HomeMy WebLinkAboutAgenda - 04-15-2014 - 7a 1
ORANGE COUNTY
BOARD OF COMMISSIONERS
ACTION AGENDA ITEM ABSTRACT
Meeting Date: April 15, 2014
Action Agenda
Item No. 7-a
SUBJECT: Bid Award — Orange County MSW Landfill Closure
DEPARTMENT: Solid Waste Management PUBLIC HEARING: (Y/N) No
ATTACHMENT(S): INFORMATION CONTACT:
1) Certified Bid Tabulation
2) Construction Agreement Gayle Wilson, (919) 968-2885
3) General Conditions David Cannell, (919) 245-2651
Michael Talbert, (919) 245-2153
PURPOSE: To consider:
• Awarding the general construction bid to and approve a construction agreement with T&K
Construction, LLC of Vinemont, AL in the amount of $3,432,142 for the construction
associated with the closure of the Orange County Municipal Solid Waste (MSW) Landfill;
• Authorizing the Chair to sign the general construction agreement on behalf of the Board
of County Commissioners, subject to the final review by the County Attorney; and
• Authorizing the Manager to execute individual change orders within the limits of the
Manager's authority ($250,000) up to the extent of the project budget.
BACKGROUND: The BOCC approved proceeding with the final closure of the Orange County
MSW Landfill as part of the Fiscal Year 2013/2014 budget process. This phase of the
construction project will include installing the final capping liner system to officially close out the
south MSW landfill unit.
The BOCC authorized the cessation of accepting MSW waste at the landfill located off of
Eubanks Road in Chapel Hill. The last day that MSW waste was accepted at the landfill was
June 29, 2013. Shortly after waste was no longer accepted, County Solid Waste staff began the
regulatory required process of closing the landfill by installing the intermediate soil cover layer
over the landfill and by grading the top of the landfill to meet slope requirements.
Formal bidding of the project for the capping system to be installed was original anticipated to
occur prior to last day of waste acceptance so that construction of the cap could begin in July
2013. In anticipation of the June 2013 closure, Solid Waste Staff with the assistance of the
project engineering consultant, HRD Engineering, Inc. of the Carolinas, submitted a permit
modification to NC Department of Environment and Natural Resources (DENR) in January of
2012 for approval of the closure plans. Due to the modified capping configuration, the
2
construction documents could not be developed prior to receiving approval from NC DENR.
The approval was received by the County in October 2013.
Development of construction documents was started by HDR immediately following the receipt
of permit modification approval. On February 17, 2014 the County advertised Bid Number 367-
293 for the construction project. A mandatory pre-bid conference was held on March 6, 2014
with County Staff and the design engineer in attendance. The meeting was held at the Solid
Waste Administration office and a site walk was conducted following the meeting. Sealed bids
were received by the County on March 25, 2014 with six companies submitting bids.
Attachment 1 is the certified bid tabulation of the results.
HDR reviewed the submitted bids for conformance with the bidding requirements, and T&K
Construction, LLC out of Vinemont, AL was determined to be the lowest responsive, responsible
bidder for this specialized construction project. To the base bid of$3,340,600 is added:
Supply and Install Landfill Gas System Extensions $59,052
Supply and Install Landfill Gas System Boots $26,790
Leachate Collection System Cleaning and Videotaping $ 5,700
Total Construction Contract = $3,432,142
Below is the anticipated schedule for this project:
Task Proposed End by Date
Start Date
BOCC Action: Orange County MSW Landfill Closure Bid April 15, 2014 April 15, 2014
Award
Closure construction — substantial completion April 28, 2014 October 25,
2014
Project closeout—final completion October 25, November
2014 24, 2014
FINANCIAL IMPACT: Financing for the closure project was included in the Fiscal 2013/14
Capital Investment Plan and operating budget. The amount of $3,735,453 was appropriated
from landfill reserves to fund closure construction.
RECOMMENDATION(S): The Manager recommends that the Board:
1) Award the general construction bid to and approve the construction agreement with T&K
Construction, LLC of Vinemont, AL in the amount of $3,432,142 for the construction
associated with the closure of the Orange County MSW Landfill;
2) Authorize the Chair to sign the general construction agreement on behalf of the Board of
County Commissioners, subject to final review by the County Attorney; and
3) Authorize the Manager to execute individual change orders within the limits of the
Manager's authority ($250,000) up to the extent of the project budget.
ONE COMPANY Maks;Salutions,. Attachment 1
April 3,2014
Gayle Wilson
Solid Waste Management Director
Orange County Solid Waste Management Department
1207 Eubanks Road
Chapel Hill,NC 27516
Re: Orange County MSW Landfill
Closure Construction
HDR Project No.350207-142839-018
Dear Mr.Wilson:
HDR Engineering, Inc. of the Carolinas(HDR)has reviewed the bids for the Orange County MSW Landfill
Closure Construction project. The project consists of constructing a cap over the entire lined landfill facility
of approximately 25 acres. Construction activities include surface preparation,placement of a 40 mil LLDPE
geomembrane and geocomposite drainage layer,placement of an 18-inch thick soil cushion and 6-inch thick
topsoil layer over the geosynthetic components of the final cover system, stormwater controls, erosion and
sediment control measures,and other incidental work.
The following information is provided regarding our evaluation of bids received.
Background
Six bids were received for the Orange County MSW Landfill Closure Construction project by 3:00 p.m. on
March 25,2014 from the following contractors and are listed from lowest to highest base bids:
Base Bid Bid Alternate No.1 Bid Alternate No.2 Irregularities
Contractor
(On-Site Soils) (Off-Site Soils) (Off-Site Topsoil) (See Notes)
T&K Construction,LLC $3,340,600 $3,766.600 $3,543,100 No
Southeast Environmental
$3,544,000 $4,740,000 $3,822,000 Yes'
Contracting,Inc.
Triangle Grading&Paving,Inc. $3,687,539 $4,679,033 $4,057,369 Yes2
Thalle Construction Co.Inc. $3,847,698 $4,360,687 $3,996,777 No
Sargent Corporation $4,209,400 $4,980,300 $4,369,125 No
Rifenburg Construction Inc. $6,155,378 $6,130,378 $6,655,378 Yes2
Notes: 1.Did not submit Subcontractor and Supplier Tabulation.
2.Did not submit Qualification Statement.
Tabulation
The above-referenced bids were examined for accuracy and compliance with the bid requirements. A certified
tabulation is enclosed and includes all numerical information provided with the bid and any irregularity that
was discovered. As shown in the above table, three of the bids (Southeast Environmental Contracting, Inc.;
HD R-Engineering,Inc.of the Carolinas 440 S Church Street Phone:1 )33e6700
Suite MO Fax 17061330-6760
Charlotte.NC 28202-2075 www.hdrine.com
4
Mr. Gayle Wilson
April 3, 2U/4
Page
Triangle Grading&Paving, Inc.; and Rifenburg Construction Inc.)contained irregularities which consisted of
t^Ume to include required information with the bid. The apparent )on bidder, T&){ C000Uruuhuo, LLC
(T&K),had the lowest base bid and was lowest for both bid alternates.
Required Contractor Qualifications
BDD requested qualifications from the low responsive bidder, T6L}{. Attached is aunpy of the fiuuuuiu} and
legal documents provided for review by HDR| and Orange County. BDRL`o review of dbcac Jucuuzcu10
generally found them to be responsive to the requirements contained in Section OOlOO, luooucLiouo to
Bidders, of the Bid Documents. BDR also contacted professional references supplied by T8tK. The
references contacted indicated T&K performed satisfactorily during their projects.
Recommendations
It is the opinion o[BDB, based on RDBL`o review of the hiJa and supplemental information submitted by
T&l{, that T&K provided the lowest priced responsive hid. DDR finds that T6tK has the experience to
complete this type of work and would be an acceptable contractor for the project.
HDR recommends that the County award the contract to T&K Construction, LLC for the Base Bid amount of
Three Million, Three Hundred Forty Thousand, Six Hundred Dollars($3°34O,600,00). [o addition tothe
Base Bid amount, RDR o:uomnucndx that the County award the fh))ovviug Dud Cost Items to T&:){
Construction, LLC:
Supply and Install LaudfiUGas System Extensions $59,052.00
Supply and Install Landfill Gas System Boots $26,790.00
Leucbate Collection System Cleaning and Videotaping $-5,7200L0O
TOTAL UNIT COST ITEMS $91,542.00
The total construction contract would he for Three MUDno, Four Hundred Thirty Two Thousand, One
Hundred Forty Dollars($3,432°142).
In addition, HDR recommends that the County budget a contingency equal to a minimum of 10%of the Base
Bid ($334,860) for the other )iou item work included in the bid that may become necessary due to
uncertainties related to the availability or quality of on-site soils and other unforeseen conditions.
HDR appreciates the opportunity to provide continued service to Orange County. Please feel free tucontact
meo1(A|A)232-6682 should you have questions regarding this information.
Respectfully submitted,
o 0z
K80o&X Engineering Inc.o7the Carolinas
SEX
Thomas M. Yuuoauhuk' PB --
Project Engineer
as
Enclosures: Bid Tabulation Summary
Supplemental Post-Bid Information Provided byT&K
oon Engineering,Inc.o/the Carolinas
Mr. Gayle Wilson
April 3, 2014
Page 3
cc: Gordon Dively,PE,Orange County
Ed Shuffler,PE,HDR
Jeff Murray,PE,HDR
HOR Engineering,Inc.of theCairofinas
fu-d6i Bid Tabulations Summary g
Orange County MSW Landfill Closure Bid
HQR Ertgiill rihq, lnC. Bids Received Tuesday March 25, 2014 at 3:00 pm
-Dr the GalrolInats
CONTRACTOR'
T & K Construction LLC
Southeast Environmental
Triangle Grading & pardn&
Thalia Construction Co. Inc.
Sargent Corporation
Rifenburg Construction Inc.
Contracting, Inc.
Inc.
ADDRESS:
235 County Road 1242
5667 Val Out Rd
PO Drawer 2570
900 NC 86 Neah
435 Bennoch Road PO Box
303 Highway 70 Bypass
Vinemont AL 35179
Hahira, GA 31632
0udington, NC 27215
Hillsborough NC 27278
Stillwater, ME 04489
Durham, NC 27703
LICENSE 4:
55999
41556
17456
35203
65779
37580
Item
Cost Rank
Cost Rank
Cost Rank
Cost
No. Descri tign unit
Rank
Cost Rank
Cost Rank
Base Bid LS
$ 3,340,600 1
$ 3,544,000 2
$ 3,687,539 3
$ 3,847,698 4
$ 4,209,400 5
$ 6,155,378 6
Bid Altemative No. 1 LS
S 3,766,600 1
$ 4,740,000 4
$ 4,679,033 3
$ 4,360,687 2
$ 4,980,300 5
$ 6,130,378 6
Bid Alternative No. 2 LS
$ 3,543,100 1
$ 3,822,000 2
$ 4,057,369 4
$ 3,996,777 3
$ 4,369,125 5
$ 6,655,378 6
Unit Cost Items
Unit Cost
Unit Cost
Unit Cost
Unit Cost
Unit Cast
Unit Cost
1 Supply and Install 5o11 Cushion Layer (obtained orelte including any processingreq uired BY
$ 3.20
$ 4.00
$ 6.50
$ 8.00
$ 4.90
$ 12.00
to meet project specifications)
2 Supplyand Install 5o11 Cushion Layer(obtained aff- siteincuding anyprocessingrequired BY
$ 3.99
$ 7.50
$ 13.00)$
10.00
$ 810
$ 15.00
to meet project specifications)
3 Supply and install Topsoil Layer (obtained on- site includingany processing required to BY
$ 2.28
$ 3.00
$ 2.55
$ 8.00
$ 2.10
$ 3.85
meet project specifications)
4 Supply and Install Topsoil Layer (obtained off -site including any processing required to BY
$ 6.27
$ 8.50
$ BAB
i $ 10.00
$ 3.25
$ 9.00
meet project specifications)
S Supplyand Install Landfill Gas System Extensions LS
$ 59,052.00
$ 68,750.00
$ 45,875.00
$ 30,000.00
$ 24,025.00
$ 45,000.00
6 Supplq and Install LarMfill Gas System Boats LS
$ 26,790.00
$ 10,90000
$ 27,500.00
$ 12,675.00
$ 11,550.00
$ 37,000001
7 Excavate, Dispose, and eackfill Waste CY
$ 9.12
$ 9.00
$ 29.15
$ 23.50
$ 26.60
$ 50.09 1
8 Supply and Install Additional intermediate Cover /General Fll /Structural Fill (obtained on- CY
$ 7.76
$ 4.00
$ 15.90
$ 15.00
$ 7.40
$ 25.001
site including any processing required to meet project spec fications)
9 Leachate Collection System Cleaning and Videotaping LS
$ 5,700.00
$ 36,315.00
$ 38,000.00
$ 34,000.00
$ 32,260.00
$ 47,000.00
10 Additional cast to sad, with Carthage Switch ra instead of edfied mixture. AC
$ 1,026.00
$ 200.00
$ 500.00
$ 400.00
$ 240.00
$ 500.00'
All Addenda Acknowledged
4 Addenda Acknowledged
4 Addenda Acknowledged
4 Addenda Acknowledged
4 Addenda Acknowledged
4 Addenda Acknowledged
4Addenda Acknowledged
Identification of HUB Certified /Minority Business Participation
Included
included
Included
Included
Included
Included
State of NC MBE Affidavit A or 8
Included
included'
induced
Included
Included°
Included
5u1contractor and Supplier Tabulation
Included
Not included*
Included
Included
Included
Included
Qualification Statement
Included
included
Not included-
Included
Included
Not included'
Contractor Safety Record
Included
induded
Included
Included
Included
Included
EA Bond
Included
Included
Included
Included
Included
I Included
Irregularities (see highlighted areas on lorml*
*Crossed out "North
*Crossed out "North
Carolina" and put "Georgia'
Carolina" and put "Maine" in
in the title
I
Orange County MSW Landfill Closure Bid Tab.xlsx Page 1 of 1 3/31/2014
Attachment 2 7
[Departmental Use Only]
TITLE Orange CO MSW LF Closure
FY 13-14
NORTH CAROLINA
CONSTRUCTION AGREEMENT OVER$250,000.00
ORANGE COUNTY
THIS CONSTRUCTION AGREEMENT(hereinafter called "Agreement"),made as of the day
of April, 2014, by and between T&K Construction LLC, (hereinafter called the "Contractor"), and Orange
County, a body politic and a political subdivision of the State of North Carolina, (hereinafter called the
"Owner").
WITNESSETH:
That the Contractor and the Owner,for the consideration herein named,agree as follows:
1. CONTRACT DOCUMENTS; PRIORITY
The Contract Documents consist of this Agreement, the General Conditions which are fully
incorporated in this Agreement, the Request for Proposals, designer approved communications and/or field
orders, the Proposal, Construction Documents and Drawings and Written Specifications. The Contract
Documents form the Contract. In the event of any inconsistency between or among the Contract Documents
the Contract Documents shall be interpreted in the following order of priority:
a. This Agreement with incorporated General Conditions.
b. Designer approved and stamped construction documents and drawings and written
specifications.
c. Designer approved communications and/or field orders.
d. Request for Proposals and addenda thereto.
e. Proposal.
2. SCOPE OF WORK
The Contractor shall furnish and deliver all of the materials, and perform, and be fully responsible
for all of the Work required by this Agreement within the time period stipulated in a written Notice-to-Proceed
to be executed by the Contractor and Owner and in accordance with the following enumerated documents,
which are made a part hereof as if fully contained herein:
a. Construction Drawings prepared by HDR Engineering Inc. of the Carolinas (S heet sets OOG-
01
- 03. OOC- - 07 dated February 2014,
O1 7 F bruary and all related addendum as acknowledged in
submitted proposal)
b. Written specifications prepared by the Designer.
c. T&K Construction LLC proposal dated March 25, 2014 which fully describes the work to be
performed, such work(hereinafter called the"Work").
d. Related documents listed under Section 2 above.
Revised 1/14 1
8
3. TERM AND SCHEDULING
a. The Contractor agrees to commence work pursuant to the written Notice-to Proceed.
b. The Contractor agrees to complete substantially all Work included by October 25, 2014 or 120
calendar days from the time of written Notice to Proceed.
c. Time is of the essence with respect to all dates specified in the Contract Documents as
Completion Dates.
d. The Contractor shall perform the Work in the time, manner and form required by the Contract
Documents and as stipulated in a written Notice-to-Proceed to be executed by the Contractor
and Owner.
4. STANDARD OF CARE AND DUTIES OF CONTRACTOR
a. The Contractor shall exercise reasonable care and diligence in performing the Work in
accordance with the generally accepted standards of this type of Contractor practice throughout
the United States and in accordance with applicable federal, state and local laws and
regulations applicable to the performance of these services. Contractor is solely responsible
for the professional quality, accuracy and timely completion and/or submission of all work.
b. The Contractor shall not load or permit any part of the Work to be loaded with a weight that
will endanger its safety,intended performance or configuration.
c. Contractor shall be responsible for all Contractor, Subcontractor, and Sub-subcontractor errors
or omissions, in the performance of the Agreement together with the errors and omissions of
any agent or employee of the Contractor or any Subcontractor or Sub-subcontractor.
Contractor shall correct any and all errors, omissions, discrepancies, ambiguities, mistakes or
conflicts at no additional cost to the Owner.
d. Contractor is an independent contractor of Owner. Any and all employees of the Contractor
engaged by the Contractor in the performance of any work or services required of the
Contractor under this Agreement, shall be considered employees or agents of the Contractor
only and not of the Owner, and any and all claims that may or might arise under any workers
compensation or other law or contract on behalf of said employees while so engaged shall be
the sole obligation and responsibility of the Contractor.
e. Contractor agrees that Contractor, its employees, agents and its subcontractors, if any, shall be
required to comply with all federal, state and local antidiscrimination laws, regulations and
policies that relate to the performance of Contractor's services under this Agreement.
f. If activities related to the performance of this Agreement require specific licenses,
certifications, or related credentials Contractor represents that it and/or its employees, agents
and subcontractors engaged in such activities possess such licenses, certifications, or
credentials and that such licenses certifications, or credentials are current, active, and not in a
state of suspension or revocation.
g. The Contractor shall supervise and direct the Work efficiently and with the Contractor's best
skill and attention. Except as specifically set forth in the Contract Documents the Contractor
shall be solely responsible for the means, methods, techniques, sequences and procedures of
construction, and for safety precautions and programs in connection with the Work. The
Revised 1/14 2
9
Contractor shall be responsible to see that the finished Work complies accurately with the
Contract Documents.
h. The Contractor shall appoint a competent Project Manager with general authority to manage
the Project for the Contractor. The Contractor shall also keep on the Project at all times during
the Work of the Contractor a competent Resident Superintendent and necessary assistants who
shall not be replaced without prior written approval by the Designer or by the Owner if a
Designer is not retained for the Project.
i. If, in the opinion of the Designer, any Subcontractor on the Project is incompetent or otherwise
unsatisfactory, such Subcontractor shall be replaced by the Contractor with no increase in the
Contract Price if and when directed by the Designer.
j. The Contractor shall attend all progress conferences and all other meetings or conferences.
The Contractor shall be represented at these progress conferences by a representative having
the authority of the Project Manager and by such other representatives as the Designer may
direct.
k. Costs and expenses of providing samples for and assistance in any testing shall be borne by the
Contractor. Any Work in which untested materials are used without approval or written
permission of the Owner and/or Designer shall be removed and replaced at Contractor's
expense.
5. PAYMENT& TAXES
a. The Owner hereby agrees to pay to the Contractor for the faithful performance of this
Agreement, and the Contractor hereby agrees to perform all of the Work for a sum not-to-
exceed Three Million Four Hunderd Thirty Two Thousand and One Hundred Forty Two
Dollars ($3,432,142). Not later than the fifth (5th) day of each calendar month the Contractor
shall submit to the Owner's Representative, generally the Designer if a Designer is retained on
the Work, a Request for Payment for work done during the previous calendar month.
(i) The Request for Payment shall be in form of a standardized invoice or AIA Document
G702-703 appropriately addressed to Owner's Representative at PO Box 17177 Chapel
Hill, NC 27516-7177 and shall show substantially the value of work done during the
previous calendar month.
(ii) The amount due for payment shall be ninety-five percent (95%) of the value of work
completed since the last Request for Payment and this amount shall be paid by the
Owner on or before the last business day of the month. Owner shall retain five percent
(5%) (the "Retainage").
(1) Upon Owner's Representative's certification that fifty percent (50%) of the
Work has been satisfactorily completed Retainage shall be reduced to two and
one half percent (2'/z%).
(2) Upon Owner's Representative's certification that ninety percent (90%) of the
Work has been satisfactorily completed Retainage may be discontinued.
Retainage may be discontinued, at Owner's Discretion, so long as work
continues to be completed satisfactorily and on schedule.
Revised 1/14 3
10
(iii) Final payment shall not be due to the Contractor until thirty (30) days after Final
Completion of the Work, including punch list work, has been satisfactorily completed
and an appropriate Affidavit, Indemnification, and Release as required in Section 8(d)
below has been received by Owner.
b. Should Owner reasonably determine that Contractor has failed to perform the Work related to
a Request for Payment, Owner, at its discretion may provide the Contractor ten (10) days to
cure the breach. Owner may withhold the accompanying payment without penalty until such
time as Contractor cures the breach.
(i) Should Contractor or its representatives fail to cure the breach within ten (10) days, or
fail to reasonably agree to such modified schedule, Owner may immediately terminate
this Agreement in writing, without penalty or incurring further obligation to
Contractor.
(ii) This section shall not be interpreted to limit the definition of breach to the failure to
perform the Work related to a Request for Payment.
c. The Contractor has included in the Contract Price and shall pay all taxes assessed by any
authority on the Work or the labor and materials used therein. It shall be the Contractor's
responsibility to furnish the Owner documentary evidence showing the materials used and
sales and use tax paid by the Contractor and each of its subcontractors.
d. Should the Owner receive notice that the Contractor has failed to pay a Subcontractor for the
Work performed related to a Request for Payment, Owner shall have the authority to withhold
payment of the disputed amount until parties resolve their dispute. Failure to pay the
Contractor pursuant to this section of the Agreement shall not be deemed to be a breach of the
Agreement.
6. NON—APPROPRIATION
a. Contractor acknowledges that Owner is a governmental entity, and the validity of this
Agreement is based upon the availability of public funding under the authority of its statutory
mandate.
b. In the event that public funds are unavailable and not appropriated for the performance of
Owner's obligations under this Agreement, then this Agreement shall automatically expire
without penalty to Owner immediately upon written notice to Contractor of the unavailability
and non-appropriation of public funds. It is expressly agreed that Owner shall not activate this
non-appropriation provision for its convenience or to circumvent the requirements of this
Agreement,but only as an emergency fiscal measure during a substantial fiscal crisis.
c. In the event of a change in the Owner's statutory authority, mandate and/or mandated
functions, by state and/or federal legislative or regulatory action, which adversely affects
Owner's authority to continue its obligations under this Agreement, then this Agreement shall
automatically terminate without penalty to Owner upon written notice to Contractor of such
limitation or change in Owner's legal authority.
7. NOTICES
Any notice required by this Agreement shall be in writing and delivered by certified or registered mail,
return receipt requested to the following:
Revised 1/14 4
11
Owner: Contractor:
Orange County T&K Construction LLC
Attn: Gayle Wilson 235 County Road 1242
P.O. Box 8181 Vinemont, AL 35179
Hillsborough,NC 27278
8. MISCELLANEOUS
a. Duties and Obligations imposed by the Contract Documents shall be in addition to any Duties
and Obligations imposed by state, federal or local law, rules,regulations and ordinances.
b. No act or failure to act by the Owner or Contractor shall constitute a waiver of any right or
duty granted them under the Contract Documents, nor shall any act or failure to act constitute
any approval except as specifically agreed in writing.
c. The Work shall be tested and inspected as required by the Contract Documents and as required
by law. Unless prohibited by law the costs of all such tests and inspections related to state and
federal codes such as ADA, Administrative, Electrical, Plumbing, Mechanical and Building
Codes shall be borne by the Contractor. The costs for material and structural testing shall be
conducted by an independent third party at the expense of the Owner. Delays related to any of
the aforementioned tests and inspections shall not be grounds for delaying the completion of
the work. If any such tests and inspections reveal deficiencies in the Work such that the Work
does not comply with terms or requirements of the Contract Documents and/or the
requirements of any code or law the Contractor is solely responsible for the cost of bringing
such deficiencies into compliance with the terms of the Contract Documents and/or any code
or law.
d. Should the Designer, if a Designer is retained for the project involving the Work, or Owner
reject any portion of the Work for failing to comply with the Contract Documents Contractor
shall immediately, at Contractor's expense, correct the Work. Any such rejection may be
made before or after substantial completion. If applicable, any additional expense borne by the
Designer under this section shall be paid at Contractor's expense.
e. The Contractor shall not assign any portion of this Agreement nor subcontract the Work in its
entirety without the prior written consent of the Owner.
9. CONSEQUENTIAL DAMAGES
a. Owner and Contractor mutually waive any claim against each other for consequential damages.
Consequential Damages include:
(i) Damages incurred by Owner for loss of use,income, financing, or business.
(ii) Damages incurred by Contractor for office expenses, including personnel, loss of
financing, profit, income, business, damage to reputation, or any other non-direct
damages.
10. ENTIRE AGREEMENT
All of the documents listed, referenced or described in this Agreement, the written Notice-to-Proceed,
together with Modifications made or issued in accordance herewith are the Contract Documents, and the work,
labor, materials and completed construction required by the Contract Documents and all parts thereof is the
Revised 1/14 5
12
Work. The Contract Documents constitute the entire agreement between Owner and Contractor. This
Agreement may be amended only by written instrument signed by both parties. Modifications may be
evidenced by facsimile signatures. If any provision of the Agreement shall be declared invalid or
unenforceable,the remainder of the Agreement shall continue in full force and effect.
[SIGNATURE PAGE TO FOLLOW]
Revised 1/14 g
13
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as of the day and date
first above written in a number of counterparts, each of which shall, without proof or accounting for other
counterparts,be deemed an original contract.
ORANGE COUNTY CONTRACTOR
Signature Signature
Printed Name and Title
Attest:
Donna Baker, Clerk to the Board
This instrument has been approved as to technical content.
Gayle Wilson, Department Director
This instrument has been pre-audited in the manner required by the Local Government Budget and Fiscal
Control Act.
Office of the Chief Financial Officer
This instrument has been approved as to legal form and sufficiency.
Office of the County Attorney
Revised 1/14 7
Attachment 3 14
GENERAL CONDITIONS
Table of Contents Page
Article 1 Definitions. .3
Article 2. Correlation, Interpretation, and Intent_of Contract Documents 7
Article 3 Familiarity with Work, Conditions and Laws. 8
Article 4 Bonds. 9
Article 5 Insurance and Indemnity 9
Article 6 Other Record Documents and Submittals. 16
Article 7 Contractor 18
Article 8 Owner .26
Article 9 Construction Manager ._ .26
Article 10 Designer _ ._ .26
Article 11 Testing-and Surveying .27
Article 12. Separate Contracts
Article 13 Contract Time .28
Article 14 Changes in the Work 31
Article 15 Change of the Contract Price 33
Article 16 Unforeseen Conditions. 35
Article 17 Correction of Work before Final Payment 35
Article 18 Correction of Work after Substantial Completion, Warranties and Guaranties. 36
Article 19 Owner's Right to Do Work 37
Article 20 Partial Payments 37
Article 21 Final Payment. 39
Article 22. Contractor, Subcontractor and Supplier Affidavit 41
Article 23 Assignments and Subcontracts. 41
Revised 9/13
15
Article 24. Measurements.........................................................................................................41
Article 25. Contractor and Subcontractor Relationships...........................................................41
Article 26. Use of Premises .....................................................................................................42
Article 27. Cutting, Patching and Fitting ..................................................................................42
Article 28. Dispute Resolution .................................................................................................42
Article29. Taxes......................................................................................................................43
Article 30. Operation of Owner's Facilities...............................................................................43
Article 31. Third Party Beneficiary Clause...............................................................................44
Article 32. Measurement of Quantities ....................................................................................44
Article 33. Termination by the Owner for Cause .....................................................................44
Article 34. Termination or Suspension by the Owner for Convenience...................................45
Article 35. Minority Business Enterprise Program.......................................................46
Article36 E-Verify...............................................................................................46
Article37. General...................................................................................................................46
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ARTICLE 1. DEFINITIONS
1.1 Agreement- The Construction Contract, these General Conditions, and any Supplementary
Conditions.
1.2 AIA-The American Institute of Architects.
1.3 ASTM -The American Society for Testing and Materials.
1.4 Beneficial Occupancy— Use of the Project by the Owner after Substantial Completion, but
prior to Final Completion..
1.5 Change Order -A written order to the Contractor signed by the Owner and the Designer
authorizing an addition, deletion, or revision in the Work and/or an adjustment in the Contract
Price and/or the Contract Time issued after execution of the Construction Contract. See
paragraph 14.1.
1.6 Completion Date - Those dates identified as Completion Dates in the Contract Construction
Schedule or elsewhere in the Contract Documents.
1.7 Construction Contract—The document executed by the Contractor and the Owner to
formally memorialize their consent to the terms of the Agreement.
1.8 Construction Change Directive —A written order to the Contractor signed by the Owner and
the Designer directing an addition, deletion, or revision in the Work after execution of the
Construction Contract, in circumstances when the parties have been unable to agree on an
adjustment to the Contract Price or the Contract Time, but the Owner requests that the
Contractor proceed with said addition, deletion, or revision in the Work subject to adjustment of
the Contract Price and/orContract Time under the procedures described herein.
1.9 Construction Manager(s) - The person(s) or firm designated as the Construction Manager in
the Contract Documents, or their authorized representatives. The Construction Manager(s), as
referred to herein, will be referred to hereinafter as if each were of the singular number and
masculine gender.
1.10 Contract Construction Schedule - That schedule described in Article 13 hereof and
identified as the Contract Construction Schedule.
1.11 Contract Documents -All of the documents that make up the Agreement, plus the
Drawings and Specifications that describe the scope of the Work, plus allowable Modifications
to the Contract Documents.
1.12 Contract Price -The total monies payable to the Contractor under the Contract Documents
pursuant to paragraph 15.1 of the Agreement.
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1.13 Contract Time - The number of calendar days stated in, or computed from, the Contract
Documents for the completion of the Work, or any portion thereof. See, particularly, Article 13
hereof and the Contract Construction Schedule. Time of completion as specified therein is of the
essence. The time used and referred to on the Project will be that time which is observed in
Raleigh, North Carolina, being Eastern Daylight Savings Time (EDT), Eastern Standard Time
(EST), or other as designated by the Designer.
1.14 Contractor -The Contractor shall be that party identified as such in the Contract
Documents.
1.15 Days - Unless otherwise indicated, the term "days" shall mean consecutive calendar days.
1.16 Daylight Hours - The hours or portions of hours between sunrise and sunset local time.
1.17 Designer(s) —The person or firm designated as the Designer in the Contract Documents,
or their authorized representatives. The Designer(s), as referred to herein, shall mean architect,
landscape architect, and/or engineer. They will be referred to hereinafter as if each were of the
singular number and masculine gender. On projects for which there is no Designer designated
references to approvals or authorizations of or by the Designer shall be interpreted to refer to
approvals or authorizations of Owner or Owner's designee.
1.18 Drawings - The Drawings are the graphic and pictorial portions of the Contract Documents,
wherever located and whenever issued, showing the design, location, and dimensions of the
Work, and generally including plans, elevations, sections, details, schedules and diagrams. A
list of the Drawings is contained in the Contract Documents.
1.19 Field Order - A written order issued by the Designer which clarifies or interprets the
Contract Documents or orders minor changes in the Work in accordance with the Contract
Documents. See paragraph 14.2.
1.20 Final Completion - The point at which the Contractor has completed the Work, with the
exception of guaranty and warranty obligations and as determined by the Designer and
becomes entitled to final payment upon the recommendation of the Designer and determination
by the Owner.
1.21 The words "furnish," "furnish and install," "install," and "provide" or words with similar
meanings shall be interpreted, unless otherwise stated, to mean furnish and install complete, in
place and ready for service.
1.22 Liquidated Damages — See paragraph 13.18 of these General Conditions.
1.23 Modification - (A) a written amendment to the Contract Documents signed by the Owner
and the Contractor and identified therein as such, (B) a Change Order, (C) Construction
Change Directive, or (D) a Field Order. A Modification may only be issued after execution of the
Agreement.
1.24 Notice of Award -The written notice by the Owner to the Contractor that the Contractor is
the successful Bidder and that upon compliance with the conditions precedent to be fulfilled by
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the Contractor within the time specified, the Owner will execute and deliver the Agreement to
him.
1.25 Notice to Proceed - See paragraph 13.3.
1.26 Owner - The Owner is the person designated as such in the Agreement.
1.27 Owner's Authorized Representative - A person, or persons, employed by the Owner and
designated from time to time by written notice to the Contractor to administer the Contract
Documents, and to observe and monitor the Work on behalf of the Owner with authority and
responsibility as herein specified.
1.28 Notice - The term "notice" or "written notice" as used herein shall mean and include all
written notices, demands, instructions, and claims approvals and disapprovals furnished by the
Owner or the Designer to obtain compliance with the requirements of the Contract Documents,
as well as all written notices, demands, instructions and claims furnished by the Contractor as
required by the Contract Documents. Where notice is required under the terms of the Contract
Documents written notice shall always be required, and oral or "constructive" notice shall be
insufficient and ineffective as notice. Email or other electronic delivery shall be insufficient and
ineffective as notice unless specifically allowed by the Supplementary Conditions or a
Modification to the Agreement. Written notice shall be deemed to have been duly served on the
date that it is delivered in person to the individual or to a member of the firm, to an officer of the
corporation for whom it is intended, to an authorized representative of such individual, firm, or
corporation, or on the date that it is mailed by registered or certified mail, return receipt
requested, addressed to the last business address of such individual, firm, or corporation known
to the person giving the notice. Written notice may also be given by facsimile transmission,
provided that proof of delivery is obtained. In the case of delivery in person, such delivery shall
not be effective unless and until a written and signed receipt showing the date and time of
delivery is obtained.
1.29 Project - The total construction of which the Work performed under the Contract
Documents may be the whole or a part.
1.30 Project Expediter—As used herein, is an entity stated in the Contract Documents,
designated to effectively facilitate scheduling and coordination of Work activities. For the
purpose of a single prime contract, the single prime contractor is designated as the Project
Expediter. For the purpose of a project involving separate prime contracts, the Contractor
for general work shall be designated as the Project Expediter unless otherwise indicated in
the Supplementary General Conditions. See paragraph 7.27.
1.31 Project Manager - That person designated by the Contractor in accordance with paragraph
7.2 who shall be in general charge of the Work and its performance and who shall have the
authority set forth in the last sentence of paragraph 7.2.
1.32 Request for Information -A written communication from the Contractor to the Designer for
any interpretation of, or information needed, required, or desired under the Contract Documents.
The Owner reserves the right to determine the reasonable format and contents required for a
Request for Information. In any Request for Information, the Contractor shall state a reasonable
date by which a response is necessary in order to avoid delay in progress on the Work and shall
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make such request sufficiently in advance of such date as to avoid any such delay. The
Designer shall respond in writing to the Request for Information by the date stated by the
Contractor unless he cannot reasonably do so, in which case he shall prior to that date notify
the Contractor of the date by which he can reasonably respond. The Contractor shall not be
entitled to any additional time for the completion of the Work or any portion thereof by reason of
the Designer's failure to respond if he has not submitted his Request for Information sufficiently
in advance to allow the Designer a reasonable time within which to respond.
1.33 Request for Payment - The form, in the form of AIA Document G702 (latest ed.) or other
published document approved by Owner, which is to be used by the Contractor in requesting
progress payments and which is to include a Schedule of Values as required by the Contract
Documents and an affidavit of the Contractor that progress payments theretofore received from
the Owner on account of the Work have been applied by the Contractor to discharge in full all
the Contractor's obligations incurred in connection with Work covered by all prior applications for
payment. See paragraph 20.2.
1.34 Resident Superintendent - That person designated by the Contractor in accordance with
paragraph 7.2 who has day-to-day responsibility for the prosecution of the Work and the
obtaining of proper materials and equipment, and adequate labor and who shall have the
authority set forth in the last sentence of paragraph 7.2.
1.35 Schedule of Values -Any breakdown of the Contract Price which may be required by the
Contract Documents, and designated as such. See paragraph 20.1.
1.36 Specifications - That portion of the Contract Documents consisting generally of the written
requirements for materials, equipment, construction systems, standards, and workmanship for
the Work and performance of related services.
1.37 Subcontractor -A person, firm, or corporation who has entered into a direct contract with
the Contractor to perform any of the Work at the Project.
1.38 Submittal - Shop drawings, product data, samples, and other documents required by the
Contract Documents to be submitted by the Contractor to the Designer.
1.39 Submittal Register - See paragraph 13.2 of these General Conditions.
1.40 Substantial Completion - The point at which the Work, and Work by other Contractors on or
in connection with the Project, as determined by the Designer, is sufficiently complete in
accordance with the Contract Documents that it can be beneficially occupied by the Owner, and
the Work can be utilized by the Owner for its intended use, and all necessary permits and
permissions for Beneficial Occupancy and utilization having been obtained by the Contractor. All
operations and maintenance manuals, Owner training, and as-built drawings must be submitted
prior to Substantial Completion being achieved.
1.41 Sub-subcontractor -A person or entity that has a direct or indirect contract with a
Subcontractor to perform any of the Work at the Project.
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1.42 Work - The construction and services required by the Contract Documents, including all
labor, materials, equipment, and services provided or to be provided by the Contractor to fulfill
the Contractor's obligations.
1.43 All references in the Contract Documents to the masculine shall be interpreted as including
the feminine or neuter and all references in the Contract Documents to the singular or the plural
shall be interpreted as including the other, as may be appropriate in the reasonable
interpretation of the Contract Documents.
ARTICLE 2. CORRELATION, INTERPRETATION AND INTENT OF CONTRACT
DOCUMENTS
2.1 It is the intent of the Specifications and Drawings and other Contract Documents to describe
a complete Project in accordance with the Contract Documents.
2.2 The Contract Documents are complementary; what is called for by one is as binding as if
called for by all. If the Contractor finds a conflict, error or discrepancy in the Contract
Documents, the Contractor shall notify the Designer in writing before proceeding with the Work
affected thereby. In resolving such conflicts, errors and discrepancies, the Contract Documents
shall be given preference in the following order: Construction Contract, Modifications, Addenda,
General Conditions, Specifications, and Drawings. Figure dimensions on Drawings shall govern
over scale dimensions, and detailed Drawings shall govern over general Drawings. Any Work
that may reasonably be inferred from the Contract Documents as being required to produce the
intended result shall be supplied whether or not it is specifically called for. Work, materials or
equipment described in words which, so applied, have a well-known technical trade meaning
shall be deemed to refer to such meaning and to incorporate any recognized standards which
are a part of such meaning if not otherwise defined within the Contract Documents.
2.3 Miscellaneous items, accessories and work which are not specifically mentioned, but which
are essential to produce a complete and properly operating installation, or useable structure or
plant providing the indicated function shall be furnished and installed without change in the
Contract Price. Such miscellaneous items and accessories shall be of the same quality
standards, including material, style, finish, strength, class, weight and other applicable
characteristics, as specified for the major component of which the miscellaneous item or
accessory is an essential part, and shall be approved by the Designer before installation. This
requirement is not intended to include major components not covered by or inferable from the
Contract Documents.
2.4 The Work of all trades under the Contract Documents shall be coordinated by the Contractor
in such a manner as to obtain the best workmanship possible for the entire Project and all
components of the Work shall be installed or erected in accordance with the best practices of
the particular trade.
2.5 The Contractor shall fully complete the Work and shall be responsible for all of the Work
under the Contract Documents to which the Construction Contract applies. If the Contractor is
prevented from doing so by any limitation of the Contract Documents, the Contractor shall
immediately give notice thereof to the Designer and the Owner in writing.
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2.6 Standard specifications or manufacturers' literature, when referenced, shall be of the latest
revision or printing unless otherwise stated and is intended to establish the minimum
requirements acceptable.
2.7 For those materials specified without the use of brand names, the Contractor shall submit
within thirty (30) days after his receiving the Construction Contract for signatures, any product
that meets the express requirements of the Specifications. Such Submittal shall include
manufacturer's data, test reports, performance data and certifications, samples, erection details,
and other applicable information as required to permit determination by the Designer whether
such proposed products are suitable. The Designer shall be the sole judge as to the suitability of
any proposed product. The burden of proof of quality rests with the Contractor.
2.8 The Contractor is required to examine and read the complete set of Contract Documents for
information concerning the Work, because some of the Work for which the Contractor will be
responsible may be indicated on or in documentation applying primarily to the Work of one or
more other separate prime contractors. No allowance will be made for the Contractor's failure to
become familiar with the complete set of project documents.
2.9 Contractor's requests for clarification or information shall clearly define the cause(s) of
Contractor's request and, as appropriate, shall include Contractor's interpretation and
Contractor's proposed solution.
ARTICLE 3. FAMILIARITY WITH WORK, CONDITIONS AND LAWS
3.1 The Contractor has investigated prior to bidding and is satisfied with all conditions affecting
the Work, including but not restricted to those bearing upon transportation, disposal, handling
and storage of materials, availability of labor, water, electrical power, roads and uncertainties of
weather, or similar physical conditions at the Project site, and the character of equipment and
facilities needed prior to and during prosecution of the Work. The Contractor is satisfied as to
the character, quality and quantity of surface and subsurface materials or obstacles to be
encountered insofar as this information is reasonably ascertainable from inspection of the
Project site, including all exploratory work done by the Owner, as well as from information
presented by the Contract Documents, or any other information made available to the
Contractor prior to receipt of bids. Any failure by the Contractor to become acquainted with the
available information shall not relieve the Contractor from the responsibility for estimating
properly the difficulty or cost of successfully performing the Work.
3.2 The Contractor shall be entitled to make all inferences from the Contract Documents that
would reasonably be made by a contractor having knowledge and experience with similar work;
however, the Contractor shall not be entitled to infer from the Contract Documents any fact or
condition which would not be inferred by a contractor having knowledge and experience with
similar work and the Contractor shall be required to obtain independently such other information
as a knowledgeable and experienced contractor would prudently obtain in order to evaluate any
such condition.
3.3 The Contractor specifically acknowledges familiarity with all Federal, State, and local laws,
ordinances, rules, and regulations which may in any manner affect those engaged or employed
in the Work, or the materials or equipment in or about the Work, or in any way affect the conduct
of the Work and agrees that the Contractor and the Contractor's employees, subcontractors,
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and suppliers will, at all times, comply with same. If the Contractor shall discover any provisions
in the Contract Documents which are contrary to or inconsistent with any such law, ordinance,
rule, or regulation, the Contractor shall immediately give notice thereof to the Designer and the
Owner in writing, identifying any items of Work affected, and the Contractor shall not proceed
until the Contractor has received written direction from the Designer with respect to these items.
If the Contractor performs contrary to or inconsistently with any such law, ordinance, rule, or
regulation without such written direction, the Contractor shall bear all costs which are a
consequence of such performance.
3.4 At times selected by the Designer after execution by the Contractor of the Construction
Agreement, a pre-construction conference shall be scheduled and conducted for the benefit of
the Project.
ARTICLE 4. BONDS
4.1 A performance bond in the full amount of the Contract Price shall be required of the
Contractor to guarantee the faithful performance of the Work in compliance with the Contract
Documents, in such form as may be required by law and approved by the Owner. The bond
shall be dated the same date as the Construction Contract and must be accompanied by a
current copy of the power of attorney for the attorney-in-fact executing such bond on behalf of a
surety company licensed to do business in the state of North Carolina.
4.2 A payment bond in the full amount of the Contract Price shall be required of the Contractor
to guarantee the payment of all labor and material costs or claims in connection with compliance
with the Contract. The payment bond shall be in such form as may be required by law and
approved by the Owner. Said bond shall be dated and executed in the same manner as the
performance bond in paragraph 4.1.
ARTICLE 5. INSURANCE AND INDEMNITY
5.1 CONTRACTOR PROVIDED INSURANCE
The Contractor shall, without limiting its obligations or liabilities, procure, pay for and maintain
such insurance as is required by law and as is required by this Agreement to protect the
Contractor and the Owner from claims for damages for bodily injury, including death, and from
claims for property damage which may arise from the Contractor's or its representatives',
consultants', Subcontractors', agents', or employees' operations under this Agreement. Such
insurance shall be of the kinds and have limits of liability and coverages not less than the
minimum limits hereinafter specified or required by law, whichever is greater. The Owner makes
no representation as to the adequacy or sufficiency of such coverages.
The following requirements shall in no way be construed to limit or eliminate the liability of the
Contractor, which arises from performance of Work under the Agreement. The Contractor is
strictly responsible for any losses, claims, and costs of any kind which exceed the Contractor's
limits of liability, or which may be outside the coverage scope of the policies. The insurance
specified shall be provided by an insurer approved by the Owner, authorized to do such
business in the State of North Carolina, and on terms approved by the Owner. Insurance
companies utilized shall have a minimum rating of A- and Class VII as evaluated by the most
current A.M. Best Rating Guide. If the insurer has a Best Rating less than A- and Class VII, the
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Contractor must receive specific written approval from the Owner prior to proceeding with any
Work under the Agreement.
All agents and brokers shall hold valid licenses from the State of North Carolina. Before
commencing mobilization to the Project site and not later than 7 days after the receipt of the
Construction Contract by the Contractor for signatures, the Contractor shall furnish to the Owner
a certificate or certificates of insurance in a form satisfactory to the Owner. Upon request of the
Owner, the Contractor shall provide the Owner with certified copies of the insurance policies
required by this Article, including without limitation declaration pages, conditions, exclusions and
endorsements, and confirmation that each policy premium has been paid for the required term
of this Agreement. A copy of the umbrella policy shall be provided to the Orange County Risk
Manager. Certificates shall be signed by a person authorized by that insurer to bind coverage
on its behalf. All insurance policies shall provide, as evidenced by Certificates of Insurance, that
the insurance shall not be canceled, reduced, restricted, or changed in any way without at least
30 days prior written notice to the Owner.
With regard to expiration, cancellation, reduction, restriction, or any other change, certificates
shall state: "Should any of the following described policies be canceled before expiration date or
be due to expire within 30 days, the insurer shall mail 30 days prior written notice to named
certificate holder." In the event of any such cancellation, non-renewal, reduction, restriction, or
change in any insurance, the Contractor is obligated to replace such insurance within 7 days
without a gap in coverage and file accordingly such notice with the Owner, and other interested
parties. Failing immediate receipt of evidence of such replacement of insurance the Owner
reserves the right to procure such insurance as the Owner considers desirable and the
Contractor shall pay or reimburse the cost of the premium in respect thereof. It is expressly
provided, however, that any action or inaction on the part of the Owner in this respect shall in no
way change or reduce the Contractor's responsibilities and liabilities under this Agreement.
Self-funded, policy fronting, or other non-risk transfer insurance mechanisms are not acceptable
without prior written approval of the Owner. Full disclosure of such a program must be made
prior to commencing mobilization to the Project site. Failure to make a full disclosure constitutes
a material breach of the Agreement,justifying termination for default.
The Contractor shall name the Owner, the Designer, the Designer's consultants, and the
Construction Manager as additional insureds under all its insurance contracts (except workers'
compensation) with respect to and including without limitation liability arising out of activities
performed by or on behalf of the Contractor, products and completed operations of the
Contractor, and automobiles owned, hired, leased, or borrowed by the Contractor. The
coverage shall contain no special limitations on the scope of protection afforded to additional
insureds.
For any claims related to this Project, the Contractor's insurance or self-insurance shall be
primary and noncontributory with respect to the Owner's insurance. Any insurance or self-
insurance maintained by the Owner shall be excess and noncontributory with respect to the
Contractor's insurance. All policies of insurance shall contain a clause waiving rights of
subrogation against the Owner, unless the Owner approves otherwise in writing. Limits of
coverage are not to be amended by deductible clauses of any nature without the express written
consent of the Owner.
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The Contractor shall be solely responsible for any deductible assumptions that may exist in any
insurance policies required under this Agreement. In addition, the Contractor shall be
responsible and shall not be reimbursed for any losses arising from any risk or exposure not
insured as required herein, or not covered as a result of a normal policy exclusion or that falls
within the self-insured retention, if Contractor self-insured. The Contractor's insurance shall
apply separately to each insured against whom claim is made or suit is brought, except with
respect to the limits of the insurer's liability. The claim provisions in the Contractor's insurance
policies must specifically state the insurance company or Contractor's Third Party Administrator,
if self-insured, has both the right and duty to adjust a claim and provide defense. The policies
shall not contain any provision or definition which would serve to exclude or eliminate from
coverage third party claims, including exclusions of claims for bodily or other injury to
shareholders, partners, officers, directors, or employees of the insured, the premises owner,
real estate manager, or the insured's Subcontractor, or any family relative of such persons.
If the policies contain any warranty stating that coverage is null and void (or words to that effect)
if the Contractor does not comply with the most stringent regulations governing the Work, it shall
be modified so that coverage shall be afforded in all cases except for the Contractor's willful or
intentional noncompliance with applicable government regulations. Any failure by any person to
comply with reporting or other provisions of the policy including breach of warranties, shall not
affect coverage provided to the Owner and its representatives, officials, and employees. The
insolvency or bankruptcy of the Insured or of the Insured's estate shall not relieve the insurance
companies of their obligations under these policies. Any clauses to the contrary are
unacceptable and must be stricken. Failure to comply with these requirements shall be a
material breach of this Agreement justifying termination for default.
5.1.1 Worker's Compensation and Employers' Liability Insurance
The Contractor and its Subcontractors shall procure and maintain Workers' Compensation
Insurance in the amount and type required by the State of North Carolina and federal law for all
employees employed under the Agreement who may come within the protection of Workers'
Compensation Laws and covering all operations under the Agreement whether performed by
the Contractor or by his Subcontractors. In jurisdictions not providing complete Workers'
Compensation protection, the Contractor and his Subcontractors shall maintain employers'
liability insurance in an amount, form, company, and agency satisfactory to the State of North
Carolina and the Owner for the benefit of all employees not protected by Workers'
Compensation Laws and covering all operations under the Agreement whether performed by
the Contractor or by his Subcontractors.
The Contractor shall pay such assessments as will protect the Contractor and the Owner from
claims under the Workers' Compensation Laws, workers' or workmen's compensation disability
benefits, and other similar employee benefit acts. The current Experience Modification Factor
shall be indicated on the Certificate of Insurance. Coverage under this section shall be as
required by federal and state Workers' Compensation and Occupational Disease Statutes, and
shall have minimum limits as follows:
Coverage A: Statutory, State of North Carolina
Employers' Liability: Each Accident $1,000,000
Disease - Policy Limit $1,000,000
Disease - Each Employee $1,000,000
Such insurance shall include Voluntary Compensation coverage, a Waiver of Subrogation
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in favor of the Owner as well as other endorsements that may be required by applicable
jurisdictions.
5.1.2 Automobile Liability Insurance
The Contractor shall procure and maintain automobile insurance against liability for bodily injury
and property damage as described below, that may arise with respect to the Work being
performed under the Agreement, and as will provide protection from claims which may arise out
of or result from the Contractor's performance of the Work and the Contractor's other obligations
under the Agreement, whether such performance of the Work is by the Contractor, by any
representative or Subcontractor, by anyone, both officially and personally, directly or indirectly
employed by any of them, or by anyone for whose acts any of them may be liable.
This policy of insurance shall carry the following minimum Limit of Liability: Combined Single
Limit $1,000,000.
The policy of insurance shall contain or be endorsed to include the following:
a) owned, hired, and non-owned automobile liability.
b) If the policy contains a warranty stating that coverage is null and void (or words to that effect)
if the transporter does not comply with the most stringent regulations governing the Work, it
shall be modified so that coverage shall be afforded in all cases except for the transporter's
willful or intentional noncompliance with applicable government regulations.
Any failure by any party to comply with reporting or other provisions of the policy including
breach of warranties, shall not affect coverage provided to the Owner and its representatives,
officials, and employees. No subcontracting of waste hauling shall be permitted without prior,
written approval of the Owner.
5.1.3 General Liability
This policy must be written on an Occurrence basis, with the following minimum Limits of
Liability:
General Aggregate per project $2,000,000.00
Products/Completed Operations Aggregate $2,000,000.00
Bodily Injury and Property Damage csl/each occurrence $1,000,000.00
Personal Injury and Advertising Injury $2,000,000.00
The policy of insurance shall contain or be endorsed to include the following:
a) Blanket Contractual Liability covering Contractor's indemnification obligations under this
Agreement, in accordance with ISO policy form CG 00 01. Modifications to the standard
provision will not be acceptable if they serve to reduce coverage.
b) Premises/Operations Liability.
c) Explosion, collapse, and underground fault.
d) Independent Contractors and Independent Subcontractors coverage.
e) Broad Form Property Damage.
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f) Personal Injury
g) Cross Liability/Severability of Interest clause.
h) Employer's Stop-Gap Liability endorsement, if applicable.
i) Amendment of the Pollution Exclusion Endorsement to allow coverage for bodily injury or
property damage caused by heat, smoke, or fumes from a hostile fire.
j) Designated General Aggregate Limit Endorsement if required by the Contract Documents.
Coverage shall remain continuously in effect and without interruption for at least 6 years from
the date of the Notice of Award and shall include coverage for exposures arising from
operations that have been completed. The Contractor shall furnish the Owner and each other
additional insured listed in the Agreement to whom the Certificates have been issued, evidence
satisfactory to the Owner of continuation of such insurance at the date of Preliminary
Acceptance and each year thereafter.
5.1.4 Pollution Legal Liability (PLL)
Pollution Legal Liability coverage will be provided if required by the Supplementary General
Conditions.
5.1.5 Umbrella Liability
The Contractor shall maintain an occurrence basis (as distinguished from a "claims made"
basis) Umbrella Liability policy (true follow form) over the underlying General Liability,
Automobile Liability, and Employer's Liability, with the following limits of liability: Each
Occurrence $3,000,000, Aggregate $3,000,000.
On a fully insured basis such coverage will be subject to a deductible no greater than
$10,000 per occurrence where coverage is not provided by the underlying insurance, but is
provided by the Umbrella Liability policy.
The Contractor may use any combination of primary and umbrella insurance policies to comply
with the insurance requirements, provided the resulting insurance is equivalent to the insurance
stated herein.
All Occupational Disease exclusions must be deleted. Any Pollution Exclusion must be
amended to allow coverage for bodily injury or property damage caused by spill, upset,
overturn, heat, smoke, or fumes from a hostile fire.
5.1.6 Property Insurance
The Contractor shall purchase All Risk Property Insurance on a Completed Value Form in the
names of the Owner, Contractor, Subcontractors, and sub-subcontractors as their interests may
appear with limits as follows:
a) Full insurance value of the Work, or
b) Amount equal to the Contract Price for the Work, whichever is higher.
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The Contractor is responsible for all physical damage to owned or rented machinery, tools,
equipment, forms, and other items owned, rented or used by the Contractor and/or
Subcontractor(s) in the performance of the Work. The insurance coverage evidencing such shall
include a waiver of subrogation in favor of the Owner.
5.1.7 Valuable Papers and Records
The Contractor shall provide valuable papers and records insurance with coverage in an
amount commensurate with project scope and set forth in the Supplementary General
Conditions.
5.1.8 Claims
The Contractor shall notify the Owner within 24 hours of any claims or alleged claims received
by the Contractor covered by any of the policies of insurance required in this Agreement. The
Contractor shall provide a written copy of the claim or alleged claim to the Owner within 3 days
of the Contractor's receipt of the claim or alleged claim. If a claim is settled to the satisfaction of
the claimant, the Contractor shall submit a copy of the claimant's release to the Owner. If a
claim or alleged claim is rejected by the Contractor and/or its insurance company, the
Contractor shall immediately report this fact to the Owner.
Should 30 days elapse after the claim or alleged claim has been received by the Contractor,
and the Contractor is not able to report a settlement or rejection of the claim, it shall report to the
Owner the steps being taken with respect to the claim. Without limiting the foregoing, the
Contractor shall notify in writing the county risk manager of any paid or incurred claims which
may impair annual aggregate or general liability.
5.1.9 Deductibles and Self-insured Retentions
Any deductibles or self-insured retentions must be declared to and approved by the Owner. At
the option of the Owner, either: a) the insurer shall reduce to a maximum of$250,000 or
eliminate such deductibles or self-insured retentions with respect to the Owner, or (b) the
Contractor shall provide evidence of collateral provided to insurers or procure a bond
guaranteeing payment of losses and related investigations, claim administration, and defense
expenses within the deductible or self-insured retention amount. Any self-insured retention or
deductible amount on the policy shall not reduce the amount of collectible limits or liability.
5.1.10 Subcontractors
The Contractor shall include all Subcontractors as Insureds under its policies, or shall furnish
separate certificates, policies, and endorsements for each Subcontractor the Contractor intends
to use. If a Subcontractor does not take out insurance in his own name and the Contractor
wishes to provide insurance protection for such Subcontractor and such Subcontractor's
employees, the Contractor shall either (a) procure appropriate policies in the name of the
Subcontractor, or (b) cause a rider or riders to be attached to the Contractor's policies which
shall identify the Subcontractor thereby covered; provided, however, in the case of the latter
option, such a rider need not be attached to the Contractor's workers' compensation policy if
such policy by its terms is sufficiently broad to cover the employees of all Subcontractors
performing Work under the Contract Documents. Except as otherwise approved by the Owner in
writing, Limits of Liability and coverage scope must be at a minimum as stringent as required of
the Contractor by the Contract Documents. All Work performed for the Contractor by any
Subcontractor shall be pursuant to an appropriate agreement between the Contractor and the
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Subcontractor which shall contain provisions that waive all rights the contracting parties may
have against one another for damages caused by fire or other perils covered by insurance as
provided herein. Insurance monies received from any loss shall be divided as the respective
interest of the parties affected shall appear.
5.2 OWNER CONTROLLED PROJECT SPECIFIC INSURANCE
In the event the Owner elects to purchase project-specific insurance affording coverage to the
Contractor and Subcontractors, the terms and conditions of such coverage shall be set forth in
the Supplementary Conditions.
5.3 CONTRACTOR AS JOINT VENTURE
If the Contractor is completing this Project on a joint venture basis, both joint venture partners
retain all liabilities assumed by this Agreement, individually and collectively. This may include,
but is not limited to, all premiums due, deductibles/self-insured retentions, coinsurance
provisions, claim provisions, insurance policy conditions, and indemnification provisions
hereunder.
Evidence of a Blanket Joint Venture Endorsement must be obtained from the General Liability
and Contractor's Pollution Legal Liability carriers of each joint venture partner for a period of 6
years after completion of the Project, substantially as follows: With respect to "your work",
and the "products-completed operations hazard", you are an insured for your liability
arising out of the conduct of any partnership or joint venture of which you were a partner
or member, even though this partnership or joint venture is not shown as a Named
Insured in the Declarations. This coverage is excess over any available liability
purchased specifically to insure the partnership or joint venture. This coverage will not
inure to the benefit of any other party except you."
5.4 INDEMNIFICATION
The Contractor, to the fullest extent not expressly prohibited by law, shall defend, indemnify,
and save harmless the Owner, the Designer, the Construction Manager and their respective
officials, officers, employees, and agents from and against any and all liabilities (foreseeable or
unforeseeable), penalties, fines, liens, forfeitures, demands, claims, causes of actions, suits,
judgments, and costs and expenses incidental thereto, (including, without limitation, amounts
paid pursuant to investigations, defense or settlements, and reasonable attorneys' fees), which
any or all of them may hereafter suffer, incur, be responsible for, or pay out as a result of but not
limited to:
a) bodily injury (including sickness, disease, or death) to any person including but not limited to,
the Contractor's employees or its representatives while on the site of the Project; or
b) actual or alleged damage (including loss of use) to any property (public or private, including
the Project or other property on the Project site); or
c) contamination of or adverse effects on the environment arising directly or indirectly out of or
in connection with the performance of the Work, including but not limited to any hazardous or
toxic waste, substance, or constituent of any substance subject to regulation under CERCLA,
RCRA, TSCA, and other Federal and state authorities that is spilled, released, threatening to
release, or disposed of or destroyed by the Contractor or its Subcontractors on or off the site of
the Project or while in transport to or from the site; or
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d) any violation or alleged violation of laws and regulations, arising out of or in any way
connected with the Work, caused in whole or in part by the Contractor, any Subcontractor or
supplier or any representatives of the Contractor. The Contractor shall not be required to
indemnify the Owner against losses resulting from a breach of this Agreement by the Owner or
its other agents and contractors, or resulting from negligence, misconduct or violation of laws on
the part of the Owner or its other agents and contractors.
e) upon completion of the Work the Contractor shall execute an affidavit, indemnification, and
release stating there are no unpaid debts for any work that has been done or materials that
have been furnished to the Project prior to and as of the date of substantial completion and
further stating that Contractor shall indemnify, save and protect Owner and Owner's lender, if
any, harmless from and against any and all claims, liabilities, liens, losses, damages, causes of
action, and expenses (including court costs and reasonable attorney's fees related thereto)
arising out of, in connection with, or resulting from any such claims, liabilities, liens, losses,
damages, causes of action, or expenses. Such affidavit, indemnification, and release shall be in
a form and substance acceptable to Owner. By executing this Agreement Contractor
acknowledges the receipt of adequate consideration in return for said release.
The Contractor further agrees to obtain, maintain, and pay for such liability insurance coverages
and endorsements as will insure the provisions of this paragraph 5.4. Furthermore, the
Contractor agrees to be liable for and to indemnify and reimburse the Owner for all legal fees
and disbursements paid or incurred to enforce the provisions of this paragraph. The
indemnification obligations under this paragraph shall not be limited in any way by the amount
or type of damages, compensation or benefits payable under worker's compensation acts,
disability benefit acts, other employment benefit acts, or the amount of insurance carried or
recovered.
The Owner acknowledges that hazardous or toxic waste, material, chemicals, compounds or
substances, or other environmental hazards, contamination or pollution, (referred to hereinafter
as "environmental hazards") may be present at the Project site that were not created,
generated, or released at the Project site by the Contractor or its Subcontractors, agents or
employees, acting alone or in concert with others. Unless the remediation, abatement or
handling of such environmental hazards is part of the scope of the Work under this Agreement,
then upon the discovery of such environmental hazards, the Contractor shall immediately, and
in no event more than three days later, give notice to the Owner of the environmental hazards
before they are disturbed. The Owner and the Designer shall thereupon promptly investigate the
environmental hazards, and make such changes in the Drawings and/or Specifications as they
may find necessary to abate, remediate, isolate or handle the environmental hazards. Any
increase or decrease in the Contract Price or the Contract Time resulting from such changes
shall be adjusted in the manner provided herein for adjustments as to extra and/or additional
Work and changes. It is agreed that the Contractor shall have no liability under this Agreement
for any environmental hazards existing prior to the date that Work commences under this
Agreement unless the Contractor or its Subcontractors, agents or employees, acting alone or in
concert with others, by their own negligence or misconduct, release or expose the Owner or
third parties to the environmental hazards. The provisions of this paragraph shall survive the
termination or cancellation or completion of this Agreement.
5.5 RISK MANAGEMENT POLICY
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The Orange County Risk Management Policy shall not apply to construction contracts for
amounts over $250,000. The terms of these General Conditions related to insurance shall be
the sole authority governing insurance requirements for such contracts.
ARTICLE 6. OTHER RECORD DOCUMENTS AND SUBMITTALS
6.1 The Designer shall furnish to the Contractor the number of copies of Drawings and
Specifications stated in the Contract Documents. Additional copies of Drawings and
Specifications may be obtained at the cost of reproduction and handling.
6.2 The Contractor shall submit to the Designer all Submittals required by the Contract
Documents. The Contractor shall submit at least three (3) reproducible prints of all shop
drawings. The Contractor shall submit samples in quantities required by the Contract
Documents. The Contractor shall submit product data in at least five (5) copies. All shop
drawings shall be reviewed by the Contractor and shall bear the Contractor's stamp of approval
before being forwarded to the Designer. Submittals shall be submitted in such time as to cause
no delay to the Work or any part thereof and in accordance with the Contract Construction
Schedule and Submittal Register. The Designer shall review the submittal with reasonable
promptness, noting desired corrections, if any. The Designer shall retain two (2) copies of the
submittal and shall return the balance of the reviewed submittal to the Contractor for action. The
Contractor shall furnish any corrected submittal to the Designer. The Designer shall retain two
(2) copies of the corrected submittal and will return the balance of the reviewed submittal to the
Contractor. All substitutions prior to the receipt of bids shall be in accordance with the Contract
Documents. Refer to Instructions to Bidders, Substitutions.
The Contractor acknowledges that the processing of shop drawings and other submittals is
directly impacted by the clarity, completeness, and accuracy of said documents and that it is the
Contractor's responsibility to (i) review and coordinate each submittal with all other related or
affected Work and (ii) approve each submittal before submitting same to the Designer for
approval.
6.3 No substitutions and no deviations from any requirement of the Contract Documents shall
be deemed allowed unless the Contractor has specifically informed the Designer and the Owner
in writing of such deviations at the time of submittal and the Designer and the Owner have given
written and specific approval to the substitutions or deviations. In proposing a deviation or
substitution the Contractor warrants to the Owner, notwithstanding any review, allowance or
approval by the Designer or the Owner that the deviation or substitution is at least equal to or
better in quality and for the purpose intended, and that Contractor shall not by reason of any
such review, allowance or approval be relieved from any obligation or responsibility contained in
the Contract Documents.
6.4 Review of submittal by the Designer shall not be construed as relieving the Contractor from
responsibility for compliance with terms or designs of the Contract Documents nor from
responsibility for errors of any sort in the submittal.
6.5 The Contractor shall keep one record copy marked "As-Built" of all Specifications, Drawings,
Addenda, Modifications, and Submittals at the Project in good order and annotated at least
monthly to show all changes made during the construction process. Such monthly annotations
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and their approval by the Designer shall be a condition precedent to approval by the Designer of
each monthly Request for Payment. Said record copy shall be stored at the Project and fully
protected from damage by fire or other hazard. This record copy shall be available to the
Designer and Owner for inspection at all times and shall be delivered to the Designer for the
Owner's purposes prior to the Designer's certifying Substantial Completion of the Work.
6.6 At completion of the Project and before Final Payment, the Contractor shall assemble and
deliver to the Owner one complete set of all as-built drawings and one complete set of all
approved submittals, product data, and samples which were reviewed by the Designer. These
drawings and submittals shall be on paper, or in electronic or other media if required by the
Supplementary Conditions. These drawings and submittals shall be categorized and packaged
as directed by the Designer.
ARTICLE 7. CONTRACTOR
7.1 The Contractor shall supervise and direct the Work efficiently and with the Contractor's best
skill and attention. Except as may be set forth specifically in the Contract Documents, the
Contractor shall be solely responsible for the means, methods, techniques, sequences, and
procedures of construction, and for safety precautions and programs in connection with the
Work. The Contractor shall be responsible to see that the finished Work complies accurately
with the Contract Documents.
7.2 The Contractor shall appoint a Project Manager and shall keep on the Project at all times
during its progress a competent Resident Superintendent and necessary assistants who shall
not be replaced without prior written approval by the Owner except under extraordinary
circumstances, in which event immediate written notice shall be given to the Designer and the
Owner. The Project Manager and the Resident Superintendent may be the same person or
different persons. At any time, the Owner, in its sole and absolute discretion, may require the
Contractor to replace the Project Manager or Resident Superintendent with an experienced and
competent person or persons upon seven (7) days written notice from the Owner to the
Contractor. Such replacement shall be at the Contractor's expense and at no cost to the Owner.
Both the Project Manager and the Resident Superintendent shall have authority to act on behalf
of the Contractor, and instructions, directions or notices given to either of them shall be as
binding as if given to the Contractor.
7.3 The Contractor shall provide sufficient competent and suitably qualified personnel,
equipment, and supplies to lay out the Work and perform construction as required by the
Contract Documents. The Contractor will at all times maintain good discipline and order at the
site, and will comply with all applicable OSHA standards.
Any person employed by the Contractor, any Subcontractor, or any sub-subcontractor who, in
the opinion of the Designer or the Owner, does not perform his Work in a proper and skillful
manner or is intemperate or disorderly shall, at the written request of the Owner or Designer, be
removed forthwith by the Contractor, Subcontractor, or sub-subcontractor employing such
person without cost to the Owner, and shall not be employed again in any portion of the Work
without the written approval of the Owner or Designer.
Should the Contractor fail to remove such person or persons or fail to furnish suitable and
sufficient personnel for the proper prosecution of the Work within three (3) days after written
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order, the Owner may withhold further payment by written notice until compliance with such
order.
7.4 If, in the opinion of the Designer or the Owner, any Subcontractor on the Project is
incompetent or otherwise unsatisfactory, he shall be replaced by the Contractor with no
increase in the Contract Price if and when directed by the Designer or the Owner in writing.
7.5 The Contractor shall furnish all materials, equipment, labor, transportation, construction
equipment and machinery, tools appliances, fuel, light, heat, and all other facilities and
incidentals necessary for the execution, maintenance, initial operation, and completion of the
Work, other than those specifically excluded by the Contract Documents and to be furnished by
the Owner or others. When use or storage of hazardous materials or equipment or methods of
more than ordinary risk are necessary in accomplishing the Work, the Contractor shall give the
Owner and Designer reasonable advance notice.
If any materials are to be furnished or installed by the Owner or others under the terms of the
Contract Documents, said materials shall be made available to the Contractor at the location(s)
specified in the Contract Documents. All costs of handling, transportation from the specified
location to the Project, storage, and installing of Owner-furnished materials shall be included in
the Contract Price. The Contractor shall be responsible for any demurrage, damage, loss, or
other deficiencies which may occur during the Contractor's handling, storage, or use of such
Owner-furnished material. The Owner shall deduct from any monies due or to become due the
Contractor any cost incurred by the Owner in making good any such damage, loss, or efficiency.
All equipment which is proposed to be used in the Work shall be of sufficient size and in such
mechanical condition as to meet the requirements of the Work and produce a satisfactory
quality of work. Equipment used on any portion of the Work shall be such that no injury to
previously completed Work, adjacent property, or existing facilities shall result from its use.
When the methods and equipment to be used by the Contractor accomplishing the Work are not
prescribed in the Contract Documents, the Contractor shall be free to use any methods or
equipment that will accomplish the Work in conformity with the requirements of the Contract
Documents.
When the Contract Documents specify the use of certain methods and equipment, such
methods and equipment shall be used unless others are authorized by the Designer. If the
Contractor desires to use a method or type of equipment other than specified in the Contract
Documents, the Contractor may request authority from the Designer to do so. The request shall
be in writing and shall include a full description of the methods and equipment proposed and of
the reasons for desiring to make the change. If approval is given, it shall be on the condition that
the Contractor shall be fully responsible for producing Work in conformity with the requirements
of the Contract Documents. If, after trial use of the substituted methods or equipment, the
Designer determines that the Work produced does not meet the requirements of the Contract
Documents, the Contractor shall discontinue the use of the substitute method or equipment and
shall complete the remaining Work with the specified methods and equipment at no additional
cost to the Owner. The Contractor shall remove any deficient Work and replace it with Work of
specified quality, or take such other corrective action as the Designer may direct. No change in
the Contract Price or in Contract Time shall be made as a result of authorizing a change in
methods or equipment under this paragraph.
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7.6 All materials and equipment shall be new, except as otherwise provided in the Contract
Documents. When special makes or grades of material which are normally packaged by the
supplier or manufacturer are specified or approved, such materials shall be delivered to the
Project site in their original packages or containers with seals unbroken and labels intact.
Materials shall be so stored as to assure the preservation of their quantity, quality and fitness for
the Work. Stored materials, even though approved before storage, may again be inspected by
the Designer or Owner prior to their use in the Work and shall meet the requirements of the
Contract Documents at the time they are incorporated into the Work. Stored materials shall be
located so as to facilitate their prompt inspection. The Contractor shall coordinate the storage of
all materials with the Designer and the Owner. Materials to be stored at the Project or on the
Owner's property shall not create an obstruction to the Owner's or other contractor's reasonable
activities. Private property shall not be used for storage purposes without written permission of
the owner or lessee of such property. The Contractor shall make all arrangements and bear all
expenses for the storage of materials on private property. Upon request, the Contractor shall
furnish the Owner a copy of the property owner's permission. All storage sites on private or the
Owner's property shall be restored to their original condition by the Contractor at his entire
expense, except as otherwise agreed to (in writing) by the owner or lessee of the property.
7.7 All materials and equipment shall be applied, installed, connected, erected, used, cleaned
and conditioned in accordance with the instructions of the applicable manufacturer, fabricator, or
processor, except as otherwise provided in the Contract Documents.
7.8 The Contractor will be fully responsible for all acts and omissions of his Subcontractors and
of persons directly or indirectly employed by them and of persons for whose acts any of them
may be liable to the same extent that the Contractor is responsible for the acts and omissions of
the Contractor's own employees. Nothing in the Contract Documents shall create any
contractual relationship between any Subcontractor or supplier and the Owner or the Designer,
or any obligation on the part of the Owner or the Designer to pay or see to the payment of any
money due any such Subcontractor or material furnisher except as may otherwise be required
by law. The Owner or the Designer may furnish to any Subcontractor or supplier, to the extent
practicable, evidence of amounts paid to the Contractor on account of specific Work done.
7.9 The divisions and sections of the Specifications and the identifications of any Drawings shall
not control the Contractor in dividing the Work among Subcontractors.
7.10 The Contractor agrees to bind specifically every Subcontractor to the terms and conditions
of the Contract Documents for the benefit of the Owner and to furnish written evidence thereof
to the Designer and the Owner within seven (7) days after written request by the Owner.
7.11 The Contractor shall attend job progress conferences and all other meetings or
conferences as directed by the Designer. The Contractor shall be represented at these job
progress conferences by a representative having the authority of the Project Manager and by
such other representatives as the Designer may direct. Job progress conferences shall be open
to Subcontractors, suppliers and any others who may contribute beneficially toward maintaining
required job progress, and such personnel shall be encouraged by the Contractor to attend. It
shall be the principal purpose of job progress conferences to effect coordination, cooperation
and assistance in every practical way toward the end of maintaining progress of the Project on
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schedule and to complete the Work and the Project by the specified Completion Dates. The
Contractor shall be prepared to assess progress of the Work as required in the Contract
Documents and to recommend remedial measures for correction of progress as may be
appropriate. The Designer shall preside as chairman and arrange for minutes to be taken and
circulated.
In the event that the prosecution of the Work is discontinued for any reason, the Contractor shall
notify the Designer and the Owner at least forty-eight (48) hours in advance of resuming
operations.
Should the terms of the Contract Documents require completion of one or more portions of the
Work for the Beneficial Occupancy of the Owner prior to completion of the entire Work, the
Contractor shall complete such portion(s) of the Work on or before the date specified. Such
completion shall include the obtaining of all government or other permits, permission, and/or
approvals necessary to occupancy. The Contractor shall independently estimate the difficulties
involved in arranging the Work to permit such Beneficial Occupancy and shall not claim any
additional compensation or time extension by reason of any delay or increased cost due to
completing such portion(s) of the Work. The Owner's possession and use of such portion(s) of
the Work shall not be deemed an acceptance of any Work not completed in accordance with the
Contract Documents. The Owner shall be responsible for the security, maintenance, utilities,
and insurance of all portions of the Work completed and beneficially occupied by the Owner.
7.12 The Contractor shall pay all license fees and royalties, and assume all costs incident to the
use of any invention, design process, or device which is the subject of patent rights or
copyrights held by others, except for inventions, design processes, or devices specified by the
Designer in the Contract Documents. The Contractor shall indemnify and hold harmless the
Owner, the Designer, and anyone directly employed by either of them, from and against all
claims, damages, losses and expenses, including attorney's fees and costs of defense, arising
out of any infringement or alleged infringement of such rights during or after completion of the
Work, and shall defend all such claims in connection with any actual or alleged infringement of
such rights.
7.13 The Contractor shall secure and pay for all permits, including without limitation construction
permits and licenses, and will pay all governmental charges and inspection fees necessary for
the prosecution of the Work.
7.14 The Contractor shall give all notices and comply with all laws, ordinances, rules, and
regulations applicable to the Work and shall protect and indemnify the Owner and the Owner's
officers, agents, or servants against any claim or liability arising from or based on the violation of
any such law, ordinance, regulation, order, or decree, whether by the Contractor or by the
Contractor's employees, Subcontractors, sub-subcontractors, or their employees.
7.15 The Contractor shall be responsible for the entire site of the Project (except those under
the Beneficial Occupancy of the Owner) and for its reasonable and necessary protection and
security, as required by laws or ordinances governing such conditions, or by custom or sound
construction practices, and shall share such responsibilities as may be agreed upon among
them, or in the absence of such agreement, as may be directed by the Contract Documents,
Owner, or Designer. The Contractor shall be responsible for any damage to the Owner's
property, or that of others, by the Contractor or the Contractor's employees, Subcontractors,
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sub-subcontractors, or their employees or agents, and shall make good such damages. The
Contractor shall be responsible for and pay for any such claims against the Owner.
7.16 The Contractor shall protect all landscaping designated to remain in the vicinity of the
operations and barricade all walks, roads, and areas as necessary to keep the public away from
the construction.
7.17 The Contractor shall provide cover and/or protect all portions of the Work and provide all
materials necessary to protect the Work whether performed by the Contractor or any of the
Subcontractors or sub-subcontractors. Any Work damaged through the lack of proper
protection, or from any other cause, shall be repaired or replaced without extra cost to the
Owner or extension to the Contract Time.
The Contractor shall maintain the Work during construction and until the Work is accepted.
This maintenance shall constitute continuous and effective effort prosecuted day by day, with
adequate equipment and forces so that the Work is maintained in satisfactory condition at all
times. All costs of maintenance shall be included in the Contract Price and the Contractor will
not be paid an additional amount for such effort. Should the Owner or Designer observe that the
Contractor at any time has failed to maintain the Work as provided herein, the Designer may
immediately notify the Contractor of such noncompliance. Such notification shall specify a
reasonable time within which the Contractor shall be required to remedy such unsatisfactory
maintenance condition. Should the Contractor fail to properly respond to the Designer's
notification, the Owner may, at the Contractor's expense, take such action as it may deem
appropriate to remedy the defective maintenance, including suspension of the Contractor's
Work or any part thereof. Any such expense incurred by the Owner shall be deducted from
monies due or to become due the Contractor.
Parking lots, streets, and walks connecting to the Project area shall be protected by the
Contractor from deposits of mud, sand, stone, litter, or debris in any form. Pedestrian traffic
areas around the construction limits must be maintained in a clean and safe condition at all
times with required barricades and covered walkways. When excavation or other operations
outside the Project limits is required, the Contractor shall, immediately following that work,
return the area to its original condition.
All catch basins and storm drain lines in the vicinity of the Project site shall be protected at
all times from entry of dirt, rubble and other debris. The residue from the cleaning of trucks,
wheelbarrows, concrete buggies, etc. must be prevented from entering the drainage
system, and if cleaning is done, the residue must be contained and removed from the
Project site with other refuse.
7.18 No burning of refuse or debris shall be allowed inside or around the Project during the
course of construction without written authority from authorities having jurisdiction and the
Owner.
7.19 The Contractor shall provide for and maintain necessary safety measures and safety
programs for the protection of all persons involved with the Work. Such measures and programs
shall include the requirements of the most current edition of the CAGC Safety and Health
Manual [or the AGC Accident Prevention Manual in Construction], or equivalent requirements,
and shall fully comply with all Federal, State, and local laws, rules, regulations, and building
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code requirements relating to the prevention of accidents or injuries to persons on or about the
location of the Work.
All trenches, excavations, or other hazards in the vicinity of the Work shall be well barricaded,
and properly lighted at night. When Work requires closing of an area normally used by the
Owner or the public, the Contractor shall furnish, erect, and maintain temporary barricades, and
properly light the area. The Contractor shall comply with any directions and public authorities in
this respect.
7.20 The Contractor shall designate a responsible officer or employee as safety inspector,
whose duties shall include accident prevention on the Project as well as implementation of the
Contractor's safety measures and safety programs on the Project. The name of the safety
inspector shall be made known to the Designer and the Owner at the preconstruction
conference.
7.21 In emergencies affecting the safety of persons, the Work, or property at the Project site or
adjacent thereto, the Contractor is obligated to act in the Contractor's discretion to prevent
threatened damage, injury, or loss. As soon as practicable, the Contractor shall notify the
Designer and Owner of such emergency. The Contractor shall give the Designer and the Owner
prompt written notice of any significant changes in the Work or deviations from the Contract
Documents caused by such emergency. If the Contractor believes that additional work done in
an emergency entitles the Contractor to an increase in the Contract Price or an extension of the
Contract Time, the Contractor may make a claim therefore as provided in Articles 14 and/or 15.
7.22 The Contractor shall at all times keep the premises free from accumulation of waste
materials or rubbish caused by the Work. At least weekly and at the completion of the Work, the
Contractor shall remove all waste materials and rubbish from and about the Project. At the
completion of the Work, the Contractor shall remove all tools, construction equipment,
machinery, and surplus materials. The Contractor shall leave the Work in condition for
occupancy by the Owner such that no cleaning or other operations are required. Material
cleared from the Project and deposited on adjacent property shall not be considered as having
been disposed of satisfactorily. If the Contractor fails to keep the Project clean of waste
materials or rubbish, fails to satisfactorily clean-up weekly or at the completion of the Work, the
Owner may do so and the costs thereof may be deducted from any amounts due the Contractor.
7.23 Utilities, temporary facilities, and signs shall be provided as described in the Contract
Documents. Absent a contrary direction in the Supplementary Conditions, the Contractor shall
pay all bills for water, electricity, or other public utility service to the Project site.
7.24 The Contractor shall indemnify and hold the Owner, the Designer, the Designer's
consultants, and their officers, agents, and employees harmless against all costs, damages, and
expenses, including attorney's fees and costs of defense, arising out of claims by any separate
contractor or by any Subcontractor, sub-subcontractor, or supplier engaged by or employed by
the Contractor or employed by any of the Subcontractors claiming through him, including
without limitation damages, losses, and expenses arising out of or relating to any
inconvenience, delay, interference, or other action or non-action of the Contractor or the
Contractor's Subcontractors on the Project.
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The Contractor acknowledges that should the Contractor or any of the Contractor's
Subcontractors be damaged by any breach of contract by any other separate prime contractor
on the Project, the Contractor may invoke applicable dispute resolution procedures with said
other separate prime contractor or bring a direct civil action against said other separate prime
contractor. The Contractor hereby expressly agrees that neither the Owner nor its officers,
agents, or employees shall have any liability of any kind or nature whatsoever to the Contractor,
its Subcontractors, sub-subcontractors, or suppliers arising out of or relating to any breach,
inconvenience, delay, interference, or other action or non-action by any other separate prime
contractor. The Contractor covenants not to sue the Owner for any loss or damage caused by
any breach, inconvenience, delay, interference, or other action or non-action by any other
separate prime contractor, notwithstanding whatever rights at law the Contractor might have to
bring a civil action against the Owner for any breach, inconvenience, delay, interference, or
other action or non-action of any other separate prime contractor. The Contractor agrees to look
exclusively to the other prime contractor for relief or remedy.
Nothing contained herein or appearing anywhere in the Contract Documents shall obligate
or require the Owner to exercise any right or privilege, or to take any action or to refrain from
taking any action under any contract it may have with any other prime contractor or party to the
Project for the benefit of the Contractor or any Subcontractor, subSubcontractor, or supplier
claiming through the Contractor.
7.25 Prior to completion of the Work and Final Payment of the Contract Price, excepting only
those portions of the Work deemed accepted in accordance with the Contract Documents, the
Contractor shall have charge and care of the Work, and shall take every precaution against
injury or damage to any part due to the action of the elements or from any other cause, whether
arising from the execution or from the non-execution of the Work. The Contractor shall as
required by the Owner replace, rebuild, repair, restore, and make good all injury or damage to
any portion of the Work occasioned by any of the above causes before Final Completion and
shall bear the expenses thereof.
7.26 In the event that the Work, or any portion thereof, is suspended at any time pursuant to an
order of the Owner, the Contractor shall obey all instructions of the Owner regarding storage of
materials, drainage, protection of the Work, and erection of temporary structures during the
suspension period.
7.27 The Project Expediter for the Project shall be responsible for the coordination of the Work
of itself and any other separate contractors, both as to space and time. The Project Expediter
shall coordinate the implementation of the Contract Construction Schedule, all construction
activities and close-out of the Project, including but not limited to all testing, inspection,
certifications, and approvals required by public agencies.
The Contractor and the Project Expediter shall each be required to notify the Designer and the
Owner promptly of any event or condition which could affect the conduct or progress of the
Work and shall cooperate fully with all other contractors on the Project site.
7.28 The Owner hereby delegates to the Project Expediter all of its duties to coordinate and to
expedite the Work not expressly reserved to the Owner by other provisions of the Contract
Documents.
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7.29 All Work performed pursuant to the Contract Documents shall conform in all respects to the
North Carolina State Building Code and all other state, local, and national codes in effect at the
time of and applicable to this Work.
7.30 The Contractor shall provide for and maintain necessary safety measures and safety
programs for the protection of all persons at the Project site, and shall comply at all times with
the requirements of the most current edition of the CAGC Safety and Health Manual [or the
AGC Accident Prevention Manual in Construction], or the equivalent requirements of the
Contractor's safety program, and shall fully comply with all Federal, State, and local laws, rules,
regulations, and building code requirements so as to prevent accidents or injuries to persons on
or about the Project site. The Contractor shall clearly mark or post signs warning of existing
hazards, and shall barricade excavations, elevator shafts, stairways, and similar hazards. The
Contractor shall protect against damage or injury resulting from falling materials, and shall
maintain all protective devices and signs throughout the progress of the Work.
7.31 The Contractor shall adhere to the rules, regulations, and interpretations of the North
Carolina Department of Labor's Occupational Safety and Health Standards for the Construction
Industry (29 CFR Part 1926 as adopted in 13 NCAC 07F.0201, including 29 CFR Part 1910
General Industry Safety and Health Standards applicable to construction) and N.C. Gen. Stat.
§95-126 through 155 (Occupational Safety and Health) as well as all revisions and amendments
to such standards or statutes as may occur throughout the performance of the Work.
7.32 Any land disturbing activity performed by the Contractor in connection with the Project shall
comply with all erosion control measures set forth in the Contract Documents and any additional
measures which may be required in order to ensure that the Project is in full compliance with the
Sedimentation Pollution Control Act of 1973, as implemented by Title 15 North Carolina
administrative Code, Chapter 4, Sedimentation Control, Subchapters 4A, 4B and 4C, as
amended (15 NCAC 4A, 4B, and 4C), and as may be revised or amended in the future. Upon
receipt of notice that a land-disturbing activity is in violation of said Act, the Contractor shall be
responsible for ensuring that all steps or actions necessary to bring the Project in compliance
with said Act are promptly taken. The Contractor shall be responsible for all penalties assessed
pursuant to N.C. Gen. Stat. 113A-64 with respect to its Work, and shall indemnify and hold
harmless the Owner from all costs and expenses, including attorney's fees and costs of defense
arising out of or related to the enforcement of the Act against any party or person described in
this Article.
7.33 Any mechanical or electrical work such as sleeves, inserts, chases, etc. located in the
Work of the Contractor for general work shall be built in by that Contractor. On multiple prime
projects, the mechanical and electrical contractors shall set all sleeves, inserts, and other
devices built into the structure in cooperation and under the supervision of the Contractor for
general work. The responsibility for exact location of such items shall be that of the mechanical,
plumbing, or electrical prime contractor.
7.34 The Contractor shall be responsible for permanently fixed service facilities and systems in
use during progress of the Work and shall strictly adhere to the following procedures:
a) Prior to acceptance of the Work by the Owner, the Contractor shall remove and replace any
part of the permanent building systems damaged through use during construction.
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b) Temporary filters shall be installed in each of the heating and air conditioning units, return air
grilles, and other locations to prevent intrusion of dust, dirt, and debris during construction.
Temporary filters shall be removed and replaced with new filters immediately prior to Substantial
Completion.
c) Extra effort shall be maintained to keep the building clean and under no circumstances shall
air systems be operated if finishing operations are creating dust in excess of what would be
considered normal if the building were occupied.
d) When the permanent lighting system is used during construction, lamps shall be replaced
and shall be new on the date of Substantial Completion.
ARTICLE 8. OWNER
8.1 The Owner shall issue communications and notices to the Contractor through the Designer
to the extent contemplated by the Contract Documents.
8.2 In case of termination of the employment of the Designer, the Owner shall appoint as
Designer a qualified person who shall have and assume all rights and duties held by the original
Designer.
8.3 The Owner shall have the right to take possession of and use any portion of the Work
notwithstanding the fact that the time for completion of such portion of the Work may not have
expired, but such taking possession and use shall not be deemed an acceptance of any Work
not completed in accordance with the Contract Documents.
8.4 A waiver on the part of the Owner of any breach of any part of the Contractor shall not be
held to be a waiver of any other or subsequent breach.
8.5 The Owner shall pay all permanent acreage fees, governmental impact fees, and meter
deposits for permanent utilities.
ARTICLE 9. CONSTRUCTION MANAGER
9.1 The Owner may employ one or more Construction Managers for the purpose of assisting the
Owner, Designer, and Contractor in developing and administering budgets and cost controls, in
evaluating constructability and value engineering proposals, in establishing and maintaining a
critical path method (CPM) schedule, in coordinating and/or expediting the Work with other
projects being constructed by the Owner or others adjacent or near the Work, or for such other
purposes as the Owner may deem appropriate. From time to time the Owner may identify such
Construction Managers(s) to the Contractor in writing identifying any tasks assigned to such
Construction Managers(s).
ARTICLE 10. DESIGNER
10.1 The Designer is charged with the responsibility of interpretation of the Contract
Documents. The Designer's decisions relating to aesthetic matters shall be final.
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10.2 All Work completed under the Contract Documents shall be subject to review by the
Designer. No Work is to be covered without the Designer's review or prior authorization.
Any Work so covered without the Designer's review or prior authorization shall be uncovered at
the Contractor's expense. The Contractor shall notify the Designer in writing at least twenty-four
(24) hours in advance of covering any Work.
10.3 The Designer shall not be responsible for the construction means, methods, techniques,
sequences, procedures, or the safety precautions and programs incident thereto, and shall not
be responsible for the Contractor's failure to perform the Work in accordance with the Contract
Documents, but shall be entitled to enforce any requirements in the Contract Documents
specifying particular means, methods, techniques, sequences, or procedures.
10.4 The Designer shall be an Owner's representative during the construction period. The
duties, responsibilities and authority of the Designer as the Owner's representative during
construction are as set forth in the Contract Documents.
ARTICLE 11. TESTING AND SURVEYING
11.1 Laboratory and field tests to determine compliance of construction with the Contract
Documents shall be made by the Owner or testing consultants employed by the Owner except
those required elsewhere in the Contract Documents to be paid for by the Contractor. The costs
and expenses of providing samples for and assistance in any testing shall be borne by the
Contractor and are included in the Contract Price. Any Work in which untested materials are
used without approval or written permission of the Designer shall be removed and replaced at
the Contractor's expense. Work found to be unacceptable or unauthorized will not be paid for
and, if directed by the Designer shall be removed and replaced at the Contractor's expense.
Unless otherwise designated, tests in accordance with the cited standard methods of ASTM or
other generally recognized or specifically authorized methods which are current on the date of
advertisement for bids shall be made at the expense of the Owner; provided, however, in the
event that after such testing any Work is found to be defective or does not meet the
requirements of the Contract Documents, the costs of retesting such Work and the costs of
inspection services shall be paid by the Contractor. Samples shall be taken by a testing
laboratory employed by the Owner. All materials being used are subject to inspection, tests, or
rejection at any time prior to or during incorporation into the Work. Copies of all Owner test
reports will be furnished to the Contractor at his written request. Copies of Contractor test
reports shall be furnished to the Designer upon written request.
11.2 The Owner shall have the right to deduct the costs of additional testing as described in
paragraph 11.1 from any money due the Contractor; or if no money is due the Contractor, the
Owner shall have the right to recover these costs from the Contractor, from its sureties, or from
both.
11.3 All layouts and surveying shall be accomplished by properly qualified personnel duly
licensed in the State of North Carolina.
ARTICLE 12. SEPARATE CONTRACTS
12.1 It is expressly understood that the Owner may deploy the Owner's own employees or
engage other separate prime contractors to perform Work as a part of the Project whose work
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will be performed simultaneously and sequentially with the performance of the Work by the
Contractor. It shall be necessary for the Contractor to coordinate construction activities with
such other contractors, particularly with respect to access to work areas, storage of materials,
and use of elevators and other common facilities. The Contractor shall diligently and in good
faith cooperate with the Owner, the Designer, and all other contractors with respect to such
matters and shall regularly and faithfully attend any and all meetings called by the Owner or the
Designer with respect to such matters. Any disputes between the Contractor and any other
separate prime contractor with respect to such matters shall be resolved in accordance with the
claim and dispute resolution procedures in the Agreement.
ARTICLE 13. CONTRACT TIME
13.1 Within fourteen (14) days after receipt of the Construction Contract by the Contractor for
signatures, the Project Expediter shall prepare and submit to the Designer and Owner for review
and approval a preliminary progress schedule for the Work pursuant to the requirements stated
in the Contract Documents.
13.2 Within fourteen (14) days after initial receipt of the Construction Contract for signatures the
Contractor shall submit to the Designer a Submittal Register listing all Submittals the Contractor
is required to make or proposes to make under the Contract Documents, the dates on which the
Contractor proposes to make such Submittals and the dates by which the Contractor reasonably
requires a response from the Designer with respect to each Submittal. The dates submitted
shall be incorporated into the Contract Construction Schedule as Completion Dates when they
have been approved or modified by the Owner. The Designer shall not be required to review
any Submittal from the Contractor until a Submittal Register acceptable to and approved by the
Owner has been submitted by the Contractor.
13.3 Not later than thirty (30) days following execution and delivery of the Construction
Agreement by Owner to Contractor, the Owner shall deliver to the Contractor a Notice to
Proceed. The Notice to Proceed shall state a commencement date on which it is expected that
the Contractor will begin the Work to be performed under the Agreement. The Contract Time
shall be measured from said specified commencement date. The commencement date stated in
the Notice to Proceed shall not be earlier than three (3) days after the Notice to Proceed is
served on the Contractor.
If, other than by mutual agreement, said specified commencement date is more than thirty (30)
days after the date of execution and delivery of the Agreement from Owner to Contractor and
the Contractor believes said delay justifies an increase in Contract Price and/or an extension of
Contract Time, the Contractor may make a claim therefore as provided in Article 14 and/or
Article 15. No Work shall be done prior to the date specified in the Notice to Proceed. A final
Contract Construction Schedule shall be submitted for approval by the Contractor, Designer,
and Owner no later than fourteen (14) days after Notice to Proceed. No payments shall be due
the Contractor until this schedule is approved by all parties.
13.4 The Contract Construction Schedule is a Contract Document. The Contractor represents
that the Contract Construction Schedule has been reviewed in detail, that the Contractor
participated in its preparation, that all of the activities which impact, limit, or otherwise affect the
time of completion of the Work are shown in the Contract Construction Schedule and that all of
the activities of others which impact, limit, or otherwise affect the start, duration, or completion of
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the Contractor's activities are also shown. The Contractor further represents that the Contractor
can and will complete each activity within the time shown for that activity. Time is of the
essence with respect to each such activity and Completion Date.
13.5 If the Contractor submits a construction schedule, progress report, or any other document
that indicates or otherwise expresses an intention to achieve completion of the Work prior to any
Completion Date required by the Contract Documents or prior to expiration of the Contract
Time, no liability of the Owner to the Contractor for any failure of the Contractor to so complete
the Work shall be created or implied.
13.6 If the Contractor, for reasons beyond the Contractor's control, is delayed in beginning any
activity, the Contractor shall, nevertheless, have the same number of days as is shown in the
Contract Construction Schedule for the activity, and the affected activity and any succeeding
activity that is dependent upon that activity shall be adjusted accordingly; provided that at any
time the Owner, by means of a Change Order, may require the Contractor to work overtime, to
increase labor forces or to take any necessary or appropriate action to decrease the time
required for any activity, and the Contractor shall be entitled to an adjustment in the Contract
Price computed in accordance with Article 15 of these General Conditions.
13.7 At any time, the Owner may order the Contractor, on seven (7) days written notice, to
begin any activity earlier than the starting date shown on the Contract Construction Schedule.
13.8 Should the Contractor fail to start any activity on the start date shown in the Contract
Construction Schedule or as it may have been adjusted in accordance with paragraphs 13.5 or
13.6 above, or become delayed, the Contractor shall, without being entitled to any increase in
the Contract Price or other compensation, work overtime, increase labor forces or take such
other action as may be necessary or appropriate to complete the activity by the Completion
Date shown on the Contract Construction Schedule, or as such Completion Date may have
been adjusted.
13.9 The Designer and Owner or his Construction Consultant shall monitor progress of the work
at all times and the Contractor shall cooperate with such monitoring and provide any and all
information with respect to the progress of the Work and scheduling as the Owner may
reasonably require.
13.10 On a monthly basis, the Contractor shall revise the Contract Construction Schedule,
showing any adjustments made in accordance with paragraphs 13.5 or 13.6, above, by any
Change Order, the progress of the Work, and any days gained or days lost with respect to any
activity, and shall furnish copies thereof to the Owner and Designer.
13.11 Should any monthly revision of any Contract Construction Schedule show that the
Contractor is behind on any activity, the late completion of which could delay Substantial
Completion of the Work, the Owner shall be entitled to withhold from the next Progress Payment
due the Contractor an amount not exceeding the amount the Owner would be entitled to in
Liquidated Damages, should Substantial Completion be delayed by the same number of days
that the Contractor is currently behind schedule. If, subsequently, the Contractor's progress, as
shown by any succeeding monthly revision to the Contract Construction Schedule, is such that
the anticipated delay no longer exists, the Owner shall pay with the Progress Payment next due
to the Contractor such amounts as have been withheld in accordance with this paragraph.
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13.12 The Owner shall have the right to perform Work, hire and employ labor and craftsmen,
rent equipment, subcontract with other parties, or do anything that the Owner deems necessary
or appropriate to remedy or cure any delay by the Contractor in the progress of the Work. Such
action by the Owner shall not, in any way, affect, void or limit any warranty, guaranty or other
responsibility of the Contractor under the Contract Documents. Such action may be taken by the
Owner only after three (3) days written notice to the Contractor. All costs incurred by the Owner
in taking any such action shall be charged to the Contractor and deducted from any amounts
remaining due under the Agreement.
13.13 The Contractor may be entitled to an extension of the Contract Time (but no increase in
the Contract Sum) for delays arising from unforeseen causes beyond the control and without the
fault or negligence of the Owner, the Contractor or the Contractor's Subcontractors as follows:
a) Labor disputes and strikes that directly impact the critical path activities of the Contract
Construction Schedule;
b) Acts of God, tornado, fire, hurricane, blizzard, earthquake, typhoon, or flood that damage
completed Work or stored materials.
c) Acts of the public enemy; acts of the State, Federal, or local government in their sovereign
capacities.
d) Abnormal inclement weather as defined in Article 13.14.
13.14 On any day that the Contractor considers that the Project is delayed by adverse weather
conditions, the Contractor shall identify in writing to the Designer and the Owner the adverse
weather conditions affecting each activity, the specific nature of the activity affected, the number
of hours lost, and the number of and identity (by responsibility or trade) of workers affected and
shall obtain from the Designer written recognition of the delay. The time for performance of this
Contract includes an allowance for a number of calendar days which may not be suitable for
construction Work by reason of adverse weather. The Contract Time will be extended only if the
number of calendar days of adverse weather recognized by the Designer exceeds the number
of inclement weather days set forth below, and the Contractor demonstrates how this adverse
weather impacts activities on the critical path of the Contract Construction Schedule. Month
Number of Inclement Weather Days
January 10
February 10
March 10
April 9
May 10
June 9
July 11
August 10
September 8
October 7
November 8
December 9
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13.15 If the Contractor believes that the progress of the Work has been adversely affected by
adverse weather recognized by the Designer during a particular month, the Contractor shall
submit a written request for extension of time to the Designer. Such a request for time extension
of the Contract Time shall be submitted by the tenth (10th) day of the month following that
month in which the adverse weather is encountered. The request shall include, but is not limited
to, the following information: a) Detailed description of weather's effect on scheduled activities
and its net effect on the critical path of the Project, and b) Weather records from the official
weather station nearest the Project site and records of actual observation as contained in daily
reports, correspondence, or other documentation.
13.16 The Contractor specifically recognizes that a delay by the Contractor in achieving any
Completion Date can have the effect of delaying the Substantial Completion of the Project, that
such delay in Substantial Completion of the Project will necessarily cause damages, losses, and
expenses to the Owner, including, but not limited to and by way of illustration only, increased
capitalized costs and interests for the Project, increased and extended Project overhead,
Designer's and Consultant's fees, increased costs of construction, increased and extended
operation costs of other facilities, and inefficiency and loss of productivity, and that such
damages, losses, and expenses may not be readily identifiable or ascertainable at the time they
are incurred or at any time. Therefore, and in recognition of these factors and the likelihood that
actual damages from his delay will not be readily ascertainable, the Contractor agrees to pay to
the Owner, as Liquidated Damages and not as a penalty, the sum identified in the Contract
Documents hereto as the Liquidated Damages per Day, for each day by which the failure to
meet any Completion Date shown in the Contract Construction Schedule, adjusted in
accordance with this Article, delays the Substantial Completion of the Project.
13.17 The Contractor shall not be entitled to any adjustment in the Contract Price or other
compensation from the Owner for any delay in the completion of or progress on the Work that is
caused by a force majeure condition or is otherwise not caused by the sole and direct act or
omission of the Owner and the Owner's employees or agents.
13.18 The sum for Liquidated Damages is the amount stated in the Contract Documents as
Liquidated Damages reasonably estimated in advance to cover the losses to be incurred by the
Owner by reason of failure of said Contractor(s) to complete the Work within the time specified,
such time being in the essence of this contract and a material consideration thereof.
ARTICLE 14. CHANGES IN THE WORK
14.1 Without invalidating the Contract Documents, the Owner may, at any time, or from time to
time order additions, deletions, or revisions in the Work. Said additions, deletions, or revisions
shall be authorized only by written Change Orders, Construction Change Directives or Field
Orders. Upon receipt of a Change Order, Construction Change Directive or Field Order, the
Contractor shall proceed with the Work involved. All such Work shall be executed under the
applicable conditions of the Contract Documents. If any change causes an increase or decrease
in the Contract Price and/or an extension or shortening of the Contract Time, adjustments shall
be made as provided in Article 14 and/or Article 15. In order to expedite the Work and avoid or
minimize delay in the Work that might affect the Contract Price or Contract Time, the Designer
may issue a Change Order in the form of a Construction Change Directive which when signed
by the Owner and Designer, directs the Contractor to proceed promptly with the Work involved.
Any claim for an adjustment in Contract Price or Time, if not defined in the Construction Change
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Directive, shall be promptly made in writing in accordance with the procedures defined in Article
15.2.
14.2 The Designer may authorize minor changes or alterations in the Work not involving change
in the Contract Price or in the Contract Time and not inconsistent with the overall intent of the
Contract Documents. These may be accomplished by a Field Order. Such alterations shall not
invalidate the Contract Documents nor release the surety. If the Contractor believes that any
minor change or alteration authorized by the Designer entitles him to an increase in the Contract
Price and/or an extension of Contract Time, he may make a claim therefore as provided in
Article 14 and/or Article 15.
14.3 Except in an emergency endangering life or property, no change shall be made by the
Contractor except upon prior written Change Order, Directive or Field Order authorizing such
Change.
14.4 Increases in the Contract Price and/or extensions of the Contract Time for additional Work
performed by the Contractor shall only be in accordance with a written Change Order signed by
the Owner and Designer. The Contractor shall not be entitled to additional time or to additional
compensation for any Work performed or material supplied which is claimed to have been
authorized or settled by an "oral" change, or by a "constructive" or "implied" change, or by a
course of conduct, or by any action or non-action by the Owner, Designer, or any other persons,
or by any means whatsoever other than by a written Change Order for such Work or material
signed by the Owner and the Designer.
14.5 Changes in the Work resulting from emergency shall not invalidate the Contract
Documents nor release the surety.
14.6 Neither the Owner nor the Designer shall be responsible for verbal instructions which have
not been confirmed in writing, and in no case shall such instructions be interpreted as permitting
a departure from the Contract Documents unless such instruction is confirmed in writing and
supported by a proper Change Order, Construction Change Directive or Field Order, whether or
not the cost is affected.
14.7 The Owner, in its sole discretion, may require that the Contractor notify the Contractor's
sureties of any changes affecting the general scope of the Work or change in the Contract
Price, and that the amount of applicable bonds shall be adjusted accordingly. If this requirement
is exercised, the Contractor shall furnish proof of such adjustment to the Designer and the
Owner.
If this requirement is exercised, the Change Orders shall require written consent of the
Contractor's surety. At the time of signing a Change Order, the Contractor shall be required to
certify as follows: "I certify that all sureties have been notified that my contract has been altered
by the amount of this Change Order, and that a copy of the approved Change Order will be
mailed to all sureties upon its receipt by me." If this requirement is exercised, no payment to the
Contractor on account of any Change Order shall become due or payable until written evidence
of the surety's consent to the Change Order has been furnished to the Designer and to the
Owner, and the furnishing of such written consent is a condition precedent to such payment.
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14.8 The Contractor shall support all requests for Change Orders with a detailed cost
breakdown showing cost of materials, labor, equipment, transportation, other items, Contractor's
overhead and profit, and total cost, in accordance with methods defined in this Article, and, if the
request seeks an extension of the Contract Time, with a time-related diagram which
demonstrates specifically why an increase in construction time is needed.
14.9 When a request for a Change Order involves a Subcontractor, the Contractor shall provide
quotation from same on Subcontractor's letterhead. The Subcontractor's quote shall list
materials, equipment, and labor separately, and show overhead and profit in the manner
provided in paragraph 14.8.
ARTICLE 15. CHANGE OF THE CONTRACT PRICE
15.1 The Contract Price constitutes the total compensation payable to the Contractor for
performing all Work under the Contract Documents. All duties, responsibilities, and obligations
assigned to or undertaken by the Contractor shall be at his expense without change in the
Contract Price. The Contract Price may only be changed by a Change Order.
15.2 Any claim for an adjustment in the Contract Price shall be in writing and written notice of
any event, action, or non-action which may become the basis of a claim shall be delivered to the
Owner and the Designer within three (3) days of the occurrence of any such event, action or
non-action giving rise to the claim. Such written notice is a condition precedent to the making of
a claim, and such notice shall describe the basis of the potential claim with reasonable detail
and clarity.
A claim shall be made in writing and shall be delivered to the Designer and the Owner no later
than fourteen (14) days after such notice. The claim shall describe in detail the basis for the
claim, with specific reference to any provisions of the Contract Documents, by paragraph,
drawing number, or other specific identification, and shall state the amount claimed and how it is
calculated. If the Contractor, at the time the claim is made, is unable to state the amount
claimed with accuracy, the Contractor shall so state and provide the estimated amount and the
basis on which the amount is to be calculated. At the earliest date practicable, but in no event
more than thirty (30) days after Contractor's notice of claim, the Contractor shall supplement the
claim with an accurate statement of the amount claimed and how it has been calculated. The
Contractor shall provide, in writing, in support of the claim all such explanations, arguments,
data, receipts, expert opinions, or other documents or information as the Contractor deems
appropriate to be considered in support of the claim.
A claim may properly be rejected by the Owner by reason of the Contractor's failure to submit
adequate or accurate documentation or information, except that within seven (7) days after
being given notice that the claim has been rejected on this basis, the Contractor may submit
additional documentation or information. No claim for a change of the Contract Price shall be
considered or granted (except solely at the discretion of the Owner) unless a claim is so made,
nor shall the Contractor be entitled to any increase in the Contract Price unless the Contractor
has given notice and made such a written claim within the times required. The Owner shall
decide, after obtaining the advice of the
Designer, whether an increase in Contract Price is warranted, and the amount of such increase
shall be determined as provided in paragraph 15.4 through 15.5, below. Any change in the
Contract Price resulting from any such claim shall be incorporated in a Change Order.
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The Owner shall advise the Contractor of its decision with respect to the claim within fourteen
(14) days of its receipt, or of the receipt of additional documentation or information if the
absence of such has previously been the basis of rejection of the claim; provided, however, that
if, in its sole discretion, the Owner deems that review or consideration of any part of the claim or
any matter related thereto by its governing Board is necessary or appropriate, it shall so advise
the Contractor and shall provide its decision to the Contractor within seven (7) days after such
Board consideration, review or action. Any claim on which the Owner has not provided its
decision to the Contractor within the applicable time period shall be deemed denied. If the
Contractor is not satisfied with the decision of the Owner, the Contractor may within seven (7)
days of receipt of the Owner's decision initiate the mediation process as described in Appendix
A to the General Conditions of the Contract for Construction.
15.3 In determining the amount of a Contract Price adjustment, the parties shall apply the
following methods, as appropriate:
(A) Change in Work: The Owner and Contractor shall negotiate in good faith and attempt to
agree upon the value of any change (extra or decrease) in Work prior to the issuance of a
Change Order covering said Work. Such Change Order shall set forth the corresponding
adjustment to the Contract Price. In the event the Owner and the Contractor are unable to
agree, the Owner shall grant an equitable adjustment in the Contract Price.
(B) Emergency Work: In the event of emergency endangering life or property, the
Contractor may be directed by the Designer to proceed on a time and material basis,
whereupon the Contractor shall so proceed and keep accurately, in such form as may be
required by the Designer, a correct account of costs together with all proper invoices, payrolls,
and supporting data therefore.
15.4 Where the Contract Price is to be adjusted, the following limitations shall apply in
determining the amount of adjustment:
(A) In the case of extra or emergency work, the Contract Price shall not be increased by more
than the reasonable, actual, and documented net cost of the extra or emergency work plus ten
percent (10%) of such net cost on Work performed by the Contractor and five percent (5%)
thereof on any subcontracted Work for overhead and profit combined.
(B) In the case of a decrease in Work, the Contract Price shall not be decreased by less than
the net cost of the deleted Work plus five percent (5%) of such direct net cost for profit and
overhead.
The term 'net cost' as used herein shall include, as applicable, and shall be limited to, all direct
labor, direct material, direct equipment, labor burden, sales taxes, shipping and handling
charges, permits and fees, and insurance and bond premium adjustments, if any, attributable to
the change. All other items of cost shall be considered as overhead and covered by the
percentages allowed in sections A and B of this paragraph.
The Contractor shall provide worksheets or tabulations describing the method by which the
direct net cost was calculated, and shall provide all data needed to support the calculation of the
direct net cost, all in a form acceptable to the Owner.
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15.5 Where the Contract Price is to be adjusted by negotiation, the Owner may authorize and
designate the Designer to negotiate with the Contractor on behalf of the Owner; provided,
however, any agreement reached between the Contractor and Designer shall be subject to
approval by the Owner.
ARTICLE 16. UNFORESEEN CONDITIONS
16.1 Should the Contractor encounter unforeseen conditions at the Project site materially
differing from those shown on the Drawings or indicated in the Specifications or differing
materially from those ordinarily encountered and generally recognized as inherent in work of the
character provided for in this Agreement, the Contractor shall immediately, and in no event
more than three days later, give notice to the Owner of such conditions before they are
disturbed. The Owner and the Designer shall thereupon promptly investigate the conditions and
if they find that they materially differ from those shown on the Drawings or indicated in the
Specifications, they shall at once make such changes in the Drawings and/or Specifications as
they may find necessary. Any increase or decrease in the Contract Price resulting from such
changes shall be adjusted in the manner provided herein for adjustments as to extra and/or
additional Work and changes. However, neither the Owner nor the Designer shall be liable or
responsible for additional work, costs, or changes to the Work that could have been reasonably
determined from any reports, surveys, and analyses made available for the Contractor's review
or that could have been discovered by the Contractor through the performance of its obligations
pursuant to the Contract Documents.
ARTICLE 17. CORRECTION OF WORK BEFORE FINAL PAYMENT
17.1 The Owner has the authority to stop or suspend work, and the Designer has the authority
to order Work removed or to order corrections of defective Work or Work not in compliance with
the Contract Documents where such action may be necessary to ensure successful completion
of the Work.
Any work, materials, fabricated items, or other parts of the Work which have been found by the
Designer to be defective or not in accordance with the Contract Documents shall be condemned
and shall be removed from the Project by the Contractor, and immediately replaced by new
Work in accordance with the Contract Documents at no additional cost to the Owner. Work or
property of the Owner or others damaged or destroyed by virtue of such condemned Work shall
be made good at the expense of the Contractor. Correction of condemned Work described
above shall be commenced by the Contractor within twenty-four (24) hours after notice from the
Designer or the Owner and shall be pursued to completion. Should the Contractor fail to
proceed reasonably with the abovementioned corrections, the Owner may, three (3) days after
the notice specified in the preceding sentence, proceed with correction, paying the cost,
including costs of uncovering such condemned Work, of such corrections from amounts due or
to become due to the Contractor.
Condemned Work removed shall be the property of the Contractor and shall be removed from
the Project by him within ten (10) days after notice to remove it, and if not then removed,
thereafter may be disposed of by the Owner without compensation to the Contractor and the
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cost of such disposal shall be deducted from amounts due or to become due to the Contractor.
Should the cost of correction of the Work and, if applicable, disposal of the condemned Work by
the Owner exceed amounts due or to become due the Contractor, then the Contractor and the
Contractor's sureties shall be liable for and shall pay to the Owner the amount of such excess.
ARTICLE 18. CORRECTION OF WORK AFTER SUBSTANTIAL COMPLETION;
WARRANTIES AND GUARANTIES
18.1 Neither the final certificate, Final Payment, occupation of the premises by the Owner, nor
any provision of the Contract Documents, nor any other act or instrument of the Owner or the
Designer shall relieve the Contractor from responsibility for negligence, defective material or
workmanship, or failure to comply with the Contract Documents.
18.2 The Contractor shall, at the Contractor's sole cost and expense, make all necessary
repairs, replacements, and corrections of any nature or description, interior or exterior,
structural or non-structural, that shall become necessary by reason of defective workmanship or
materials which appear within a period of one (1) year from the date of Substantial Completion;
provided, however that notwithstanding the preceding, if any longer guarantee period is
specified for any particular materials or workmanship under the Contract Documents, or under
any subcontract, or in connection with any manufactured unit which is installed in the Project, or
under the laws of the State of North Carolina, the longer guarantee period shall govern.
18.3 If, within any guarantee period, repairs or changes are required in connection with the
Work, which are rendered necessary as the result of the use of materials, equipment, or
workmanship which are inferior, defective, or not in accordance with the terms of the Contract
Documents, the Contractor shall, promptly upon receipt of notice from the Designer and without
expense to the Owner:
a) Completely repair or replace the Work so that it conforms to the Contract Documents;
b) Correct all defects therein;
c) Make good all damage which, in the opinion of the Designer, is the result of the use of
materials, equipment, or workmanship which are inferior, defective, or not in accordance with
the terms of the Contract Documents; and
d) Make good any Work or material, or any equipment or contents disturbed in fulfilling any such
guarantee.
If, in fulfilling the requirements of the Contract Documents or of any guarantee embraced therein
or required thereby, the Contractor disturbs any work, facility, premises, or construction
belonging to the Owner, the Contractor shall restore such disturbed work to a condition
satisfactory to the Owner, and shall guarantee such restored work to the same extent as if it
were Work under the Contract Documents.
If the Contractor, after notice, fails to proceed promptly to comply with the terms of the
guarantee, the Owner may have the defects corrected, and the Contractor and the Contractor's
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ureties shall be liable for all expenses incurred. "Promptly" is defined as within twenty-four (24)
hours for systems necessary to normal operation of the building and within seventy-two (72)
hours for all other items. All special guarantees applicable to definite parts of the Work that may
be shown in or required by Contract Documents shall be subject to the terms of this paragraph
during the first year of the life of such special guarantee. Manufacturer's standard guarantees or
warranties which do not comply with the time limit specified herein shall be extended by the
Contractor automatically without further action on the part of the Owner or the Designer.
18.4 In the eleventh calendar month after the date of Substantial Completion, and at the request
of the Owner, the Contractor, the Owner and the Designer shall make an inspection of the Work
for the purpose of identifying defective workmanship and/or materials. If the Contractor, having
been requested to do so by the Owner, fails to participate in such inspection, the Contractor
shall be conclusively bound by any decision or ruling by the Designer as to any defective
workmanship or material and as to the Contractor's responsibility for its repair or replacement.
ARTICLE 19. OWNER'S RIGHT TO DO WORK
19.1 If, during the progress of the Work or during any period of guarantee, the Contractor fails to
prosecute the Work properly or to perform any provision of the Contract Documents, the Owner,
after three (3) days written notice to the Contractor from the Designer, or from the Owner after
Final Payment, may perform or have performed that portion of the Work and may deduct the
cost thereof from any amounts due or to become due the Contractor. Notwithstanding any
action by the Owner under this paragraph, all warranties and bonds given or to be given by the
Contractor shall remain in effect or shall be given by the Contractor.
19.2 Should the cost of such action by the Owner exceed the amount due or to become due the
Contractor, the Contractor and his sureties shall be liable for and shall pay to the Owner the
amount of such excess.
ARTICLE 20. PARTIAL PAYMENTS
20.1 Within thirty (30) days after his initial receipt of the Construction Contract for signatures,
the Contractor shall submit to the Designer a Schedule of Values. The Schedule of Values shall
indicate the value of the Work, including applicable overhead and profit, for each Division and
section of the Project Specifications. The Designer and Owner shall be provided with the
Contractor's estimate papers, Subcontractor agreements, supplier quotes, or other documents
substantiating these values if so requested in writing by the Designer. The Contractor shall
provide the requested documentation within seven (7) days after receipt of the Designer's
written request. The Schedule of Values shall be subject to approval by the Owner, and if the
Owner and the Contractor cannot agree upon the Schedule of Values, the Designer shall
prepare it, and the Schedule of Values as prepared by the Designer shall be binding on the
Owner and the Contractor. No Request for Payment shall be certified by the Designer until the
Designer has issued approval of said Schedule of Values.
20.2 Not later than the fifth (5th) day of each calendar month the Contractor shall submit to the
Designer a Request for Payment for Work done during the previous calendar month. The
Request for Payment shall be in form of AIA Document G702 (latest edition) and shall show
substantially the value of Work done (including the value of material delivered to the Project or
stored by the Contractor at another site, subject to the conditions hereinafter set forth) during
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the previous calendar month, and shall sum up the financial status of the Work with the
following information:
a) Total Contract Price, including any adjustment thereto made pursuant to the Contract
Documents.
b) Value of Work completed and materials properly stored to date.
c) Less amount retained.
d) Less previous payments.
e) Current amount due.
f) Balance remaining.
The Contractor, upon request of the Designer, shall substantiate the request with invoices,
vouchers, payrolls, or other evidence.
20.3 When payment is requested or made on an account of stored materials, such materials
must be stored on the Owner's property at such places and in such a manner as may be
designated by the Designer. However, in the sole discretion of the Owner, with permission
in writing from the Designer and Owner and under such circumstances as may be determined
by the Owner, such materials may be stored in a bonded warehouse. The location and
conditions for storage of such materials away from the Owner's property in a bonded warehouse
shall be within the sole discretion of the Owner. Requests for Payment on account of stored
materials shall be accompanied by paid invoices, bills of sale, warehouse receipts, or other
documentary evidence establishing Owner's title to such materials, evidence that the stored
materials are insured against loss and damage, and such other documentation as required by
the Designer. Responsibility for the quantity, quality, and condition of such stored materials,
whether stored on the Owner's property or away from the Owner's property, shall remain with
the Contractor regardless of ownership or title. No payment shall be made on account of
materials stored in a bonded warehouse unless the Contractor has acquired written permission
from the Designer for such storage of materials and has complied with all conditions set forth in
such permission regarding such storage of materials in a bonded warehouse.
20.4 Any Request for Payment received by the Designer on or before the fifth (5th) of the
calendar month shall be certified for payment or returned for re-submission to the Contractor on
or before the fifteenth (15th) of the calendar month. The Designer's certification shall be for the
amount which was requested or that which the Designer has decided was justly due, and shall
state in writing to the Contractor and Owner the reasons for withholding payment of any or all of
the amount requested.
20.5 The Designer may fail to certify all or part of any payment requested for any of the
following reasons:
a) Defective Work not corrected.
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b) Suits, actions, or claims of any character filed against the Contractor, or due to the operations
of the Contractor, or information or notice that a suit, action, or claim will be filed or has been
made.
c) Information or notice that a Subcontractor or a supplier has not received payment.
d) The balance unpaid of the Contract Price is insufficient to complete the Work in the judgment
of the Designer or Owner.
e) Damage to the Owner or another contractor.
f) Inability of the Contractor to meet a Completion Date, including an anticipated failure to meet
a Completion Date entitling the Owner to withhold anticipated Liquidated Damages in
accordance with paragraphs 13.15 and 13.17 hereof.
g) Failure to furnish Submittal as required by the Contract Documents on a timely basis in
accordance with the Submittal Register.
h) Such other reason as to the Designer may appear prudent, proper, or equitable. When
grounds for withholding certification have been corrected, the Designer shall so certify to the
Owner and the Owner shall make any payment due with respect to such certification as a part of
his next payment after such certification.
20.6 No certificate issued or progress payment made shall constitute an acceptance of the Work
or any part thereof.
20.7 The amount certified by the Designer for payment shall be ninety-five percent (95%) of the
value of Work completed and materials stored since the Designer's last certification as shown
on the Request for Payment, less any amounts not certified in accordance with paragraph 20.4,
and this amount shall be paid by the Owner on or before the last business day of the month, but
payment shall not be past due until not paid within fifteen (15) days thereafter.
20.8 After certification by the Designer that the Work is fifty percent (50%) complete, based on a
determination that the Contractor's gross project invoices, excluding the value of materials
stored off-site, equal or exceed fifty percent (50%) of the value of the Contract, (except the
value of materials stored on-site shall not exceed twenty percent (20%) of the Contractor's gross
project invoices for the purpose of determining whether the Project is fifty percent (50%)
complete) and the Contractor has provided to the Owner the written consent of its sureties to
the cessation of further percentage retention, the amount certified for payment with respect to
subsequent Requests for Payment shall be one hundred percent (100%) of the value of Work
completed and materials stored since the Designer's last certification as shown on the Request
for Payment, less any amounts not certified in accordance with paragraphs 20.4 and 20.5;
provided, however, that the aggregate of periodic payments shall not exceed ninety-seven and
one half percent (97.5%) of the Contract Price. If the Owner determines that the Contractor's
performance under the Contract is unsatisfactory, the Owner may resume withholding
percentage retention from each subsequent periodic payment application up to the maximum
amount of five percent (5%) of the Contract Price.
ARTICLE 21. FINAL PAYMENT
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21.1 If the Work of the Contractor is limited to demolition, pilings, caissons and/or structural
steel, the remaining unpaid balance of the Contractor's Contract Price, less a sum equal to five-
tenths percent (0.5%) of the Contract Price, shall be paid within sixty days following receipt of
the following documents, all of which must be received before payment shall become due: (i)
request for payment from the Contractor; (ii) receipt of consent from the Contractor's surety to
the payment; and (iii) approval or certification from the Designer that the work performed by the
Contractor is acceptable and in accordance with the Contract Documents.
21.2 Except as set forth in paragraph 21.1, within forty five days after Substantial Completion of
the Project, the remaining unpaid balance of the Contract Price shall be paid to the Contractor,
less an amount equal to two and one-half times the value of punch list work or other work
remaining to be completed or corrected, as reasonably estimated by the Owner.
21.3 Upon Substantial Completion, the Designer shall prepare and submit to the Contractor a
deficiency list identifying all portions of the Work which are known by the Designer at that time
to be incomplete or defective. Within thirty (30) days of receipt of this deficiency list, the
Contractor shall complete and correct all items on that list along with all other Work required to
achieve Final Completion of the Work. At any time prior to completion of the period of warranty,
the Designer may submit to the Contractor a supplemental deficiency list, in which case the
Contractor shall complete or correct any and all new items identified on the supplemental
deficiency list within the time period stipulated in paragraph 18.3.
21.4 Final Payment of any remaining balance of the Contract Price shall not be due to the
Contractor until the Contractor achieves Final Completion of the Project.
21.5 The making and acceptance of Final Payment shall constitute a waiver of all claims by the
Owner except:
a) Claims arising from unsettled liens or claims against the Contractor.
b) Defective Work or materials appearing after Final Payment.
c) Failure of the Contractor to perform the Work in accordance with the Contract Documents.
d) As conditioned in the Performance Bond.
e) Claims made prior to Final Payment which remain unsettled.
f) Amounts due arising under Articles 18 and 28.
g) Claims for recovery of overpayment based upon incorrect measurement, estimate, or
certificate.
21.6 The making and acceptance of Final Payment shall constitute a waiver of all claims by the
Contractor except those claims previously made in writing pursuant to paragraph 15.2 and
not finally resolved.
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21.7 The Designer shall not authorize Final Payment until all of the Work under the Contract
Documents has been certified by the Designer as completed, proper and suitable for occupancy
and use, and has been approved by all federal, state and local agencies having jurisdiction.
21.8 The final Request for Payment shall be identified on its face as such and shall be
presented by the Contractor to the Designer within thirty (30) days of completion of the Work.
Final payment of the retained amount due the Contractor shall be made by the Owner within
thirty (30) days after the later of(i) full and Final Completion of all Work required by the Contract
Documents, and certification of such Work in accordance with paragraph 20.4; (ii) submission of
the affidavits of other documentation required by Article 22; (iii) submission by the Contractor of
a Request for Payment identified on its face as final and including the Designer's certification.
ARTICLE 22. CONTRACTOR, SUBCONTRACTOR AND SUPPLIER AFFIDAVIT
22.1 The Final Payment due the Contractor on account of the Contract Documents shall not
become due until the Contractor has furnished to the Owner through the Designer: (A) an
affidavit by the Contractor signed, sworn, and notarized to the effect that all payments for
materials, services, or for any other reason in connection with the Work or performance of the
Contract Documents have been satisfied and that no claims or liens exist against the Contractor
in connection with the same; (B) affidavits from each Subcontractor and supplier signed, sworn,
and notarized to the effect that (i) each such Subcontractor or supplier has been paid in full by
the Contractor for all Work performed and/or materials supplied by him in connection with the
Project, and (ii) that all payments for materials, services, and for any other reason in connection
with the subcontract or supply contract have been satisfied and that no claims or liens exist
against the Subcontractor or supplier in connection therewith; and (C) the written consent of the
Contractor's sureties to Final Payment. In the event that the Contractor cannot obtain an
affidavit, as required above, from any Subcontractor or supplier, the Contractor shall state in the
Contractor's affidavit that no claims or liens exist against such Subcontractor or supplier to the
best of the Contractor's knowledge, and that if any appear afterwards, the Contractor shall save
the Owner harmless for all costs and expenses, including attorneys' fees, on account thereof.
ARTICLE 23. ASSIGNMENTS AND SUBCONTRACTS
23.1 The Contractor shall not assign any portion of this Agreement nor subcontract the Work in
its entirety without the prior written consent of the Owner. Except as may be required under
terms of the bonds required by the Contract Documents, no funds or sums of money due or to
become due to the Contractor under the Contract Documents may be assigned.
ARTICLE 24. MEASUREMENTS
24.1 Before ordering material or doing Work which is dependent for proper size or installation
upon coordination with building conditions, the Contractor shall verify all dimensions and shall
be responsible for the correctness of same. No consideration will be given for any claim based
on differences between the actual dimensions and those indicated in the Contract Documents.
Any discrepancies between the Contract Documents and the existing conditions shall be
referred to the Designer for adjustment before any Work affected thereby is begun.
ARTICLE 25. CONTRACTOR AND SUBCONTRACTOR RELATIONSHIPS
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25.1 Within thirty (30) days after initial receipt of the Construction Contract for signatures the
Contractor shall submit to the Designer and Owner for acceptance a current list of the names of
Subcontractors and such other persons and organizations (including those who are to furnish
materials or equipment fabricated to a special design) proposed for any and all portions of the
Work. The Contractor shall provide this list at this time even if the Contractor was required to
submit a list of proposed Subcontractors with the Contractor's bid. The Designer shall promptly
reply to the Contractor in writing stating whether or not the Owner or the Designer, after due
investigation, has objection to any such proposed person or entity or if it needs additional
information to evaluate the persons on the list. Failure of the Designer to reply within ten (10)
days after the Contractor has furnished all required information shall constitute notice of no
objection.
The Contractor shall not contract with any such proposed person or entity to whom the Owner
or the Designer has made reasonable objection. If the Designer or Owner has reasonable
objection to any such proposed person or entity, the Contractor shall submit a substitute to
whom the Owner and the Designer have no reasonable objection. The Contractor shall make no
substitution for any Subcontractor, person, or entity previously allowed without first notifying the
Designer and Owner in writing and no substitution may be made if the Owner or Designer
makes a reasonable objection to such substitution.
25.2 The Contractor agrees that the terms of the Contract Documents, including all portions
thereof, shall apply to all Subcontractors of the Contractor as if they were the Contractor, and
that the Subcontractors of the Contractor shall, by means of their subcontracts, be bound by all
the terms of the Contract Documents including, but not limited to, Article 26 of these General
Conditions.
25.3 Payments to Subcontractors shall be made in accordance with the provisions of N.C. Gen.
Stat. §143-134.1.
ARTICLE 26. USE OF PREMISES
26.1 The Contractor shall confine apparatus, the storage of materials, the operations of workers,
and the disposal of material to limits indicated by law, ordinances, permits, and directions of the
Designer, if any.
26.2 The Contractor shall not load or permit any part of the Work to be loaded with a weight that
will endanger its safety, intended performance, or configuration.
26.3 The Contractor shall enforce all of the Designer's instructions, including, but not limited to,
those regarding signs, advertisements, fires, and smoking.
ARTICLE 27. CUTTING, PATCHING AND FITTING
27.1 The Contractor shall do all cutting, fitting, and patching of the Work that may be required to
make its several parts come together properly and fit it to receive or to be received by Work
shown in or which can be reasonably implied from the Contract Documents.
ARTICLE 28. DISPUTE RESOLUTION
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28.1 The laws of the State of North Carolina shall apply to the interpretation and enforcement of
this Agreement. Any and all suits or actions to enforce, interpret, or seek damages with respect
to any provision of, or the performance or nonperformance of, this Agreement shall be brought
in the General Court of Justice of North Carolina sitting in Orange County, North Carolina, and it
is agreed by the parties that no other court shall have jurisdiction or venue with respect to such
suits or actions. Prior to initiating an action under this Article, any Party to this Agreement shall
notify the other Party of its intent to initiate a mediation process. In any such mediation process
the Parties should agree upon a North Carolina certified mediator. Should the Parties be unable
to agree upon a mediator within fifteen (15) days of the notice of intent to initiate a mediation
process Orange County may select such mediator. The Parties shall be jointly responsible for
the costs of any such mediation. In the event the Parties are unable to resolve any dispute
resulting in mediation pursuant to this Article then either Party to the mediation may initiate
action in the General Court of Justice. Regardless of the outcome of any dispute each Party
shall be responsible for its own legal costs including reasonable attorneys' fees.
28.2 Any person or firm that expressly or impliedly agrees to perform labor or services or to
provide material, supplies, equipment, work, performance or payment bonds, insurance or
indemnification for the construction of the Project or the Work shall be deemed a party to this
Agreement solely for the purpose of this Article 28. The Contractor, by means of its
subcontracts, shall specifically require its Subcontractors to be bound by this Article.
ARTICLE 29. TAXES
29.1 The Contractor has included in the Contract Price and shall pay all taxes assessed by any
authority on the Work or the labor and materials used therein. The Contractor shall maintain all
tax records during the life of the Project and furnish the Owner with a complete listing of all
taxes paid by taxing authority, invoice number, date, amount, etc. in a form acceptable to the
Owner. The Contractor is required to maintain a file showing taxes paid on the Project for three
(3) years after Final Payment or turn said documents over to the Owner for his files.
29.2 The following is a list of requirements to be followed by the Contractor in maintaining
proper records and reporting the North Carolina Sales and Use Tax and Local Sales and Use
Tax. The Contractor shall comply fully with the requirements outlined below, in order that the
Owner may recover the amount of the tax permitted under the law.
a) It shall be the Contractor's responsibility to furnish the Owner documentary evidence showing
the materials used and sales and use tax paid by the Contractor and each of his
Subcontractors. Such evidence shall be transmitted to the Owner with each pay request
regardless of whether taxes were paid in that period.
b) The documentary evidence shall consist of a certified statement by the Contractor and each
of the Contractor's Subcontractors individually, showing total purchases of materials from each
separate vendor and total sales and use taxes paid to each vendor. Certified statements must
show the invoice number, or numbers, covered, and inclusive dates of such invoices.
c) Materials used from Contractor's or Subcontractor's warehouse stock shall be shown in a
certified statement at warehouse stock prices.
d) The Contractor shall not be required to certify the Subcontractor's statements.
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ARTICLE 30. OPERATION OF OWNER'S FACILITIES
30.1 The Contractor agrees that all Work done under the Contract Documents shall be carried
on in such a manner so as to ensure the regular and continuous operation of the adjoining or
adjacent facilities. The Contractor further agrees that the sequence of operations under the
Contract Documents shall be scheduled and carried out so as to ensure said regular and
continuous operation. The Contractor shall not close any areas of construction until so
authorized by the Designer. The Contractor shall control operations to assure the least
inconvenience to the public. Under all circumstances, safety shall be the most important
consideration.
ARTICLE 31. THIRD PARTY BENEFICIARY CLAUSE
31.1 It is specifically agreed between the parties executing the Agreement that, with the specific
exception set forth paragraph 7.24 hereof, and that exception only, the Contract Documents and
the provisions therein are not intended to make the public, or any member thereof, a third-party
beneficiary of the Agreement, or to authorize anyone not a party to the Contract Documents to
maintain a suit for personal injuries or property damage pursuant to the terms of provisions of
the Contract Documents.
ARTICLE 32. MEASUREMENT OF QUANTITIES
32.1 All Work completed under the Contract Documents shall be measured by the Contractor
using United States customary units of measurement. The method of measurement and
computations to be used in determination of quantities of material furnished and of Work
performed under the Contract Documents shall be those methods set forth in the Contract
Documents or, if not specifically set forth therein, the method generally recognized as
conforming to good engineering practice.
ARTICLE 33. TERMINATION BY THE OWNER FOR CAUSE
33.1 If the Contractor fails to begin or complete the Work under the Contract Documents within
the time specified, or fails to perform the Work with sufficient labor and equipment or with
sufficient materials to insure the prompt completion of said Work, or shall perform the Work
unsuitably or shall discontinue the prosecution of the Work for three (3) days, or if the
Contractor shall become insolvent, be declared bankrupt, commit any act of bankruptcy or
insolvency, allow any final judgment to stand against the Contractor or its affiliated companies
unsatisfied for a period of forty-eight (48) hours, make an assignment for the benefit of creditors,
or for any other cause whatsoever shall not carry on the Work in an acceptable manner, the
Owner may give notice in writing to the Contractor and the Contractor's sureties of such delay,
neglect, or default, specifying the same, and if the Contractor within a period of three (3) days
after such notice shall not proceed in good faith and with reasonable speed to correct such
delay, neglect, or default in accordance with such notice, the Owner shall have full power and
authority, to the extent permitted by law, without violating the Contract Documents, to take the
prosecution of the Work out of the hands of the Contractor, to appropriate or use any or all
materials and equipment at the Project as may be suitable and acceptable, and may enter into
an agreement for the completion of the Work or pursue such other methods as in the Owner's
opinion shall be necessary or appropriate for the completion of the Work in an acceptable
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manner. All costs and charges incurred by the Owner in proceeding in accordance with the
preceding sentence, including attorney's fees, and all costs incurred by the Owner in completing
the Work shall be deducted from any money due or which becomes due the Contractor. If such
costs and expenses incurred by the Owner shall be less than the sum which would have been
payable under Contract Documents if it had been completed by the Contractor, then the
Contractor shall be entitled to receive the difference, but if such costs and expenses shall
exceed the sum which would have been payable under the Contract Documents, the Contractor
and the Contractor's surety shall be liable to the Owner for and shall pay to the Owner the
amount of such excess.
ARTICLE 34. TERMINATION OR SUSPENSION BY THE OWNER FOR CONVENIENCE
34.1 The Owner may, without cause, order the Contractor to terminate, suspend, delay, or
interrupt the Work in whole or in part for such period of time as the Owner may determine.
34.2 If the Contractor is subsequently ordered by the Owner to resume the Work, any cost or
expenses to which the Contractor may be entitled by reason of the suspension, delay, or
interruption shall be recovered by means of a Change Order in accordance with Articles 13 and
14 hereof and the Contract Construction Schedule shall be adjusted in accordance with Article
13 hereof.
34.3 In the event of termination by the Owner under this Article, the Contractor shall be entitled
to receive the reasonable and documented direct costs incurred prior to termination, including
the cost of materials purchased for the Work which purchases cannot be canceled or which
material cannot reasonably be used by the Contractor on other work, and the cost of closing
down the Project in a safe and efficient manner, plus ten percent (10%) thereof for overhead
and profit, subject to the following conditions:
a) When the Contract is terminated before completion of all items of Work, payment shall be
made for the actual number of units or items of Work completed at the applicable contract
prices, or as mutually agreed for items of Work partially complete. If a mutual agreement cannot
be reached, the Owner shall have the authority to make such equitable adjustment as it deems
warranted and the Final Payment shall be made accordingly.
b) Reimbursement for organization of any Work and moving equipment to and from the job shall
be considered when not otherwise provided for in the Contract Documents where the volume of
completed Work is too small to compensate the Contractor for those expenses under unit
prices. If a mutual agreement cannot be reached, the Owner will have the authority to make
such equitable adjustments as it deems warranted and the Final Payment will be made
accordingly.
c) Materials obtained by the Contractor for the Work that have been inspected and accepted by
the Designer and that are not incorporated in the Work shall, at the request of the Contractor, be
purchased from the Contractor at the Contractor's actual cost as shown by receipted bills and
actual costs records at such points of delivery as may be determined by the Owner.
d) No payment shall be made by Owner to Contractor except as herein above provided. No
claim for loss of anticipated profits shall be considered or allowed.
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e) Termination of the Contract shall not relieve the Contractor of his responsibilities for any
completed portion of the Work nor shall it relieve his sureties of their obligation for and
concerning any just claims arising out of the Work performed. The Contractor shall not be
entitled to any other compensation, including compensation for lost profit, lost opportunity, or
any other direct or consequential cost, loss, or damage.
ARTICLE 35 MINORITY BUSINESS ENTERPRISE PROGRAM
35.1 The Contractor shall at all times comply with the Orange County Minority Business
Enterprise Policy. All documentation substantiating compliance with the requirements of this
program shall be delivered to the Owner as stipulated in the Contract Documents. A copy of the
Orange County Minority Business Enterprise Policy is included in the Project Manual.
ARTICLE 36 E-VERIFY
36.1 Pursuant to the terms of North Carolina General Statute 153A-449(b) no county may enter
into a contract with a contractor unless the contractor and the contractor's subcontractors
comply with the requirements of Article 2 of Chapter 64 of the North Carolina General Statutes.
Where applicable, failure to maintain compliance with the requirements of Article 2 of Chapter
64 of the General Statutes constitutes Contractor's breach of this Agreement. Contractor
affirms Contractor is in compliance with Article 2 of Chapter 64 of the North Carolina General
Statutes.
ARTICLE 37 GENERAL
37.1 If any provision of the Agreement shall be declared invalid or unenforceable, the remainder
of the Agreement shall continue in full force and effect.
37.2 The titles to Articles herein are for convenience only, are not substantive parts of the
General Conditions, and are not to be considered in interpreting the Contract Documents.
END OF GENERAL CONDITIONS OF THE CONTRACT FOR
CONSTRUCTION
Revised 9/13