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
OF THE CONTRACT
GENERAL
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
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 10
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 required, a Work Directive Change will be
issued to initiate the Work, pending issuance of a formal Change
Order as provided in Article 10 to reflect and document the
consequences of the difference.
e.
In each such case, an
increase or decrease in the Contract Price or an extension or
shortening of the Contract Time, or any combination thereof, will
be allowable to the extent that they are attributable to any such
difference. If the Owner and the Contractor are unable to
agree as to the amount or length thereof, a claim may be made
therefor as provided in Articles 11 and 12.
f.
The Contractor's failure
to give written notice of differing site conditions within 14 days
of their discovery or before they are disturbed shall constitute a
waiver of all claims in connection therewith, whether direct or
consequential in nature.
g.
Nothing herein shall be
deemed to require the Owner to indicate the presence of existing
service laterals or appurtenances whenever the presence of such
utilities on the site of the construction project can be inferred
from the presence of other visible facilities, such as buildings,
meter and junction boxes, on or adjacent to the site of the
construction.
4.4
Physical Conditions -
Underground Utilities:
a.
Shown or Indicated:
The information shown or indicated in the Contract Documents
with respect to existing Underground Utilities at or contiguous to
the site are based on information and data furnished to the Owner
or the Engineer by the owners of such Underground Utilities or by
others. Unless it is expressly provided in the
Contract
00702-120192
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 11
Documents, the Owner and
the Engineer shall not be responsible for the accuracy or
completeness of any such information or data, and the Contractor
shall have full responsibility for reviewing and checking all such
information and data, for locating all Underground Utilities shown
or indicated in the Contract Documents, for coordination of the
Work with the owners of such Underground Utilities during
construction, for the safety and protection thereof and repairing
any damage thereto resulting from the Work, the cost of which will
be considered as having been included in the Mobilization/Closeout
Price.
b.
Not Shown or Indicated:
If an Underground Utility is uncovered or revealed at or
contiguous to the site which was not shown or indicated in the
Contract Documents and which the Contractor could not reasonably
have been expected to be aware of, the Contractor shall identify
the owner of such Underground Utility and give written notice
thereof to that owner and shall notify the Engineer in accordance
with the Contract Documents.
c.
Contractor shall conduct
all work in accordance with P.L. 852, No. 287 as amended and in
accordance with P.L. Act 38 of 1991, as amended, and shall call PA
One Call System, Inc., 1-800-242-1776, before performing any
excavation work.
4.5
Reference
Points:
a.
The Engineer will
provide one bench mark, near or on the site of the Work, and will
provide 2 points near or on the site to establish a base line for
use by the Contractor for alignment control. Unless otherwise
specified in the Contract Documents, the Contractor shall furnish
all other lines, grades, and bench marks required for proper
execution of the Work.
b.
The Contractor shall be
responsible for laying out the Work (unless otherwise specified in
the Contract Documents) and shall preserve all bench marks, stakes,
and other survey marks, and in case of their removal or destruction
by its own employees or by its subcontractor's employees, the
Contractor shall be responsible for the accurate replacement of
such reference points by a licensed professional land surveyor at
no additional cost to the Owner.
4.6
Hazardous
Waste
a.
As provided in Article
18.16, in any contract of the Owner which involves digging of
trenches or other excavation that extend below the surface, the
Contractor shall promptly, and before the following conditions are
disturbed, notify the public entity, in writing, of any:
00702-042000
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 12
1.
Material that the
Contractor believes may be material that is hazardous
waste, that is required
to be removed to a hazardous waste disposal site
in accordance with the
provisions of existing law.
2.
Surface or latent
physical conditions at the site differing from those
indicated.
3.
Unknown physical
conditions at the site of any unusual nature, different materially
from those ordinarily encountered and generally recognized as
inherent in Work of the character provided for in the
Contract.
b.
The public entity shall
promptly investigate the conditions, and if it finds that the
conditions do materially so differ, or do involve hazardous waste
and cause a decrease or increase in the Contractor's cost of, or
the time required for, performance of any part of the Work shall
issue a Change Order under the procedures described in the
Contract.
c.
In the event that a
dispute arises between the public entity and the Contractor as to
whether the conditions materially differ, or involve hazardous
waste, or cause a decrease or increase in the Contractor's cost of,
or the time required for, performance of any part of the Work, the
Contractor shall not be excused from any scheduled completion date
provided for by the Contract, but shall proceed with all Work to be
performed under the Contract. The Contractor shall retain any
and all rights provided either by Contract or by laws which pertain
to the resolution of disputes and protests between the contracting
parties.
ARTICLE 5 - BONDS AND
INSURANCE
5.1
Performance and Other
Bonds:
a.
Upon receiving a Notice
of Award, the Contractor shall furnish Performance and Payment
Bonds, each in the amount set forth in the Supplementary General
Conditions as security for the faithful performance and payment of
all the Contractor's obligations under the Contract Documents.
If required under the Supplementary General Conditions, the
Performance Bond and Payment Bond shall be written to remain in
effect at least until one year after the date of Notice of
Completion, as applicable, except as otherwise provided by Law or
Regulation or by the Contract Documents; provided, that after the
date of Notice of Completion, as applicable, the amount of said
Performance Bond and Payment Bond at the discretion of the Owner,
may be reduced to the amount set forth in the Supplementary General
Conditions. The premiums upon all such bonds shall be paid by
the Contractor. The Contractor shall promptly furnish such
additional security as may be required by Owner from time to time
to protect its interest and those of persons supplying labor or
materials in the prosecution of the Work contemplated by this
Contract.
00702-120192
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 13
b.
The Owner will approve
any Surety company which, at the time of execution of this Contract
is listed in the current list of "Companies Holding Certificated of
Authority as Acceptable Sureties on Federal Bonds and as Acceptable
Reinsuring Companies" as published in Circular 570 (amended) by the
Audit Staff, Bureau of Government Financial Operations, U.S.
Treasury Department. All Bonds signed by a agent must be
accompanies by a certified copy of such agent's authority to
act.
c.
If the Surety on any
Bond furnished by the Contract is declared bankrupt or becomes
insolvent or its right to do business is terminated in any state
where any part of the Work is located, the Contractor shall within
7 days thereafter substitute another Bond or Surety, which must be
acceptable to the Owner.
5.2
Insurance:
a.
The Contractor shall
purchase and maintain the insurance required under this Article.
Such insurance shall include the specific coverage set forth
herein and shall be written for not less than the limits of
liability and coverage provided in the Supplementary General
Conditions, or required by law, whichever is greater. All
insurance shall be maintained continuously during the life of the
Agreement up to the date of the Notice of Completion, as
applicable, pursuant to acceptance of the Work by the Owner, but
the Contractor's liabilities under this Agreement shall not be
deemed limited in any way to the insurance coverage
required.
b.
The Contractor shall
furnish the Owner with certificates showing the type, amount, class
of operations covered, effective dates and dates of expiration for
each of the following listed insurance coverage. In addition,
each party named as an additional insured shall be provided with an
original copy of the endorsement naming them as an additional
insured under the Contractor's policies of insurance required under
the Contract. All of the policies of insurance so required to
be purchased and maintained (or the certificates or other evidence
thereof) shall contain a provision or endorsement that the coverage
afforded will not be canceled, materially changed, or renewal
refused until at least 30 days prior written notice has been given
to the Owner by Certified Mail. All such insurance shall
remain in effect until the date of Substantial Completion and at
all times thereafter when the Contractor may be correcting,
removing, or replacing defective work in accordance with Article
13.6, herein. In addition, the Insurance required herein
(except for Worker's Compensation) shall name the Owner, the
Engineer, and their Consultants and Subconsultants for the Project
and their officers, agents, and employees as "additional insured"
under the policies.
00702-120192
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 14
1.
Worker's Compensation
Insurance Requirements: This insurance shall protect the
Contractor for the Project against all claims under applicable
state Worker's Compensation laws. The Contractor shall also
be protected against claims for injury, disease, or death of
employees which, for any reason, may not fall within the provisions
of a Worker's Compensation law. This policy shall include an
"all states" endorsement. The Contractor shall require each
Subcontractor similarly to provide Worker's Compensation Insurance
for all of the latter's employees to be engaged in such Work unless
such employees are covered by the protection afforded by the
Contractor's Worker's Compensation Insurance. In case any
class of employee is not protected under the Worker's Compensation
statute, the Contractor shall provide and shall cause each
Subcontractor to provide adequate employer's liability insurance
for the protection of such of its employees as are not otherwise
protected.
2.
Comprehensive General
Liability: This insurance shall be written in comprehensive
form and shall protect the Contractor, Owner, and Engineer against
all claims arising from injuries to persons other than its
employees or damage to the property of the Owner or others arising
out of any act or omission of the Contractor or its agents,
employees, or subcontractors. The policy shall also include
protection against claims insured by usual personal injury
liability coverage, a "protective liability" endorsement to insure
the contractual liability assumed by the Contractor under the
indemnification provisions of the General Conditions.
To the extent that the
Contractor's Work, or Work under its direction, may require
blasting, explosive conditions, or underground operations, the
comprehensive general liability coverage shall contain no exclusion
relative to blasting,
explosion, collapse of
buildings, or damage to underground structures.
3.
Comprehensive Automobile
Liability: This insurance shall be written in comprehensive
form and shall protect the Contractor, Owner, and Engineer against
all claims for injuries to members of the public and damage to
property of others arising from the use of motor vehicles.
Said insurance shall cover the operation on-site or off-site
of all motor vehicles licensed for highway use whether they are
owned, non-owned, or hired.
4.
Subcontractor's Public
Liability and Property Damage Insurance and Vehicle Liability
Insurance: The Contractor shall either require each of its
sub-contractors to procure and to maintain Subcontractor's Public
Liability
00702-120192
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 15
and Property Damage
Insurance and Vehicle Liability Insurance of the type and in the
amounts specified in the Supplementary General Conditions and also
insure the Owner and Engineer or insure the activities of its
Sub-Contractors in the Contractor's own policy in like
amount.
5.
Builder's Risk:
This insurance shall be of the "all risk" type, shall be
written in completed value for, and shall protect the Contractor,
the Owner and the Engineer against risks of damage to buildings,
structures, and materials and equipment. The amount of such
insurance shall be not less than the insurable value of the Work at
completion. Builder's Risk insurance shall contain a
provision that in the event of payment for any loss under the
coverage provided, the insurance company shall have no rights of
recovery against the Contractor, the Owner, and the Engineer.
The Builder's Risk policy shall insure against all risk
direct physical loss or damage to property from any external cause
including flood and earthquake. Allowable exclusions, if any,
shall be as specified in the Supplementary General
Conditions.
c.
The original or a
certified copy of each insurance policy and endorsement thereto
shall be deposited with the Owner and the Engineer prior to
execution of the Agreement. Specific language of the policy
shall be subject to approval of the Owner and the
Engineer.
d.
Policy Requirements:
The insurance provided by the Contractor hereunder shall be
(1) with companies licensed to do business in the state of
Pennsylvania, (2) with companies with a Best's Financial Rating of
XI or better, and (3) with companies with a Best's General Policy
Policyholders Rating of not less than B, except that in case of
Worker's Compensation Insurance, participation in the Self
licensing provisions, where applicable, is acceptable.
e.
Insurance policies
required hereunder to have the Owner, the Engineer, and their
Consultants and Subconsultants for the project named as additional
insured shall, (1) include a provision that the policies are
primary and do not participate with nor are excess over any other
valid and collectible insurance, (2) include a waiver of
subrogation against the Owner and Engineer, its agents, and
employees, and (3) for Builders All Risk Insurance, provide for
deductible amounts not exceeding 5 percent of the insurable values
of the Work of the Contractor for the perils of all risks of
physical loss or damage, including but not limited to fire
(including arson) and associated perils, vandalism and malicious
mischief, earthquake, and flood. In the event of an insured
loss or damage the Contractor agrees to pay to the Owner upon
demand and amount equal to the deductible amount.
00702-020493
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 16
f.
Owner May Insure for
Contractor: In case of the breach of any provision of this
Article the Owner may, at the Owner's option, take out and maintain
at the expense of the Contractor, such insurance in the name of the
Contractor, or Subcontractor, as the Owner may deem proper and may
deduct the cost of taking out and maintaining such insurance from
any sums which may be found or become due to the Contractor under
this Contract.
ARTICLE 6 - THE
CONTRACTOR'S RESPONSIBILITIES
6.1
Supervision and
Superintendence:
a.
The Contractor shall
supervise and direct the Work competently and efficiently, devoting
such attention thereto and applying such skills and expertise as
may be necessary to perform the Work in accordance with the
Contract Documents. The Contractor shall be solely
responsible for the means, methods, techniques, sequences,
procedures of construction, safety precautions, safety programs and
protection and safety of employees, subcontractors and workers
related in any way to the project. The Contractor shall be
responsible to see that the finished Work complies accurately with
the Contract Documents.
b.
The Contractor shall
designate in writing and keep on the Work at all times during its
process a competent, full-time, technically qualified, English
speaking superintendent, who shall not be replaced without written
notice to the Owner and the Engineer except under extraordinary
circumstances. The superintendent shall be the Contractor's
representative at the site and shall have authority to act on
behalf of the Contractor. All communications shall be given
to the Owner through the Engineer or his or her authorized
representative.
c.
The Contractor's
supervisor or superintendent shall be present at the site of the
Work at all times while work is in progress. Failure to
observe this requirement shall be considered as suspension of the
Work by the Contractor until such time as such supervisor or
superintendent is again present at the site.
6.2
Labor, Materials, and
Equipment:
a.
The Contractor shall
provide competent, suitably qualified personnel to survey and lay
out the Work and perform construction as required by the Contract
Documents. The Contractor shall at all times maintain good
discipline and order at the site. Except in connection with
the safety or protection of persons or the Work or property at the
site or adjacent thereto, and except as otherwise indicated in the
Contract Documents, all Work at the site shall be performed during
regular working hours not before 7:00 A.M. nor later than 5:00 P.M.
Monday through Friday, and the Owner will not permit overtime
Work
00702-121099
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 17
or the performance of
Work on Saturday, Sunday, or any legal holiday without the Owner's
written consent given after prior written request to the Engineer.
If the Contractor performs any Work after regular working
hours, or on Saturday, Sunday, or any legal holiday, he shall pay
the Owner any additional cost incurred by the Owner as a result of
such Work including cost of inspection of work.
b.
Except as otherwise
provided in this Article, the Contractor shall receive no
additional compensation for overtime Work, i.e., Work in excess of
8 hours in any one calendar day or 40 hours in any one calendar
week, even though such overtime Work may be required under
emergency conditions and may be ordered by the Engineer in writing.
Additional compensation will be paid to the Contractor for
overtime Work only in the event that extra Work is ordered by the
Engineer, and the Change Order specifically authorizes the use of
overtime Work and then only to such extent as overtime wages are
regularly being paid by the Contractor for overtime Work of a
similar nature in the same locality.
c.
All costs of inspection
and testing performed by the Owner or its authorized representative
before 7:00 am or after 5:00 pm on any regular work day, or all day
on Saturdays, Sundays, and legal holidays by the Contractor which
is allowed solely for the convenience of the Contractor shall be
borne by the Contractor at the Owner's standard overtime rates.
The Owner shall have the authority to deduct the cost of all
such inspection and testing from any partial payments otherwise due
the Contractor.
d.
Unless otherwise
specified in the Contract Documents, the Contractor shall furnish
and assume full responsibility for all materials, equipment, labor,
transportation, construction equipment and machinery, tools,
appliances, fuel, power, light, heat, telephone, water, sanitary
facilities, temporary facilities, and all other facilities, and
incidentals necessary for the furnishing, performance, testing,
start-up, and completion of the Work.
e.
All materials and
equipment to be incorporated in the Work shall be of good quality
and new, except as otherwise provided in the Contract Documents.
If required by the Engineer, the Contractor shall furnish
satisfactory evidence (including reports of required tests) as to
the kind and quality of materials and equipment. All
materials and equipment shall be applied, installed, connected,
erected, used, cleaned, and conditioned in accordance with the
instructions of the applicable Supplier except as otherwise
provided in the Contract Documents; but not provisions of any such
instructions will be effective to assign to the Engineer, nor any
of the Engineer's consultants, agents, or employees, any duty or
authority to supervise or direct the furnishing or performance of
the Work or any duty or authority to undertake responsibility
contrary to the provisions of Articles 9.9c or 9.9d.
f. The Contractor
shall notify the Engineer's office at 8:00 A.M., local time, via
telephone, on each day that work is performed on the
Project.
00702-122696
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 18
6.3
Adjusting
Construction Schedule:
The Contractor shall
submit any adjustments in the construction schedule to the Engineer
for acceptance with the provisions for "Submittals" in the Contract
Documents.
6.4
Substitutes or
"Or-Equal" Items:
The Contractor shall
submit proposed substitutes or "or-equal" items in accordance with
the provisions for "Submittals" in the Contract
Documents.
6.5
Concerning
Subcontractors, Suppliers, and Others:
a.
The Contractor shall be
fully responsible to the Owner and the Engineer for the acts and
omissions of its Subcontractors and their employees to the same
extent as the Contractor is responsible for the acts and omissions
of its own employees. Nothing contained in this Article shall
create any contractual relationship between the Owner or the
Engineer and any Subcontractor, nor shall it relieve the Contractor
of any liability or obligation under the prime Contract.
b.
The Divisions and
Sections of the Specifications and identification of any Drawings
shall not control the Contractor in dividing the Work among
Subcontractors or Supplies or in delineating the Work to be
performed by any specific trade.
6.6
Permits, License
Fees, and Royalties:
a.
Unless otherwise
provided in the Supplementary General Conditions, the Contractor
shall obtain and pay for all construction permits and licenses for
the furnishing of insurance and bonds if required by such agencies.
The enforcement of such requirements under this Contract
shall not be made the basis of claims for additional compensation.
The Owner shall assist the Contractor, when necessary, in
obtaining such permits and licenses. The Contractor shall pay
all governmental charges and inspection fees necessary for the
prosecution of the Work, which are applicable at the time of
opening of Bids, or if there are no Bids on the Effective Date of
the Agreement. The Contractor shall pay all charges of
utility owners for connection to the Work.
b.
The Contractor shall pay
all license fees and royalties and assume all costs incident to the
use in the performance of the Work or the incorporation in the Work
of any invention, design, process, product, or device which is the
subject of patent rights or copyrights held by others. The
Contractor shall indemnify and hold harmless the Owner from and
against all claims, damages, losses, and expenses (including
attorney's fees and court and arbitration costs) arising out of any
infringement of patent rights or copyrights incident to the use in
the performance of the Work or resulting from the incorporation in
the Work of any invention, design, process, product, or device not
specified in the Contract Documents, and shall defend all such
claims in connection with any alleged infringement of such
rights.
00702-051298
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 19
6.7
Laws and
Regulations:
a. The Contractor
shall observe and comply with all federal, state, and local laws,
ordinances, codes, orders, and regulations which in any manner
affect those engaged or employed on the Work, the materials used in
the Work, or the conduct of the Work. If any discrepancy or
inconsistency should be discovered in this Contract in relation to
any such law, ordinance, code, order, or regulations the Contractor
shall report the same in writing to the Engineer. The
Contractor shall indemnify, defend, and hold harmless the Owner,
the Engineer, and their officers, agents, and employees against all
claims or liability arising from violation of any such law,
ordinance, code, order, or regulation, whether by Contractor or its
employees or Subcontractors. Any particular law or
regulations specified or referred to elsewhere in the Contract
Documents shall not in any way limit the obligation of the
Contractor to comply with all other provisions of federal, state,
and local laws and regulations. Where an individual state act
on occupational safety and health standards has been approved by
federal authority, then the provisions of said state act shall
control.
6.8
Taxes:
The Contractor shall pay
all sales, consumer, use, and other similar taxes required to be
paid by the Contractor in accordance with the Laws and Regulations
of the place of the Project which are applicable during the
performance of the Work.
6.9
Use of
Premises:
a.
The Contractor shall
confine construction equipment, the storage of materials and
equipment, and the operations of workers to (1) the Project site,
(2) the land and areas identified in and permitted by the Contract
Documents, and (3) the other land and areas permitted by Laws and
Regulations, rights-of-way, permits and easements. The
Contractor shall assume full responsibility for any damage to any
such land or area, or to the Owner or occupant thereof or any land
or area, or to the Owner or occupant thereof or of any land or
areas contiguous thereto, resulting from the performance of the
Work. Should any claim be made against the Owner by any such
Owner or occupant because of the performance of the Work, the
Contractor shall promptly attempt to settle with such other party
by agreement or otherwise resolve the claim by arbitration or at
law. The Contractor shall, to the fullest extent permitted by
Laws and Regulations, indemnify and hold the Owner and Engineer
harmless from and against all claims, damages, losses, and expenses
(including, but not limited to, fees of architects, engineers,
attorneys, and other professionals and court and arbitration costs)
arising directly, indirectly, or consequently out of any action,
legal or equitable, brought by any such other party against the
Owner to the extent based on a claim arising out of the
Contractor's performance of the Work.
00702-120192
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 20
6.10
Safety and
Protection:
a.
The Contractor shall be
solely responsible for initiating, maintaining, and supervising all
safety precautions and programs in connection with the Work.
The Contractor shall take all necessary precautions for the
safety of, and shall provide the necessary protection to prevent
damage, injury, or loss to the following:
1.
All employees on the
Work and other persons and organizations who may be affected
thereby;
2.
All the Work and
materials and equipment to be incorporated therein, whether in
storage on or off the site; and
3.
Other property at the
site or adjacent thereto, including trees, shrubs, lawns, walks,
pavements, roadways, structures, utilities, and Underground
Facilities not designated for removal, relocation, or replacement
in the course of construction.
b.
The Contractor shall
comply with all applicable Laws and Regulations (whether referred
to herein or not) of any public body having jurisdiction for the
safety of persons or property or to protect them from damage,
injury or loss; and shall erect and maintain all necessary
safeguards for such safety and protection. The Contractor
shall notify owners of adjacent property and utilities when
prosecution of the Work may affect them, and shall cooperate with
them in the protection, removal, relocation, and replacement of
their property.
c.
The Contractor shall
designate in writing a responsible representative at the site whose
duty shall be the prevention of accidents. This person shall
be the Contractor's superintendent or project manager unless
otherwise designated in writing by the Contractor to the
Owner.
d.
Materials that contain
hazardous substances or mixtures may be required on the Work.
A Material Safety Data Sheet shall be requested by the
Contractor from the manufacturer for any hazard product
used.
e.
Material usage shall be
accomplished with strict adherence to Pennsylvania Division of
Industrial Safety requirements and all manufacturer's warning and
application instructions listed on the Material Safety Data Sheet
on the product container label.
f.
The Contractor shall be
responsible for coordinating any exchange or material safety data
sheets or other hazard communication information required to be
made available to or exchanged between or among employers at the
site in accordance with Laws and Regulations.
00702-121099
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 21
g.
The Contractor shall
notify the Engineer if it considers a specified product or its
intended usage to be unsafe. This notification must be given
to the Engineer prior to the product being ordered, or if provided
by some other party, prior to the product being incorporated in the
Work.
6.11
Emergencies:
In emergencies affecting
the safety or protection of persons or the Work or property at the
site thereto, the Contractor, without special instructions from the
Engineer or the Owner, is obligated to act to prevent threatened
damage, injury, or loss. The Contractor shall give the
Engineer prompt written notice if the Contractor believes that any
significant changes in the Work or variations from the Contract
Documents have been caused thereby. If the Engineer
determines that a change in the Contract Documents is required
because of action taken by the Contractor in response to such
emergency, a Work Directive Change or Change Order will be issued
to document the consequences of such action.
6.12
Shop Drawings and
Samples:
a.
After checking and
verifying all field measurements and after complying with
applicable procedures specified in the Contract Documents, the
Contractor shall submit to the Engineer for review all Shop
Drawings in accordance with the accepted schedule of Shop Drawings
submittals specified in the Contract Documents.
b.
The Contractor shall
also submit to the Engineer for review all samples in accordance
with the accepted schedule for samples submittals specified in the
Contract Documents.
c.
Before submittal of each
shop drawing or sample, the Contractor shall have determined and
verified all quantities, dimensions, specified performance
criteria, installation requirements, materials, catalog numbers and
similar data with respect thereto and reviewed or coordinated each
shop drawing or sample with other shop drawings and samples and
with the requirements of the Work and the Contract
Documents.
d.
The Engineer's review
and approval of shop drawings or samples shall not relieve the
Contractor from responsibility for any variation from the
requirements of the Contract Documents unless the Contractor has in
writing called the Engineer's attention to each such variation at
the time of submission and the Engineer has given written
acceptance of each such variation; nor will any acceptance by the
Engineer relieve the Contractor from responsibility for errors or
omissions in the shop drawings or from responsibility for having
complied with the provisions of Article 6.12c, herein.
00702-120495
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 22
e.
Where a shop drawing or
sample is required by the Specifications, any related Work
performed prior to the Engineer's review and approval of the
pertinent submission will be at the sole expense and responsibility
of the Contractor. The Engineer shall have a period of 21
calendar days to review each shop drawing.
6.13
Continuing the
Work:
The Contractor shall
carry on the Work and adhere to the construction schedule required
to be submitted under the requirements of the Contract Documents
during all disputes or disagreements with the Owner. No Work
shall be delayed or postponed pending resolution of any disputes or
disagreements, except as the Contractor and the Owner may otherwise
agree in writing.
6.14
Indemnification:
a.
To the fullest extent
permitted by Laws and Regulations, the Contractor shall indemnify,
defend, and hold harmless the Owner, the Engineer, Resident Project
Representative, and their Consultants and Subconsultants for the
Project and their agents, and employees from and against all claims
and liability arising under or by reason of the Contract or any
performance of the Work, but not from the sole negligence or
willful misconduct of the Owner or the Engineer or their
Consultants or Subconsultants for the Project. Such
indemnification by the Contractor shall include but not be limited
to the following:
1.
Liability or claims
resulting directly or indirectly from the negligence or
carelessness of the Contractor or its agents in the performance of
the Work, or in guarding or maintaining the same, or from any
improper materials, implements, or appliances used in its
construction, or by or on account of any act or omission of the
Contractor or its agents;
2.
Liability or claims
arising directly or indirectly from bodily injury, occupational
sickness or disease, or death of the Contractor's or
Subcontractor's own employees engaged in the Work resulting in
actions brought by or/on behalf of such employees against the
Owner, the Engineer, and/or their Consultants or
Subconsultants.
3.
Liability or claims
arising directly or indirectly from or based on the violation of
any law, ordinance, regulation, order, or decree, whether by the
Contractor or its agents;
4.
Liability or claims
arising directly or indirectly from the use or manufacture by
the Contractor, its agents, or the Owner in the performance of this
Contract of any copyrighted or uncopyrighted composition, secret
process, patented or unpatented invention, article, or appliance,
unless otherwise specifically stipulated in this
Contract;
00702-120495
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 23
5.
Liability or claims
resulting directly or indirectly from the breach of any warranties,
whether express or implied, made to the Owner or any other parties
by the Contractor or its agents;
6.
Liabilities or claims
arising directly or indirectly from the willful misconduct of the
Contractor or its agents; and,
7.
Liabilities or claims
arising directly or indirectly from any breach of the obligations
assumed herein by the Contractor.
b.
The Contractor shall
reimburse the Owner, the Engineer, and their Consultants and
Subconsultants for the project for all costs and expenses,
(including but not limited to fees and charges of architects,
engineers, attorneys, and other professionals and court costs,
including all costs of appeals) incurred by said Owner, the
Engineer, and their Consultants and Subcontractors for the project
in enforcing the provisions of this Article.
c.
The indemnification
obligation under this Article shall not be limited in any way by
any limitation on the amount or type of damages, compensation or
benefits payable by or for the Contractor or any such Subcontractor
or other person or organization under the workers' compensation
act, disability benefit acts, or other employee benefit
acts.
6.15
Contractor's Daily
Reports:
The Contractor shall
complete consecutively numbered daily reports indicating manpower
and narrative description of Work performed, serviceable major
equipment in use, serviceable major equipment idled, serviceable
major equipment down for repairs, Subcontractors working at the
site, weather conditions, and date. In addition, the
Contractor shall complete and submit to the Engineer, Daily Work
Reports. The daily reports shall be completed on forms
prepared by the Contractor and acceptable to the Engineer, and
shall be submitted to the Engineer at the conclusion of each work
day.
6.16
Assignment of
Contract:
The Contractor shall not
assign, sublet, sell, transfer, or otherwise dispose of the
Contract or any portion thereof or its right, title, or interest
therein, or obligations thereunder, without written consent of the
Owner, except as imposed by law. If the Contractor violates
this provision, the Contract may be terminated at the option of the
Owner. In such event, the Owner shall be relieved of all
liability and obligations to the Contractor and to its assignee or
transferee, growing out of such termination.
00702-051298
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 24
ARTICLE 7 - OTHER
WORK
7.1
Related Work at
Site:
a.
The Owner may perform
other Work related to the Project at the site by the Owner's own
forces, have other Work performed by utility owners, or let other
direct Contract therefor which shall contain General Conditions
similar to these. If the fact that such other Work is to be
performed was not noted in the Contract Documents, written notice
thereof will be given to the Contractor prior to starting any such
other Work.
b.
The Contractor shall
afford each utility owner and other contractor who is a party to
such a direct Contract (or the Owner, if the Owner is performing
the additional Work with the Owner's employees) proper and safe
access to the site and a reasonable opportunity for the
introduction and storage of materials and equipment and the
execution of such Work, and shall properly connect and coordinate
the Work with theirs. 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 integrate with such other
Work. The Contractor shall not endanger any Work of others by
cutting, excavating or otherwise altering their Work and will only
cut or alter their Work with written consent of the Engineer and
all others whose Work will be affected.
c.
If any part of the
Contractor's Work depends upon proper execution or results of the
Work of any such other Contractor or utility owner (or the Owner),
the Contractor shall inspect and promptly report to the Engineer in
writing any delays, defects, or deficiencies in such Work that
render it unavailable or unsuitable for such proper execution and
results. The Contractor's failure to so report will
constitute an acceptance of the other Work as fit and proper for
integration with the Contractor's Work except for latent or
nonapparent defects and deficiencies in the other Work.
7.2
Coordination:
If the Owner contracts
with others for the performance of other Work on the Project at the
site, the person or organization who will have authority and
responsibility for coordination of the activities among the various
prime Contractors will be identified in the Supplementary General
Conditions. The specific matters to be covered by such
authority and responsibility will be itemized, and the extent of
such authority and responsibilities will be provided in the
Supplementary General Conditions, neither the Owner nor the
Engineer shall have any authority or responsibility in respect of
such coordination.
00702-120192
CONDITIONS
OF THE CONTRACT
GENERAL
CONDITIONS - PAGE 25
ARTICLE 8 - THE
OWNER'S RESPONSIBILITIES
8.1
Com