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Exhibit
10.1
AGREEMENT
THIS
AGREEMENT made this 9th day of June in the year 2005, by and between Big
Boulder Corporation a legal entity organized and existing in the County of
Carbon under and by virtue of the laws of the State of Pennsylvania, hereinafter
designated as the Owner, and Robert C. Young, Inc., hereinafter designated as
the Contractor.
The Owner and the Contractor, in
consideration of the mutual covenants hereinafter set forth, agree as follows:
ARTICLE 1 - THE WORK
The Contractor shall complete the Work as specified or
indicated on the Notice of Award and as outlined on the Bid Schedule(s) of the
Owner's Contract Documents entitled:
BIG BOULDER CORPORATION
LAURELWOODS II RESIDENTIAL
DEVELOPMENT
ROCKLEDGE DRIVE/LAURELWOODS
DRIVE, WOODSBLUFF COURT,
WOODHOLLOW COURT AND LAURELWOODS
DRIVE
INFRASTRUCTURE - PROJECT N0.1863
The work is generally described
as follows: Installation of mass excavation and fill; stormwater
retention facilities; storm sewer and water lines and associated facilities; roadway
construction; erosion and sedimentation control; swale construction; ground
restoration; road signs; street lights and all appurtenances, as described in
the Contract Documents.
ARTICLE 2 - COMMENCEMENT AND
COMPLETION
The Work to be performed under
this Contract shall be commenced on the date specified the Notice to Proceed by
the Owner and the Work shall be fully completed 180 days after the date of
Commencement of the Work, as specified in the Notice to Proceed.
The Owner and the Contractor
recognize that time is of the essence in this Agreement and that the Owner will
suffer financial loss if the Work is not completed within the time specified in
Article 2, herein, plus any extensions thereof allowed in accordance with
Article 12 of the General Conditions. They also recognize the delays, expense,
and difficulties involved in proving in a legal proceeding the actual loss
suffered by the Owner if the Work is not completed on time. Accordingly,
instead of requiring any such proof, the Owner and the Contractor agree that as
liquidated damages or delays (but not as a penalty) the Contractor shall pay
the Owner the sum of $ 500.00 for each calendar day that expires after the time
specified in Article 2, herein.
ARTICLE 3 - CONTRACT PRICE
The Owner shall pay the
Contractor for the completion of the Work in accordance with the Contract
Documents in current funds the Contract Price named in the Contractor's Bid and
Bid Schedule-A on any bid item as subtotaled for each section of the bid form.
ARTICLE 4 - THE CONTRACT
DOCUMENTS
The Contract Documents consist of. Notice Inviting Bids,
Instructions to Bidders, the accepted Bid and Bid Schedule, List of
Subcontractors, Non-Collusion Affidavit, Bidder's General Information, Bid
Security or Bid Bond, this Agreement, Worker's Compensation Certificate,
Performance Bond, Payment Bond, Notice to Award, Notice to Proceed, Notice of
Completion, General Conditions of the Contract, Supplementary General
Conditions of the Contract, Technical Specifications, Drawings listed in The
Schedule of Drawings in the Supplementary General Conditions or on the Cover
Sheet of the Drawings, Addenda numbers 2 to 2, inclusive, and all Change Orders
and Work Directive Changes which may be delivered or issued after the Effective
Date of the Agreement and which are not attached hereto.
AGREEMENT FORM
AGREEMENT AND
BONDS - PAGE 1
<PAGE>
AGREEMENT
Continued
ARTICLE 5 - PAYMENT PROCEDURES
The Contractor shall submit
Application for Payment in accordance with Article 14 of the General Conditions
and the Supplementary General Conditions. Application for Payment will be
processed by the Engineer, as provided in the General Conditions.
ARTICLE 6 - NOTICES
Whenever any provision of the
Contract Documents requires the giving of written notice, it shall be deemed to
have been validly given if delivered in person to the individual or to a member
of the firm, or to an officer of the corporation for whom it is intended, or if
delivered at or sent by registered or certified mail, postage prepaid, to the
last business address known to the given of the Notice.
ARTICLE 7 - MISCELLANEOUS
Terms used in this Agreement
which are defined in Article 1 of the General Conditions and Supplementary
General Conditions will have the meanings indicated in said General Conditions
and Supplementary General Conditions. No assignment by a party hereto of any
rights under or interests in the Contract Documents will be binding on another
party hereto without the written consent of the party sought to be bound; and
specifically, but without limitations, monies that may become due and monies
that are due may not be assigned without such consent (except to the extent
that the effect of this restriction may be limited by law), and unless
specifically stated to the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any duty or
responsibility under the Contract Documents.
The Owner and the Contractor each
binds itself, its partners, successors, assigns, and legal representatives to the
other party hereto, its partners, successors, assigns, and legal representative
in respect of all covenants, agreements, and obligations contained in the
Contract Documents.
IN WITNESS WHEREOF, the Owner and
the Contractor have caused this Agreement to be executed the day and year first
above written.
BIG BOULDER CORPORATION
ROBERT C. YOUNG, INC.
By
/s/ Eldon D. Dietterick
By: /s/ Mark R. Young
Title: Eldon D. Dietterick 8/8/05
Title: Mark R. Young
Executive Vice President & Treasurer
Vice-President
Attest
/s/ Christine A. Liebold
Attest /s/ Cheryl Lewis
Christine A. Liebold, Secretary 8/8/05
Cheryl Lewis, Asst. Secretary
Address for giving Notice:
Address for giving Notice:
P O Box 707
P. O. Box K
Blakeslee, PA 18610
Mifflinville, PA 18631-0470
AGREEMENT FORM
AGREEMENT AND
BONDS - PAGE 2
<PAGE>
CONDITIONS
OF THE CONTRACT
GENERAL CONDITIONS
ARTICLE 1 - DEFINITIONS
Whenever used in these General Conditions
or in other Contract Documents the following terms have the meanings indicated
which are applicable to both the singular and plural thereof:
Addenda - Written or graphic instruments issued
prior to the opening of Bids which make changes, additions, or deletions to the
bid documents or the Contract Documents.
Agreement - The written agreement between the Owner
and the Contractor covering the Work to be performed; other Contract Documents
are attached to the Agreement and made a part thereof as provided therein.
Application for Payment - The form furnished by the Engineer which
is to be used by the Contractor in requesting progress or final payments and
which includes such supporting documentation as is required by the Contract
Documents.
Asbestos - Any material that contains more than one
percent asbestos and is friable or is releasing asbestos fibers into the air
above current action levels established by the United States Occupational
Safety and Health Administration.
Beneficial Use or Occupancy - Placing all or any portion of the Work in
service for the purpose for which it is intended (or a related purpose) before
reaching completion for all of the Work.
Bid - The offer or Proposal of the Bidder submitted on the
prescribed form setting forth the price or prices for the Work to be done.
Bidding Documents - Notice Inviting Bids, Instructions to
Bidders, the Bid Form and the accompanying Bid Schedules or Bid Sheets, List of
Subcontractors, Non-Collusion Affidavit, Equipment and Materials (where
required), Bidder's General Information, Bid Security or Bond, Affirmative Action
Program, and the proposed Contract Documents (including all Addenda issued
prior to receipt of Bids).
Bidding Requirements - The Notice Inviting Bids, Instructions to
Bidders, the Bid Form and the accompanying Bid Schedule or Bid Sheets.
Bonds - Bid, Performance, and Payment Bonds and other instruments
which protect against loss due to inability or refusal of the Contractor to
perform its Contract.
Change Order - A document recommended by the Engineer
which is signed by the Contractor and the Owner and authorizes an addition to,
deletion from, or revision of the Work, or an adjustment in the Contract Price
or the Contract Time, issued on or after the Effective Date of the Agreement.
0702-120192
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 1
Completion - Completion of the Work shall be the
date of such acceptance of the Work by the Owner. Completion shall mean
Substantial performance of the Contract, which shall have the definition given
in Black's Law Dictionary, Revised Fourth Edition, West Publishing Company.
Contract Documents - Unless otherwise defined in the
Supplementary General Conditions, the Contract Documents shall include the
Notice Inviting Bids, Instructions to Bidders, the accepted Bid and Bid
Schedule, the Schedule of Values or Cost-loaded CPM, List of Subcontractors,
Non-Collusion Affidavit, Equipment or Material Proposed, Bidder's General
Information, Bid Security or Bid Bond, the Agreement, Worker's Compensation
Certificate, Performance Bond, Payment Bond, Notice of Award, Notice to
Proceed, Notice of Completion, General Conditions of the Contract,
Supplementary General Conditions, Technical Specifications, Drawings, and all
Addenda, Change Orders, and Work Directive Changes executed pursuant to the
provisions of the Contract Documents. Shop Drawings submittals approved
pursuant to Article 6.12 and the reports and drawings referred to in Article
4.2a are not Contract Documents.
Contract Price - The total monies payable by the Owner to
the Contractor under the terms and conditions of the Contract Documents.
Contract Time - The number of successive calendar days as
stated in the Contract Documents for the completion of the Work.
Contract Unit Price - The price quoted by the Bidder for
performing or furnishing each item of Work to be paid for on the basis of unit
prices.
Contractor - The person, firm, partnership,
co-partnership, or corporation with whom the Owner has executed the Agreement.
Contractor's Project Representative - Contractor's representative for the
Project through whom all matters addressed to the Contractor regarding the
Project shall be directed. This individual and the Owner's or Engineer's
Resident Project Representative shall be the only two individuals who shall
have the authority to provide direction/receive authorization on matters
pertaining to the Project.
Cost of Work - The term Cost of Work (determined as
provided in Articles 11.2, 11.3 and 11.4, herein) shall mean the sum of all
costs necessarily incurred and paid for by the Contractor for labor, materials,
and equipment in the proper performance of the Work, plus the Contractor's fee
for overhead and profit (determined as provided in Article 11.4, herein).
Day - A calendar day of 24 hours, measured from midnight to the next
midnight.
Daily Work Reports - Cost isolation reports detailing all
costs of extra work, disputed work, emergency work, or other work paid for on a
force account basis and the cost of other operations. A record of daily
costs separate and distinct from the daily costs of other Work on the Project
for which a Contract Price has been established.
00702-042000
CONDITIONS OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 2
Defective Work - Work that is unsatisfactory, faulty, or
deficient, or that does not conform to the Contract Documents; or that does not
meet the requirements of any inspection, reference standard, test, or approval
referred to in the Contract Documents; or Work that has been damaged prior to
the Engineer's recommendation of final payment.
Drawings/Contract Drawings - The drawings, plans, maps, profiles,
diagrams, and other graphic representations which show the character, location,
nature, extent, and scope of the Work to be performed.
Effective Date of the Agreement - The date indicated in the Agreement on
which it was executed, but if no such date is indicated it shall mean the date
on which the Agreement is signed and delivered by the last of the two parties
to sign and deliver.
End of Contract - The End of the Contract shall be
identified as being that day when the Work should be completed based upon the
predefined contract period as indicated in the Contract Documents plus any time
extensions granted by the Owner.
Engineer - The person, firm, or corporation
named as such in the Supplementary General Conditions. Reference herein
to Engineer shall be deemed to include the Resident Project Representative as
the authorized representative of the Owner and Consulting Engineer, where
applicable.
Engineer's Estimate - On unit-price contracts, the list of
estimated quantities and prices of the individual line items of Work to be
performed as contained in the Bid Schedule(s). On lump-sum contracts, the
estimated contract price of the completed project.
Field Order - A written order issued by the Engineer
which, in the opinion of the Engineer, does not involve a change in the
Contract Price or the Contract Time.
General Requirements - Refer to sections of the Technical
Specifications.
Hazardous Waste - The term Hazardous Waste shall have the
meaning provided in Pennsylvania Department of Environmental Protection rules
and regulations, County and/or State Codes and adopted ordinances.
Laws and Regulations; Laws or Regulations
- Laws, rules,
regulations, ordinances, codes, and/or orders promulgated by a lawfully
constituted body authorized to issue such Laws and Regulations.
Liquidated Damages - The dollar amount per day specified in
the Agreement that the Contract or shall pay to the Owner for each and every
day that the Work remains incomplete following the date of Completion of the
Work or designed portion of the Work as specified in the Contract Documents.
Milestone - A principal event specified in the
Contract Documents relating to an intermediate completion date or time prior to
Substantial Completion of all the Work.
00702-042000
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 3
Notice of Award - The written notice by the Owner to the
apparent successful Bidder stating that upon compliance by the apparent
successful Bidder with the conditions enumerated therein, within the time
specified, the Owner will enter into an Agreement. This Notice will only
be issued after Owner approval.
Notice of Completion - The legal document filed by the Owner
with the County Recorder after the project has been accepted by the Owner.
This document begins the notification period when those firms or
individuals who have submitted a Preliminary Notice for the project will be on
notice that the project has been accepted as complete by the Owner.
Notice to Proceed - A written notice issued by the Owner to
the Contractor authorizing the Contractor to proceed with the work and
establishing the date of commencement of the Contract Time. The contract
period shall begin within 7 days after the date specified in the Notice to
Proceed.
Owner - The agency with whom the Contractor has entered into the
Agreement and for whom the Work will be performed.
Partial Utilization - Placing a portion of the Work in service
for the purpose for which it is intended (or a related purpose) before reaching
Substantial Completion of the Work. A Notice of Partial Utilization will
be issued to the Contractor when such occurs.
PCB's - Polychlorinated biphenyls.
Petroleum - Petroleum, including crude oil or any
fraction thereof which is liquid at standard conditions of temperature and
pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such
as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and
oil mixed with other Non-Hazardous Wastes and crude oils.
Project - The total construction of which the Work
to be provided under the Contract Documents, may be the whole, or a part
thereof, as indicated elsewhere in the Contract Documents.
RCRA Hazardous Waste - The term RCRA hazardous waste shall have
the meaning provided in Pennsylvania Department of Environmental Protection
rules and regulations.
Samples - Physical examples of materials,
equipments, or workmanship that are representative of some portion of the Work
and which establish the standard by which such portion of the Work will be
judged.
Schedule of Values - Cost value of activities; A breakdown of
a lump sum project into unit values to serve as a basis for estimating the
value of the Work completed to facilitate the making of progress payments to
the Contractor. The unit values in a schedule of values are for
convenience only, and are not intended for the purpose of pricing Change
Orders.
00702-120495
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 4
Resident Project
Representative - The
person named in the Supplementary General Conditions as the authorized
representative of the Owner or the Engineer who is assigned to the site or any
part thereof. All liaison between the Contractor and the Owner shall be
directed through the Resident Project Representative.
Shop Drawings - All drawings, diagrams, illustrations,
schedules, and other data which are specifically prepared by or for the
Contractor to illustrate some portion of the Work and all illustrations,
brochures, standard schedules, performance charts, instructions, diagrams, and
other information prepared by a supplier or manufacturer and submitted by the
Contractor to illustrate material or equipment for some portion of the Work.
Specifications - Those portions of the Contract Documents
consisting of Part I, Notice Inviting Bids, Instructions to Bidders, Bid Forms,
Agreement; Part II, General and Supplementary General Conditions of the
Contract; and Part III, Technical Specifications, consisting of the written
technical descriptions of materials, equipment, construction systems, methods,
standards, and workmanship as applied to the Work and certain administrative
details applicable thereto.
Standard Specifications - The Standard Specification, where
applicable, shall be as named in the Supplementary General Conditions.
Subcontractor - An individual, firm, or corporation
having a direct Contract with the Contractor or with any other Subcontractor
for the performance of a part of the Work at the site. A Subcontractor is
any individual or firm which has contracted with the prime Contractor to
perform any portion of the Work.
Subcontractor is responsible for
compliance with all the terms and conditions of the Contract.
Substantial Completion - Refers to the Work (or a specified part
thereof) that has progressed to the point where, in the opinion of the
Engineer, as evidenced by the Notice of Completion, it is sufficiently
complete, in accordance with the Contract Documents, so that the Work (or
specified part) can be utilized for the purposes for which it is intended; or
if there is no such certificate issued, when final payment is due in accordance
with the provisions of the Contract Documents, and where the Engineer can
recommend that the Work be accepted by the Owner. The terms
"Substantial Completion" and "substantially complete" and
"substantially completed" as applied to any Work shall mean
Substantial Performance of the Contract, hereunder. (See definition of
"Completion," herein, and in Black's Law Dictionary, Revised Fourth
Edition, West Publishing Company.)
Supplementary General Conditions - The part of the Contract Documents which
makes additions, deletions, or revisions to these General Conditions.
Supplier - A manufacturer, fabricator, retailer,
wholesaler, distributor, materialman, or vendor having a direct contract with
the Contractor or with any Subcontractor or with the Owner to furnish materials
or equipment to be incorporated in the Work by the Contractor or any
Subcontractor.
00702-101596
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 5
Technical Specifications
- The technical sections
of the Specifications, comprising all sections contained in Part III of the
Specification defined herein.
Underground Facilities - All pipelines, conduits, ducts, cables,
wires, manholes, vaults, tanks, tunnels, or other such facilities or
attachments, and any encasements containing such facilities which have been
installed underground to furnish any of the following, but not limited to the
following, services or materials: electricity, water, sewage and drainage
removal, gases, steam, liquid petroleum products, telephone or other
communications, cable television, traffic or other control systems.
Unit Price Work - Work to be paid for on the basis of unit
prices.
Work - The entire completed construction of the various
separately identifiable parts thereof required to be furnished under the
Contract Documents. The Work is the result of performing services, furnishing
labor, and furnishing and incorporating materials and equipment into the
construction, all as required by the Contract Documents.
Work Directive Change - A written directive to the Contractor,
issued on or after the Effective Date of Agreement and signed by the Owner and
recommended by the Engineer, ordering a change or in response to emergencies as
provided in the Contract Documents. A Work Directive Change may be used
on changes affecting the Contract Price or the Contract Time, but shall not authorize
payment or a time extension until the Work is incorporated in a subsequently
issued Change Order following negotiations by the parties as to its effect, if
any, on the Contract Price or Contract Time as provided in the Contract
Documents.
ARTICLE 2 - PRELIMINARY MATTERS
2.1
Delivery of Bonds:
When the Contractor delivers the executed
Agreement to the Owner, the Contractor shall also deliver to the Owner such
Bonds and insurance policies or certificates as the Contractor may be required
to furnish in accordance with the Contract Documents.
2.2
Copies of Documents:
The Owner shall furnish to the Contractor,
one copy, if requested, (unless otherwise specified in the Supplemental
Conditions of the Contract Documents) as are reasonably necessary for the
execution of the Work. Additional copies will be furnished, upon request,
at cost of reproduction.
2.3 Commencement of Contract
Time; Notice to Proceed:
The Contract Time shall commence to run on
the date specified in the Notice to Proceed.
00702-051298
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 6
2.4 Starting the Work:
The Contractor shall start to perform the
Work on the date when the Contract Time commences to run but no Work shall be
done at the site prior to the date on which the Contract Time commences to run.
2.5 Before Starting
Construction:
a.
Before undertaking each part of the Work,
the Contractor shall carefully study
and compare the Contract Documents and
check and verify pertinent figures shown thereon and all applicable field
measurements. The Contractor shall promptly report in writing to the
Engineer any conflict, error or discrepancy which the Contractor may discover
and shall obtain a written interpretation or clarification from the Engineer
before proceeding with any Work affected thereby; however, the Contractor shall
not be liable to the Owner or the Engineer for failure to report any conflict,
error or discrepancy in the Contract Documents, unless the Contractor had
actual knowledge thereof or should reasonably have known thereof.
b.
The Contractor shall submit to the
Engineer for review and approval those documents called for under "Submittals"
in the Contract Documents.
c.
When the Contractor delivers its signed
Agreement to the Owner, the Contractor shall deliver to the Owner, with a copy
to the Engineer, certificates (and other evidence of insurance requested by the
Owner) which the Contractor is required to purchase and maintain in accordance
with the requirements of the Contract Documents.
2.6
Preconstruction Conference:
A preconstruction conference attended by
the Contractor, the Engineer, and others as appropriate will be held to discuss
the Work in accordance with the applicable sections of the Contract Documents.
2.7
Finalizing Schedules:
At least 7 days before submittal of the
first Application for Payment, a conference attended by the Contractor, the
Engineer, and others as appropriate will be held to finalize the schedules
submitted in accordance with the Contract Document requirements.
ARTICLE 3 - CONTRACT DOCUMENTS:
INTENT, AMENDING, REUSE
3.1
Contract Documents:
a.
The Contract Documents comprise the entire
agreement between the Owner and the Contractor concerning the Work. The
Contract Documents are complementary;
00702-051298
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 7
what is called for by one is as binding as
if called for by all. The Contract Documents will be construed in
accordance with the laws of the location of the Project.
b.
It is the intent of the Contract Documents
to describe the Work, functionally complete, to be constructed in accordance
with the Contract Documents. Any Work, materials or equipment that may
reasonably be inferred from the Contract Documents as being required to produce
the intended result will be supplied whether or not specifically called for.
When words which have a well-known technical or trade meaning are used to
describe Work, materials, or equipment, such Work shall be interpreted in
accordance with that meaning.
c.
Reference to standard specifications,
manuals, or codes of any technical society, organization, or association, or to
the Law or Regulations of any governmental authority, whether such reference be
specific or by implication, shall mean the latest standard specification,
manual, code, or Laws or Regulations in effect at the time of opening of Bids
except as may be otherwise specifically stated. However, no provision of
any referenced standard specification, manual, or code (whether or not
specifically incorporated by reference in the Contract Documents) shall be
effective to change the duties and responsibilities of the Owner, the
Contractor, or the Engineer or any of their consultants, agents, or employees
from those set forth in the Contract Documents.
d.
If, during the performance of the Work,
the Contractor finds a conflict, error, or discrepancy in the Contract
Documents, the Contractor shall so report to the Engineer in writing at once
and, before proceeding with the Work affected thereby, shall obtain a written
interpretation, clarification, or correction from the Engineer.
3.2
Amending and Supplementing Contract
Documents:
The Contract Documents may be amended
after execution of the Agreement to provide for additions, deletions, and
revisions in the Work or to modify the terms and conditions thereof in one or
more of the following ways:
1.
A Change Order, or
2.
A Work Directive Change
3.3
Order of Precedence of Contract Documents:
a.
In resolving disputes resulting from
conflicts, errors, or discrepancies in any of the Contract Documents, the order
of precedence shall be as follows:
1.
Change Order or Work Directive Changes
2.
Agreement
3.
Addenda
4.
Contractor's Bid (Bid Form)
5.
Supplementary General Conditions
00702-120495
CONDITIONS
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CONDITIONS - PAGE 8
6.
Notice Inviting Bids
7.
Instructions to Bidders
8.
General Conditions of the Contract
9.
Technical Specifications
10.
Referenced Standard Specifications
11.
Contract Drawings
12.
Referenced Standard Drawings
b.
With reference to the Drawings the order
of precedence shall be as follows:
1.
Figures govern over scaled dimensions
2.
Detail drawings govern over general drawings
3.
Addenda/Change Order drawings govern over Contract Drawings
4.
Contract Drawings govern over standard drawings
3.4 Reuse of Documents:
Neither the Contractor, nor any
Subcontractor or Supplier, nor any other person or organization performing or
furnishing any of the Work under a direct or indirect Contract with the Owner
shall have or acquire any title to or ownership rights in any of the Drawings,
Specifications, or other documents (or copies of any thereof) prepared by or
bearing the seal of the Engineer; and they shall not reuse any of them on
extensions of the Project or any other Project without written consent of the
Owner and the Engineer and specific written verification or adaptation by the
Engineer.
ARTICLE 4 - AVAILABILITY OF LANDS;
PHYSICAL CONDITIONS; REFERENCE POINTS
4.1
Availability of Land:
The Owner will furnish, as indicated in
the Contract Documents, the land upon which the Work is to be performed,
rights-of-way and easements for access thereto, and such other land which are
designated for the use of Contractor. Easements for permanent structures
or permanent changes in existing facilities will be obtained and paid for by
the Owner, unless otherwise provided in the Contract Documents. Nothing
contained in the Contract Documents shall be interpreted as giving the
Contractor exclusive occupancy of the land or rights-of-way provided. The
Contract shall provide for all additional land and access thereto that may be
required for temporary construction facilities or storage of materials and
equipment; provided that the Contractor shall not enter upon nor use any
property not under the control of the Owner until a written temporary
construction easement agreement has been executed by the Contractor and the
property owner, and a copy of said easement furnished to the Engineer prior to
said use; and neither the Owner nor the Engineer shall be liable for any claims
or damages resulting from Contractor's unauthorized trespass or use of any such
properties.
00702-020193
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 9
4.2
Physical Conditions:
a. Explorations and Reports:
Reference is made to the Articles entitled "Physical
Conditions" of the Supplementary General Conditions for identification of
those reports of explorations and test of subsurface conditions at the site
that may have been utilized by the Engineer in the preparation of the Contract
Documents. The Contractor may rely upon the general accuracy of the
"technical data" contained in such reports and drawings, but such
reports and drawings are not Contract Documents. Such "technical
data" is identified in the Supplementary General Conditions. Except
for such reliance on such "technical data", the Contractor may not
rely on or make claims against the Owner, the Engineer, or their Consultants or
Subconsultants with respect to:
1.
The completeness of such reports or
drawings for the Contractor's purposes, including, but not limited to, any aspects
of the means, methods, techniques, sequences, and procedures of construction to
be employed by and the safety precautions and programs incidental thereto; or
2.
Other data, interpretations, opinions, and
information contained in such reports or shown or indicated in such drawings;
or
3.
Any Contractor interpretation of or
conclusion drawn from any "technical data" or any such data,
interpretations, opinions, or information.
b.
Existing structures: Reference is
made to the Article entitled "Physical Conditions" of the
Supplementary General Conditions for identification of those drawings of
physical conditions in or relating to existing surface and subsurface
structures (except Underground Utilities referred to in Article 4.4, herein) which
are at or contiguous to the site that have been utilized by the Engineer in the
preparation of the Contract Documents. The Contractor may rely upon the
accuracy of the "technical data" contained in such drawings; however,
the interpretation of such "technical data," including any
interpolation or extrapolations thereof, together with "nontechnical
data", interpretations, and opinions contained in such drawings or the
completeness thereof is the sole responsibility of the Contractor.
4.3
Differing Site Conditions:
a.
The Contractor shall notify the Engineer
in writing of the following unforeseen conditions, hereinafter called differing
site conditions, promptly upon their discovery (but in no event later than 14
days after their discovery) and before they are disturbed:
1.
Subsurface or latent physical conditions
at the site of the Work differing materially from those indicated, described,
or delineated in the Contract Documents including those reports and documents
discussed in Article 4.2; and
00702-120495
CONDITIONS
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2.
Unknown physical conditions at the site of
the Work of an unusual nature differing materially from those ordinarily
encountered and generally recognized as inherent in Work of the character
provided for in the Contract Documents including those reports and documents
discussed in Article 4.2.
b.
The Contractor shall, promptly after
becoming aware thereof and before further disturbing conditions affected
thereby or performing any Work in connection therewith (except in an emergency
as permitted by Article 6.11), notify the Owner and the Engineer in writing about
such condition. The Contractor shall not further such conditions or
perform any Work in connection therewith (except as aforesaid) until receipt of
written Orders.
c.
The Engineer will review the pertinent
conditions, determine the necessity of obtaining additional explorations or
tests with respect thereto and advise the Owner in writing of the Engineer's
findings and conclusions.
d.
If the Owner concludes that because of newly discovered conditions a change in the Contract Documents is re






