal corporation duly organized and existing under and by
virtue of the laws of the State of Idaho, hereinafter referred to as the “CITY” and Red Rock Resource
Management, a corporation duly organized and existing under and by virtue of the laws of the state of
Idaho, hereinafter referred to as “CONTRACTOR”.
WITNESSETH:
THAT, WHEREAS, the said CONTRACTOR has been awarded the contract for the Hazardous Fuels
Reduction Project according to plans and specifications on file in the office of the City Clerk of said
City, which plans and specifications are incorporated herein by reference.
IT IS AGREED that for and in consideration of the covenants and agreements to be made and performed
by the CITY OF McCALL, as hereinafter set forth, the CONTRACTOR shall remove and pile trees
and slash on 15 acres of City property, as set forth in the said plans and specifications described above,
in said City, furnishing all labor and materials therefore according to said plans and specifications and
under the penalties expressed in the performance bond bearing even date herewith, and which bond with
said plans and specifications are hereby declared and accepted as parts of this contract. All material
shall be of the high standard required by the said plans and specifications and approved by the Airport
Manager of the CITY OF McCALL, and all labor performed shall be of first-class workmanship.
The CONTRACTOR shall furnish and install barriers and warning lights to prevent accidents and save
the City harmless from all claims for injury to person or property resulting from the CONTRACTOR’S
actions or omissions in performance of this contract, and to that end shall maintain liability insurance
naming the City as one of the insured in the amount of One Million Dollars ($1,000,000) for property
damage or bodily or personal injury, death or loss as a result of any one occurrence or accident
regardless of the number of persons injured or the number of claimants, it being the intention that the
minimum limits shall be those provided for under Chapter 9, Title 6, Section 24 of the Idaho Code. A
certificate of insurance providing at least thirty (30) days written notice the City prior to cancellation of
the policy shall be filed in the office of the City Clerk.
The CONTRACTOR agrees to maintain Workman’s Compensation coverage on all employees,
including employees of subcontractors, during the term of this contract as required by Idaho Code
Sections 72-101 through 72-806. Should the CONTRACTOR fail to maintain such insurance during
the entire term hereof, the CONTRACTOR shall indemnify the CITY against any loss resulting to the
CITY from such failure, by way of either compensation or additional premium liability. The
CONTRACTOR shall furnish to the CITY, prior to commencement of the work, such evidence as the
City may require guaranteeing contributions which will come due under the Employment Security Law
including, at the option of the CITY, a surety bond in an amount sufficient to make such payments.
The CONTRACTOR shall furnish the CITY certificates of the insurance coverages required herein,
which certificates must be approved by the City Attorney.
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The CONTRACTOR agrees to receive and accept as full compensation for doing all the work
contemplated and embraced in the contract, an amount equal to the sum of the total for the items of
work. The total amount of the contract shall not exceed Eleven Thousand Five Hundred and zero/100
Dollars ($11, 500.00). Pay requests must be approved by the City Council at a regular meeting. The
City Council meets the second and fourth Thursday of each month. In order to be considered at a
regular meeting of the council, partial pay requests must be received in the office of the City clerk no
later than 1:00 p.m. on the Friday preceding the City Council meeting. Partial Pay requests must be
submitted in sufficient detail to document the work progress claimed, must be signed by the contractor
and contain a signed recommendation from the Contract Manager. Payment will be made within five
working days following council approval.
The number of calendar days allowed for completion of the Contract work shall be sixty (60) calendar
days. In the event additional time is needed the completion date shall be determined by the Contract
Manager for the City of McCall. The Contract time shall commence within 20 days of Notice to Proceed
issued by the City herein.
The CITY and the CONTRACTOR recognize that time is of the essence and failure of the
CONTRACTOR to complete the work within the time allowed shall result in damages being sustained
by the CITY. Such damages are and will continue to be impractical and extremely difficult to
determine. Therefore, in the event the CONTRACTOR shall fail to complete the work within the
above time limit, the CONTRACTOR shall pay to the CITY or have withheld from monies due,
liquidated damages at the rate of Fifty and No/100 Dollars ($50.00) per calendar day, which sums shall
not be construed as a penalty.
IT IS AGREED that the CONTRACTOR must employ ninety-five percent (95%) bona fide Idaho
residents as employees on any job under this contract, recognizing the business in which he is engaged is
of a transitory character and that in the pursuit thereof, his property used therein may be without the
State of Idaho when taxes, excises or license fees to which he is liable become payable, agrees:
1. To pay promptly when due all taxes (other than on real property), excises and license fees due to the
State of Idaho, its subdivisions, and municipal and quasi-municipal corporations therein, accrued or
accruing during the term of this contract, whether or not the same shall be payable at the end of such
term.
2. That if the said taxes, excises and license fees are not payable at the end of said term but liability for
said payment thereof exists, even though the same constitutes liens upon his property, to secure the
same to the satisfaction of the respective officers charged with the collection thereof.
3. That in the event of his default in the payment or securing of such taxes, excises and license fees, to
consent that the department, officer, board or taxing unit entering into this contract may withhold
from any payment due him hereunder the estimated amount of such accrued and accruing taxes,
excises and license fees for the benefit of all taxing units to which said contractor is liable.
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IT IS FURTHER AGREED that for additions or deductions to the plans and specifications, the unit
prices set forth in the written proposal of the CONTRACTOR are hereby made a part of this contract.
For the faithful performance of this contract in accordance with the plans and specifications and
payment for all labor and materials, the CONTRACTOR shall execute good and sufficient performance
bond in a form acceptable to the City Attorney in the amount of one hundred percent (100%) of the total
amount of the bid as hereinbefore stated, said bonds to be executed by a surety company authorized to
do business in the State of Idaho.
The term “CONTRACT DOCUMENTS” means and includes the following:
A) Notice Inviting Estimates
B) Estimate Information
C) Estimate Forms as Required
D) Contract
E) Performance Bond
F) Notice of Award
G) Notice to Proceed
H) Plans
THIS CONTRACT, with all of its forms, specifications and stipulations, shall be binding upon the
parties hereto, their successors and assigns.
IN WITNESS WHEREOF, the Mayor and City Clerk of the CITY OF McCALL have executed this
contract on behalf of said City, the City Clerk has affixed the seal of said City hereto, and the
CONTRACTOR has caused the same to be signed by its President, and its seal to be affixed hereto, the
day and year first above written.
CITYOF McCALL, CONTRACTOR: Bob Shoemaker
VALLEY COUNTY IDAHO Red Rock Resource Management
By: By:
Kirk Eimers, Mayor Its
ATTEST: ATTEST:
Dan Irwin, City Clerk
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PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS; That
Red Rock Resource Management: Bob Shoemaker: P.O. Box 2149, McCall ID 83638
(Name and Address of Contractor)
An Individual, hereinafter called PRINCIPAL and
Red Rock Resource Management: Bob Shoemaker: P.O. Box 2149, McCall ID 83638
(Name and Address of Contractor)
Hereinafter called SURETY, are held and firmly bound unto the City of McCall, Valley County, State of
Idaho, hereinafter called the OWNER, in the penal sum of Five Hundred Seventy Five dollars
($575.00) in lawful money of the United States, for the payment of which sum well and truly to be
made, we bind ourselves, successors, and assigns, jointly and severally, firmly by these presents.
THE CONDITION OF THIS OBLIGATION is such that whereas, the PRINCIPAL entered into a
certain Contract with the OWNER, dated the ______ day of _________ , 2004, a copy of which is
hereto attached and made a part hereof for Hazardous Fuel Reduction Project.
NOW THEREFORE, if the PRINCIPAL shall not well, truly and faithfully perform its duties, all the
undertakings, covenants, terms, conditions, and agreements of said contract during the original term
thereof, and any extensions thereof which may be granted by the OWNER, with or without notice to the
SURETY and during the one year guarantee period, and if it shall satisfy all claims and demands
incurred under such contract, and shall fully indemnify and save harmless the OWNER from all costs
and damages which it may suffer by reason of failure to do so, and shall reimburse and repay the
OWNER, all outlay and expense which the OWNER may incur in making good any default, then this
obligation shall be void; otherwise to remain in full force and effect.
PROVIDED FURTHER, that the said Surety, for value received, hereby stipulates and agrees that no
change, extension of time, alteration, or addition of the terms of the Contract or to the work to be
performed thereunder or the specifications accompanying the same shall, in any way, affect its
obligations of this Bond, and it does hereby waive notice of any change, extension of time, alteration, or
addition of the terms of the Contract or to the work or to the specifications..
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IN WITNESS WHEREOF, this instrument is executed in two (2) counterparts, each one of which shall
be deemed an original, and this the ____ day of __________, 2004.
ATTEST:
(PRINCIPAL Secretary) (PRINCIPAL)
By:
(SEAL) Title:
(Witness as to PRINCIPAL)
Address:
(SURETY)
(Attorney in Fact)
Address:
ATTEST:
(Witness to SURETY)
Address:
NOTE: Date of BOND must not be prior to date of Contract. If Contractor is a Partnership, all partners
should execute Bond.
IMPROTANT: Surety companies executing BONDS must appear on the Treasury Department’s most
current list (Circular 570 as amended) and be authorized to transact business in the State of Idaho. The
power of attorney for the individual signing on behalf of the SURETY must be attached in order for the
bond to be valid.
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NOTICE OF AWARD
TO: Red Rock Resource Management: Bob Shoemaker DATED: November 19, 2004
ADDRESS: P.O. Box 2149, McCall, Idaho 83638
OWNER’S PROJECT NO. AIRPORT 2004-15A
PROJECT: HAZARDOUS FUELS REDUCTION PROJECT
OWNER’S CONTRACT NO.
CONTRACT FOR HAZARDOUS FUELS REDUCTION PROJECT: Specifications Attached
You are notified that your Bid dated October 14, 2004 for the above Contract has been considered. You are the
apparent successful Bidder and have been awarded a contract for the Hazardous Fuels Reduction project:
The removal and piling of trees and slash on the parcel of land: 15 acres of City property, as further
described in the Contract Documents.
The Contract Price of your contract is Eleven Thousand Five Hundred Dollars ($11, 500)
3 copies of each of the proposed Contract Documents (except Drawings) accompany this Notice of Award.
1 sets of the Drawings will be delivered separately or otherwise made available to you immediately.
You must comply with the following conditions precedent within fifteen days of the date of this notice of Award
that is by December 6, 2004.
1. You must deliver to the OWNER one (1) fully executed counterparts of the Agreement including all the
Contract Documents. This includes the triplicate sets of Drawings. Each of the Contract documents must
bear your signature.
2. You must deliver with the executed Agreements the contract Security (bonds) as specified in the Contract
Information (page 1-4) and General Conditions (paragraph 5.1).
Failure to comply with these conditions within the time specified will entitle OWNER to consider your Bid
abandoned, to annul this Notice of Award and to declare your Bid Security forfeited.
Copy to City Clerk
(Use Certified Mail, Return Receipt Requested)
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Within fifteen days after you comply with those conditions, OWNER will return to you one fully signed
counterpart of the Agreement with the Contract Documents attached.
(OWNER)
By:
(AUTHORIZED SIGNATURE)
(TITLE)
ACCEPTANCE OF AWARD
(CONTRACTOR)
By:
(AUTHORIZED SIGNATURE)
(TITLE) (DATE)
Copy to City Clerk
(Use Certified Mail, Return Receipt Requested)
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NOTICE TO PROCEED
TO: Red Rock Resource Management
Bob Shoemaker
PROJECT DESCRIPTION: HAZARDOUS FUEL REDUCTION PROJECT
You are hereby notified to commence work in accordance with the Contract Agreement dated ________ on or
before ______________, and you are to complete the Work no later than 5:00 pm on June 30, 2005.
CITY OF McCALL, IDAHO
By: ________________________________
Title: _______________________________
ACCEPTANCE OF NOTICE
Receipt of the above NOTICE TO PROCEED is hereby acknowledged.
Contractor: _______________________________________________
this the ______ day of __________, ____.
Title: ____________________________________________________
Signature: ________________________________________________
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SECTION 2
GENERAL CONDITIONS
TABLE OF CONTENTS
ARTICLE 1 THE CONTRACT DOCUMENTS..........................................................................................1
1.1 Additional Sets of Documents....................................................................................................1
1.2 Return of Documents to Owner..................................................................................................1
1.3 Electronic Media........................................................................................................................1
1.4 Minimum Requirements.............................................................................................................1
1.5 Owner Disclaimer of Warranty..................................................................................................1
1.6 Conflicts in Documents..............................................................................................................1
1.7 Shop Drawings and Submittals..................................................................................................2
1.8 Contract Changes.......................................................................................................................1
ARTICLE 2 GENERAL CONTRACTOR’S REVIEWS AND EVALUATIONS.......................................2
2.1 Sufficiency of Contract Documents...........................................................................................2
2.2 Sufficiency of Site Conditions....................................................................................................2
ARTICLE 3 GENERAL CONTRACTOR’S DUTIES, OBLIGATIONS AND RESPONSIBILITIES......3
3.1 Performance of Work.................................................................................................................3
3.2 Compliance with Governmental Requirements..........................................................................3
3.3 Safety..........................................................................................................................................4
3.4 Concurrent Records....................................................................................................................4
3.5 As-Built Drawings......................................................................................................................4
3.6 Bribes and Kick-Backs...............................................................................................................4
3.7 Quality Control and Testing.......................................................................................................4
3.8 Incident Reporting......................................................................................................................5
3.9 Hazardous Substances................................................................................................................5
3.10 Owner’s Use of and Access to the Site.....................................................................................5
3.11 Site Control and Cleanup..........................................................................................................5
3.12 Advertising Prohibition............................................................................................................6
3.13 Commissioning.........................................................................................................................6
ARTICLE 4 GENERAL CONTRACTOR’S PERSONNEL, SUBCONTRACTORS,
AND SUPPLIERS...................................................................................................................6
4.1 Project Staffing...........................................................................................................................6
4.2 Subcontractor / Supplier Contracts.............................................................................................6
4.3 Resolution of Trade Disputes.....................................................................................................7
ARTICLE 5 GOODS, PRODUCTS AND MATERIALS............................................................................7
5.1 Quality of Materials....................................................................................................................7
5.2 Installation and Use of Materials................................................................................................8
5.3 Unsuitable Materials...................................................................................................................8
5.4 Security for Work In Progress....................................................................................................8
ARTICLE 6 DOCUMENTS AND INFORMATION...................................................................................8
6.1 Information from Owner............................................................................................................8
6.2 Resolution of Questions.............................................................................................................9
6.3 Processing of Documents...........................................................................................................9
6.4 Sufficiency of Owner Information.............................................................................................9
ARTICLE 7 SUBMITTALS.........................................................................................................................9
7.1 Submittal Schedule.....................................................................................................................9
7.2 Processing Of Submittals...........................................................................................................9
ARTICLE 8 GENERAL CONTRACTOR’S INSPECTION OF AND CORRECTION
OF DEFECTIVE OR INCOMPLETE WORK.....................................................................10
8.1 Rejection and Correction of Work in Progress.........................................................................10
8.2 Covered or Concealed Work....................................................................................................10
ARTICLE 9 CHANGE ORDERS AND CHANGES TO THE WORK.....................................................10
9.1 Change Order Requests............................................................................................................10
9.2 Owner-Directed Changes.........................................................................................................11
9.3 Administration of Changes.......................................................................................................11
9.4 Compensation for Changes.......................................................................................................11
9.5 Performance of Changes...........................................................................................................12
9.6 Disputes regarding Changes.....................................................................................................12
9.7 Necessity for Signed Writing...................................................................................................12
ARTICLE 10 FINANCIAL CLAIMS AND LIENS...................................................................................12
10.1 Notification Regarding Liens.................................................................................................12
10.2 Discharge of Liens..................................................................................................................12
ARTICLE 11 OWNER’S CONSULTANT(S), CONTRACT MANAGER AND CONSTRUCTION
ADMINISTRATION............................................................................................................13
11.1 Owner’s Designated Professional Representative..................................................................13
11.3 Professional Site Visits...........................................................................................................13
11.4 Professional Rejection of Work..............................................................................................13
11.5 Professional Evaluations........................................................................................................13
11.6 Professional Submittal Activities...........................................................................................14
11.7 Professional Interpretations....................................................................................................14
11.8 Professional Change Order Activities....................................................................................14
11.9 Professional Pay Application Activities.................................................................................14
11.10 Professional Relationship to General Contractor.................................................................14
ARTICLE 12 INSPECTIONS, CORRECTION OF WORK, AND PROJECT CLOSE OUT...................15
12.1 Substantial Completion..........................................................................................................15
12.2 Final Completion....................................................................................................................16
ARTICLE 13 GENERAL CONTRACTOR’S WARRANTIES AND GUARANTEES............................18
13.1 One-Year Warranty................................................................................................................18
13.2 Express Warranties and Guarantees – General Contractor.....................................................18
13.3 Express Warranties and Guarantees – Subcontractors and Suppliers....................................19
13.4 Non-Exclusivity and Survival................................................................................................19
13.5 Non-Limitation.......................................................................................................................19
13.6 Commencement of Obligations..............................................................................................19
ARTICLE 14 OWNER’S DUTIES, OBLIGATIONS AND RESPONSIBILITIES..................................19
14.1 Owner’s Representative..........................................................................................................19
14.2 Owner’s General Duties.........................................................................................................19
ARTICLE 15 GENERAL CONTRACTOR’S COMPENSATION............................................................20
15.1 Unit Prices..............................................................................................................................20
15.2 Schedule of Values.................................................................................................................20
15.3 Invoicing Procedures..............................................................................................................20
15.4 Payment Procedures...............................................................................................................21
15.5 Owner’s Right to Refuse Payment.........................................................................................21
15.6 General Contractor’s Right to Refuse Performance for Non-Payment..................................22
15.7 Correction of Past Payments..................................................................................................22
15.8 Interest on Outstanding Amounts Due...................................................................................22
15.9 Invoice Warranties and Guarantees........................................................................................22
15.10 General Contractor’s Signature............................................................................................23
15.11 Taxes....................................................................................................................................23
15.12 Compensation Of General Contractor’s Subcontractors And Suppliers..............................23
15.13 Final Payment.......................................................................................................................23
ARTICLE 16 SCHEDULE REQUIREMENTS..........................................................................................24
16.1 Construction Schedule............................................................................................................24
16.2 Delay in Performance.............................................................................................................25
16.3 Modifications to Time for Performance.................................................................................25
16.4 Early Completion...................................................................................................................25
16.5 Modification Dates Of Substantial Completion or Final Completion....................................25
16.6 Document Review..................................................................................................................25
ARTICLE 17 LIQUIDATED DAMAGES.................................................................................................26
17.1 Time Is Of the Essence...........................................................................................................26
17.2 Failure to Timely Achieve Completion..................................................................................26
17.3 Compensable Delay................................................................................................................26
17.4 Excusable Delay.....................................................................................................................26
17.5 Owner’s Right to Withhold Payment.....................................................................................27
ARTICLE 18 CONCEALED AND UNFORESEEN CONDITIONS........................................................27
18.1 Notification Regarding Unusual Conditions..........................................................................27
ARTICLE 19 GENERAL CONTRACTOR’S RECORDS.........................................................................28
19.1 Preparation of Records...........................................................................................................28
19.2 Retention of Records..............................................................................................................28
19.3 Access to Records..................................................................................................................28
ARTICLE 20 PROPRIETARY DOCUMENTS AND CONFIDENTIALITY...........................................28
20.1 Nature and Use of Information...............................................................................................28
20.2 Ownership of Information......................................................................................................28
20.3 Disclosure of Information.......................................................................................................29
20.4 Instructions to Employees......................................................................................................29
20.5 Non-Publications....................................................................................................................29
ARTICLE 21 GENERAL INSURANCE REQUIREMENTS....................................................................29
21.1 General Insurance Requirements............................................................................................29
21.2 Certificates of Insurance.........................................................................................................29
21.3 Effect of Insurance.................................................................................................................29
21.4 Waiver of Subrogation...........................................................................................................30
ARTICLE 22 GENERAL BOND REQUIREMENTS...............................................................................30
22.1 General Bond Requirements...................................................................................................30
22.2 Delivery of Bonds..................................................................................................................30
ARTICLE 23 OWNER’S RIGHT TO STOP WORK.................................................................................30
23.1 Cease and Desist Order..........................................................................................................30
ARTICLE 24 TERMINATION OR SUSPENSION OF CONTRACT......................................................31
24.1 Termination for Cause by Owner...........................................................................................31
24.2 Termination for Cause by General Contractor.......................................................................32
24.3 Termination for Convenience.................................................................................................33
24.4 General Contractor’s Compensation When General Contractor Terminates
For Cause or Owner Terminates For Convenience................................................................33
24.5 General Contractor’s Compensation When Owner Terminates for Cause.............................33
24.6 Limitation on Termination Compensation.............................................................................34
24.7 General Contractor’s Responsibility upon Termination.........................................................34
24.8 Lack of Duty to Terminate.....................................................................................................34
24.9 Limitation on Termination Claim...........................................................................................34
ARTICLE 25 APPLICABLE LAW AND DISPUTE RESOLUTION.......................................................34
25.1 Applicable State Law.............................................................................................................34
25.2 Court Actions.........................................................................................................................34
25.3 Mutual Discussion..................................................................................................................35
25.4 Facilitative Mediation.............................................................................................................35
25.5 Conflicting Dispute Resolution Provisions............................................................................36
25.6 Arbitration Preclusion............................................................................................................36
25.7 Performance during Dispute Resolution.................................................................................36
ARTICLE 26 DAMAGES AND REMEDIES............................................................................................36
26.1 General Contractor’s Repair...................................................................................................36
26.2 General Contractor’s Reimbursement....................................................................................36
26.3 General Indemnity..................................................................................................................36
26.4 Intellectual Property Indemnity..............................................................................................37
26.5 Non-Exclusivity of Owner’s Remedies..................................................................................37
26.6 Waiver of Damages................................................................................................................37
26.7 Interest....................................................................................................................................37
ARTICLE 27 MISCELLANEOUS PROVISIONS....................................................................................37
27.1 Integration..............................................................................................................................37
27.2 Severability.............................................................................................................................37
27.3 Waiver....................................................................................................................................38
27.4 Strict Compliance...................................................................................................................38
27.5 Third-Party Beneficiaries.......................................................................................................38
27.6 Survival..................................................................................................................................38
27.7 Assignment.............................................................................................................................38
27.8 Execution of Documents........................................................................................................38
ARTICLE 28 DEFINITIONS.....................................................................................................................38
GENERAL TERMS AND CONDITIONS
ARTICLE 1
THE CONTRACT DOCUMENTS
1.1 Additional Sets of Documents: Any additional copies of Contract Documents required by the General
Contractor for execution of its scope of the Work shall be made by the General Contractor at its cost and
expense from the reproducible set(s) furnished by the Owner.
1.2 Return of Documents to Owner: The General Contractor shall return to the Owner the reproducible
set(s) and all copies of Contract Documents upon final acceptance of the Work or termination of this
Contract, whichever occurs first.
1.3 Minimum Requirements: In every case, requirements established by the Contract Documents shall be
considered as the minimum which will be accepted.
1.4 Owner Disclaimer of Warranty: The Owner has requested that the City Attorney prepare Contract
Documents for the Project, which are to be complete, accurate, coordinated, and adequate for bidding,
negotiating and constructing the Work. However, the Owner makes no representation or warranty of any
nature whatsoever to the General Contractor concerning such documents. The General Contractor hereby
acknowledges and represents that it has not, does not, and will not rely upon any representations or
warranties by the Owner concerning such documents, as no such representations or warranties have been
or are hereby made.
1.5 Conflicts in Documents: In the event of any conflict, discrepancy, or inconsistency among any of the
documents which make up this Contract, the following shall control:
1.5.1 As between figures given on plans and scaled measurements, the figures shall govern;
1.5.2 As between large scale plans and small scale plans, the large scale plans shall govern;
1.5.3 As between plans and specifications, the requirements of the specifications shall govern;
1.5.4 As between this document and the plans, specifications, general conditions or general
requirements, this document shall govern.
1.6 Shop Drawings and Submittals: Shop drawings and other submittals from the General Contractor or its
subcontractors and suppliers do not constitute a part of this Contract.
1.7 Contract Changes: The General Contractor understands and agrees that this Contract cannot be changed
except as provided herein. No act, omission or course of dealing by the parties shall alter the requirement
that modifications of this Contract can be accomplished only by written documents signed by the parties.
ARTICLE 2
GENERAL CONTRACTOR’S REVIEWS AND EVALUATES
2.1 Sufficiency Of Contract Documents: Prior to submission of bid, if any, but in all events prior to signing
this Contract, the General Contractor has received and carefully reviewed and evaluated the Contract
Documents applicable to its scope of the Work and agrees that the Contract Documents applicable to its
scope of the Work are complete, accurate, adequate, consistent, coordinated and sufficient for bidding,
negotiating, costing, pricing and construction of its scope of the Work.
2.1.1 The General Contractor acknowledges its continuing duty to review and evaluate the Contract
Documents during the performance of its services and shall immediately notify the Owner and the
Contract Manager about any (i) problems, conflicts, defects, deficiencies, inconsistencies or
omissions it discovers in or between the Contract Documents; and, (ii) variances it discovers
between the Contract Documents and applicable laws, statutes, building codes, rules and
regulations.
2.1.2 If the General Contractor performs any Work which it knows or should have known involves (i) a
recognized problem, conflict, defect, deficiency, inconsistency or omission in the Contract
Documents; or (ii) a variance between the Contract Documents and requirements of applicable
laws, statutes, building codes, rules and regulations, without notifying the Contract Manager and
prior to proceeding, the General Contractor shall be responsible for the consequences of such
performance.
2.2 Sufficiency of Site Conditions: Prior to submission of bid, if any, but in all events prior to signing this
Contract, the General Contractor has
(i) visited the Site and become familiar with local conditions under which the Project is to be
constructed and operated; and,
(ii) reviewed and familiarized itself with the Site survey and any existing structures on the Site, and
gathered all other information necessary for a full understanding of its scope of the Work.
In addition, if the General Contractor’s scope of the Work involves modifications to or remodeling of an
existing structure(s) or other man-made feature(s) on the Site, the General Contractor has also
(iii) reviewed all available as-built and record drawings, plans and specifications; and,
(iv) thoroughly inspected the structure(s) and man-made feature(s) to be modified or remodeled prior
to submission of bid, if any, but in all events prior to signing this Contract.
Claims resulting from the General Contractor’s failure to familiarize itself with the Site or pertinent
documents shall be deemed waived.
ARTICLE 3
GENERAL CONTRACTOR’S DUTIES, OBLIGATIONS
AND RESPONSIBILITIES
3.1 Performance of Work: The General Contractor shall supervise and complete its obligations under this
Contract using its best skill and attention. The General Contractor shall furnish management, supervision,
coordination, labor and services which (i) expeditiously, economically and properly completes its scope
of the Work; (ii) comply with the requirements of this Contract; and, (iii) are performed in a workmanlike
manner and in accordance with the standards currently practiced by persons and entities performing or
providing comparable management, supervision, labor and services on projects of similar size,
complexity and cost to the Project.
3.1.1 The General Contractor shall not damage, endanger, compromise or destroy any part of the
Project or the Site, including by way of example and not limitation, work being performed by
others on the Site, monuments, stakes, bench marks and other survey points, utility services, and
existing features or structures on the Site. Should the General Contractor damage, compromise or
destroy any part of the Project or the Site, the General Contractor shall be fully and exclusively
responsible for and bear all costs associated therewith.
3.1.2 All services rendered by the General Contractor for the Project shall be performed by or under the
immediate supervision of persons possessing expertise in the discipline of the service being
rendered.
3.1.3 The General Contractor shall, in the course of providing its scope of the Work cooperate and
communicate with the Owner and all other persons or entities as required for satisfactory
completion of the Project.
3.1.4 The General Contractor understands and acknowledges that the Work referred to in this Contract
may be only part of the Project and that the Project may include the construction of other
structures or other construction activities on the same Site. The General Contractor shall conduct
all its activities so as not to interfere with the construction of, or operations within or from, other
structures on the Site.
3.2 Compliance with Governmental Requirements: The General Contractor shall
(i) comply with all applicable laws, statutes, building codes, rules, regulations and lawful orders of
all governmental, public and quasi-public authorities and agencies;
(ii) prepare and file documents required to obtain and obtain all necessary approvals and permits,
including building permit(s), of all governmental authorities having jurisdiction; and,
(iii) provide all notices required of it by governmental authorities relating to the Project.
3.3 Safety: Safety shall be a prime concern of the General Contractor at all times. The General Contractor
shall be solely responsible for and have control over the means, methods, techniques, sequences and
procedures for coordinating and constructing its scope of the Work, including Site safety and safety
precautions and programs.
3.4 Concurrent Records: For any period in which it is engaged in activities on the Site, the General
Contractor shall, concurrently with its performance, maintain detailed records of activities on the Site.
3.5 As-Built Drawings: The General Contractor shall maintain at the Site one copy of all drawings,
specifications, addenda, approved shop drawings, change order(s), submittals, and other modifications in
good order and accurately marked depicting all changes as they occur during construction. The as-built
drawings shall be available at all times to the Contract Manager and the Owner’s consultants, including
quality control and testing agency personnel. The drawings shall be neatly and clearly marked in color
during construction to record all variations made during construction, and the General Contractor shall
include such supplementary notes and details necessary to clearly and accurately represent as-built
construction.
3.6 Bribes and Kick-Backs: The General Contractor shall not by any means:
(i) induce any person or entity employed in the construction of the Project to give up any part of the
compensation to which that person or entity is entitled;
(ii) confer on any governmental, public or quasi-public official having any authority or influence over
the Project, any payment, loan, subscription, advance, deposit of money, services or anything of
value, present or promised;
(iii) offer nor accept any bribes or kick-backs in connection with the Project from or to any individual
or entity, including any of its trade contractors, subcontractors, consultants, suppliers or
manufacturers of Project goods and materials; or,
(iv) without the express written permission of the Owner, call for or by exclusion require or
recommend the use of any subcontractor, consultant, product, material, equipment, system,
process or procedure in which the General Contractor has a direct or indirect proprietary or other
pecuniary interest.
3.7 Quality Control and Testing: Unless otherwise provided in this Contract, the Owner shall select the
quality control and testing agencies and pay for the cost of specified measures and tests required by the
Contract Documents. The General Contractor shall be responsible for the coordination of all tests and
inspections and shall arrange for tests and inspections to be conducted as necessary to avoid any
interference with the progress of Work. No claims for extension of time or extra costs will be allowed on
account of any testing, retesting, inspection, re-inspection, or rejection of Work when defective or
deficient Work is found.
3.8 Incident Reporting: The General Contractor shall immediately notify the Owner and Contract Manager,
both orally and in writing, of the nature and details of all incidents which may adversely affect the quality
or progress of the Work including, but not limited to, labor disputes, accidents, delays, damages to Work
and other significant occurrences.
3.9 Hazardous Substances: The General Contractor shall immediately notify the Owner and the Contract
Manager, both orally and in writing, of the presence and location of any physical evidence of, or
information regarding, environmental contamination on the Site (including but not limited to Hazardous
Substances and petroleum releases) of which it becomes, or reasonably should have become, aware. If the
General Contractor encounters environmental contamination (including but not limited to Hazardous
Substances and petroleum releases), the General Contractor shall (i) immediately stop performance of
Work or that portion of the Work affected by or affecting such contamination; (ii) secure the
contaminated area against intrusion; (iii) not disturb or remove the contamination; (iv) not proceed, or
allow any subcontractor or supplier to proceed, with any Work or other activities in the area affected by
such contamination until directed to do so by the Owner; and, (v) take any other steps necessary to protect
life and health.
3.10 Owner’s Use of and Access to the Site: The General Contractor shall perform its scope of the Work so
as not to interrupt any operations of the Owner on the Site.
3.10.1 The General Contractor understands and acknowledges that the Owner may need access to or use
of certain areas of the Site or Work prior to the General Contractor’s achievement of Substantial
Completion, and that such occupancy, access or use shall not constitute the Owner’s acceptance
of any Work.
3.10.2 The General Contractor shall not enter any Owner-occupied area of the Site or Structure unless
first approved and scheduled by the Owner. The General Contractor understands and
acknowledges that the Owner may incur damages if the Owner’s operations on the Site are
interrupted or impaired as a result of the Work.
3.10.3 The General Contractor shall afford the Owner’s own forces, and other consultants, trade
contractors, subcontractors and suppliers, access to the Site for performance of their activities,
and shall connect and coordinate its construction and operations with theirs as required by the
Contract Documents.
3.11 Site Control and Cleanup: During construction, the General Contractor shall maintain good order on the
Site and shall remove from the Site all construction debris at least every seventy-two (72) hours. Upon
completion of the Work, the General Contractor shall, within five (5) calendar days, remove from the Site
all construction materials and waste, rubbish, other debris, equipment, sheds and similar items related to,
produced by or required for its scope of the Work. No final payment will be made to the General
Contractor until satisfactory final clean-up is accomplished and inspection is made by the Owner and the
Contract ManagerContract Manager, accompanied by the General Contractor. In the event that the
Owner has to engage in clean-up activities at any time during the construction period, the full cost of the
clean-up shall be deducted from moneys due the General Contractor, and the General Contractor shall
promptly pay any deficiency amount to Owner.
3.12 Advertising Prohibition: The General Contractor shall not, without the express written permission of the
Owner, use the fact that the General Contractor is providing goods or services to the Owner or for the
Project in any advertising or promotional material, including Site signage.
ARTICLE 4
GENERAL CONTRACTOR’S PERSONNEL,
SUBCONTRACTORS AND SUPPLIERS
4.1 Project Staffing: The General Contractor shall staff the Project with qualified and designated individuals
and entities responsible for its obligations and performance.
4.1.1 The General Contractor shall name a representative (the “Builder’s Representative”) to serve as
its primary communication contact with the Owner and the Contract Manager.
4.1.2 The General Contractor shall employ persons skilled in the tasks assigned to them and shall
contract with subcontractors and suppliers skilled in the tasks assigned to them and capable of
working harmoniously with all trades, crafts and other individuals on the Project. The General
Contractor shall use its best efforts to minimize the likelihood of any strike, work stoppage or
other labor disturbance.
4.1.3 The General Contractor shall immediately remove from the Site, for the duration of the Project,
any person making an inappropriate racial, sexual or ethnic comment, statement or gesture toward
any other individual.
4.1.4 The General Contractor shall immediately remove from the Site, for the duration of the Project,
any person who is incompetent, careless, or not working in harmony.
4.2 Subcontractor / Supplier Contracts: The General Contractor shall enter into written contracts with its
subcontractors and suppliers, if any, and those written contracts shall be consistent with this Contract. It is
the intent of the Owner and the General Contractor that the obligations of the General Contractor’s
subcontractors and suppliers, if any, inure to the benefit of the Owner and the General Contractor, and
that the Owner be a third-party beneficiary of the General Contractor’s agreements with its subcontractors
and suppliers.
4.2.1 The General Contractor shall make available to each subcontractor and supplier, if any, prior to
the execution of written contracts with any of them, a copy of the pertinent portions of this
Contract, including those portions of the Contract Documents to which the subcontractor, or
supplier will be bound, and shall require that each subcontractor and supplier shall similarly make
copies of applicable parts of such documents available to its respective subcontractors and
suppliers.
4.2.2 The General Contractor shall engage each of its, subcontractors and suppliers with written
contracts which preserve and protect the rights of the Owner and include the acknowledgment
and agreement of each subcontractor or supplier that the Owner is a third-party beneficiary of the
contract. The General Contractor’s agreements with its subcontractors and suppliers shall require
that in the event of default under, or termination of, this Contract, and upon request of the Owner,
the General Contractor’s subcontractors and suppliers will perform services for the Owner.
4.2.3 The General Contractor shall include in its agreements with its subcontractors and supplier(s) a
provision which contains the acknowledgment and agreement of the subcontractor or supplier that
it has received and reviewed the applicable terms, conditions and requirements of this
ContractContract that are included by reference in its written contract with the General
Contractor, and that it will abide by those terms, conditions and requirements.
4.3 Resolution of Trade Disputes: The General Contractor shall promptly resolve claims, complaints, labor
disputes and disputes over assignment of work tasks by and among its subcontractors and suppliers.
ARTICLE 5
GOODS, PRODUCTS AND MATERIALS
5.1 Quality Of Materials: The General Contractor shall furnish goods, products, materials, equipment and
systems which
(i) comply with this Contract;
(ii) conform to applicable specifications, descriptions, instructions, drawings, data and samples;
(iii) are new (unless otherwise specified or permitted) and without apparent damage;
(iv) are of quality, strength, durability, capacity or appearance equal to or higher than that required by
the Contract Documents;
(v) are merchantable;
(vi) are free from defects; and,
(vii) beyond and in addition to those required by manufacturers’ or suppliers’ specifications where
such additional items are required by the Contract Documents.
5.2 Installation And Use Of Materials: All goods, products, materials, equipment and systems named or
described in the Contract Documents, and all others furnished as equal thereto shall, unless specifically
stated otherwise, be furnished, used, installed, employed and protected in strict compliance with the
specifications, recommendations and instructions of the manufacturer or supplier, unless such
specifications, recommendations or instructions deviate from accepted construction practices, or the
Contract Documents, in which case the General Contractor shall so inform the Owner and the Contract
Manager and shall proceed as directed by Contract Manager, unless otherwise directed by the Owner. The
General Contractor shall coordinate and interrelate all trade contracts, and subcontracts to ensure
compatibility of goods, products, materials, equipment and systems, and validity of all warranties and
guarantees, required by the Contract Documents for its scope of the Work.
5.3 Unsuitable Materials: With respect to goods, products, materials, equipment or systems which the
General Contractor knows or should have known are unsuitable or unavailable at the time of bid
submission, no claim with respect to the unsuitability or unavailability of such goods, products, materials,
equipment or systems will be entertained unless such a claim, stating proposed alternatives, was made in
writing and submitted prior to or with the original bid. Approval by the Owner and the Contract Manager
of substitute goods, products, materials, equipment or systems does not mean or imply final acceptance
by the Owner and the Contract Manager if such items should be defective or not as previously
represented. Should the General Contractor furnish any approved goods, products, materials, equipment
or systems different from or in addition to those required by the Contract Documents which require
supplemental materials or installation procedures different from or in addition to those required for
specified items, the General Contractor shall provide such at no increase in the Construction Contract
Price.
5.4 Security For Work In Progress: The General Contractor shall provide its own security for its Work in
progress and for the goods, products, materials, equipment, systems, construction machinery, tools,
devices and other items required, used or to be used for its scope of the Work.
ARTICLE 6
DOCUMENTS AND INFORMATION
6.1 Information From Owner: The Owner shall provide the General Contractor with information
reasonably necessary to assist the General Contractor in performing its services including, if applicable:
(i) the Site legal description and any required survey;
(ii) all written and tangible material in its possession concerning conditions below ground at the Site;
(iii) if the Project involves an existing structure, all available as-built drawings, record drawings,
plans, specifications and structure system information in its possession with respect to such
structure; and,
(iv) the Owner’s pertinent Project dates and key milestone dates.
6.2 Resolution Of Questions: The General Contractor shall resolve all questions concerning the Contract
Documents with the Contract Manager who has prepared the documents.
6.3 Processing Of Documents: When requested by the Owner, the General Contractor shall process
documents, and provide other reasonably required drawings, services and certifications, necessary to
enable the Owner to (i) obtain financing or insurance for the Project; (ii) obtain approvals, permits and
Certificates of Occupancy for the Project not otherwise required to be obtained by General Contractor;
and, (iii) represent that the Work complies with requirements of governmental agencies having
jurisdiction over the Project.
6.4 Sufficiency Of Owner Information: The furnishing of information by the Owner to the General
Contractor shall not relieve the General Contractor of responsibilities contained elsewhere in this Contract
to evaluate information and documents provided by the Owner and the General Contractor shall timely
notify the Owner in writing of any additional information needed or services required from the Owner in
order for the General Contractor to perform its scope of the Work.
ARTICLE 7
SUBMITTALS
7.1 Submittal Schedule: The General Contractor shall timely prepare and transmit to the designated
Professional a schedule for provision of all anticipated submittals, if any. The schedule shall (i) include
submittals required by the specifications; (ii) be in a format acceptable to the Contract Manager; and, (iii)
set forth specific dates for submission of the listed submittals. The General Contractor shall review and
approve all submittals prior to submission to the Contract Manager.
7.2 Processing of Submittals: The General Contractor shall in timely fashion review, approve if appropriate
and forward submittals to the Contract Manager for review and approval along with such detail and
information as the Contract Manager requires. No part of the Work dealt with by a submittal shall be
fabricated or performed by the General Contractor until such approval has been given.
7.2.1 The Contract Manager is responsible to the Owner, but not to the General Contractor, to verify
that the submittals conform to the design concept and functional requirements of the plans and
specifications, that the detailed design portrayed in shop drawings and proposed equipment and
materials shown in submittals are of the quality specified and will function properly, and that the
submittals comply with the Contract.
7.2.2 The General Contractor shall perform all Work in accordance with approved submittals.
Approval of the General Contractor’s submittals by the Contract Manager shall not relieve the
General Contractor from complying with this Contract, including all plans and specifications,
except as changed by Change Order.
ARTICLE 8
GENERAL CONTRACTOR’S INSPECTION OF
AND CORRECTION OF DEFECTIVE OR INCOMPLETE WORK
8.1 Rejection and Correction of Work In Progress: During the course of Project, the General Contractor
shall inspect and promptly reject any Work (i) which does not conform to the Contract Documents; or (ii)
which does not comply with any applicable law, statute, building code, rule or regulation of any
governmental, public and quasi-public authorities and agencies having jurisdiction.
8.1.1 The General Contractor shall promptly correct or require the correction of all rejected Work,
whether observed before or after Substantial Completion and whether or not fabricated, installed
or completed. The General Contractor shall bear all costs of correcting such Work, including
additional testing and inspections and compensation for all services and expenses necessitated by
such correction.
8.1.2 The General Contractor shall bear the cost of correcting destroyed or damaged Work, whether
completed or partially completed, of the Owner or other trade contractors or subcontractors
caused by the General Contractor’s correction or removal of rejected Work.
8.2 Covered or Concealed Work: If a portion of its scope of the Work has been covered, the General
Contractor shall, if notified to do so by the Owner or the Contract Manager, uncover the designated
portion for observation and then replace it.
8.2.1 If the designated portion of the Work was covered contrary to the request of the Owner or the
Contract Manager, or to requirements specifically expressed in the Contract Documents, the
General Contractor shall receive no additional compensation for the costs of uncovering and
replacement or modification of the Construction Schedule.
8.2.2 If the designated portion of the Work was covered prior to a specific request by the Owner or the
Contract Manager that it remain uncovered, the General Contractor shall receive additional
compensation for the costs of uncovering and replacement or modification of the Construction
Schedule(s) only if the designated portion of the Work was in conformance with the Contract
Documents.
ARTICLE 9
CHANGE ORDERS AND CHANGES TO THE WORK
9.1 Change Order Requests: Any party to the construction process may request changes to the Work,
compensation or applicable schedules.
9.1.1 With respect to such requests for changes by the General Contractor, the General Contractor shall
prepare and submit a change order request to the Contract Manager.
9.1.2 With respect to requests for changes by parties other than the General Contractor, the General
Contractor shall promptly review and respond to change order requests submitted by the Contract
Manager.
9.1.3 When requested to do so, the General Contractor shall prepare and submit to the Contract
Manager drawings, specifications or other data in support of a change order request.
9.1.4 Each change order shall include time and monetary impacts of the change, whether the change
order is considered alone or with all other changes in the course of the project.
9.2 Owner-Directed Changes: The Owner may unilaterally direct the General Contractor to implement
changes in the Work so long as the Work the Owner is requiring is not outside of the general scope of this
Contract and the General Contractor, upon written direction from the Owner, shall proceed with such
change.
9.2.1 The Contract Manager, without the Owner’s prior approval, may authorize or direct the General
Contractor to make minor changes in the Work which are consistent with the intent of the
Contract Documents and which do not involve a change in Project cost, time for construction,
Project scope, or approved design elements, and the General Contractor shall promptly carry out
such changes. Any such minor changes shall be implemented by written field order and executed
by the General Contractor.
9.3 Administration of Changes: The Contract Manager will administer and manage all change order
requests and change orders and will prepare required drawings, specifications and other supporting data
as necessary in connection with minor changes, change order requests and change orders.
9.4 Compensation for Changes: With respect to all change order requests involving credit to the Owner or
additional compensation to the General Contractor, the General Contractor shall (i) obtain from
subcontractors and suppliers the best possible price quotations; (ii) review such quotations to ascertain
whether they are reasonable; (iii) prepare an itemized accounting together with appropriate supporting
data, including reasonable expenditures by, and savings to, those performing the scope of the Work
involved in the proposed change; and, (iv) provide a reasonable price quotation to the Contract Manager.
9.4.1 If price quotations for change order requests are determined by the Contract Manager to be
unreasonable, the General Contractor shall, in writing, justify said quotations or provide
additional back-up materials. If after review of the additional information the Contract Manager
determines the quotation is unreasonable, the Owner may require the General Contractor to
perform the subject Work on a time and material basis.
9.4.2 The General Contractor shall be allowed no additional compensation for any costs, fees or
expenses incurred in performing services already required by this Contract, and shall not be
entitled to additional reimbursement for its home office, other non-job site or indirect overhead
expenses, or tools necessary for construction.
9.4.3 It is the responsibility of the General Contractor to review and approve all pricing of additional
work required of its subcontractors and suppliers.
9.5 Performance of Changes: Upon receipt of a field order or change order the General Contractor shall
proceed to promptly perform the change in the Work. All changes in the Work shall be performed under
applicable conditions of the Contract Documents.
9.6 Disputes Regarding Changes: If the General Contractor disputes a decision (i) that a change has
occurred; (ii) whether a change in the work will result in adjustment of its compensation or applicable
schedules; or (iii) the amount of any adjustment of compensation or applicable schedules, the General
Contractor shall nevertheless carry out the change if directed so to do by Owner. The General Contractor
will not prejudice any claim that it may have with respect to that change so long as the General Contractor
notifies the Owner in writing that it is disputing a decision and states the reasons for its dispute. Failure,
however, to notify the Owner in writing shall constitute the General Contractor’s waiver of any claim
resulting from the change.
9.6.1 In the event a change order request is approved by the Owner in the absence of an agreement with
the General Contractor as to cost, time, or both, the Contract Manager will (i) receive and
maintain all documentation pertaining thereto required of the General Contractor; (ii) examine
such documentation on the Owner’s behalf; (iii) take such other action as may be reasonably
necessary or as the Owner may request; and, (iv) make a written recommendation to the Owner
concerning any appropriate adjustment in the construction cost or time.
9.7 Necessity for Signed Writing: No act, omission or course of dealing shall alter the requirement that
change orders shall be in writing and signed by the Owner, and that change orders are the exclusive
method for effecting any adjustment to the General Contractor’s compensation or applicable schedules.
The General Contractor understands and agrees that neither its compensation nor applicable schedules can
be changed by implication, oral agreement, or unwritten change order.
ARTICLE 10
FINANCIAL CLAIMS AND LIENS
10.1 Notification Regarding Liens: The General Contractor shall immediately notify the Owner and
Contract Manager, both orally and in writing, of the nature and details of any mechanics’ liens,
construction liens, builder’s trust fund claims, or claims of any type made by anyone against the Owner,
the Contract Manager, the General Contractor or any subcontractor or supplier of any of them or against
the Project whether or not such claims arise from the Work.
10.2 Discharge of Liens: The General Contractor shall take all action necessary to obtain the prompt
discharge of any liens or claims filed against the Project. If any lien or claim filed against the Project is
not discharged and released by the claimant, the General Contractor shall, within a reasonable period of
time, but in no event less than fourteen (14) calendar days after request and at its own cost, promptly
obtain discharge and release of such lien or claim by filing the appropriate bond. If the General
Contractor fails to have any such lien or claim discharged and released, or fails to file the appropriate
bond, the Owner shall have the right to pay all sums necessary to obtain such a discharge and release, and
the General Contractor shall bear all expenses incurred by the Owner in so doing.
ARTICLE 11
OWNER’S CONSULTANT(S), CONTRACT MANAGER AND
CONSTRUCTION ADMINISTRATION
11.1 Owner’s Designated Professional Representative: Unless otherwise directed by the Owner, the
designated Contract Manager shall act as the Owner’s representative from the effective date of this
Contract until one (1) year from the date the General Contractor achieves Substantial Completion.
11.2 The Contract Manager so designated will (i) be the Owner’s representative during performance of the
Work; (ii) be the Owner’s representative in dealing with the General Contractor on all such matters; and,
(iii) administer this Contract.
11.2.1 Unless otherwise directed by the Owner, the Owner and the General Contractor shall
communicate with each other in the first instance through the designated Contract Manager. The
Owner’s instructions to the General Contractor will be issued through the designated Contract
Manager.
11.2.2 The designated Contract Manager will act as initial interpreter of the requirements of this
Contract and as the Owner’s advisor on claims.
11.3 Contract Manager Site Visits: The Contract Manager will visit the Site with sufficient frequency for
familiarization with the progress and quality of the Work and to inspect the Work to determine
compliance of the Work with (i) this Contract, including approved shop drawings and other submittals;
and, (ii) applicable laws, statutes, building codes, rules or regulations of all governmental, public and
quasi-public authorities and agencies having or asserting jurisdiction over the Project.
11.4 Contract Manager Rejection Of Work: The Contract Manager may disapprove or reject Work which
does not comply with (i) this Contract including approved shop drawings and other submittals; or (ii)
applicable laws, statutes, building codes, rules or regulations of any governmental, public and quasi-
public authorities and agencies having or asserting jurisdiction over the Project.
11.5 Contract Manager Evaluations: The Contract Manager will review and evaluate the results of all
inspections, tests and written reports required by this Contract and by any governmental entity having or
asserting jurisdiction over the Project. The Contract Manager will take appropriate action on test results,
including acceptance, rejection, requiring additional testing or corrective work, or such other action
deemed appropriate by the Contract Manager. The Contract Manager will promptly reject Work which
does not conform to and comply with testing requirements.
11.5.1 The Contract Manager may require inspection or testing of any Work in addition to that required
by this Contract or governmental entities having or asserting jurisdiction over the Project when
such additional inspections and testing is necessary or advisable, whether or not such Work is
then fabricated, installed or completed. The Contract Manager will take appropriate action on all
such special testing and inspection reports, including acceptance, rejection, requiring additional
testing or corrective work, or such other action deemed appropriate by the Contract Manager.
11.6 Contract Manager Submittal Activities: The Contract Manager will review and approve, reject or take
other appropriate action on submittals, if any, within not more than fourteen (14) calendar days, and will
not approve any submittals unless such submittals conform with (i) the Project concept; (ii) this Contract;
and, (iii) the Owner’s budgeted Total Project Construction Cost. A Contract Manager’s review of
submittals shall not constitute final acceptance of materials or equipment furnished or installed if such
materials or equipment should be defective or not as represented by approved submittals or as otherwise
required by the Contract Documents. The General Contractor remains responsible for details and
accuracy, for confirming and correlating all quantities and dimensions, for selecting fabrication processes,
for techniques of assembly, and for performing its scope of the Work.
11.7 Contract Manager Interpretations: The Contract Manager will, when requested to do so in writing by
the General Contractor, promptly and so as to cause no unnecessary delay, render written or graphic
interpretations and decisions necessary for the proper execution of the Work. The Contract Manager’s
interpretations and decisions relating to artistic effect shall be final if not inconsistent with this Contract.
11.8 Contract Manager Change Order Activities: The Contract Manager will consult with and advise the
Owner concerning, and will administer and manage, all change order requests and change orders on
behalf of the Owner.
11.9 Contract Manager Pay Application Activities: The Contract Manager will review applications for
payment, including such accompanying data, information and schedules as the Contract Manager
requires, to determine the amounts due to the General Contractor and shall authorize payment by the
Owner to the General Contractor in writing. After the General Contractor’s scope of the Work is
determined to be finally complete and the Contract Manager determines that the General Contractor has
completed its scope of the Work, the Contract Manager will determine whether the General Contractor is
entitled to final payment, and if so will so certify to the Owner in writing.
11.10 Contract Manager Relationship to General Contractor: The duties, obligations and responsibilities of
the General Contractor under this Contract shall not be changed, abridged, altered, discharged, released,
or satisfied by any duty, obligation or responsibility of any Contract Manager. The General Contractor
shall not be a third-party beneficiary of any agreement by and between the Owner and any Contract
Manager. The duties of the General Contractor to the Owner shall be independent of, and shall not be
diminished by, any duties or obligations of any Contract Manager to the Owner.
ARTICLE 12
INSPECTION, CORRECTION OF WORK,
AND PROJECT CLOSE OUT
12.1 Substantial Completion: Substantial Completion of the General Contractor’s Work shall be deemed to
have occurred on the date that the General Contractor’s Work passes a Substantial Completion inspection.
12.1.1 When the General Contractor believes that its Work is substantially complete, it shall notify the
Owner and the Contract Manager that its Work is ready for a Substantial Completion inspection.
12.1.2 At or prior to the substantial completion inspection, the General Contractor will prepare and
furnish to the Contract Manager a Declaration of Substantial Completion, which at a minimum
must:
(i) contain a blank for entry of the date of Substantial Completion, which date will fix the
commencement date of warranties and guaranties and allocate between the Owner and
the General Contractor responsibility for security, utilities, damage to the Work and
insurance;
(ii) include a list of items to be completed or corrected and state the time within which the
General Contractor will complete or correct listed items; and,
(iii) contain signature lines for the Owner and the General Contractor.
12.1.3 Upon receipt of notification from the General Contractor the Contract Manager will coordinate
with the Owner and the General Contractor a date for inspection of the Work to determine
whether the Work is substantially complete.
12.1.4 At inspection(s) to determine whether the General Contractor’s Work is substantially complete,
the Contract Manager will:
(i) inspect the General Contractor’s Work;
(ii) list additional items to be completed or corrected; and,
(iii) determine, in consultation with the Owner, whether Substantial Completion of the
General Contractor’s Work has occurred.
12.1.5 If the General Contractor’s Work is determined not to be substantially complete, the General
Contractor shall continue to prosecute the Work until the Work is substantially complete and the
inspection process shall be repeated at no additional cost to the Owner until the Work is
determined to be substantially complete.
12.1.6 When the Owner, the General Contractor and the appropriate Contract Manager agree that the
General Contractor’s Work has passed the Substantial Completion inspection, they shall each
sign the Declaration of Substantial Completion declaring the Work substantially complete and
establishing the actual date of Substantial Completion. The Declaration of Substantial
Completion shall also include a list of and time line for the completion of Work needing
completion and correction.
12.2 Final Completion: Final Completion of the General Contractor’s Work shall be deemed to have occurred
on the date that the General Contractor’s Work passes a Final Completion inspection. Final Completion
shall not be deemed to have occurred and no final payment shall be due the General Contractor until the
General Contractor has passed the Final Completion inspection and the General Contractor has produced
all required Final Completion close-out documentation and items.
12.2.1 When the General Contractor believes its scope of the Work is finally complete, the General
Contractor shall notify the Owner and the appropriate Contract Manager that the Work is ready
for Final Completion inspection.
12.2.2 Upon receipt of such notification from the General Contractor, the Contract Manager will
coordinate with the Owner and the General Contractor a date for inspection of the Work to
determine whether the Work is finally complete.
12.2.3 At the Final Completion inspection to determine whether the General Contractor’s Work is
finally complete, the Contract Manager will:
(i) inspect the General Contractor’s Work;
(ii) determine whether the General Contractor has satisfactorily completed or corrected all
items on the list included with the Declaration of Substantial Completion;
(iii) determine whether the General Contractor’s Work complies with (a) this Contract; (b)
applicable laws, statutes, building codes, rules or regulations of all governmental, public
and quasi-public authorities and agencies having jurisdiction over the Project; and, (c)
applicable workmanship standards;
(iv) determine whether required inspections and approvals by the official(s) having or
asserting jurisdiction over the Project have been satisfactorily completed; and,
(v) determine, in consultation with the Owner, whether the General Contractor’s Work is
finally complete.
12.2.4 If the General Contractor’s Work is not finally complete, the General Contractor shall continue to
prosecute the Work until the Work is finally complete and the inspection process shall be
repeated at no additional cost to the Owner until the Work is finally complete.
12.2.5 On or prior to the date of Final Completion, the General Contractor shall deliver to the
appropriate Contract Manager the following Final Completion close-out documentation and
items:
(i) certification and affidavit that all insurance required of the General Contractor beyond
final payment, if any, is in effect and will not be canceled or allowed to expire without
notice to the Owner;
(ii) written consent of the surety(ies), if any, to final payment;
(iii) full, final and unconditional waivers of mechanics or construction liens, releases of
builder’s trust fund or similar claims, and release of security interests or encumbrances on
the Project property from each contractor, subcontractor, supplier or other person or
entity who has, or might have a claim against the Owner or the Owner’s property;
(iv) full, final and unconditional certification and affidavit that all of the General Contractor’s
obligations to contractors, subcontractors, suppliers and other third parties for payment
for labor, materials or equipment related to the Project have been paid or otherwise
satisfied;
(v) all written warranties and guarantees relating to the labor, goods, products, materials,
equipment and systems incorporated into the General Contractor’s scope of the Work,
endorsed, countersigned, and assigned as necessary; and
(vi) affidavits, releases, bonds, waivers, permits and other documents necessary for final
close-out of Work;
ARTICLE 13
GENERAL CONTRACTOR’S WARRANTIES AND GUARANTEES
13.1 Express Warranties and Guarantees – General Contractor: In addition to the warranties and
guarantees set forth elsewhere herein, the General Contractor expressly warrants and guarantees to the
Owner:
(i) that its scope of the Work complies with (i) the Contract Documents; and, (ii) all applicable laws,
statutes, building codes, rules and regulations of all governmental, public and quasi-public
authorities and agencies having jurisdiction over the Project.
(ii) that all goods, products, materials, equipment and systems incorporated into its scope of the Work
conform to applicable specifications, descriptions, instructions, drawings, data and samples and
shall be and are (i) new (unless otherwise specified or permitted) and without apparent damage or
defect; (ii) of quality equal to or higher than that required by the Contract Documents; and, (iii)
merchantable.
(iii) that all management, supervision, labor and services required for its scope of the Work shall
comply with this Contract and shall be and are performed in a workmanlike manner.
13.2 Express Warranties and Guarantees – Subcontractors And Suppliers: The General Contractor shall
require that all of its subcontractors and suppliers, if any, provide written warranties, guarantees and other
undertakings to the Owner and the General Contractor in a form identical to the warranties, guarantees
and other undertakings set forth in this Contract, including the warranties, guarantees and undertakings set
forth in this Article, which warranties, guarantees and undertakings shall run to the benefit of the Owner
as well as the General Contractor.
13.3 Non-Exclusivity and Survival: The warranties and guarantees set forth in this Article, shall be in
addition to all other warranties, express, implied or statutory, and shall survive the Owner’s payment,
acceptance, inspection of or failure to inspect the Work, and review of the Contract Documents.
13.4 Non-Limitation: Nothing contained in this Article, shall be construed to establish a period of limitation
with respect to the General Contractor’s obligations under this Contract.
13.5 Commencement of Obligations: Unless otherwise specified, all of the General Contractor’s warranty
and guaranty obligations, including the time period(s) for all written warranties and guarantees of
specifically-designated equipment required by the Contract Documents, shall begin on the actual date of
Substantial Completion or the date of acceptance by the Owner, whichever is later.
ARTICLE 14
OWNER’S DUTIES, OBLIGATIONS AND RESPONSIBILITIES
14.1 Owner’s Representative: The Owner shall name the Contract Manager to serve as the Owner’s primary
communication contact with the General Contractor.
14.2 Owner’s General Duties
14.2.1 The Owner shall timely compensate the General Contractor in accordance with this Contract.
14.2.2 Unless otherwise required to be provided by the General Contractor in its scope of services,
Owner shall secure and pay for all Project testing.
14.2.3 The Owner shall review documents prepared by the General Contractor in a timely manner and in
accordance with schedule requirements. Review by the Owner shall be solely for the purpose of
determining whether such documents are generally consistent with the Owner’s intent. No
review of such documents shall relieve the General Contractor of any of its responsibilities.
14.2.4 The Owner shall not have control or charge of construction means, methods, techniques,
sequences or procedures, or for safety precautions and programs in connection with the Work, nor
shall the General Contractor, for any of the foregoing purposes, be deemed the agent of the
Owner.
14.2.5 The Owner shall provide water, gas and electrical energy only as they exist at the Site prior to the
start of construction. The General Contractor shall be responsible to provide and pay for
connections to, extensions from and means of using these utilities.
The Owner will pay utility company bills for water, gas and electrical energy which is required
for the Project and which passes through the Owner’s meters. However, the Owner shall not pay
for (i) water which is wasted or expended without proper regard for ecological and conservation
considerations; (ii) electrical energy expended in electric heating devices; or (iii) utilities for
General Contractor’s field offices.
Acceptance by the General Contractor of the use of the Owner’s water, gas and electrical energy
constitutes a release from the General Contractor to the Owner of all claims and liability for any
damages or losses which may be incurred by the General Contractor as a result of water, gas and
electrical energy outages or voltage variations or surges.
ARTICLE 15
GENERAL CONTRACTOR’S COMPENSATION
15.1 Unit Prices: If any portion of the Construction Contract Price is determined by the application of unit
prices, the number of units contained in the General Contractor’s Compensation Schedule is an estimate
only, and the compensation to the General Contractor shall be determined by the actual number of units
incorporated in, or required by, the Work.
15.2 Schedule of Values: Within the number of calendar days specified in Paragraph 3.2 of Chapter 1, the
General Contractor shall prepare and present to the Owner and the designated Contract Manager, the
General Contractor’s schedule of values, apportioning the Construction Contract Price among the
different elements of its scope of the Work for purposes of periodic and final payment. The General
Contractor’s schedule of values shall be presented in the format, and with such detail and supporting
information, requested by the Contract Manager or Owner. The General Contractor shall not imbalance
or artificially inflate any element of its schedule of values. Upon the Contract Manager and Owner’s
acceptance, the schedule of values shall be used to process and pay the General Contractor’s payment
requests. The schedule of values shall not be changed without written change order authorized by the
Owner.
15.3 Invoicing Procedures: In accordance with the procedures and requirements set forth in this Article, the
General Contractor shall invoice the Owner and the Owner shall pay the General Contractor the
Construction Contract Price.
15.3.1 At least every second Thursday of each month after commencement of performance, but no more
frequently than once a month, the General Contractor shall submit invoices to the Owner
requesting payment in accordance with the schedule of values for labor and services rendered
during the preceding thirty (30) calendar days. Each invoice shall contain such detail and be
backed up with whatever supporting information the Owner or the Contract Manager requests and
shall at a minimum state:
(i) the total Construction Contract Price;
(ii) the amount due for properly provided labor, materials and equipment properly
incorporated into the Project; and with respect to amounts invoiced for materials or
equipment necessary for the Project and properly stored at the Site (or elsewhere if offsite
storage is approved in writing by the Owner), be accompanied by written proof that the
Owner has title to such materials or equipment and that such material and equipment is
fully insured against loss or damage;
(iii) generally itemize or show a breakdown of the various phases or parts of the General
Contractor’s scope of the Work as related to the Construction Contract Price;
(iv) state the value of the various phases or parts actually performed;
(v) state previously invoiced amounts and credit payments made;
(vi) state the total amount due, less any agreed retainage; and,
(vii) have attached such lien waiver and other documentation verifying the General
Contractor’s payment to subcontractors and suppliers as the Owner or a Contract
Manager may request.
15.4 Payment Procedures: Payments shall be deemed timely if postmarked at least two (2) business days
before the Payment Date defined in Paragraph 3.3 of Chapter 1 or any other payment due date stated in
this Article 15.
15.5 Owner’s Right to Refuse Payment: The Contract Manager’s approval of the General Contractor’s
invoice shall not preclude the Owner from exercising any of its remedies under this Contract. In the event
of a dispute, payment shall be made on or before the Payment Date for amounts not in dispute, subject to
any setoffs claimed by the Owner. The Owner shall have the right to refuse to make payment and, if
necessary, may demand the return of a portion or all of the amount previously paid to the General
Contractor due to:
(i) the General Contractor’s failure to perform its scope of the Work in compliance with the
requirements of this Contract or any other agreement between the parties;
(ii) the General Contractor’s failure to correctly and accurately represent the work performed in a
payment request, or otherwise;
(iii) the General Contractor’s performance of its scope of the Work at a rate or in a manner that, in the
Owner’s opinion, is likely to result in the Project or any portion of the Project being inexcusably
delayed;
(iv) the General Contractor’s failure to use funds previously paid the General Contractor by the
Owner, to pay General Contractor’s Project-related obligations including, but not limited to, the
General Contractor’s subcontractors, materialmen, and suppliers;
(v) claims made, or likely to be made, against the Owner or its property;
(vi) loss caused by the General Contractor or the General Contractor’s subcontractors, or suppliers;
and,
(vii) the General Contractor’s failure or refusal to perform any of its obligations to the Owner.
15.6 General Contractor’s Right To Refuse Performance For Non-Payment: If within thirty (30) calendar
days from the Payment Date the Owner, without cause or basis hereunder, fails to pay the General
Contractor any amounts then due and payable to the General Contractor, the General Contractor shall
have the right, in addition to all other rights and remedies contained herein, to cease performance of its
scope of the Work until receipt of proper payment after first providing fourteen (14) calendar days written
notice to the Owner of its intent to cease work.
15.7 Correction of Past Payments: All prior payments, whether based on estimates or otherwise, may be
corrected and adjusted in any subsequent payment and shall be corrected and adjusted in the final
payment. In the event that any invoice contains a defect or impropriety which would prevent payment by
the Payment Date, the Owner shall notify the General Contractor in writing of such defect or impropriety.
Any disputed amounts determined by the Owner to be payable to the General Contractor shall be due
thirty (30) calendar days from the date the dispute is resolved.
15.8 Interest on Outstanding Amounts Due: Interest shall accrue on amounts owed by the Owner to the
General Contractor which remain unpaid thirty (30) calendar days following the date on which payment is
due. Said interest shall accrue at the discounted ninety day U.S. Treasury bill rate as established by the
Weekly Auction and as reported in The Wall Street Journal on the weekday following each such Weekly
Auction.
15.8.1 No interest shall accrue when payment is delayed because of a dispute between the Owner and
the General Contractor, or a dispute as to the accuracy or completeness of any request for
payment received. This exception to the accrual of interest shall apply only to that portion of a
delayed payment which is actually the subject of the dispute and shall apply only for the duration
of such disagreement. Nor shall interest accrue on retainage which is withheld to assure
performance of this Contract.
15.9 Invoice Warranties and Guarantees: The General Contractor expressly warrants and guarantees to the
Owner that:
(i) title to all goods, products, materials, equipment and systems covered by an invoice will pass to
the Owner either by incorporation into its scope of the Work, or upon receipt of payment by the
General Contractor, whichever occurs first;
(ii) all goods, products, materials, equipment and systems covered by an invoice are free and clear of
liens, claims, security interests or encumbrances; and,
(iii) no goods, products, materials, equipment or systems covered by an invoice have been acquired by
the General Contractor, or its subcontractors or suppliers, subject to an agreement under which an
interest therein or an encumbrance thereon is retained by the seller or otherwise imposed by the
General Contractor, or its subcontractors or suppliers.
15.10 General Contractor’s Signature: The signature of the General Contractor on any invoice constitutes the
General Contractor’s certification to the Owner that (i) the General Contractor’s services listed in the
invoice have progressed to the level indicated and have been performed as required by this Contract; (ii)
the General Contractor has paid its subcontractors and suppliers, if any, their proportional share of all
previous payments received from the Owner; and, (iii) the amount requested is currently due and owing.
15.11 Taxes: The General Contractor shall incorporate into the Construction Contract Price, and pay, all sales,
consumer, use and similar taxes for goods, products, materials, equipment and systems incorporated into
its scope of the Work which were legally required at the time of execution of this Contract, whether or not
yet effective or merely scheduled to go into effect. The General Contractor shall secure, defend, protect,
hold harmless, and indemnify the Owner from and against any and all liability, loss, claims, demands,
suits, costs, fees and expenses (including actual fees and expenses of attorneys, expert witnesses, and
other consultants) relating to any taxes assessed or imposed upon, incurred by or asserted against the
Owner by any taxing authority with respect to such taxes. The General Contractor shall cooperate with
and assist the Owner in securing qualified refunds of any sales or use tax paid by the Owner or General
Contractor on goods, products, materials, equipment or systems. Any refund secured shall be paid to the
Owner.
15.12 Compensation of General Contractor’s Subcontractors And Suppliers: Upon receipt of payment
from the Owner, the General Contractor shall pay each of its subcontractors and suppliers, if any, out of
the amount received by the General Contractor on account of such subcontractor’s or supplier’s portion of
the General Contractor’s scope of the Work, the amount to which each entity is entitled, reflecting
percentages actually retained from payments to the General Contractor on account of such entity’s portion
of the Work. The Owner shall have no obligation to pay, and shall not be responsible for payments to, the
General Contractor’s subcontractors or suppliers. However, the Owner reserves the right, but has no
duty, to make payment jointly to the General Contractor and to any of its subcontractors or suppliers in
the event that the Owner becomes aware that the General Contractor fails to pay or unreasonably
withholds payment from one or more of those entities. Such joint check procedure, if employed by the
Owner, shall create no rights in favor of any person or entity beyond the right of the named payees to
payment of the check and shall not be deemed to commit the Owner to repeat the procedure in the future.
15.13 Final Payment: Prior to being entitled to receive final payment, and as a condition precedent thereto, the
General Contractor must achieve Final Completion. The Owner shall, subject to its rights set forth above
in this Article, make final payment of all sums due the General Contractor within fourteen (14) calendar
days of a Contract Manager’s execution of a final approval for payment.
ARTICLE 16
SCHEDULE REQUIREMENTS
16.1 Construction Schedule: The contract work shall be completed on or before June 30, 2005, or in the
event additional time is needed, the completion date will be determined by the Contract Manager
for the City of McCall. Work required for completion beyond this schedule will be subject to liquidated
damages as provided in the Contract Documents. The Contract time shall commence within twenty (20)
days after the date of the Notice to Proceed.
16.2 Delay In Performance: If at any time the General Contractor anticipates that performance of its scope of
the Work will be delayed or in fact has been delayed, the General Contractor shall (i) immediately notify
the Contract Manager of the probable cause of and effect from the delay, and possible alternatives to
minimize the delay; and, (ii) take all corrective actions reasonably necessary to deliver the Work by the
required dates of Substantial Completion and Final Completion, and other milestone dates required by the
Owner, if any.
16.3 Modifications To Time For Performance: The General Contractor shall determine and promptly notify
the Owner and the Contract Manager in writing when it believes adjustments to the required dates of
Substantial Completion or Final Completion, or other milestone dates required by the Owner, if any, are
necessary, but no such adjustments shall be effective unless approved in writing by the Owner and
Contract Manager.
16.4 Early Completion: General Contractor may attempt to achieve Substantial Completion on or before the
required date of Substantial Completion. However, such planned early completion shall be for the
General Contractor’s sole convenience and shall not create any additional General Contractor rights or
Owner obligations under this Contract, nor shall it change the required dates of Substantial Completion or
Final Completion. The Owner shall not pay the General Contractor any additional compensation for
achieving Substantial Completion or Final Completion prior to the required dates nor will the Owner owe
the General Contractor any compensation should the Owner cause the General Contractor not to achieve
Substantial Completion earlier than the required date of Substantial Completion or Final Completion
earlier than the required date of Final Completion.
16.5 Modification Dates Of Substantial Completion Or Final Completion: The General Contractor may
propose modifications to the required dates of Substantial Completion or Final Completion. The Owner
may, but is not required to, accept General Contractor’s proposal. Modification(s) of the required dates of
Substantial Completion or Final Completion shall be accomplished only by duly authorized and accepted
change order(s) stating the new date(s) with specificity and reciting that all references in this Contract to
the required dates of Substantial Completion or Final Completion shall thereafter refer to the date(s) as
modified, and all rights and obligations, including the General Contractor’s liability for actual damages,
delay damages and liquidated damages, shall be determined in relation to the date(s) as modified.
ARTICLE 17
LIQUIDATED DAMAGES
17.1 Time Is Of The Essence: The parties hereto mutually understand and agree that time is of the essence in
the performance of this Contract and that the Owner will incur damages if the General Contractor’s scope
of the Work is not completed on time. The General Contractor shall at all times carry out its duties and
responsibilities as expeditiously as possible and shall begin, perform and complete its services so that (i)
the Work is substantially completed by the required date of Substantial Completion; and, (ii) the Work is
finally complete by the date of Final Completion.
17.2 Failure To Timely Achieve Completion: The parties hereto mutually understand and agree that the
Owner will sustain monetary and other damages in the event of a failure or delay by the General
Contractor in the completion of its scope of the Work. If the General Contractor inexcusably fails to
achieve Substantial Completion by the required date of Substantial Completion as established and
previously set forth in this Contract, the General Contractor shall pay to the Owner, as liquidated damages
for delay and not as a penalty, the daily amount specified in Chapter 1 for each and every day after the
required date of Substantial Completion until Substantial Completion. This liquidated damages provision
shall apply and remain in full force and effect in the event that General Contractor is terminated by Owner
for default and shall apply until Substantial Completion has been achieved by any completing builder. If
the General Contractor fails to achieve Final Completion by the required date of Final Completion as
established and previously set forth in this Contract, the General Contractor shall pay to the Owner, as
liquidated damages for delay and not as a penalty, fifteen (15%) per cent of the daily amount stated for
failure to timely achieve Substantial Completion, even if not actually imposed, for each calendar day of
unexcused delay in achieving Final Completion.
17.3 Compensable Delay: If the General Contractor is delayed at any time in the progress or performance of
its scope of the Work by (i) acts or omissions of the Owner or Contract Manager; (ii) major changes
ordered by the Owner in the scope of Work; or (iii) any other cause which the Owner determines may
justify the compensation of the General Contractor for the delay, the General Contractor’s compensation
shall be equitably adjusted to cover the General Contractor’s actual and direct increased costs attributable
to such delay.
17.4 Excusable Delay: If the General Contractor is delayed at any time in the progress or performance of its
scope of the Work by (i) acts or omissions of the Owner or Contract Manager; (ii) major changes ordered
by the Owner in the scope of Work; (iii) fire; (iv) unusual delays in transportation; (v) adverse unusual
weather conditions not reasonably anticipated by the General Contractor; (vi) unavoidable casualties; (vii)
causes beyond the General Contractor’s control which the Owner agrees in writing are justifiable; or (viii)
any other cause which the Owner determines may justify the delay, the Substantial Completion and Final
Completion dates shall be extended for a period equal to the length of such delay, but only if (i) such
delay is not in any way caused by default or collusion on the part of the General Contractor or by any
cause which the General Contractor could reasonably control or circumvent; (ii) the General Contractor
would have otherwise been able to timely perform all of its obligations under this Contract but for such
delay; and, (iii) immediately but not later than seven (7) calendar days after the beginning of any such
delay the General Contractor gives notice of its delay claim to the Owner.
17.5 Owner’s Right To Withhold Payment: When it reasonably believes (i) that Substantial Completion will
be inexcusably delayed; or (ii) that the General Contractor will fail to achieve Final Completion by the
date of Final Completion, the Owner shall be entitled, but not required, to withhold from any amounts
otherwise due the General Contractor the daily amount specified for liquidated damages in this Article for
each calendar day of the unexcused delay.
17.5.1 If and when the General Contractor overcomes the delay in timely achieving Substantial
Completion or Final Completion, or any part thereof, for which the Owner has withheld payment,
the Owner shall promptly release to the General Contractor those funds withheld, but no longer
applicable, as liquidated damages;
17.5.2 Delay caused by labor disputes, picketing, employee boycotts, or the like which directly or
indirectly involves employees of the General Contractor or its, subcontractors, and suppliers is
not the responsibility of the Owner and will result in time extensions only if agreed to in writing
by the Owner at the time such events arise.
ARTICLE 18
CONCEALED AND UNFORESEEN CONDITIONS
18.1 Notification Regarding Unusual Conditions: If (i) the General Contractor encounters concealed and
unforeseen conditions of an unusual nature which affect the performance of its scope of the Work; or (ii)
the conditions vary from those indicated by the Contract Documents; and, (iii) such conditions are not
ordinarily found to exist or differ materially from those generally recognized as inherent in work of the
character provided by the General Contractor, the General Contractor shall promptly, but in no event later
than three (3) calendar days after first observance of the conditions, notify the appropriate Contract
Manager and the Owner before conditions are disturbed giving the Contract Manager or the Owner
opportunity to observe the condition in its undisturbed state.
18.1.1 The conditions will be promptly investigated and, if they differ substantially and cause a material
increase or decrease in the General Contractor’s cost of, or time required for, performance of its
scope of the Work, the General Contractor’s compensation or time for performance or both will
be equitably adjusted.
18.1.2 All adjustments in compensation or extensions of time shall be by change order. Change order
requests must be made within fourteen (14) calendar days from the date of observation of the
changed conditions.
18.1.3 The General Contractor’s failure to notify the Contract Manager and Owner as provided in this
Article shall constitute a waiver of any claim arising out of or relating to such concealed or
unknown condition.
ARTICLE 19
GENERAL CONTRACTOR’S RECORDS
19.1 Preparation of Records: The General Contractor shall, concurrently with performance of its services,
prepare substantiating records regarding services rendered.
19.2 Retention of Records: The General Contractor shall retain in its records copies of all plans,
specifications, submittals, correspondence, minutes, memoranda, tape recordings, videos, accounting
records, documents reflecting the unit price of construction and other writings or things which document
the Project, its design, and its construction. The General Contractor shall maintain substantiating records
for five (5) years after the date of Final Completion or for any longer period of time as may be required
by law or good construction practice. If the General Contractor receives notification of a dispute or the
commencement of litigation regarding the Project within this five (5) year period, the General Contractor
shall continue to maintain all Project records until final resolution of the dispute or litigation.
19.3 Access to Records: Upon the request of the Owner, the General Contractor shall make its records
available during normal business hours to the Owner, its authorized representative(s) or to any state,
federal or other regulatory authority. Any such authority, the Owner and its authorized representative(s)
shall be entitled to inspect, examine, review and copy the General Contractor’s records at the copying
party’s reasonable expense, within adequate work space at the General Contractor’s facilities. Failure by
the General Contractor to supply substantiating records shall be reason to exclude the related costs from
amounts which might otherwise be payable by the Owner to the General Contractor pursuant to this
Contract.
ARTICLE 20
PROPRIETARY DOCUMENTS AND CONFIDENTIALITY
20.1 Nature And Use of Information: All information, documents, and electronic media furnished by the
Owner to the General Contractor (i) belong to the Owner; (ii) are proprietary and confidential; (iii) are
furnished solely for use on the Owner’s Project; (iv) shall be kept confidential by the General Contractor;
and, (v) shall not be used by the General Contractor on any other project or in connection with any other
person or entity, unless disclosure or use thereof in connection with any matter other than services
rendered to the Owner hereunder is specifically authorized in writing by the Owner in advance. The
Owner hereby grants to the General Contractor a limited license to use and reproduce applicable portions
of the Contract Documents necessary for execution of its scope of the Work. All copies made under this
license shall bear the statutory copyright notice, if any, shown on the documents.
20.2 Ownership of Information: All information, documents, and electronic media prepared by or on behalf
of the General Contractor for the Project are the sole property of the Owner free of any retention rights of
the General Contractor. The General Contractor hereby grants to the Owner an unconditional right to use,
for any purpose whatsoever, any information, documents or electronic media prepared by or on behalf of
the General Contractor for the Project, free of any copyright claims, trade secrets or other proprietary
rights with respect to such documents.
20.3 Disclosure of Information: The General Contractor shall not disclose any information it receives from
the Owner to any other person or entity except to the extent necessary to allow it to perform its duties
under this Contract
20.4 Instructions to Employees: Because it is difficult to separate proprietary and confidential information
from that which is not, the General Contractor shall instruct its employees and agents to regard all
information which is not in the public domain as information which is proprietary and confidential.
20.5 Non-Publication: Submission or distribution of documents to meet official regulatory requirements or
for other required purposes in connection with the Project is not to be construed as publication in
derogation of the Owner’s common law copyrights or other reserved rights.
ARTICLE 21
GENERAL INSURANCE REQUIREMENTS
21.1 General Insurance Requirements: Unless otherwise required, each insurance policy:
(i) shall be issued by an insurance carrier acceptable to the Owner;
(ii) shall be kept in force throughout performance of the General Contractor’s services and for one (1)
year after the end of such performance;
(iii) shall be an occurrence policy; and,
(iv) shall be evidenced by a certificate of insurance acceptable to the Owner which provides that the
coverage evidenced thereby shall not be substantially modified or canceled without twenty-eight
(28) calendar days’ prior written notice to the Owner.
21.2 Certificates of Insurance: Prior to performance of services on the Project, the General Contractor shall
(i) have all required insurance coverage in effect; and, (ii) deliver to the Owner certificates of insurance
for all its required minimum insurance coverage. The General Contractor shall (i) require that its
subcontractors, and suppliers, if any, have similar coverage in effect, and prior to the performance of any
services on the Project by the General Contractor’s subcontractors and suppliers, if any, and (ii) shall
ensure that all required insurance coverages of its subcontractors and suppliers, if any, is in effect. The
Owner shall have no responsibility to verify compliance by the General Contractor or its subcontractors
and suppliers. Upon the request of the Owner, the General Contractor shall deliver to the Owner
certificates of insurance and/or copies of policies for all required insurance coverage.
21.3 Effect of Insurance: Compliance with insurance requirements shall not relieve the General Contractor of
any responsibility to indemnify the Owner for any liability to the Owner as specified in any other
provision of this Contract and the Owner shall be entitled to pursue any remedy in law or equity if the
General Contractor fails to comply with the contractual provisions of this Contract. Indemnity
obligations specified elsewhere in this Contract shall not be negated or reduced by virtue of any insurance
carrier’s (i) denial of insurance coverage for the occurrence or event which is the subject matter of the
claim; or (ii) refusal to defend any named insured.
21.4 Waiver of Subrogation: The General Contractor hereby releases and discharges the Owner and the
Owner’s Related Parties of and from all liability to the General Contractor, and to anyone claiming by,
through or under the General Contractor, by subrogation or otherwise, on account of any loss or damage
to tools, machinery, equipment or other property, however caused.
ARTICLE 22
GENERAL BOND REQUIREMENTS
22.1 General Bond Requirements: If the General Contractor is required to provide performance and payment
bond(s), the penal sum of each bond shall be in an amount not less than the Construction Contract Price,
as adjusted by any change order(s), and each bond shall:
(i) be in a form approved by the Owner;
(ii) incorporate by reference the terms of this Contract;
(iii) be executed by a company certified by the Secretary of the United States Department of Treasury
pursuant to the Act of July 30, 1947 (61 Stat. 646, as amended; 6 U.S.C. 6-13);
(iv) be executed by a company licensed and authorized to do business in the state in which the Project
is located; and,
(v) be accompanied by a power of attorney certifying that the person(s) executing the bond have the
authority to do so.
22.2 Delivery of Bonds: The General Contractor shall deliver any required bond(s) and power(s) of attorney
to the Owner prior to commencement of the Work.
ARTICLE 23
OWNER’S RIGHT TO STOP WORK
23.1 Cease and Desist Order: If the General Contractor fails or refuses to perform or fails to correct defective
Work as required, or persistently fails to carry out the Work in accordance with the Contract, the Owner
may, by written notice, order the General Contractor to cease and desist in performing the Work until the
cause for the order has been eliminated to the satisfaction of the Owner. Upon receipt of such instruction,
the General Contractor shall immediately cease and desist as instructed by the Owner and shall not
proceed further until the cause for the Owner’s order has been corrected, no longer exists, or the Owner
instructs that the Work may resume.
23.1.1 The General Contractor shall not be entitled to an adjustment in the time for performance or the
Construction Contract Price under this clause since such stoppages are considered to be the fault
of the General Contractor.
23.1.2 The right of the Owner to stop Work shall not give rise to a duty on the part of the Owner to
exercise this right for the benefit of the General Contractor or other.
23.1.3 In the event the Owner issues instructions to cease and desist, and in the further event that the
General Contractor fails and refuses within seven (7) calendar days to provide adequate assurance
to the Owner that the cause of such instructions will be eliminated or corrected, then the Owner
shall have the right, but not the obligation, to carry out the Work or any portion of the Work with
its own forces, or with the forces of another builder, and the General Contractor shall be
responsible for the cost of performing such work by the Owner.
23.1.4 The rights set forth herein are in addition to, and without prejudice to, any other rights or
remedies the Owner may have against the General Contractor.
ARTICLE 24
TERMINATION OR SUSPENSION OF
CONTRACTOR FOR CONSTRUCTION
24.1 Termination for Cause by Owner:
24.1.1 The Owner may terminate this Contract for cause if the General Contractor materially breaches
this Contract by:
(i) refusing, failing or being unable to properly manage or perform on any Project;
(ii) refusing, failing or being unable to supply the Project with sufficient numbers of workers,
properly skilled workers, proper materials, or maintain applicable schedules;
(iii) refusing, failing or being unable to make prompt payment to subcontractors or suppliers;
(iv) disregarding laws, ordinances, rules, regulations or orders of any public authority or
quasi-public authority having jurisdiction over the Project;
(v) refusing, failing or being unable to substantially perform in accordance with the terms of
this Contract as determined by the Owner, or as otherwise defined elsewhere herein, or
(vi) refusing, failing or being unable to substantially perform in accordance with the terms of
any other agreement between the Owner and General Contractor.
24.1.2 Upon the occurrence of any of the events described in Paragraph 24.1.1, the Owner may give
notice to the General Contractor setting forth the nature of the default and requesting cure within
seven (7) calendar days from the date of notice. At any time thereafter, if the General Contractor
fails to initiate the cure and continue to cure the default, the Owner, without prejudice to any
other rights or remedies, may take any or all of the following actions:
(i) complete all or any part of the General Contractor’s scope of the Work, including
supplying workers, material and equipment which the Owner deems expedient to
complete the General Contractor’s scope of the Work;
(ii) contract with other builder(s) to complete all or any part of the General Contractor’s
scope of the Work, including supplying workers, material and equipment which the
Owner deems expedient to complete the General Contractor’s work;
(iii) take such other action as is necessary to correct such failure; and,
(iv) give notice to the General Contractor of immediate termination.
24.1.3 If the Owner terminates this Contract for cause, the Owner may also, without prejudice to any
other rights and remedies:
(i) take possession of all materials, tools, construction equipment and machinery on the Site
owned or leased by the General Contractor;
(ii) directly pay the General Contractor’s subcontractors and suppliers, if any, compensation
due to them from the General Contractor;
(iii) finish the General Contractor’s scope of the Work by whatever method the Owner may
deem expedient; and,
(iv) require the General Contractor to assign the General Contractor’s right, title and interest
in General Contractor’s subcontracts or orders to the Owner.
24.1.4 If the Owner terminates this Contract for cause, and the Owner takes possession of all materials,
tools, construction equipment and machinery on the Site owned or leased by the General
Contractor, the General Contractor’s compensation shall be increased by fair payment, either by
purchase or rental at the election of the Owner, for any materials, tools, construction equipment
and machinery items retained, subject to the Owner’s right to recover from the General
Contractor its damages resulting from the termination.
24.1.5 If the Owner terminates this Contract for cause, and it is subsequently determined by a court of
competent jurisdiction that such termination was without cause, then in such event, said
termination shall be deemed a termination for convenience as set forth in Paragraph 24.3.
24.2 Termination for Cause by General Contractor:
24.2.1 The General Contractor may terminate this Contract for cause if the Owner materially breaches
this Contract by:
(i) refusing, failing or being unable to make prompt payment to the General Contractor
without just cause;
(ii) disregarding laws, ordinances, rules, regulations or orders of any public authority or
quasi-public authority having jurisdiction over any Project; or,
(iii) refusing, failing or being unable to substantially perform in accordance with the terms of
this Contract or any other agreement between the Owner and General Contractor.
24.2.2 Upon the occurrence of any of the events described in Paragraph 24.2.1, the General Contractor
may give notice to the Owner setting forth the nature of the default and requesting cure within
seven (7) calendar days from the date of notice. If the Owner fails to cure the default within
seven (7) calendar days, the General Contractor, without prejudice to any rights or remedies, may
give notice to the Owner of immediate termination.
24.3 Termination for Convenience: The Owner may at any time give notice to the General Contractor,
effective in twenty-one (21) calendar days, terminating this Contract, in whole or in part, for the Owner’s
convenience and without cause.
24.4 General Contractor’s Compensation When General Contractor Terminates For Cause or Owner
Terminates for Convenience: If this Contract is (i) terminated by the General Contractor pursuant to
Paragraph 24.2; or (ii) terminated by the Owner pursuant to Paragraph 24.3, the Owner shall pay the
General Contractor specified amounts due for Work actually performed prior to the effective termination
date and reasonable costs associated with termination. The Owner may agree to additional compensation,
if any, due to the General Contractor. Absent agreement on the additional amount due the General
Contractor, the Owner shall pay the General Contractor:
(i) reasonable costs incurred in preparing to perform the terminated portion of its scope of the Work,
and in terminating the General Contractor’s performance, plus a fair and reasonable allowance for
overhead and profit thereon (such profit shall not include anticipated profit or consequential
damages); provided, however, that if it appears that the General Contractor would not have
profited or would have sustained a loss if its scope of the Work had been completed, no profit
shall be allowed or included, and the amount of compensation shall be reduced to reflect the
anticipated rates of loss, if any; and,
(ii) reasonable costs of settling and paying claims arising out of the termination of subcontracts or
supplier orders. These costs shall not include amounts paid in accordance with other provisions
hereof.
24.5 General Contractor’s Compensation When Owner Terminates For Cause: If this Contract is
terminated by the Owner for cause pursuant to Paragraph 24.1, no further payment shall be made to the
General Contractor until Final Completion of the Project. At such time, the General Contractor shall be
paid the remainder of the Construction Contract Price less all costs and damages incurred by the Owner as
a result of the default of the General Contractor, including liquidated damages applicable thereto. The
General Contractor shall additionally reimburse the Owner for any additional costs or expenses incurred.
24.6 Limitation On Termination Compensation: Irrespective of the reason for termination or the party
terminating, the total sum paid to the General Contractor shall not exceed the Contract Construction Price,
as properly adjusted, reduced by the amount of payments previously made and penalties or deductions
incurred pursuant to any other provision of this Contract, and shall in no event include duplication of
payment.
24.7 General Contractor’s Responsibility upon Termination: Irrespective of the reason for termination or
the party terminating, if this Contract is terminated, the General Contractor shall, unless notified
otherwise by the Owner,
(i) immediately stop work;
(ii) reduce its staff, services and outstanding commitments in order to minimize the cost of
termination;
(iii) terminate outstanding orders and subcontracts;
(iv) settle the liabilities and claims arising out of the termination of subcontracts and orders; and,
(v) transfer title and deliver to the Owner such completed or partially completed Work, and, if paid
for by the Owner, materials, equipment, parts, fixtures, information and such contract rights as
the General Contractor has.
24.8 Lack of Duty To Terminate: The right to terminate or suspend the Work shall not give rise to a duty on
the part of either the Owner or the General Contractor to exercise that right for the benefit of the Owner,
General Contractor or any other persons or entities.
24.9 Limitation on Termination Claim: If the General Contractor fails to file a claim within one (1) year
from the effective date of termination, the Owner shall pay the General Contractor only for services
actually performed and expenses actually incurred prior to the effective termination date.
ARTICLE 25
APPLICABLE LAW AND DISPUTE RESOLUTION
25.1 Applicable State Law: This Contract shall be deemed to be entered into in and shall be interpreted under
the laws of the State of Idaho.
25.2 Court Actions: Except as expressly prohibited by law:
(i) all legal actions hereunder shall be conducted only in state court or federal court districts where
the Project is located and having subject matter jurisdiction over the matter in controversy; except
that any final judgment may be enforced in other jurisdictions in any manner provided by law;
(ii) the choice of jurisdiction and venue described in the preceding paragraph shall be mandatory and
not permissive in nature, thereby precluding the possibility of litigation or trial in any jurisdiction
or venue other than that specified herein;
(iii) the parties waive any right to assert the doctrine of forum non conveniens or to object to venue;
and,
(iv) the parties waive any right to a jury trial, and agree that all legal actions shall be tried, both as to
factual and legal issues, only to the Court.
25.3 Mutual Discussion: In case of any dispute, claim, question or disagreement arising from or relating to
the Project or arising out of this Contract or the breach thereof, the parties shall first attempt resolution
through mutual discussion.
25.4 Facilitative Mediation: If the parties cannot resolve any dispute, claim, question, or disagreement
arising from or relating to the Project or arising out of this Contract or the breach thereof through mutual
discussion, as a condition precedent to any litigation, the parties shall in good faith participate in private,
non-binding facilitative mediation seeking a just and equitable solution satisfactory to all parties.
25.4.1 All parties to a mediation shall promptly provide all other parties to the mediation with copies of
essential documentation relevant to the support or defense of the matter being mediated.
25.4.2 The parties shall not be required to mediate for a period greater than ninety-one (91) calendar
days unless otherwise agreed to in writing by the parties. The parties shall share equally any
administrative costs and fees of such proceedings, but shall each be responsible for their own
expenses otherwise incurred.
25.4.3 In the event that the statute of limitations would run during the required mediation period, either
party may institute litigation so as to avoid the running of such statute upon the condition that
such party immediately seek a stay of such litigation pending the conclusion of the mediation
period.
25.4.4 During the course of mediation, any party to the mediation may apply for injunctive relief from
any court of competent jurisdiction until the mediation period expires or the dispute is otherwise
resolved.
25.4.5 The Owner, the Contract Manager, the General Contractor, and any other parties involved in any
way in the design or construction of the Project are bound, each to each other, by this requirement
to mediate prior to commencement of any litigation, provided that they have signed this Contract
or an agreement that incorporates this Contract by reference or signed any other agreement which
binds them to mediate. Each such party agrees that it may be joined as an additional party to a
mediation involving other parties under any such agreement. In the case where more than one
mediation is begun under any such agreement and any party contends that the mediations are
substantially related, the mediations may be heard by the mediator selected in the first mediation
which was commenced.
25.5 Conflicting Dispute Resolution Provisions: Neither party to this Contract shall enter into any contract
with regard to the Project which directly or indirectly gives the right to resolve any dispute with,
involving, or affecting the other to any other person or legal entity which is in conflict with the dispute
resolution procedures required by this Article.
25.6 Arbitration Preclusion: In case of a dispute relating to the Project, or arising out of this Contract, no
party to this Contract shall be required to participate in or be bound by, any arbitration proceedings.
25.7 Performance During Dispute Resolution: The Owner and the General Contractor agree that pending
the resolution of any dispute, controversy, or question, the Owner and the General Contractor shall each
continue to perform their respective obligations without interruption or delay, and the General Contractor
shall not stop or delay the performance of its scope of the Work.
ARTICLE 26
DAMAGES AND REMEDIES
26.1 General Contractor’s Repair: The General Contractor shall, at its expense, promptly correct, repair, or
replace all goods, products, materials, systems, labor and services which do not comply with the
warranties and guarantees set forth in this Contract, or any other applicable warranty or guarantee.
26.2 General Contractor’s Reimbursement: The General Contractor shall promptly reimburse the Owner
for any expenses or damages incurred by the Owner as a result of (i) the General Contractor ‘s failure to
substantially perform in accordance with the terms of this Contract; (ii) deficiencies or conflicts in the
Contract Documents attributable to the General Contractor or of which the General Contractor was or
should have been aware; (iii) breach of the warranties and guarantees set forth in this Contract or any
other applicable warranty or guarantee; or (iv) other acts or omissions of the General Contractor.
26.3 General Indemnity: To the fullest extent permitted by law the General Contractor shall secure, defend,
protect, hold harmless, and indemnify the Owner and the Owner’s Related Parties from and against any
and all liability, loss, claims, demands, suits, costs, fees and expenses (including actual fees and expenses
of attorneys, expert witnesses, and other consultants), by whomsoever brought or alleged, and regardless
of the legal theories upon which premised, including, but not limited to, those actually or allegedly arising
out of bodily injury to, or sickness or death of, any person, or property damage or destruction (including
loss of use), which may be imposed upon, incurred by or asserted against the Owner or the Owner’s
Related Parties allegedly or actually arising out of or resulting from the General Contractor’s services,
including without limitation any breach of contract or negligent act or omission (i) of the General
Contractor; or (ii) of the General Contractor’s subcontractors or suppliers, if any, or (iii) of the agents,
employees or servants of the General Contractor or its subcontractors or suppliers, if any.
26.3.1 To the fullest extent permitted by law, the General Contractor, for itself and for its subcontractors
and suppliers, and the respective agents, employees and servants of each, expressly waives any
and all immunity or damage limitation provisions available to any agent, employee or servant
under any workers’ or workmen’s compensation acts, disability benefit acts or other employee
benefit acts, to the extent such statutory or case law would otherwise limit the amount recoverable
by the Owner or the Owner’s Related Parties pursuant to the indemnification provision contained
in the paragraph above.
26.5 Non-Exclusivity Of Owner’s Remedies: The Owner’s selection of one or more remedies for breach of
this Contract contained herein shall not limit the Owner’s right to invoke any other remedy available to
the Owner under this Contract or by law.
26.6 Waiver of Damages: The General Contractor shall not be entitled to, and hereby waives any monetary
claims for or damages arising from or related to, lost profits, lost business opportunities, unabsorbed
overhead or any indirect consequential damages.
26.7 Interest: The Owner is entitled to interest on all amounts due from the General Contractor that remain
unpaid thirty (30) days after the amount is deemed due, whether as a result of a resolution of a dispute or
otherwise. Any such interest shall be calculated by the same method as set forth in Paragraph 15.8.
ARTICLE 27
MISCELLANEOUS PROVISIONS
27.1 Integration: This Contract represents the entire and integrated agreement between the Owner and the
General Contractor, and supersedes all prior negotiations, representations or agreements, either written or
oral, for the Project. This Contract may be amended only by written instruments signed by both the
Owner and the General Contractor, and is subject to such reasonable modifications as may be required by
the Owner’s lender(s) or insurer(s), if any.
27.2 Severability: If any provision of this Contract, or the application thereof, is determined to be invalid or
unenforceable, the remainder of that provision and all other provisions shall remain valid and enforceable.
27.3 Waiver: No provision of this Contract may be waived except by written agreement of the parties. A
waiver of any provision on one occasion shall not be deemed a waiver of that provision on any
subsequent occasion, unless specifically stated in writing. A waiver of any provision shall not affect or
alter the remaining provisions of this Contract.
27.4 Strict Compliance: No failure of the Owner to insist upon strict compliance by the General Contractor
with any provision of this Contract shall operate to release, discharge, modify, change or affect any of the
General Contractor’s obligations.
27.5 Third-Party Beneficiaries: This Contract shall inure solely to the benefit of the parties hereto and their
successors and assigns, and, except as otherwise specifically provided in this Contract, nothing contained
in this Contract is intended to or shall create a contractual relationship with, or any rights or cause of
action in favor of, any third party against either the Owner or the General Contractor.
27.6 Survival: All provisions of this Contract which contain continuing obligations shall survive its
expiration or termination.
27.7 Assignment: Except as prohibited by applicable law, neither party shall assign any or all of its benefits
or executory obligations under this Contract without the approval of the other party, except in case of
assignment solely for security or assignment by the Owner to a Related Party of the Owner. The Owner
and the General Contractor bind their successors and assigns to the other party to this Contract.
27.8 Execution Of Documents: Upon the request of the Owner, the General Contractor shall execute
documents required by the Owner’s lender whereby the General Contractor agrees that in the event of the
Owner’s default under, or the termination of, any construction loan agreement, the General Contractor
will complete the services required by this Contract under the terms and conditions contained herein so
long as the lender fulfills the obligations of the Owner toward the General Contractor as set forth in this
Contract.
ARTICLE 28
DEFINITIONS
When one of the following capitalized words, terms or phrases is used in this contract, it shall be interpreted or
construed first as defined below, second according to its generally-accepted meaning in the construction industry,
and third according to its common and customary usage.
Builder: An entity, including but not limited to a general contractor, a trade contractor or a construction manager,
engaged directly by the Owner pursuant to a Contract.
Contract Price: The dollar amount for which a Builder agrees to perform the Work set forth in a Contract.
Contract Documents: Plans, specifications, change orders, revisions, addenda, and other information which set
forth in detail the Work.
Construction Schedule: The timetable which sets forth pertinent dates for timely completion of the Work.
Contract: A written agreement between the Owner and a Builder for provision of goods, products, materials,
equipment, systems, management, supervision, labor and services required to construct all or part of a Project.
Declaration of Substantial Completion: Document declaring the Work substantially complete and suitable for
occupancy or beneficial use by the Owner.
Final Completion: The stage of construction when the Work has been completed in accordance with the Contract
and the Owner has received all documents and items necessary for closeout of the Work.
Hazardous Substances: The term “Hazardous Substance” shall have the same meaning and definition as set forth
in the Comprehensive Environmental Response Compensation and Liability Act as amended, 42 USC § 6901 et
seq., and regulations promulgated thereunder (collectively “CERCLA”) and any corresponding state or local law
or regulation, and shall also include: (a) any Pollutant or Contaminant as those terms are defined in CERCLA; (b)
any Solid Waste or Hazardous Constituent as those terms are defined by, or are otherwise identified by, the
Resource Conservation and Recovery Act as amended, 42 USC § 6901 et seq., and regulations promulgated
thereunder (collectively “RCRA”) and any corresponding state or local law or regulation; (c) crude oil, petroleum
and fractions of distillates thereof; (d) any other material, substance or chemical defined, characterized or
regulated as toxic or hazardous under any applicable law, regulation, ordinance, directive or ruling; and, (e) any
infectious or medical waste as defined by any applicable federal or state laws or regulations.
Owner’s Related Parties: Any parent, subsidiary or affiliated entities of the Owner, including the respective
officers, trustees, office holders, directors, shareholders, partners, and employees of each.
Contract Manager: The Airport Manager or other entity engaged directly by the Owner to manage the Contract.
Project: A planned construction undertaking as more specifically described in a Contract.
Site: The geographical location of a Project, usually defined by legal boundary lines, and the location
characteristics including, but not limited to, grades and lines of streets, alleys, pavements and adjoining structures,
rights-of-way, restrictions, easements, encroachments, zoning, deed restrictions, existing buildings and
improvements, and service and utility lines.
Substantial Completion: The stage of construction when the Owner can occupy or beneficially use satisfactorily
completed Work for its intended purpose.
Total Project Construction Cost: The total cost to the Owner to complete construction of the Project, including,
without limitation, the Work, the cost of utilities, the cost of fees for permits and licenses, and modifications
necessitated by local conditions.
Work: Any and all computers, construction machinery, documents, equipment, facilities, fixtures, furnishings,
goods, heat, items, labor, licenses, management, materials, permits, products, services, supervision, supplies,
systems, taxes, testing, tools, utilities, transportation, vehicles, and water, required to be performed or supplied
and/or necessary for proper execution and completion of the Project, or some portion thereof, whether or not
incorporated or to be incorporated into the Project.
SECTION 3
SPECIFICATIONS AND PLANS
SECTION 3
SPECIFICATIONS AND PLANS
The work performed shall be done in accordance with the Idaho Standards for Public Works Construction, 1999
Edition, hereinafter referred to as Standard Specifications, and in accordance with these Special Provisions and
the approved Plans.
In case of conflict between the Standard Specifications and these Special Provisions, the Special Provisions shall
take precedence over and be used in lieu of such conflicting portions.
Where the Plans, Specification, or Special Provisions describe portions of the work in general terms, but not in
complete detail, it is understood that the item is to be furnished and installed complete and in place and that only
the best general practice is to prevail and that only materials and workmanship of the highest quality are to be
used. Unless otherwise specified, the Contractor shall furnish all labor, materials, tools, equipment and
incidentals, and do all the work involved in executing the contract. In the event that additional materials are
needed, additional payments will be based on unit prices and bid schedules.
Sign and comply with the attached federal forms; Form AD-1047 (1/92), AD-1049 (Rev 5/90),