HomeMy WebLinkAboutHarger Road Water Main Project Contract RSVILLAGE OF OAK BROOK
CONTRACT FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
TABLE OF CONTENTS
1. Contract Agreement
2. Contractor’s Certification
3. Schedule of Prices
4. General Conditions of Contract
5. Special Conditions of Contract
6. Contract Drawings
7. Specifications
8. Form of Performance Bond
9. Form of Labor and Material Payment Bond
10. Prevailing Wage Ordinance
11. Addenda Nos.
CONTRACT AGREEMENT BETWEEN
VILLAGE OF OAK BROOK
AND
[NAME OF SUCCESSFUL BIDDER]
FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
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CONTRACT AGREEMENT BETWEEN
VILLAGE OF OAK BROOK
AND
[NAME OF SUCCESSFUL BIDDER]
FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
TABLE OF CONTENTS
Page
ARTICLE I THE WORK ............................................................................................... 1
1.1 Performance of the Work ........................................................................... 1
1.2 Contract Documents .................................................................................. 2
1.3 Interpretation of Contract Documents ........................................................ 2
ARTICLE II CONTRACT TIME ..................................................................................... 4
2.1 Commencement Date ................................................................................ 4
2.2 Completion Date ........................................................................................ 4
2.3 Time of the Essence .................................................................................. 4
ARTICLE III CONTRACTOR’S WARRANTIES AND REPRESENTATIONS ................ 5
3.1 Warranties and Representations ............................................................... 5
3.2 Affirmation of Other Warranties and Representations ............................... 7
ARTICLE IV FINANCIAL ASSURANCES ..................................................................... 8
4.1 Bonds......................................................................................................... 8
4.2 Insurance ................................................................................................... 8
4.3 Indemnification ........................................................................................... 9
4.4 Penalties .................................................................................................. 10
ARTICLE V CONTRACT PRICE AND PAYMENT ..................................................... 10
5.1 Contract Price .......................................................................................... 10
5.2 Acceptance as Full Payment and Satisfaction ......................................... 10
5.3 Method of Payment .................................................................................. 11
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ARTICLE VI LEGAL RELATIONSHIPS AND REQUIREMENTS ................................ 11
6.1 Binding Effect ........................................................................................... 11
6.2 Relationship of the Parties ....................................................................... 11
6.3 Assignment .............................................................................................. 11
6.4 Confidential Information ........................................................................... 12
6.5 Publicity ................................................................................................... 13
6.6 No Waivers .............................................................................................. 13
6.7 No Third Party Beneficiaries .................................................................... 14
6.8 Notices ..................................................................................................... 14
6.9 Governing Laws ....................................................................................... 15
6.10 Changes in Laws ..................................................................................... 15
6.11 Compliance with Laws and Grants .......................................................... 15
6.12 Compliance with Patents ......................................................................... 16
6.13 Severability .............................................................................................. 17
6.14 Entire Agreement ..................................................................................... 17
6.15 Amendments ............................................................................................ 17
6.16 Counterparts ............................................................................................ 18
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CONTRACT AGREEMENT BETWEEN
VILLAGE OF OAK BROOK
AND
[NAME OF SUCCESSFUL BIDDER]
FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
THIS CONTRACT AGREEMENT, made as of this day of , 2023,
by and between the Village of Oak Brook 1200 Oak Brook Road, Oak Brook, Illinois
60523 a municipal corporation, and [NAME AND ADDRESS OF SUCCESSFUL
BIDDER], a [FORM OF ORGANIZATION],
W I T N E S S E T H:
In consideration of the mutual promises contained in this Contract Agreement, it is
agreed by and between Owner and Contractor as follows:
ARTICLE I
THE WORK
1.1 Performance of the Work
Contractor shall, at its sole cost and expense:
1. Labor, Equipment, Materials, and Supplies. Provide, perform,
and complete at the Work Site and in the manner described and specified in this Contract
all necessary work, labor, services, transportation, equipment, materials, apparatus,
machinery, tools, fuels, gas, electric, water, waste disposal, information, data, and other
means and items necessary for the design, if any, construction, and installation of the
Harger Road Watermain Replacement, together with related attachments, equipment,
and appurtenances thereto.
2. Permits. Unless otherwise stated in the Special Conditions of
Contract, procure and furnish all permits, licenses, and other governmental approvals and
authorizations necessary in connection therewith.
3. Bonds and Insurance. Procure and furnish all Bonds and all
certificates and policies of insurance specified in this Contract.
4. Taxes. Pay all applicable federal, state, and local taxes.
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5. Miscellaneous. Do all other things required of Contractor by
this Contract.
6. Quality. Provide, perform, and complete all of the foregoing
in a proper and workmanlike manner, consistent with the highest standards of
professional and construction practices and in full compliance with, and as required by or
pursuant to, this Contract, and with the greatest economy, efficiency, and expedition
consistent therewith.
1.2 Contract Documents
The Contract Documents consist of the following component parts, all of
which are attached to this Contract Agreement and are, by this reference, made a part of
this Contract Agreement as though fully set forth herein:
1. Contractor’s Certification;
2. Schedule of Prices;
3. General Conditions of Contract;
4. Special Conditions of Contract;
5. Contract Drawings;
6. Specifications;
7. Form of Performance Bond;
8. Form of Labor and Material Payment Bond;
9. Prevailing Wage Ordinance; and
10. Addenda Nos.
Engineer may, during construction, furnish to Contractor such additional Contract
Drawings and Specifications or such other explanations as Engineer may consider
necessary to illustrate or explain the Work in further detail. Contractor shall comply with
the requirements of all such additional Contract Drawings and Specifications or other
explanations, all of which shall be considered part of the Contract Documents and shall
not be considered as indicating additional Work.
1.3 Interpretation of Contract Documents
A. Definitions. Whenever used in this Contract Agreement or in the
Contract Documents:
1. General Definitions. Except for the terms specially defined in
Paragraph 1.3A2 below, all capitalized terms shall have the meanings given to them in
Article VII of the General Conditions of Contract.
2. Special Definitions. The following capitalized terms shall have
the following meanings:
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a. Contractor. The Person first identified above with
whom Owner has executed this Contract Agreement and its duly authorized officers,
employees, agents, and representatives.
b. Engineer. _______________________, __________,
______, or such additional or different Person as Owner may from time to
time designate in writing to perform any or all of the functions of the Engineer under this
Contract as well as the duly authorized officers, employees, agents, and representatives
of any such Person.
c. Owner. Village of Oak Brook and its duly authorized
officers, employees, agents, and representatives.
d. Work. All matters described, exhibited, contemplated,
implied, or embraced in this Article I of this Contract Agreement and in Article I of the
General Conditions of Contract, including all risks and changes in the Work that
Contractor is responsible for dealing with under this Contract without any equitable
adjustment in the Contract Price or Contract Time, and all matters described, exhibited,
contemplated, implied, or embraced in any Change Order issued pursuant to Section 2.1
of the General Conditions of Contract.
e. Work Site. Harger Road B. Rules of
Interpretation. This Contract shall be interpreted so that:
1. Requirements Cumulative. Each requirement imposed on
Contractor shall be cumulative of every other requirement imposed on Contractor, and
any Work required to be performed by any one component part of this Contract shall be
performed to the same extent as if required by all component parts of this Contract.
2. Details to be Assumed. The Work shall be provided,
performed, and completed in every detail whether or not every item of detail is particularly
set forth in the Contract Documents.
3. Priority of Contract Provisions. In the event of a discrepancy,
error, omission, ambiguity, or conflict in the application or interpretation of any of the
provisions of this Contract, the terms of this Contract Agreement and of the General
Conditions of Contract shall govern over the terms and provisions of all other Contract
Documents.
4. Engineer’s Interpretation. Subject to Paragraphs 1.3B1, B2,
and B3 above, Engineer shall determine which provision or provisions of this Contract
Agreement and the Contract Documents best promotes or promote the overall objectives,
and best fulfill the intents and purposes, of this Contract, and such provision or provisions
shall govern. Such determination of Engineer shall be final.
C. Contractor’s Duty to Report Discrepancies. Contractor shall carefully
review this Contract Agreement and each of the Contract Documents before performing
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the Work, and each part thereof, and shall promptly call to the attention of Engineer any
discrepancy, error, omission, ambiguity, or conflict that may exist among any of the
component parts of this Contract or among any of the provisions of any one of suc h
component parts before proceeding with any part of the Work affected by such
discrepancy, error, omission, ambiguity, or conflict. Contractor shall be responsible for
all corrective Work required resulting from Contractor’s failure to give such notice a nd
shall bear all damages and costs associated therewith, arising therefrom, or resulting from
such matters first discovered during the progress of the Work, including, but not limited
to, damages or costs resulting from, arising out of, or in any way rela ted to, increases in
time-related costs; increases in costs of labor, equipment, materials, or supplies; costs of
additional personnel; costs of additional equipment; costs of additional premium time for
personnel or equipment; lower labor productivity; lost profits or alternative income; effects
on other contracts; and costs of demobilization and remobilization. Information pertaining
to subsurface, underground or other concealed conditions or obstructions, soils analysis,
borings, test pits, buried structures, utility locations or conditions, conditions of existing
structures, and similar site information or data and other investigations shown or indicated
on the Contract Drawings, provided by Owner or Engineer, or otherwise made available
to Contractor is not part of this Contract and, therefore, any discrepancy, error, omission,
ambiguity, or conflict in such site information or data does not constitute a discrepancy,
error, omission, ambiguity, or conflict in this Contract.
ARTICLE II
CONTRACT TIME
2.1 Commencement Date
Contractor shall commence the Work immediately upon execution of this
Contract Agreement by Owner.
2.2 Completion Date
Contractor shall diligently and continuously prosecute the Work from the
Commencement Date at such a rate as will allow the Work to be fully provided, performed,
and completed in full compliance with, and as required by or pursuant to, this Contract,
and the Work shall be fully provided, performed, and completed in full compliance with
this Contract, not later than 120 Days following the Commencement Date.
2.3 Time of the Essence
The time of commencement, rate of progress, and time of completion are
of the essence of this Contract.
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ARTICLE III
CONTRACTOR’S WARRANTIES AND REPRESENTATIONS
3.1 Warranties and Representations
In order to induce Owner to enter into this Contract, Contractor hereby
warrants and represents to Owner as follows:
A. Review of Contract. Contractor has carefully examined, reviewed,
and accepted this Contract Agreement and all of the Contract Documents prior to
submission of its Bidder’s Proposal and execution of this Contract and there are no
discrepancies, errors, omissions, ambiguities, or conflicts in this Contract that are material
to Contractor’s provision, performance, or completion of the Work, the Contract Price or
the Contract Time that have not already been clarified in writing by Owner to the
satisfaction of Contractor. For claims based upon discrepancies, errors, omissions,
ambiguities, or conflicts in this Contract, Contractor shall hereafter have no claim for
payment or compensation in excess of the Contract Price based upon discrepancies,
errors, omissions, ambiguities, or conflicts in this Contract. Contractor shall be entitled
only to a possible extension of the Contract Time, if applicable, as provided in this
Contract and then only in those cases where Contractor can show that such
discrepancies, errors, omissions, ambiguities, or conflicts (1) could not have been
discovered by Contractor prior to execution of this Contract or prior to the performance of
any of the Work affected by such discrepancy, error, omission, ambiguity, or conflict and
(2) has caused an unavoidable delay. Information pertaining to subsurface, underground
or other concealed conditions or obstructions, soils analysis, borings, test pits, buried
structures, utility locations or conditions, conditions of existing structures, and similar site
information or data and other investigations shown or indicated on the Contract Drawings,
provided by Owner or Engineer, or otherwise made available to Contractor is not part of
this Contract and, therefore, shall not constitute the basis for claims based upon
discrepancies, errors, omissions, ambiguities, or conflicts in this Contract.
B. Investigation of Work Site. Contractor has had a sufficient
opportunity to conduct a thorough inspection and investigation of the Work Site and the
surrounding area and has completed such inspection and investigation to its satisfaction.
Contractor has included in the Contract Price allowances and contingency amounts for
difficulties or obstructions that may arise or be encountered in the performance of the
Work, including without limitation adverse weather conditions, equipment breakdowns,
subsurface, underground or other concealed conditions or obstructions, buried structures,
utility locations or conditions, adverse soil conditions, and changed site conditions due to
work by other contractors, and Contractor hereby waives all claims for, and hereafte r shall
have no claim for, payment or compensation in excess of the Contract Price based upon
such difficulties or obstructions, or conditions at the Work Site or in the surrounding area
except as expressly provided, and only to the limited extent set fort h, in Sections 2.1
through 2.3 of the General Conditions of Contract. Contractor is responsible for dealing
with conditions found at, and in the vicinity of, the Work Site, including subsurface,
underground or other concealed conditions or obstructions, b uried structures, utility
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locations or conditions, adverse soil conditions, changed conditions due to work by other
contractors, and similar site conditions without any equitable adjustment in the Contract
Price except as expressly provided, and only to the limited extent set forth , in Sections
2.1 through 2.3 of the General Conditions of Contract.
C. Authorization; Enforceable Obligations. This Contract constitutes
the legal, valid, and binding obligation of Contractor, is fully enforceable against
Contractor in accordance with its terms, will not violate any judgment, Law, or
organizational or operating document and will not cause or constitute a default under any
contractual obligation of Contractor or any lien, charge, encumbrance, or security interest
upon any assets of Contractor.
D. Contractor’s Certification. All the facts and information submitted by
Contractor in connection with this Contract and its procurement are true and correct in all
respects and, in particular, the statements contained in Contractor’s Certification are true
and correct.
E. Technical Ability to Perform. Contractor is sufficiently experienced
and competent, and has the necessary capital, facilities, plant, organization, and staff, to
provide, perform, and complete the Work in full compliance with, and as required by or
pursuant to, this Contract.
F. Financial Ability to Perform. Contractor is financially solvent, and
Contractor has the financial resources necessary to provide, perform, and complete the
Work in full compliance with, and as required by or pursuant to, this Contract.
G. Time. Contractor is ready, willing, able, and prepared to begin the
Work on the Commencement Date and the Contract Time is sufficient time to permit
completion of the Work in full compliance with, and as required by or pursuant to, this
Contract for the Contract Price, all with due regard to all natural and man-made conditions
that may affect the Work or the Work Site and all difficulties, hindrances, and delays that
may be incident to the Work.
H. Acceptance of Allocation of Risks and Changes. Contractor
acknowledges and agrees that risks are inherent in the Work of this Contract and changes
are to be expected. Contractor acknowledges that this Contract contains specific
allocations of responsibility for such risks and changes. Contractor a cknowledges,
agrees to, and accepts such risks and changes that are allocated to it and that Contractor
is responsible for dealing with under this Contract without any equitable adjustment in the
Contract Price or Contract Time.
I. No Collusion. The only Persons interested in this Contract as
principals are those disclosed as such in the Bidder’s Sworn Acknowledgment submitted
to Owner by Contractor, and this Contract is made without collusion with any other
Person.
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J. No Default. Contractor is not in arrears to Owner upon any debt or
contract and is not a defaulter as surety, contractor, or otherwise to any Person.
K. Not Barred. Contractor is not barred by law from contracting with
Owner or with any unit of state or local government, and neither Contractor nor any
Person affiliated with Contractor or that has an economic interest in Contractor or that
has or will have an interest in the Work or will participate, in any manner whatsoever, in
the Work is acting, directly or indirectly, for or on behalf of any Person, group, entity or
nation named by the United States Treasury Department as a Specially Designated
National and Blocked Person, or for or on behalf of any Person, group, entity or nation
designated in Presidential Executive Order 13224 as a person who commits, threatens
to commit, or supports terrorism, and neither Contractor nor any Person affiliated with
Contractor or that has an economic interest in Contractor or that has or will have an
interest in the Work or will participate, in any manner whatsoever, in the Work is, directly
or indirectly, engaged in, or facilitating, the Work on behalf of any such Per son, group,
entity or nation.
L. Taxes and Benefits. Contractor has excluded from the Contract
Price all state and local sales, use, and excise taxes. Contractor has included in the
Contract Price, and has or will pay or cause to be paid out of the Contract Price, all other
applicable federal, state, and local taxes of every kind and nature applicable to the Work
as well as all taxes, contributions, and premiums for unemployment insurance, old age or
retirement benefits, pensions, annuities, or other similar benefits for Contractor’s and its
Subcontractors’ employees.
M. Patent Costs. Contractor has included in the Contract Price, and has
or will pay or cause to be paid out of the Contract Price, all costs, royalties, and fees
arising from the use on, or the incorporation into, the Work of patented equipment,
materials, supplies, tools, appliances, devices, processes, or inventions.
3.2 Affirmation of Other Warranties and Representations
In addition to the foregoing warranties and representations, Contractor
hereby acknowledges that Contractor has carefully read, reviewed, and understood, and
hereby agrees to honor, the Warranty of the Work contained in Article III of the General
Conditions of Contract as well as all other warranties and representations set forth in the
Contract Documents.
ARTICLE IV
FINANCIAL ASSURANCES
4.1 Bonds
A. Bonds Required. Contemporaneous with Contractor’s execution of
this Contract Agreement, Contractor shall provide a Performance Bond and a Labor and
Material Payment Bond, in the forms included in the Contract Documents, from a surety
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company licensed to do business in the State of Illinois with a general rating of A minus
and a financial size category of Class X or better in Best’s Insurance Guide, each in the
penal sum of the Contract Price, and such other bonds as and when required by Owner.
Contractor shall, at all times while providing, performing, or completing the Work,
including, without limitation, at all times while repairing, correcting, or replacing all or any
part of the Work that is defective, damaged, flawed, unsuitable, nonconforming, or that
fails to meet warranty subject to correction by Contractor pursuant to Section 3.1 or
Section 3.2 of the General Conditions of Contract, maintain and keep in force, at
Contractor’s expense, the Bonds required hereunder.
B. No Release of Bond Obligations. No changes, modifications,
alterations, omissions, deletions, additions, extensions of time, or forbearances on the
part of either Owner or Contractor to the other in or to the terms of this Contract, in or to
the Contract Drawings or Specifications, in or to the schedules, methods, or manner of
performance of the Work, in or to Owner-furnished facilities, equipment, materials,
services, or sites, or in or to the mode or manner of payment therefor, shall operate in
any way to release Contractor or any surety or affect the obligation of either of them under
any Bond required to be provided by Contractor. All notice of any and all of the foregoing
changes, modifications, alterations, omissions, deletions, additions, extensi ons of time,
or forbearances, and all notice of any and all defaults by Contractor, and all notice of
Owner’s termination of Contractor shall be waived by every surety under every Bond
provided pursuant to this Contract.
4.2 Insurance
A. Insurance Required. Contemporaneous with Contractor’s execution
of this Contract Agreement, Contractor shall provide certificates and policies of insurance
evidencing the insurance coverages set forth in Article IV of the General Conditions of
Contract and Section 4 of the Special Conditions of Contract. For good cause shown,
Owner may extend the time for submission of the required policies of insurance upon
such terms, and with such assurances of complete and prompt performance, as Owner
may impose in the exercise of its sole discretion.
B. Additional Insureds. The insurance coverages required pursuant to
this Contract shall name Owner, including its Board members and elected and appointed
officials, its officers, employees, agents, attorneys, consultants, and representatives, and
the Persons identified in Section 4 of the Special Conditions of Contract as additional
insured parties (the “Additional Insureds”). The coverage afforded the Additional Insureds
shall be primary and non-contributory insurance for the Additional Insureds with respect
to claims arising out of operations performed by or on behalf of Contractor. If the
Additional Insureds have other insurance which is applicable to the loss, such other
insurance shall be on an excess or contingent basis. The amount of the insuranc e
companies’ liability under the insurance policies Contractor maintains shall not be
reduced by the existence of such other insurance.
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4.3 Indemnification
Contractor shall indemnify, save harmless, and defend Owner, Engineer,
and the Additional Insureds against any and all lawsuits, claims, demands, liabilities,
losses, and expenses, including attorneys’ fees and administrative expenses, that may
arise, or be alleged to have arisen, out of or in connection with Contractor’s, or its
Subcontractors’ or Suppliers’, performance of, or failure to perform, the Work or any part
thereof, whether or not due or claimed to be due in whole or in part to the active, passive,
or concurrent negligence or fault of Contractor, except to the extent caused by the sole
negligence of Owner, Engineer, or the Additional Insureds, as the case may be, including,
without limitation lawsuits, claims, demands, liabilities, losses, and expenses for or on
account of:
1. Any delays or interference or damage to other
contractors; and
2. Labor, equipment, materials, or supplies furnished
under this Contract, including all liens or notices of liens
on account thereof or Contractor’s failure to remove or
discharge same; and
3. Contractor’s failure to obtain any required permits,
licenses, approvals, or authorizations; and
4. Bodily injury, sickness, disease, or death sustained by
any Person or Persons or injury or damage to, or loss
or destruction of, any property; and
5. Any act or omission of Contractor or any of its
Subcontractors or Suppliers, including but not limited
to any failure to fulfill the terms of, or comply with, any
Laws or to pay any taxes, contributions, or premiums;
and
6. Infringement, alleged infringement, or use of patent
rights in connection with the Work and the use by
Owner of any equipment, materials, supplies,
processes, or inventions furnished under this Contract.
The indemnification obligations of Contractor under this Section 4.3 shall not be limited in
any way by any limitation on the amount or type of damages, compensation or benefits
payable by or for Contractor or any such Subcontractor or Supplier under worke rs’
compensation acts, disability benefit acts or other employee benefit acts.
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4.4 Penalties
Contractor shall be solely liable for any fines or civil penalties that are
imposed by any governmental or quasi-governmental agency or body that may arise, or
be alleged to have arisen, out of or in connection with Contractor’s, or its Subcontractors’
or Suppliers’, performance of, or failure to perform, the Work or any part thereof.
Contractor may contest any such fines or penalties in administrative or court proceedings;
provided, however, that Contractor shall pay such fines or civil penalties prior to such
protest if payment is required prior to making such protest. Contractor shall be solely
responsible for all costs, including attorneys’ fees and administrative expenses, of
protesting any such fines or civil penalties.
ARTICLE V
CONTRACT PRICE AND PAYMENT
5.1 Contract Price
Owner shall pay to Contractor, in full satisfaction for providing, performing,
and completing the Work, including such risks and changes in the Work that Contractor
is responsible for dealing with under this Contract without any equitable adjustment in the
Contract Price, subject to any additions or deductions provided for in this Contract, in
current funds, the lump sum amount or amounts, if any, stated in the Schedule of Prices
and, for each acceptable unit of each Unit Price Item, if any, installed and c omplete in
place, measured on the basis provided in the Contract Drawings and Specifications, the
Unit Price for such Unit Price Item stated in the Schedule of Prices.
5.2 Acceptance as Full Payment and Satisfaction
Contractor shall accept the Contract Price in full satisfaction and payment
for well and faithfully providing, performing, and completing within the Contract Time all
the Work in compliance with, and as required by or pursuant to, this Contract, including
such risks and changes in the Work that Contractor is responsible for dealing with under
this Contract without any equitable adjustment in the Contract Price or Contract Time.
The acceptance by Contractor of Final Payment shall operate as a full and compl ete
release of Owner and Engineer of and from any and all lawsuits, claims, demands,
damages, liabilities, losses, and expenses of, by, or to Contractor for anything done,
furnished for, arising out of, relating to, or in connection with the Work or for or on account
of any act or neglect of Owner or Engineer arising out of, relating to, or in connection with
the Work, except the claim against Owner for the unpaid balance, if any, of any amounts
retained by Owner pursuant to the Special Conditions of Contract.
5.3 Method of Payment
Progress and Final Payments shall be made to Contractor in accordance
with, and subject to the terms and conditions set forth in, Article V of the General
Conditions of Contract.
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ARTICLE VI
LEGAL RELATIONSHIPS AND REQUIREMENTS
6.1 Binding Effect
This Contract shall be binding upon Owner and Contractor and upon their
respective heirs, executors, administrators, personal representatives, and permitted
successors and assigns.
Contractor agrees that if Contractor is a joint venture, then each Person
participating in such joint venture shall be individually, personally, severally, and jointly
responsible and liable, financially, legally, and in all other respects, for the full and proper
performance of each and every provision and requirement of this Contract,
notwithstanding any arrangement, understanding, or agreement to the contrary, if any,
whether disclosed to Owner or not, entered into by, between or among the Persons
participating in such joint venture.
6.2 Relationship of the Parties
Contractor, and its Subcontractors and Suppliers, shall act as independent
contractors in providing, performing, and completing the Work. No right of supervision,
requirement of approval, or other provision of this Contract and no subsequent conduct
of Owner or Contractor shall be construed (1) to create the relationship of principal and
agent, partners, or joint venturers between Owner and Contractor, or (2) except as
provided in Paragraph 6.6B6 of the General Conditions of Contract, to create any
relationship between Owner and any Subcontractor or Supplier of Contractor. The rights
of Owner under this Contract, either directly or through Engineer, in the control of the
quality and completeness of the Work shall not make Contractor, or any Subcontractor or
Supplier of Contractor, an agent of Owner, and the liability of Contractor, and of all
Subcontractors and Suppliers of Contractor, for all damages to persons or to public or
private property arising from the provision, performance, or completion of the Wo rk by
Contractor, or any Subcontractor or Supplier of Contractor, shall not be lessened because
of the existence, exercise, or the non-exercise of such rights.
6.3 Assignment
A. Assignment by Contractor. Contractor shall not (1) assign this
Contract in whole or in part, (2) assign any of Contractor’s rights or obligations under this
Contract, or (3) assign any payment due or to become due under this Contract, without
the prior express written consent of Owner, which consent may be withheld in the sole
and unfettered discretion of Owner; provided, however, that Owner’s prior written consent
shall not be required for assignments of accounts, as defined in
the Commercial Code, if to do so would violate Section 9-318 of
the Commercial Code, 810 ILCS 5/9-318. Any attempted or purported
assignment made by Contractor without the written consent of Owner shall be void and
of no force or effect and shall constitute a default under this Contract for which Owner
shall have the right to invoke any of its remedies under Section 6.6 of the General
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Conditions of Contract. In no event shall Owner’s consent to any assignment of this
Contract or of any of Contractor’s rights under this Contract, whether in whole or in part,
operate as a release or satisfaction of Contractor’s responsibility and liabili ty for the
provision, performance, and completion of the Work in full compliance with the
requirements of this Contract on or before the Completion Date, or for the proper
performance of all other obligations of Contractor under this Contract, or for Contr actor’s
liability on all representations and warranties made in or pursuant to this Contract.
Contractor shall remain as fully responsible and liable for the acts, omissions, and
performance of Contractor’s assignee as Contractor is for its own acts, omis sions, and
performance.
B. Assignment by Owner. Owner may assign this Contract, in whole or
in part, or any or all of its rights or obligations under this Contract, without the consent of
Contractor. In the event of an assignment by Owner of any or all of its rights or obligations
under this Contract, Owner shall be released from all liability with respect to the rights or
obligations so assigned.
6.4 Confidential Information
All information supplied by Owner or Engineer to Contractor for or in
connection with this Contract or the Work shall be held confidential by Contractor and
shall not, without the prior express written consent of Owner, be used for any purpose
other than performance of the Work. Neither Contractor nor any Subcontractor or
Supplier shall own or be entitled to claim a copyright in the Contract or other documents
prepared by Owner or Engineer.
Contractor shall identify any information supplied by it in providing,
performing and completing the Work that is considered by it to be confidential or
proprietary. Owner and Engineer shall not disclose any such designated confidential or
proprietary information, unless such disclosure will not cause competitive harm, or such
information was actually known to Owner or Engineer prior to its submission by
Contractor, or such information was properly obtained or developed independently by
Owner or Engineer, or Contractor consents to such disclosure. Notwithstanding the
foregoing, Contractor acknowledges that Owner is subject to the Illinois Freedom of
Information Act, 5 ILCS 140/1 et seq., and that no disclosure made in good faith by Owner
pursuant to such Act shall be deemed to violate this Section.
6.5 Publicity
Owner’s name or insignia, photographs of the Work or the Work Site, or any
other publicity pertaining to the Work shall not be used in any magazine, trade paper,
newspaper, or other medium without the express written consent of Owner.
By entering the Work Site, Contractor personnel, including Subcontractor
and Supplier personnel, irrevocably authorize and grant to Owner, and to its successors,
agents, representatives, and assigns, the irrevocable and unrestricted right, permission,
CONTRACT AGREEMENT
-13-
and authority to:
1. Use the likeness and/or voice of such personnel
in photographs, time-lapse photography, film,
video, digital recordings, and other media in any
magazine, trade paper, newspaper, or other
medium, whether now known or hereafter
existing, including newsletters, brochures,
viewbooks, movies, tapes, diskettes,
promotional items, and websites, without prior
approval or inspection, without payment,
compensation, or any other consideration,
including royalties, and without liability; and
2. Use, edit, alter, copy, exhibit, publish,
broadcast, distribute, and otherwise reproduce,
modify, and display such likenesses and/or
voices, in whole or in part, for purposes of
publicizing Owner’s activities and for any other
lawful purpose in any manner, media, and
medium.
Contractor shall, upon request of Owner, execute, acknowledge, and
deliver such further instruments and take such action as may be necessary, desirable, or
proper to carry out more effectively the purposes of this Section 6.5.
6.6 No Waivers
No examination, inspection, investigation, test, measurement, review,
determination, decision, certificate or approval by Owner or Engineer, nor any order by
Owner for the payment of money, nor any payment for, or use, occupancy, possession,
or acceptance of, the whole or any part of the Work by Owner, nor any extension of time
granted by Owner, nor any delay by Owner in exercising any right under this Contract,
nor any other act or omission of Owner or Engineer shall constitute or be deemed to be
an acceptance of any defective, damaged, flawed, unsuitable, nonconforming or
incomplete Work, equipment, materials, or supplies, nor operate to waive or otherwise
diminish the effect of any warranty or representation made by Contractor; or of any
requirement or provision of this Contract; or of any remedy, power, or right of Owner.
No notices required to be given to Owner under this Contract are intended
to be waived by Owner, and no action or inaction by Owner or Engineer shall be construed
as waiving any such notice.
CONTRACT AGREEMENT
-14-
6.7 No Third Party Beneficiaries
No claim as a third party beneficiary under this Contract by any Person other
than Contractor shall be made or be valid against Owner and Owner shall not be liable
for or be held to pay any money to any such Person.
6.8 Notices
All notices required or permitted to be given under this Contract shall be in
writing and shall be deemed received by the addressee thereof when delivered in person
on a business day at the address set forth below or on the third business day after being
deposited in any main or branch United States post office, for delivery at the address set
forth below by properly addressed, postage prepaid, certified or registered mail, return
receipt requested.
Notices and communications to Owner shall be addressed to, and delivered
at, the following address:
Village of Oak Brook
1200 Oak Brook Road
Oak Brook, Illinois 60523
Attention: Rick Valent, Public Works Director
Notices and communications to Contractor shall be addressed to, and
delivered at, the following address:
Attention:
The foregoing shall not be deemed to preclude the use of other non -oral means of
notification or to invalidate any notice properly given by any such other non-oral means.
By notice complying with the requirements of this Section, Owner and
Contractor each shall have the right to change the address or addressee or both for all
future notices to it, but no notice of a change of address shall be effective until actually
received.
6.9 Governing Laws
This Contract and the rights of Owner and Contractor under this Contract
shall be interpreted according to the internal Laws, but not the conflict of Laws rules, of
the State of Illinois; venue for any action related to the this Contract will be the Circuit
Court of DuPage County, Illinois.
CONTRACT AGREEMENT
-15-
6.10 Changes in Laws
Unless otherwise explicitly provided in this Contract, any reference to Laws
shall include such Laws as they may be amended or modified from time to time.
6.11 Compliance with Laws and Grants
A. Compliance with Laws. Contractor shall give all notices, pay all fees,
and take all other action that may be necessary to ensure that the Work is provided,
performed, and completed in accordance with the requirements of all governmental
permits, licenses, or other approvals or authorizations that may be required in connection
with providing, performing, and completing the Work and with all applicable Laws,
including, without limitation, the Prevailing Wage Act, 820 ILCS 130/0.01 et seq. (if the
Illinois Department of Labor revises the prevailing rate of hourly wages to be paid, the
revised rate shall apply to this Contract); any other prevailing wages Laws; the Fair Labor
Standards Act; any Laws regarding qualification to do business; any Laws requiring
preference to laborers of specified classes; the Steel Products Procurement Act, 30
ILCS 565/1 et seq.; any Laws prohibiting discrimination because of, or requiring
affirmative action based on, race, creed, color, national origin, age, sex, or other
prohibited classification, including, without limitation, the Americans with Disabilities Act
of 1990, 42 U.S.C. §§ 12101 et seq., the Illinois Human Rights Act, 775 ILCS 5/1-101 et
seq. and the Public Works Employment Discrimination Act, 775 ILCS 10/1 et seq.; any
Laws respecting the assumption of liability for taxes, contributions, and premiums for
unemployment insurance, old age or retirement benefits, pensions, annuities, or other
similar benefits for Contractor’s and Subcontractors’ employees; and any Laws regarding
safety or the performance of the Work, including the Illinois Structural Work Act, the Illinois
Underground Utility Facilities Damage Prevention Act, and the Occupational Safety and
Health Act. Contractor shall keep itself fully informed of all Laws affecting this Contract;
affecting those engaged or employed on the Work; affecting the equipment, ma terials,
and supplies used in the Work; affecting the conduct of the Work; and affecting the rights,
duties, powers, or obligations of Owner or of Contractor; and shall als o keep itself fully
informed of all orders, decrees, and other requirements of bodies or tribunals having any
jurisdiction or authority over any of the foregoing. Contractor shall display all permits,
licenses, and other approvals and authorizations as re quired by Law.
B. Compliance by Subcontractors and Suppliers. Contractor shall, at
all times, cause all of its Subcontractors and Suppliers to observe and comply with all
such Laws.
C. Noncompliance of Contract Documents. Contractor shall promptly
examine the Contract Drawings and Specifications and other Contract Documents and
report to Owner any respects in which it appears that any of them may fail to conform to
any applicable Laws.
D. Verification of Compliance. At or before the time of Owner’s Final
Acceptance of the Work, Contractor shall deliver to Owner all certificates, receipts, or
CONTRACT AGREEMENT
-16-
other evidences of approval, acceptance, or payment of fees that may be required to
establish the compliance of the Work with all applicable Laws, permits, licenses,
approvals, authorizations, or other requirements.
E. Provisions Deemed Inserted. Each and every provision required by
Law to be inserted in this Contract shall be deemed to be inserted herein, and this
Contract shall be read and enforced as though all such provisions were set out in full in
this Contract. If through mistake or otherwise any such provision is not set out in this
Contract, or is not correctly set out in this Contract, then upon the application of either
Owner or Contractor, this Contract shall forthwith be physically amended to correctly set
out such provision.
F. Compliance With Grant Conditions. Contractor shall comply with all
conditions of, and all Laws applicable to, and all policies, practices, and procedures of
Owner applicable to, any federal, state, or local grant received by Owner or by Contractor
at any time with respect to this Contract or with respect to the provision, performance, or
completion of the Work.
G. Regulatory Authority. Nothing in this Contract shall be construed to
waive or limit any aspect of Owner's lawful authority to regulate the activities of Contractor,
its Subcontractors, or any other Person or to regulate the Work, the Work Site, or any other
matter falling within its lawful regulatory jurisdiction and powers. No review, inspection, test,
audit, measurement, order, determination, decision, disapproval, approval, payment for, or
use or acceptance of, the Work, or any other act or omission of Owner shall imply, create
any interest in, be deemed to be the issuance of, or require Owner to issue any license or
permit to Contractor or any Subcontractor.
6.12 Compliance with Patents
A. Patent Rights. Contractor shall do all things necessary to obtain
such rights and licenses as may be necessary in connection with all costs, royalties, and
fees arising from the use on, or the incorporation into, the Work of patented equipment,
materials, supplies, tools, appliances, devices, processes, or inventions.
B. Effect of Contractor Being Enjoined. Should Contractor be enjoined
from furnishing or using any equipment, materials, supplies, tools, appliances, devices,
processes, or inventions supplied or required to be supplied or used under this Contract,
Contractor shall promptly offer substitute e quipment, materials, supplies, tools,
appliances, devices, processes, or inventions in lieu thereof, of equal efficiency, quality,
suitability, and market value, for review by Owner. If Owner should disapprove the offered
substitutes and should elect, in lieu of a substitution, to have supplied, and to retain and
use, any such equipment, materials, supplies, tools, appliances, devices, processes, or
inventions as may by this Contract be required to be supplied, Contractor shall pay such
royalties and secure such valid licenses as may be requisite and necessary for Owner to
use such equipment, materials, supplies, tools, appliances, devices, processes, or
inventions without being disturbed or in any way interfered with b y any proceeding in law
CONTRACT AGREEMENT
-17-
or equity on account thereof. Should Contractor neglect or refuse to make any approved
substitution promptly, or to pay such royalties and secure such licenses as may be
necessary, then Owner shall have the right to make such substitution, or Owner may pa y
such royalties and secure such licenses and charge the cost thereof against any money
due Contractor from Owner or recover the amount thereof from Contractor and its surety
or sureties notwithstanding that Final Payment may have been made.
6.13 Severability
The provisions of this Contract shall be interpreted when possible to sustain
their legality and enforceability as a whole. In the event any provision of this Contract
shall be held invalid, illegal, or unenforceable by a court of competent jurisdiction, in whole
or in part, neither the validity of the remaining part of such provision, nor the validity of
any other provisions of this Contract, shall be in any way affected thereby. The
unenforceability of any provision of this Contract in a specific situation shall not affect the
enforceability of that provision in any other situation.
6.14 Entire Agreement
This Contract sets forth the entire agreement of Owner and Contractor with
respect to the accomplishment of the Work and the payment of the Contract Price
therefor, and there are no other understandings or agreements, oral or written, between
Owner and Contractor with respect to the Work and the compensation therefor, nor was
the making and execution of this Contract induced by any representation, statement,
warranty, agreement, or action other than those expressed or explicitly referenced herein.
6.15 Amendments
No modification, addition, deletion, revision, alteration or other change to
this Contract shall be effective unless and until such change is reduced to writing and
executed and delivered by Owner and Contractor.
6.16 Counterparts
This Contract is being executed in five original counterparts, each of which
shall be deemed to be an original.
IN WITNESS WHEREOF, Owner and Contractor have caused this Contract
Agreement to be executed as of the day and year first written above.
Attest/Witness: VILLAGE OF OAK BROOK
By: ______________________ By: _______________________________
Title: Village Clerk Title: Village Manager
CONTRACT AGREEMENT
-18-
Attest/Witness: [NAME OF SUCCESSFUL BIDDER]
By: ______________________ By: _______________________________
[NAME OF CONTRACTOR’S
EXECUTING OFFICER]
Title: ______________________ Title: [TITLE OF CONTRACTOR'S
EXECUTING OFFICER]
SEE GENERAL INSTRUCTIONS TO BIDDERS, SECTION 8,
FOR SIGNATURE REQUIREMENTS
STATE OF ILLINOIS )
) SS
COUNTY OF __________ )
CONTRACTOR’S CERTIFICATION
[CONTRACTOR’S EXECUTING OFFICER], being first duly sworn on oath,
deposes and states that all statements made herein are made on behalf of Contractor,
that this deponent is authorized to make them, and that the statements contained herein
are true and correct.
Contractor deposes, states, and certifies that Contractor is not barred from
contracting with a unit of state or local government as a result of (i) a violation of either
Section 33E-3 or Section 33E-4 of Article 33 of the Criminal Code of 1961, 720 ILCS
5/33E-1 et seq.; or (ii) a violation of the USA Patriot Act of 2001, 107 Public Law 56
(October 26, 2001) (the “Patriot Act”) or other statutes, orders, rules, and regulations of
the United States government and its various executive departments, agencies and
offices related to the subject matter of the Patriot Act, including, but not limited to,
Executive Order 13224 effective September 24, 2001.
DATED this day of , 2023
Attest/Witness: [NAME OF SUCCESSFUL BIDDER]
By: ______________________ By: _______________________________
[NAME OF CONTRACTOR’S
EXECUTING OFFICER]
Title: ______________________ Title: [TITLE OF CONTRACTOR'S
EXECUTING OFFICER]
Subscribed and Sworn to My Commission Expires: ________________
before me this ____ day
of _____________, 2023.
_____________________________ [SEAL]
Notary Public
SEE GENERAL INSTRUCTIONS TO BIDDERS, SECTION 8,
FOR SIGNATURE REQUIREMENTS
VILLAGE OF OAK BROOK
CONTRACT FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
SCHEDULE OF PRICES
[TO BE INSERTED FROM THE BIDDER'S PROPOSAL
OF THE SUCCESSFUL BIDDER TO WHOM THIS
CONTRACT IS AWARDED]
-i-
VILLAGE OF OAK BROOK
CONTRACT FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
GENERAL CONDITIONS OF CONTRACT
TABLE OF CONTENTS
Page
ARTICLE I PERFORMANCE OF THE WORK ............................................................ 1
1.1 Performance Standards and Obligations ................................................... 1
1.2 Engineer’s Authority ................................................................................... 4
1.3 Required Submittals .................................................................................. 5
1.4 Administration of the Work ......................................................................... 7
1.5 Conditions at the Work Site; Record Drawings .......................................... 8
1.6 Safety of the Work Site .............................................................................. 9
1.7 Cleanliness of the Work Site and Environs .............................................. 11
1.8 Damage to the Work, the Work Site, and Other Property ........................ 12
1.9 Subcontractors and Suppliers .................................................................. 12
1.10 Simultaneous Work by Others ................................................................. 15
1.11 Occupancy Prior to Final Payment .......................................................... 16
1.12 Suspension or Termination of Work for Convenience .............................. 17
1.13 Charge for Overtime Engineering ............................................................ 17
ARTICLE II CHANGES AND DELAYS ....................................................................... 18
2.1 Changes .................................................................................................. 18
2.2 Equitable Adjustments ............................................................................. 19
2.3 Contract Price Adjustments ..................................................................... 20
2.4 Extensions of Contract Time .................................................................... 24
2.5 Constructive Change Orders ................................................................... 25
2.6 No Waiver and Release ........................................................................... 26
2.7 No Other Compensation .......................................................................... 26
2.8 Specific References Exemplary ............................................................... 27
ARTICLE III CONTRACTOR’S RESPONSIBILITY FOR DEFECTIVE WORK ........... 27
3.1 Inspection; Testing; Correction of Defects ............................................... 27
3.2 Warranty of Work ..................................................................................... 28
3.3 Contractor Duty to Correct Without Delay ................................................ 29
3.4 Owner’s Right to Correct .......................................................................... 29
3.5 Subcontractor and Supplier Warranties ................................................... 29
-ii-
ARTICLE IV INSURANCE ......................................................................................... 30
4.1 Required Coverages ................................................................................ 30
4.2 Insurance Companies and Policies .......................................................... 30
4.3 Minimum Coverages ................................................................................ 31
4.4 Additional Coverages ............................................................................... 33
4.5 Subcontractor Insurance .......................................................................... 33
ARTICLE V PAYMENT .............................................................................................. 34
5.1 Progress Payments ................................................................................. 34
5.2 Final Acceptance and Final Payment ...................................................... 36
5.3 Title to Work and Liens ............................................................................ 38
5.4 Deductions ............................................................................................... 39
5.5 Application of Payments .......................................................................... 39
5.6 Work Entire .............................................................................................. 39
ARTICLE VI DISPUTES AND REMEDIES ................................................................ 40
6.1 Notice of Dispute ..................................................................................... 40
6.2 Negotiation of Disputed Decisions ........................................................... 40
6.3 Owner’s Final Decision ............................................................................ 40
6.4 Contractor’s Final Demand ...................................................................... 41
6.5 Contractor’s Remedies ............................................................................ 41
6.6 Owner’s Remedies .................................................................................. 41
ARTICLE VII DEFINITIONS ....................................................................................... 44
7.1 Defined Terms ......................................................................................... 44
7.2 Word Usage ............................................................................................. 48
-1-
VILLAGE OF OAK BROOK
CONTRACT FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
GENERAL CONDITIONS OF CONTRACT
ARTICLE I
PERFORMANCE OF THE WORK
1.1 Performance Standards and Obligations
A. Quality of Work.
1. General Standard. All Work shall be provided, performed,
and completed in a proper and workmanlike manner, consistent with the highest
standards of professional and construction practices and in full compliance with, and as
required by or pursuant to, this Contract, and with the greatest economy, efficiency, and
expedition consistent therewith. All equipment, materials, and supplies incorporated into
the Work shall be new and undamaged and shall be the best of their respective kinds for
their intended use.
2. Referenced Standards. References to standards,
specifications, manuals, or codes of any technical society, organization, or association,
or to codes of local, state or federal authorities, shall mean the latest standard,
specification, manual or code adopted and published at the date of the Bidder’s Proposal,
unless specifically stated otherwise. However, no provision of any referenced standard,
specification, manual or code shall change the duties and responsibilities of Owner,
Engineer, or Contractor from those set forth in this Contract.
3. Proprietary Standards and Equivalency. Whenever any
equipment, materials or supplies are specified or described in this Contract by using the
name or other identifying feature of a proprietary product or the name or other identifying
feature of a particular manufacturer or vendor, the specific item mentioned shall be
understood as establishing the type, function and quality desired. Other manufacturers’
or vendors’ products may be accepted, provided sufficient information is submitted to
allow Engineer to determine that the products proposed are equivalent in substance and
function to those named. The equivalency of any product proposed shall be determined
by Engineer, in its sole and absolute discretion, and no such product shall be purchased,
fabricated or installed until equivalency shall have been determined, in writing, by
Engineer. Engineer’s written decision with respect to equivalency shall be final.
GENERAL CONDITIONS
-2-
B. Timeliness of Work.
1. Time is of the Essence. The time of beginning, rate of
progress, and time of completion of the Work is of the essence of this Contract.
Contractor shall be solely responsible for completing the Work in a timely fashion.
Contractor shall promptly, continuously, diligently, vigorously, and systematically provide
and perform the Work, and all component parts of the Work, within such time or times as
may be set forth in this Contract or in the Approved Schedule and to the ends that, and
at a rate, with due allowances and contingencies for difficulties or obstructions that may
arise out of, or be encountered as a result of, adverse weather conditions, equipment
breakdowns, subsurface, underground or other concealed conditions or obstructions,
buried structures, utility locations or conditions, adverse soil conditions, and changed site
conditions due to work by other contractors, that assures that, all Work, and all component
parts of the Work, will be completed and ready for inspection and testing when required
pursuant to this Contract and that all Work will be completed in full compliance with, and
as required by or pursuant to, this Contract within the Contract Time. Contractor shall
cooperate with Owner and Engineer to assure maximum coordination and efficiency in
the progress of the Work.
2. Approved Schedule. Unless otherwise provided in the
Special Conditions of Contract or the Specifications, Contractor shall submit to Engineer,
within 30 Days after the execution of this Contract, a detailed schedule of the Work
showing the time of beginning and completion for at least every major component of the
Work. Such schedule shall be presented in graphical form using the bar graph method
or a time-sequence method, but not a critical path method. Such schedule shall logically
and realistically relate the performance of each component of the Work to each other
component of the Work and to the whole of the Work so as to demonstrate that sufficient
time has been allowed for the completion of each component without interference or delay
from or to any other component and with due allowances and contingencies for difficulties
or obstructions that may arise out of, or be encountered as a result of, adverse weather
conditions, equipment breakdowns, subsurface, underground or other concealed
conditions or obstructions, buried structures, utility locations or conditions, adverse soil
conditions, and changed site conditions due to work by other contractors. The schedule
shall demonstrate Contractor’s ability to comply with the requirements of
Paragraph 1.1B1 above. Engineer shall return a copy of the schedule to Contractor with
such exceptions noted as Engineer may deem appropriate and Contractor shall submit a
revised schedule to Engineer within two business days. If acceptable, Engineer shall
return a copy of the schedule to Contractor with no exceptions noted or an equivalent
notation (“Approved Schedule”). Engineer may require the Approved Schedule to be
revised or updated as frequently as Engineer may deem necessary prior to Final
Acceptance of the Work.
3. No Liability. Review and stamping of any Approved Schedule
by Engineer shall not constitute approval or acceptance of the schedule or an extension
or waiver of the Contract Time and no review by Engineer, no noting of an exception by
Engineer, and no failure to note an exception by Engineer shall relieve Contractor of the
GENERAL CONDITIONS
-3-
entire responsibility for the performance of the Work in full compliance with the
requirements of this Contract within the Contract Time. Engineer’s review and stamping,
with or without exceptions noted, of any Approved Schedule shall not be regarded as a n
any assumption of risk or liability by Owner or Engineer. Contractor shall have no claim
under this Contract on account of any error, omission, or defect in, or revealed by, any
Approved Schedule so reviewed and stamped or any failure, partial failure, or inefficiency
of any Approved Schedule so reviewed and stamped. Engineer’s stamping of any
Approved Schedule with no exception noted or an equivalent notation shall be considered
to mean merely that Engineer has no objection to Contractor proceeding, upon its own
full responsibility and liability, with the schedule or schedules proposed.
4. Acceleration. If, at any time, the Work, or any component part
of the Work, is behind the Approved Schedule, Contractor shall initiate immediate and
definite procedures for accelerating the Work as required to bring the Work, and all
component parts of the Work, into compliance with the Approved Schedule. Owner shall
not be subject to any claims, demands, or liability for Contractor’s acceleration damages
or costs incurred to keep the Work in compliance with the Approved Schedule, including,
but not limited to, damages or costs resulting from, arising out of, or in any way related to
increases in time- related costs; increases in costs of labor, equipment, materials, or
supplies; costs of additional personnel; costs of additional equipment; costs of add itional
premium time for personnel or equipment; increase in costs for Bond or insurance
premiums; lower labor productivity; lost profits or alternative income; effects on other
contracts; and costs of demobilization and remobilization. Failure of Owner o r Engineer
to inform Contractor that Contractor is behind the Approved Schedule or to direct and
enforce procedures to ensure compliance with the Approved Schedule shall not relieve
Contractor of the entire responsibility for the performance of the Work in full compliance
with the requirements of this Contract within the Contract Time.
5. Owner’s Right to Perform Work. Any failure of Contractor to
comply with this Subsection 1.1B shall entitle Owner to perform or have performed all
Work necessary for compliance with this Subsection and to withhold or recover from
Contractor the cost of such Work.
C. Completeness of Work. Except for such items as are expressly and
specifically required by this Contract to be furnished by Owner, Contractor shall provide
at the Work Site, and at no charge to Owner other than the Contract Price, all personnel,
equipment, materials, supplies, and other things required to provide, perform and
complete the Work described, shown, or reasonably implied, or inferred from prevailing
custom or trade usage as being required to produce the results intended, in this Contract.
If any personnel, equipment, materials, or supplies that are not directly or indirectly set
forth in this Contract are nevertheless necessary to the proper provision, performance,
and completion of the whole of the Work in accordance with the intent of this Contract,
Contractor shall understand such personnel, equipment, materials, or supplies to be
implied and shall provide such personnel, equipment, materials, or supplies as fully as if
it were particularly described. Without limiting the foregoing, Contra ctor, at its sole cost
and expense, shall: (1) arrange for a supply of water, heat, light, power,
GENERAL CONDITIONS
-4-
telecommunications, and other services needed for the Work and for testing, including
the installation of temporary utility lines, wiring, switches, fixtures, hoses, connections,
and meters; (2) provide and maintain sanitary conveniences of sufficient numb er to
accommodate all workers and all personnel of Owner and Engineer engaged in or about
the Work; and (3) provide and maintain a clean, weather-tight office, temporary in
character, at a central location at the Work Site, with telephone facilities and se rvice, for
use as a field office by Contractor, for storage of Contract Drawings and Specifications,
for storage of permits and Required Submittals reviewed with no exception noted, and for
shelter of workers.
D. Conformity of Work. Contractor shall, at no increase in the Contract
Price, provide workmanship, equipment, materials, and supplies that fully conform to this
Contract, notwithstanding the fact that Contractor may have based its Bidder’s Proposal
on workmanship, equipment, materials, or supplies that do not so conform. When the
equipment, materials, or supplies furnished by Contractor cannot be installed as specified
in the Contract Drawings or Specifications, Contractor shall, without any increase in the
Contract Price, make all modifications required to properly install the equipment,
materials, or supplies. Any such modification shall be subject to the prior review and
consent of Engineer.
1.2 Engineer’s Authority
Engineer has been employed as an independent contractor to represent
Owner during the term of this Contract and to observe the Work in progress on behalf of
Owner. To prevent delays and disputes and to discourage litigation, it is agreed by Owner
and Contractor that Engineer shall, in all cases, determine the amount, quality,
acceptability, and fitness of the several kinds of Work that are to be paid for under this
Contract; determine all disputes in relation to the true construction, meaning, and intent
of the Contract Drawings and Specifications; and determine all disputes in relation to the
execution of the Work, the classifications and measurements of quantities and materials,
the suitability of equipment, materials, and supplies, and the fulfillment of this Contract.
In interpreting this Contract, Engineer shall be subject to Section 1.3 of the Contract
Agreement.
Engineer shall have the power to reject or condemn all Work that is
defective, flawed, unsuitable, or nonconforming to the terms of this Contract.
Engineer’s determination in all matters shall be a condition precedent to an
appeal by Contractor to Owner, to the right of Contractor to receive, demand, or claim
any money or other compensation under this Contract, and to any liability on the part of
Owner to Contractor on account of this Contract.
1.3 Required Submittals
A. Submittals Required. Contractor shall submit to Engineer all
documents, data, and information specifically required to be submitted by Contractor
GENERAL CONDITIONS
-5-
under this Contract and shall, in addition, submit to Engineer all such drawings,
specifications, descriptive information, and engineering documents, data, and information
as may be required, or as may be requested by Engineer, to show the details of the W ork,
including a complete description of all equipment, materials, and supplies to be provided
under this Contract (“Required Submittals”). Such details shall include, but shall not be
limited to, the kind, size, arrangement and operations of component ma terials and
devices; the external connections, anchorages, and supports required; performance
characteristics; test data; concrete reinforcement; structural details; dimensions needed
for installation and correlation with other equipment, materials, and su pplies; principal
dimensions, weight, structural and operating features; space required; clearances; utility
connections; wiring and control diagrams; type and/or brand of finish or shop coat;
adequate operation and maintenance information for all equipmen t requiring
maintenance or other attention; and all similar matters, for all components of the Work.
When it is customary to do so, when the dimensions are of particular importance, or for
equipment and materials, the Required Submittals shall be certified by the Supplier as
correct for, and in full compliance with, this Contract and meeting intended functions.
B. Number and Format. Except as otherwise provided in the
Specifications: Contractor shall provide seven complete sets for each Required Submittal
with suitable identification; all Required Submittals, except drawings, shall be prepared
on white 8-1/2 inch by 11 inch paper; all prints of drawings shall be folded to 8-1/2 inches
by 11 inches, or less; and all drawings shall be clearly marked in the lower right -hand
corner with the names of Owner, Engineer, and Contractor.
C. Verification by Contractor. Contractor shall be responsible for
obtaining Required Submittals complying with the foregoing from its Subcontractors and
Suppliers and returning reviewed documents to them. Contractor shall check and
approve all Required Submittals before submitting them to Engineer for review.
Contractor shall check and verify, or resubmit for correction, all Required Submittals
prepared by a Subcontractor or Supplier, before submitting them to Engineer. Verification
and submission of Required Submittals by Contractor shall be deemed to mean that
Contractor has, in fact, reviewed and coordinated the information in the Required
Submittals with the requirements of the Work and this Contract. Any Required Submittals
submitted to Engineer which have not been checked, reviewed, and stamped “Verified by
Contractor” (or its equivalent), will be returned unprocessed.
D. Time of Submission. All Required Submittals shall be provided to
Engineer no later than the time, if any, specified in this Contract for their submission or, if
no time for submission is specified, in sufficient time, in Engineer’s sole opinion, to permit
Engineer to review the same prior to the commencement of the part of the Work to which
they relate and prior to the purchase of any equipment, materials, or supplies that they
describe.
E. Engineer’s Review. Engineer shall review all Required Submittals
as soon as reasonably possible after their submission and shall have the right to require
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resubmittal of, and such corrections in and additions to, any or all Required Submittals as
may be necessary to make the Required Submittals conform to this Contract.
F. Responsibility for Delay and Costs of Additional Review. Contractor
shall be responsible for any delay in the Work due to delay in providing Required
Submittals conforming to this Contract. In the event more than one re -submittal of any
Required Submittal is necessary to make such Required Submittal conform to this
Contract, Contractor shall be charged the total cost incurred by Engineer for all
subsequent reviews of Required Submittals. If the amount due Contractor is not sufficient
to cover such costs, Contractor shall reimburse Owner for such costs upon demand.
G. Condition Precedent to Performance of Work. No Work with respect
to which any Required Submittal is required or has been requested, and no Work
dependent on any such Work, shall be provided or performed unless and until the
Required Submittal for such Work has been reviewed and stamped by Enginee r with no
exception noted or an equivalent notation. No equipment, materials, or supplies shall be
purchased, fabricated, or installed until all Required Submittals pertaining thereto have
been reviewed and stamped by Engineer with no exception noted or an equivalent
notation. Where samples are required, the samples reviewed and stamped by Engineer
with no exception noted or its equivalent notation shall be kept at the Work Site for
comparison with, and to establish the standards of acceptance for, equipment, materials
or supplies proposed for incorporation into the Work.
H. Incorporation After Review With No Exception Noted . Every
Required Submittal that is reviewed and stamped by Engineer with no exception noted or
an equivalent notation shall immediately thereupon become a part of the Contract
Documents, and the Work shown or described thereby shall be performed in confor mity
therewith unless otherwise required by Engineer.
I. No Liability. Review and stamping of any Required Submittal by
Engineer shall be for the sole purpose of examining the general arrangement, design,
and details of the proposed Work, and no review by Engineer, no noting of an exception
by Engineer, and no failure to note an exception by Engineer shall relieve Contractor of
the entire responsibility for the performance of the Work in full compliance with the
requirements of this Contract. Engineer’s review and stamping, with or without
exceptions noted, of any Required Submittal shall not constitute an approval of any part
of the Work shown in such Required Submittal and shall not be regarded as any
assumption of risk or liability by Owner or Engineer. Contractor shall have no claim under
this Contract on account of any error, omission or defect in, or revealed by, any Required
Submittal so reviewed and stamped. Engineer’s stamping of any Required Submittal with
no exception noted or an equivalent notation shall be considered to mean merely that
Engineer has no objection to Contractor proceeding, upon its own full responsibility and
liability, with the Work as shown on such Required Submittal.
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1.4 Administration of the Work
A. Contractor’s Duty to Administer the Work. Contractor shall have full
and sole responsibility for administration of the Work. Contractor’s field organization shall
include fully qualified and adequate management, supervisory and technical personnel to
insure competent and expeditious handling of all matters related to the Work. Contractor
shall have full and sole responsibility for keeping all personnel, equipment, materials,
supplies, and other things required to provide, perform, and complete the Wor k within the
designated construction area limits of the Work Site and out of areas not designated for
Contractor’s use. On all other lands, Contractor shall have no rights unless it obtains
them from the proper parties.
Owner shall have the authority to order Contractor to remove from the Work
Site any of Contractor’s employees or any Subcontractors’ employees who fail to
discharge responsibilities, refuse to obey instructions, or who are incompetent, abusive,
threatening, or disorderly in their conduct. Any such Person so removed shall not be
employed again on the Work. No adjustment in the Contract Price or Contract Time shall
be made as a result of such removal.
All Subcontractors and Suppliers shall be directly responsible to Contractor
and shall be subject to Contractor’s supervision and control. Contractor shall have the
duty to coordinate all Subcontractors and Suppliers so as to avoid hindrance or
interference among them and to ensure that the Work will be completed in full compliance
with, and as required by or pursuant to, this Contract and within the Contract Time.
Contractor shall attend, and shall cause any Subcontractor or Suppliers
whose attendance is requested to attend, any pre-construction meetings or construction
progress meetings as may be necessary for the orderly performance of the Work, as
determined by Owner or Engineer.
B. Contractor’s Superintendent. Contractor shall appoint and employ
throughout the performance of the Work a competent superintendent who shall be
approved by Owner in writing and who shall have complete charge of the Work on behalf
of Contractor. Contractor’s superintendent shall be at the Work Site at all times during
performance of the Work. Contractor shall, before beginning the Work, and at al l times
during the performance of the Work, keep Owner advised in writing of such
superintendent’s name and address, and of telephone numbers where such
superintendent may be reached at all times. Such superintendent shall not be changed
without the consent of Owner unless the individual serving in that capacity leaves
Contractor’s employ or becomes unable to serve due to circumstances beyond the control
of Contractor, which shall in no event be construed to include the necessity of employing
such Person on any other contract or work. Any substitute superintendent proposed by
Contractor shall be approved by Owner in writing. In any case where Owner determines
the performance of Contractor’s superintendent is unsatisfactory or unacceptable to
Owner, Owner shall have the right to require Contractor to remove such superintendent
and to replace such superintendent with a new superintendent satisfactory to Owner.
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1.5 Conditions at the Work Site; Record Drawings
Contractor shall be fully responsible for conditions found at, and in the
vicinity of, the Work Site. Contractor shall have no claim for damages, for compensation
in excess of the Contract Price except as expressly provided, and only to the limited extent
set forth, in Sections 2.1 through 2.3 of these General Conditions of Contract, or for a
delay or extension of the Contract Time based upon conditions found at, or in the vicinity
of, the Work Site. When information pertaining to subsurface, underground or other
concealed conditions or obstructions, soils analysis, borings, test pits, buried structures,
utility locations or conditions, conditions of existing structures, and similar site information
or data and other investigations is or has been shown or indicated on the Contract
Drawings, is or has been provided by Owner or Engineer, or is or has been otherwise
made available to Contractor by Owner or Engineer, such information is or has been
shown, indicated, provided, or made available solely for the co nvenience of Contractor
and is not part of this Contract. Owner assumes no responsibility whatever in respect to
the sufficiency or accuracy of such information, and there is no guaranty or warranty,
either expressed or implied, that the conditions indicated are representative of those
existing throughout the Work or the Work Site, or that the conditions indicated are
representative of those existing at any particular location, or that contractors working on
other projects may not change the conditions indicated at, and in the vicinity of, the Work
Site, or that unanticipated conditions may not be present.
Contractor shall be solely responsible for locating all existing underground
installations by prospecting no later than two workdays prior to any scheduled excavation
or trenching or 200 lineal feet in advance of such excavation or trenching, whichever is
earlier. Contractor shall, prior to any excavation, notify the Joint Utility Locating
Information for Excavators (J.U.L.I.E.), (1-800-892-0123), and, with respect to owners or
operators of underground utility facilities who are not members of J.U.L.I.E., shall directly
notify such non-member owners or operators and shall otherwise fully comply with the
Illinois Underground Utility Facilities Damage Prevention Act, 220 ILCS 50/1 et seq.
Contractor shall check all dimensions, elevations, and quantities shown on the Contract
Drawings and Specifications within the same time period as set forth above for
prospecting underground installations. Contractor shall lay out the Work in accordance
with the Contract Drawings and Specifications and shall establish and m aintain such
locations, lines and levels, except that wherever pre-existing work is encountered,
Contractor shall verify and be responsible for dimensions and locations of such pre -
existing work. Contractor shall notify Engineer of any discrepancy between the
dimensions, elevations and quantities shown on the Contract Drawings and
Specifications and the conditions of the Work Site or any other discrepancies which
Contractor may discover during such inspections. Contractor shall make any necessary
adjustments in the alignment or grade of the Work, subject to Engineer’s approval, to
pass around, over, or under any obstruction discovered without any equitable adjustment
in the Contract Time or, except as expressly provided, and only to the limited extent set
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forth, in Sections 2.1 through 2.3 of these General Conditions of Contract, the Contract
Price.
Contractor shall maintain, during the progress of the Work, up -to-date
copies of all Contract Drawings and Specifications and a continuous record of all field
deviations from the Contract Drawings. Before Final Acceptance of the Work, Contractor
shall submit to Owner two printed sets of Drawings of Record, unless a greater number
is specified elsewhere in this Contract, indicating all necessary additions and corrections
to the Contract Drawings to show record conditions for verification of Engineer’s drawings
of record. Upon acceptance of Contractor’s printed Drawings of Record, Contractor shall
also submit to Owner electronic Drawings of Record in electronic CADD files and/or other
electronic file format acceptable to Owner operating on an IBM compatible microcomputer
under a Windows operating system. Each such drawing and electronic drawing file shall
be plainly marked “Drawing of Record” near the title block and shall be certified as to
correctness by Contractor.
1.6 Safety of the Work Site
A. Contractor’s Responsibility. Contractor shall be solely and
completely responsible for providing and maintaining safe conditions at the Work Site,
including the safety of all Persons and property during performance of the Work. This
requirement shall apply continuously and shall n ot be limited to normal working hours.
Contractor shall take all safety precautions as shall be necessary to comply with all
applicable Laws, regulations, and guidelines, including without limitation OSHA, and to
prevent injury to Persons and damage to property. Contractor shall employ or hire a
competent safety representative or Subcontractor, who is capable of identifying
predictable and existing conditions that are unsanitary, hazardous, or dangerous to
Persons or property, to devise, supervise and ensure compliance with all safety
precautions and programs as shall be necessary to comply with all applicable Laws,
regulations, and guidelines, including without limitation OSHA, and to prevent injury to
Persons and damage to property. Contractor shall advise Owner, in writing, of such
safety representative’s name, address, and telephone number or numbers where such
safety representative may be reached at all times, 24 hours per Day, and such safety
representative shall have full and complete authority to promptly correct or eliminate any
such unsanitary, hazardous, or dangerous conditions. Neither Owner nor Engineer shall
be responsible for conditions at the Work Site, nor for the safety of Persons or property,
during the performance of the Work.
Contractor is advised that potentially hazardous conditions described in the
Illinois Health and Safety Act, federal OSHA Regulations and Guidelines, ANSI Standard
B30.5-1968 as amended, ANSI Standard Z117.1-1995 as amended, and Illinois
Department of Labor Rules and Regulations, could be encountered during the
performance of the Work, including without limitation energized electrical facilities and
overhead wires; cranes, derricks, and other hoisting machinery with operational and use
limitations, special hazard warnings and instructions, and revolving superstructures
requiring proper barricading; underground utility facilities requiring protection, support, or
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removal to safeguard employees; excavations requiring, among other things, safe means
of egress and protection from cave-ins, fall-ins, hazardous atmospheres, hazardous
substances, and other hazardous conditions; and confined or enclosed spaces that are
subject to the accumulation of hazardous substances or toxic or flammable contaminants
or that have oxygen deficient or other hazardous atmospheres, requiring, among other
things, independent fall protection, respiratory equipment, ventilation, two -way
communication with the outside, and safe means of egress. Contractor should take
special notice of the potentially hazardous conditions identified in this paragraph and take
all necessary precautions to guard against such potential hazards, including without
limitation conducting employee safety training and education, posting warnings and
instructions, testing and inspecting, and utilizing adequate protective and emergency
systems, equipment, and devices, in as much safety remains Contractor’s sole
responsibility under this Contract. Contractor is directed to the Illinois Health and Safety
Act, federal OSHA Regulations and Guidelines, including without limitation Occupational
Safety & Health Standards and Construction Industry Safety & Health Regulations as
outlined in Parts 1910 and 1926 of US Dept. of Labor Chapter XVII - Occupational Safety
and Health Administration, Title 29, and US Dept. of Labor Document OSHA 2202 “OSHA
Safety and Health Standards Digest,” ANSI Standard B30.5 -1968 as amended, ANSI
Standard Z117.1-1995 as amended, and Illinois Department of Labor Rules and
Regulations for a further description of these potentially hazardous conditions and the
regulations applicable thereto.
Contractor is being notified of these potentially hazardous conditions so that
Contractor may independently assess the potentially hazardous conditions and take the
necessary precautions to ensure a safe workplace pursuant to this Contract and
Contractor’s legal obligations. Owner’s notification of these potentially hazardous
conditions should not be construed to be, nor interpreted as, an exclusive listing of the
potentially hazardous conditions that could be encountered during the performance of the
Work but, rather, such notice shall be construed to be, and interpreted as, exemplary
only. Owner’s notification of these potentially hazardous conditions should not be
construed or interpreted as waiving Contractor’s sole and complete responsibility for
conditions at the Work Site or for providing and maintaining safe conditions at the Work
Site, including the safety of all Persons and property during performance of the Work.
This notification of potentially hazardous conditions is provided solely to assist Contractor
in the performance of these duties, in the interest of maximum safety.
B. Traffic. Contractor shall conduct all of its operations without
interruption of or interference with vehicular and pedestrian traffic on public and private
rights-of-way, unless it has obtained permits therefor from the proper authorities. All
public and private rights-of-way not closed by permission of the proper authorities shall
be maintained passable and safe by Contractor, who shall assume and have full
responsibility for the adequacy and safety or provisions made therefor. If any public or
private right-of-way shall be rendered unsafe by Contractor’s operations, Contractor shall
make such repairs or provide such temporary ways or guards as shall be acceptable to
the proper authorities.
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Contractor shall, at least 48 hours in advance, notify the proper authorities
in writing, with a copy to Engineer, if the closure of any public or private right -of-way is
necessary. Contractor shall cooperate with the proper authorities in the establishme nt of
alternate routes and shall provide adequate detour signs, plainly marked and well lighted,
in order to minimize confusion.
C. Fire Protection. Access to sources of water for fire protection shall
be identified and be available at all times. Fire hydrants and stop valves adjacent to the
Work shall be kept clear and readily accessible to fire apparatus and no materials or other
obstruction shall be placed, parked or stored within 15 feet of any hydrant or stop valve
except by special permission of the proper authorities.
Only construction procedures that minimize fire hazards to the extent
practicable shall be used. There shall be no open burning or confined trash fires.
Combustible debris and waste materials shall be collected or removed from the Work Site
each workday. Fuels, solvents, and other volatile or flammable materials shall be stored
away from construction and storage areas in well-marked, safe containers. Good
housekeeping, essential to fire prevention, shall be practiced by Contractor throughout
the Work.
D. Accident Records; Insurance Adjusters. Contractor shall maintain
an accurate record of all accidents and other incidents resulting in death, injury, or
occupational disease to any Person or in damage to, or loss of, any property and shall
promptly report any such accident or incident to Owne r and shall provide Owner with
copies of all correspondence and pleadings related thereto, including insurance claims
and settlements. Contractor shall arrange for Contractor’s insurance adjuster to meet
with any Person affected by any such accident or other incident promptly and, in all
events, within 48 hours after Contractor’s receipt of notice from such Person, and a report
of the insurance adjuster’s findings shall be delivered to such Person within 10 days
thereafter, copies of which shall be provided to Owner and Engineer.
1.7 Cleanliness of the Work Site and Environs
Contractor shall keep the Work Site and adjacent areas clean at all times
during performance of the Work and shall remove and properly dispose of all waste and
surplus materials from the Work Site each workday in such a manner as may be
necessary to conform to Law. Contractor shall sweep and clean, and shall remove from
the Work Site all hoses, cables, extension cords and similar materials, as may be
necessary to leave the Work Site and adjacent areas in a clean and orderly condition at
the end of each workday. If Contractor fails to comply with its obligations under this
Section, Owner shall have the right to perform, or to have performed, such obligations
and to withhold or recover the cost thereof from Contractor.
GENERAL CONDITIONS
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1.8 Damage to the Work, the Work Site, and Other Property
The Work and everything pertaining thereto shall be provided, performed,
completed, and maintained at the sole risk and cost of Contractor from the
Commencement Date until Final Payment. Contractor shall be responsible and liable for
any damages, losses, and injuries resulting from its operations. Contractor shall be fully
responsible for the protection of all public and private property and all Persons. Without
limiting the foregoing, Contractor shall, at its own cost and expense, (1) provide temporary
heating, covering and enclosures, to the satisfaction of Engineer, as necessary to protect
the Work against damage by dampness and cold, to dry out the Work, and to facilitate
the completion of the Work; (2) provide all permanent and temporary shoring, anchoring
and bracing required by the nature of the Work, in order to make all parts absolutely stable
and rigid, even when such shoring, anchoring and bracing is not explicitly specified; and
(3) support and protect all buildings, bridges, roadways, conduits, wires, water pipes, gas
pipes, sewers, pavements, curbs, sidewalks, fixtures and landscaping of all kinds and all
other public or private property that may be encountered or endangered in providing,
performing and completing the Work.
Contractor shall have no claim against Owner because of any damage or
loss to the Work or to Contractor’s equipment, materials, or supplies from any cause
whatever, including damage or loss due to simultaneous work by others.
Contractor shall, promptly and without charge to Owner, repair or replace,
to the satisfaction of Owner, any damage done to, and any loss suffered by, the Work
and any damage done to, and any loss suffered by, the Work Site or other property as a
result of the Work.
No specific provision of this Contract to the effect that Contractor shall be
responsible and liable at its sole risk and cost for the Work or any part thereof or for
damage, loss, or injury caused by Contractor shall be construed to be an exclusive listin g
of the circumstances in which Contractor bears such responsibility and liability, but,
rather, all such provisions shall be construed to be exemplary only.
Notwithstanding any other provision of this Contract, Contractor’s
obligations under this Section shall exist without regard to, and shall not be construed to
be waived by, the availability or unavailability of any insurance, either of Owner or
Contractor, to indemnify, hold harmless, or reimburse Contractor for the cost of any repair
or replacement work required by this Section.
1.9 Subcontractors and Suppliers
A. Approval and Use of Subcontractors and Suppliers. Contractor shall
perform the Work with its own personnel and under the management, supervision, and
control of its own organization unless otherwise approved by Owner in writing, which
approval Owner may exercise and revoke in its sole discretion. All Subcontractors,
Suppliers, and Subcontracts used by Contractor shall be acceptable to, and approved in
GENERAL CONDITIONS
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advance by, Owner. All Persons engaged in the Work, whether or not as approved
Subcontractors, shall be deemed to be employees of Contractor for all purposes and
Contractor hereby assumes, in addition to any liability imposed by law upon Contractor
for its Subcontractors, full responsibility and liability for such Subcontractors as if they
were the employees of Contractor. Nothing in this Contract shall be construed to create
any contractual relationship between Owner and any Subcontractor or Supplier. A ll
relations with approved Subcontractors and Suppliers shall be the responsibility of
Contractor, and Owner shall not be responsible or obligated to deal directly with any
Subcontractor or Supplier.
Contractor is responsible for providing, performing, and completing all Work
that meets or exceeds specified requirements notwithstanding specific references in the
Contract Drawings or Specifications to duties and obligations of other contractors,
Subcontractors, Suppliers, manufacturers, trades, etc., all at no extra cost to Owner other
than the Contract Price. All such duties and obligations specifically imposed upon such
other contractors, Subcontractors, Suppliers, manufacturers, trades, etc., shall be
deemed to be imposed upon Contractor.
Owner’s approval of any Subcontractor, Supplier, or Subcontract shall not
relieve Contractor of full responsibility and liability for the provision, performance, and
completion of the Work in full compliance with, and as required by or pursuant to, this
Contract on or before the Completion Date or for the proper performance of all other
requirements of this Contract, or for Contractor’s liability on all representations and
warranties made in or pursuant to this Contract. Contractor shall remain as fully
responsible and liable for the acts, omissions, and performance of all Subcontractors and
Suppliers as Contractor is for its own acts, omissions, and performance.
If Owner refuses to approve any Subcontractor or Supplier, or, having once
approved a Subcontractor or Supplier, thereafter advises Contractor that such
Subcontractor or Supplier is no longer acceptable to Owner, then Contractor shall
undertake the Work itself or propose another Subcontractor or Supplier for Owner’s
approval. No adjustment of the Contract Price or Contract Time shall be made as a result
of Owner’s refusal to approve, or Owner’s revocation of any approval of, any
Subcontractor or Supplier.
This Section shall not be construed to prohibit Owner, if and when it
exercises any of its rights under Section 6.6 of these General Conditions of Contract, from
entering into an independent contractual relation with any Subcontractor or Supplier
employed by Contractor, and no such relation shall be construed as interfering with any
Subcontract or other relation Contractor may have with such Subcontractors and
Suppliers.
B. Subcontractor and Supplier Requirements. In addition to any and all
conditions and other requirements that may be imposed by Owner in its approval of any
Subcontractor or Supplier, all Work performed under any Subcontract shall be subject to
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the same provisions set forth in this Contract for the Work performed by Contractor.
Furthermore, every Subcontract shall include at least the following provisions:
1. Flow-down. A statement that this Contract has been reviewed
by the Subcontractor or Supplier; that Subcontractor or
Supplier agrees to be bound by the terms, provisions and
conditions of this Contract so far as they are applicable to the
Work under its Subcontract; that Subcontractor or Supplier
agrees to assume all obligations and responsibilities of
Contractor under this Contract; and that Subcontractor or
Supplier agrees to be bound by and governed by any change
or alteration in this Contract.
2. Discrimination. The provisions of the Public Works
Employment Discrimination Act, 775 ILCS 10/1 et seq., shall
be printed or otherwise inscribed on the face of the
Subcontract.
3. Laws. A statement substantially identical to Section 6.11 of
the Contract Agreement requiring Subcontractor or Supplier
to comply with all Laws.
4. Application of Payments. A statement that Subcontractor or
Supplier agrees that all funds received directly or indirectly
from Owner shall be applied to the payment or reimbursement
of the costs for which they were paid and not to any
preexisting or unrelated debt between Contractor and
Subcontractor or Supplier.
5. No Compensation for Delay. A statement substantially
identical to Subsection 2.3D of these General Conditions of
Contract to the effect that there shall be no payment,
compensation, damages, or adjustment of any kind, other
than an extension of time, because of hindrances or delays,
whether avoidable or unavoidable, from any cause in the
commencement, provision, performance, or completion of the
Work under the Subcontract.
6. Termination for Convenience of Contractor. A statement that
the Subcontract may be terminated for the convenience of
Contractor, if this Contract is terminated for any reason by
Owner or if Owner exercises its right to require termination of
the Subcontract; provided, however, that no such termination
shall defeat Owner’s rights under Paragraph 1.9B7 below.
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7. Conditional Assignment. A statement that Subcontractor or
Supplier agrees to the assignment of the Subcontract to
Owner, at Owner’s option exercised by written notice to
Subcontractor or Supplier and without further action, if this
Contract is terminated by Owner and that no such assignment
shall be construed as interfering with Subcontractor’s or
Supplier’s Subcontract with Contractor.
8. Dispute Resolution. A statement that in case of any dispute
or claim between Subcontractor or Supplier and Contractor
involving Owner, or between Contractor and Owner involving
Subcontractor or Supplier, Subcontractor or Supplier agrees
to be bound by the provisions in this Contract pertaining to the
resolution of disputes to the same extent that Contractor is
bound to Owner by the terms of this Contract; and that
Subcontractor or Supplier agrees to be bound by any and all
decisions or determinations made thereunder as authorized
in this Contract; and that Subcontractor or Supplier agrees to
join in, or consolidate any claim it may have with, any related
pending dispute resolution proceeding or to allow such joinder
or consolidation of other related claims with its claim; and that
Subcontractor or Supplier agrees that, pending the final
disposition of any dispute or claim under or in any way relating
to the Subcontract, Subcontractor or Supplier shall proceed
diligently with all Work to be performed by it under its
Subcontract.
9. Representations and Warranties. A statement of
representations and warranties substantially identical to
Article III of the Contract Agreement.
1.10 Simultaneous Work by Others
A. By Owner. Owner shall have the right to perform or have performed
such other work as Owner may desire in, about, or near the Work Site during the
performance of the Work by Contractor.
B. Coordination. Contractor shall make every reasonable effort to
perform the Work in such manner as to enable both the Work and such other work to be
completed without hindrance or interference from each other. Contractor shall keep itself
informed of the progress and the detail of such other work; shall afford Owner and other
contractors reasonable opportunity for the execution of such other work; shall properly
connect and coordinate the Work with such other work; and shall notify Engineer
immediately of lack of progress or defective workmanship in the provision, performance,
or completion of such other work in any case where such lack of progress or defective
workmanship will or may interfere with the Work or the operations of Contractor or its
GENERAL CONDITIONS
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Subcontractors. Whenever there is a conflict between the Work and such other work,
Engineer shall, upon request of Contractor or the Person performing such other work,
determine the manner in which such conflict shall be resolved or accommodated.
Contractor shall proceed at its own risk in the event Contractor fails to request such
determination from Engineer.
C. By Others. Contractor acknowledges that other contractors not
under the direction or control of Owner may be encountered in the performance of the
Work by Contractor. Contractor shall perform the Work in such a manner as to enable
both the Work and the work of such other contractors to be completed without hindrance
or interference from each other.
D. Changes. If other contractors, regardless of whether such
contractors are under the direction or control of Owner or are not under the direction or
control of Owner, change the conditions found at, or in the vicinity of, the Work Site, both
Contractor and Owner shall treat the new conditions as if they were previously existing
conditions. Owner shall not be entitled to any credits and Contractor shall not be entitled
to any equitable adjustment in the Contract Price as a result of such changes except a s
expressly provided, and only to the limited extent set forth, in Sections 2.1 through 2.3 of
these General Conditions of Contract.
E. Claims. If the Work or any of Contractor’s operations or property is
damaged by any other Person, Contractor shall make its claim directly against such
Person. If a dispute develops between Contractor and any such other Person concerning
the responsibility for any such damage, the dispute shall be resolved with such other
Person by whatever method may be available and appropriate, but such dispute shall not
be cause for delay in the restoration of the damaged Work, and Contractor shall restore
the Work immediately. Failure of Contractor to comply with this Subsection shall entitle
Owner to perform, or to have performed, all Work necessary for compliance with this
Subsection and to withhold or recover from Contractor the cost of such Work.
1.11 Occupancy Prior to Final Acceptance
Owner shall have the right, at its election, to occupy, use, or place in service any
part of the Work prior to Final Acceptance of the Work. Such occupancy, use, or
placement in service shall be conducted in such manner as not to damage any of the
Work or to unreasonably interfere with the progress of the Work. No such occupancy,
use, or placement in service shall be construed as an acceptance of any of the Work or
a release or satisfaction of Contractor’s duty to insure and protect the Work, nor shall it
be considered as an interference with Contractor’s provision, performance, or completion
of the Work.
1.12 Suspension or Termination of Work for Convenience
A. Suspension for Convenience. Owner shall have the right at any time,
by Change Order, for its convenience, to suspend, for such period of time as may be
GENERAL CONDITIONS
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determined by Owner to be necessary or desirable for the convenience of Owner, and
thereafter to require resumption of, the whole or any part of the Work, without invalidating
the provisions of this Contract. Contractor shall not be entitled to any equita ble
adjustment in the Contract Price as a result of any such suspension for convenience of
Owner.
B. Termination for Convenience. Owner shall have the right at any time,
by Change Order, for its convenience, to terminate the Work in whole or in part.
C. Owner’s and Contractor’s Obligations. Every Change Order issued
pursuant to Subsection 1.12A or Subsection 1.12B shall state the extent and effective
date of such termination or suspension. On such effective date, Contractor shall, as and
to the extent directed, stop Work under this Contract, cease all placement of further orders
or Subcontracts, terminate or suspend Work under existing orders and Subcontracts,
cancel any outstanding orders or Subcontracts that can be canceled, and take any action
necessary to protect any property in its possession in which Owner has or may acquire
any interest and to dispose of such property in such manner as may be directed by Owner.
D. Payments for Completed Work. In the event of any termination
pursuant to Subsection 1.12B above, Owner shall pay Contractor (1) such direct costs,
determined in accordance with generally accepted accounting practices in the
construction industry, consistently applied, and excluding overhead, as Contractor shall
have paid or incurred for all Work done in compliance with, or as required by or pursuant
to, this Contract up to the effective date of termination, together with ten percent of such
costs for overhead and profit; and (2) such other costs pertaining to the Work, exclusive
of overhead and profit, as Contractor may have reasonably and necessarily incurred as
the result of any such termination. The total payment to be made to Contractor by reason
of such termination shall not in any event exceed a percentage of this Contract equal to
the proportion that the Work completed prior to the effective date of termination bears to
the total Work required by this Contract. Any such payment shall be offset by any prior
payment or payments and shall be subject to Owner’s rights to withhold or deduct as
provided in this Contract.
1.13 Charge for Overtime Engineering
Owner shall have the right to charge Contractor for engineering and
inspection services in connection with any Overtime Work. [Such charge shall be equal
to the total cost incurred by Engineer for the number of Engineer’s personnel
reasonably required to be present during such Overtime Work.] OR [Such charge
shall be [$60.00] for each hour of Overtime Work multiplied by the number of
Engineer’s personnel reasonably required to be present during such Overtime
Work.] If the amount due Contractor is not suff icient to cover such charge, Contractor
shall reimburse Owner upon demand. For purposes of this provision, Overtime Work
shall mean any Work conducted beyond the [regular eight-hour workday, or at any
time on Saturdays, Sundays, or federal, state or local holidays] [working hours
specified in the Special Conditions of Contract].
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ARTICLE II
CHANGES AND DELAYS
2.1 Changes
A. Field Adjustments. No equitable adjustment shall be made in the
Contract Price, and no Change Order, other than a possible Balancing Change Order
pursuant to Paragraph 5.1C2 of these General Conditions of Contract, shall be issued,
for field adjustments in the Work ordered by Owner or resulting from, arising out of , or in
any way related to, conditions found at, or in the vicinity of, the Work Site, including
subsurface, underground or other concealed conditions or obstructions, buried structures,
utility locations or conditions, adverse soil conditions, changed site conditions due to work
by other contractors, and similar site conditions, that, in combination with all Change
Orders and all other field adjustments, increase the quantity of any Unit Price Item by 20
percent or less of the approximate quantity for that Unit Price Item set forth in the
Schedule of Prices, or increase the quantity of discrete units comprising any lump sum
component part of the Work by 20 percent or less of the quantity of discrete units
comprising that lump sum component part of the Work set forth in the Breakdown
Schedule, as the case may be. Contractor shall be solely responsible for dealing with
such field adjustments and Owner shall not be entitled to any credits and Contractor shall
not be entitled to any equitable adjustments in the Contract Price as a result of such field
adjustments. For Work to be paid on a Unit Price basis, any such increases in the quantity
of any Unit Price Item shall be paid for at the respective Unit Price for each such Unit
Price Item set forth in the Schedule of Prices. For lump sum Unit Prices, the percentage
of increase, and the amount to be paid for such field adjustments, shall be determined on
the basis of the number of discrete units comprising such lump sum Unit Price Item set
forth in the Breakdown Schedule for that lump sum Unit Price Item. For Work to be paid
on a lump sum basis, no amounts shall be paid for such increases in any lump sum
component part of the Work other than the lump sum amount included in the Breakdown
Schedule for that lump sum component part of the Work.
B. Change Orders. Owner shall have the right to issue Change Orders
to Contractor without the consent of Contractor and without notice to any surety of
Contractor. Owner shall also issue Change Orders making an equitable adjustment in
the Contract Price for any field adjustment as set forth in Subsection 2.1A above that, in
combination with all Change Orders and all other field adjustments pursuant to
Subsection 2.1A above, increase the quantity of any Unit Price Item by more than 20
percent of the approximate quantity for that Unit Price Item set forth in the Schedule of
Prices, or increase the quantity of discrete units comprising any lump sum component
part of the Work by more than 20 percent of the quantity of discrete units comprising that
lump sum component part of the Work set forth in the Breakdown Schedule, as the case
may be, but only for that portion of Work that exceeds 120 percent of said quantity or
discrete units comprising a lump sum component part of the Work. For lump sum Unit
Prices, the percentage of increase shall be determined on the basis of the number of
discrete units comprising such lump sum Unit Price Item set forth in the Breakdown
Schedule for that lump sum Unit Price Item.
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Contractor shall promptly comply with every Change Order, notwithstanding
any disputes or objections concerning such Change Order. No Change Order shall be
construed to invalidate this Contract not to entitle Contractor to additional compensation
except and only to the extent provided in Sections 2.2 and 2.3 below.
No Balancing Change Order issued pursuant to Paragraph 5.1C2 of these
General Conditions of Contract shall constitute, be deemed to be, or operate as, an
equitable adjustment in the Contract Price.
C. Classification. For purposes of Subsections 2.1A and 2.1B above,
in determining whether an equitable adjustment in the Contract Price shall be made based
upon any field adjustment, any increase in any component part of the Work included or
subsumed within a Unit Price Item as defined in the Contract Drawings and
Specifications, or included or subsumed within a discrete unit comprising a lump sum
component part of the Work set forth in the Breakdown Schedule, as the case may be,
shall be classified under such Unit Price Item or discrete unit, and the fact that Contractor
uses a different method of providing, performing, and completing such field adjustment
than originally contemplated shall not be a basis for not classifying such Work under one
or more of the Unit Price Items set forth in the Schedule of Prices, or under one or more
of such discrete units set forth in the Breakdown Schedule, as the case may be.
2.2 Equitable Adjustments
Subject to the limitations set forth in this Article II, if any Change Order
causes an increase or decrease in the amount of the Work or if a Change Order is
required to be issued for certain field adjustments as set forth in Subsection 2.1B above,
an equitable adjustment in the Contract Price or Contract Time may, upon the request of
either Owner or Contractor, be made pursuant to Section 2.3 or Section 2.4 of these
General Conditions of Contract.
Any Change Order issued that does not include an equitable adjustment in
the Contract Price or Contract Time shall be construed to be a determination by Owner
that Contractor is not entitled to any equitable adjustment by reason of such Change
Order. All claims by Contractor for an equitable adjustment in either the Contract Price
or the Contract Time based on a Change Order shall be made, whenever feasible, before
Contractor proceeds with any Work pursuant to such Change Order and shall, in all
events, be made no later than two business days after receipt of such Change Order. All
such claims shall, if not made prior to such time, be conclusively deemed to have been
waived. Any claims by Contractor for an equitable adjustment in the Contract Price or
Contract Time that have not been included, or fully included, in a Change Order shall not
relieve Contractor of its responsibility to proceed without delay to perform the Work in
compliance with the Change Order.
No equitable adjustment shall be made in the Contract Price or Contract
Time on the basis that the Work is, or has become, more difficult than Contractor’s Price
Proposal would reflect or because of any risk or change in the Work that Contractor is
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responsible for dealing with under this Contract without any equitable adjustment in the
Contract Price or Contract Time as set forth in Subsection 2.1A above and in Subsection
2.4A below.
2.3 Contract Price Adjustments
A. Increased Work. If any Change Order causes an increase in the
amount of the Work or if a Change Order is required to be issued for certain field
adjustments as set forth in Subsection 2.1B above (“Increased Work”), then Engineer
shall determine, and include in such Change Order, subject to the limitations of Sections
2.1 and 2.2 above, the amount of the equitable adjustment in Contract Price, if any, to be
allowed. Such determination shall be made as follows:
1. Unit Prices. If the Schedule of Prices provides Unit Prices and
if the Increased Work or any part thereof that can be classified
under one or more of the Unit Price Items set forth in the
Schedule of Prices, then such Increased Work or part thereof
classified under such Unit Price Item shall be paid for at the
Unit Price listed in the Schedule of Prices for such Unit Price
Item unless, for good cause shown, Contractor and Owner
agree upon either a greater or lesser Unit Price for such
Increased Work or part thereof or unle ss Owner, in its sole
discretion, elects not to pay for the Increased Work or part
thereof on the basis of Unit Prices, in which event, such
Increased Work shall be paid for as set forth in either
Paragraph 2.3A2 or Paragraph 2.3A3 below.
2. Agreed Prices. If the Schedule of Prices does not provide Unit
Prices or if the Increased Work or any part thereof cannot be
classified under one or more of the Unit Price Items set forth
in the Schedule of Prices or if Owner elects, pursuant to
Paragraph 2.3A1 above, not to pay for the Increased Work or
part thereof on the basis of Unit Prices, then such Increased
Work or part thereof shall be paid for on the basis of such lump
sum price or such time and material prices as Owner and
Contractor may agree prior to the commencement of such
Increased Work unless Owner elects, in its sole discretion, to
pay for such Increased Work or part thereof as set forth in
Paragraph 2.3A3 below.
3. Reasonable Cost Plus. Any Increased Work or part thereof
not paid for pursuant to Paragraphs 2.3A1 or 2.3A2 above
shall, to the extent entitled to be paid for pursuant to this
Contract, be paid for at the reasonable cost of such Increased
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Work or part thereof, as determined by Engineer, in the
manner provided in this Paragraph.
Except as hereinafter limited, the reasonable cost of
Increased Work shall include the reasonable cost, as
determined by Engineer, to Contractor of all personnel
employed and all equipment, materials, and supplies used, on
the Increased Work for the period of such employment or use.
The reasonable cost of Increased Work shall include amounts
paid, if any, for Social Security, insurance such as workers’
compensation, other direct assessments upon Contractor’s
payroll by authorized public agencies, and other approved
assessments such as union benefits not normally included in
payments made directly to employees but customarily
recognized as part of the payroll cost of doing the Work.
The reasonable cost of Increased Work shall not include
insurance not directly related to payroll expenses such as
liability insurance or property damage insurance.
The reasonable cost of Increased Work shall not include the
cost of any purchase or rental of any buildings or small tools.
The reasonable cost of Increased Work shall not include the
cost of any personnel above the level of foreman or the cost
of Contractor’s office and engineering staff.
The reasonable cost of all equipment used on the Increased
Work shall be based upon the monthly rental rates set forth in
the most recent edition of “RENTAL RATE BLUEBOOK FOR
CONSTRUCTION EQUIPMENT” published by
Nielson/DATAQUEST or a similar publication approved by
Engineer (the “Approved Rate”). The reasonable hourly cost
of equipment shall be calculated by multiplying the Approved
Rate (without consideration of overtime charges or charges
for fuel and oil) by 12 and dividing the product by 2,080. If the
Increased Work requires the use of equipment not already on
the Work Site, or not already required to be provided at the
Work Site under the terms of this Contract, the cost of
transportation, not exceeding a distance of 100 miles, of such
equipment to and from the Work Site shall be considered part
of the reasonable cost of the Increased Work.
Contractor may add a maximum of fifteen percent of the
reasonable costs set forth above to cover the costs of use of
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capital, overhead, and profit, including premiums on any
Bonds or insurance on account of the Increased Work (except
as hereinbefore permitted for direct reimbursement), and
profit and overhead of any and all Subcontractors and
Suppliers performing all or any part of the Increased Work.
Contractor shall keep a daily record of all Increased Work
provided, performed, or completed by Contractor or any
Subcontractor or Supplier. The daily record shall include the
nature of the Increased Work performed, the names of all
personnel employed and the hours worked by each, the
equipment, materials and supplies used, including, where
appropriate, the quantities used and the hours of use. To
constitute verification that Increased Work was provided,
performed, or completed, the daily record for each Day must
be signed by both Contractor and Engineer not later than the
end of the following business day. Contractor’s failure to so
keep and so verify such a daily record shall constitute a waiver
of any claim for compensation for Increased Work.
In the event of any dispute as to the reasonableness of the
method or manner of performing any Increased Work, or the
cost thereof, including, but not limited to, personnel or
equipment requirements to perform the Increased Work,
Contractor shall provide all supporting documentation,
including cancelled checks, payroll documentation, and any
relevant union requirements or regulations. In the absence of
such supporting documentation, Engineer’s determination of
the reasonableness of the chosen method or manner of
performing the Increased Work, of the cost thereof, and, if
unreasonable, of the reasonable cost of providing,
performing, and completing the Increased Work if a
reasonable method or manner or cost had been chosen, shall
be conclusive and binding on Contractor.
4. For purposes of Paragraphs 2.3A1 and 2.3A2, in determining
whether the Increased Work or any part thereof can be
classified under one or more of the Unit Price Items set forth
in the Schedule of Prices, any increase in any component part
of the Work included or subsumed within a Unit Price Item as
defined in the Contract Drawings and Specifications shall be
classified under such Unit Price Item and the fact that
Contractor uses a different method of providing, performing,
and completing Increased Work than Contractor originally
contemplated shall not be a basis for not classifying Increased
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Work under one or more of the Unit Price Items set forth in the
Schedule of Prices.
5. Except as set forth above, no claim for compensation in
excess of the Contract Price shall be made or allowed on
account of Increased Work.
B. Decreased Work. If any Change Order causes a decrease in the
amount of the Work (“Decreased Work”), then Engineer shall determine, and include in
such Change Order, (1) the amount of the equitable adjustment in the Contract Price to
be credited to Owner based on the va lue of the Decreased Work determined in
accordance with Subsection 5.1C of these General Conditions of Contract and (2) the
allowance, if any, due Contractor for any actual loss incurred in connection with the
purchase, delivery, and subsequent disposal of equipment, materials, or supplies that
would have been used on the Work but for the Change Order and that could not be
returned to their source for credit or used in any part of the Work as actually provided,
performed and completed. In no event shall any Decreased Work entitle Contractor to
make a claim for damages, anticipated profits, or any other compensation except the
aforesaid allowance for actual loss incurred for such unused and unreturned equipment,
materials, or supplies. Ownership of any such unused equipment, materials, or supplies
paid for by Owner shall, at Owner’s option, be conveyed to Owner.
C. Netting of Price Adjustments. When both Increased Work and
Decreased Work result from a single Change Order, the allowance for overhead and profit
pursuant to the reasonable cost method of Paragraph 2.3A3 above, if utilized, shall be
figured on the basis of the net increase, if any, in the Work.
D. No Compensation for Delays. Contractor shall not claim or be
entitled to any payment, compensation, damages, or adjustment of any kind, other than
a possible extension of the Contract Time, if applicable, as provided for in
Subsection 2.4C below, because of hindrances or delays, whether avoidable or
unavoidable, from any cause in the commencement, provision, performance, or
completion of the Work, including but not limited to:
1. Any act, error, omission or interference of Owner, Engineer,
or any other Person, including, without limitation, late,
changed, or erroneous Bidding Documents or Contract
Documents; changes in sequence, suspensions,
accelerations, or de-accelerations of the Work; lack of access,
rights-of-way, or easements for the Work; lack of approvals,
decisions, or payments; issuance of Change Orders; or
occupancy, use, or placement into service of the Work prior
to Final Acceptance;
2. Differing or unanticipated conditions at, or in the vicinity of, the
Work Site;
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3. The simultaneous presence and operations of other
contractors;
4. Strikes, lockouts, or labor or material shortages;
5. Fires or other casualties;
6. Delays in transportation; and
7. Acts of God or natural phenomena, whether or not such
phenomena are unusual or unusually severe considering the
time of year and the particular locality involved.
Contractor expressly agrees that it will accept in full satisfaction for all such delays and
hindrances a possible extension of the Contract Time, if applicable, as provided in
Subsection 2.4C below and that it will make no claim for, nor be entitled to, e quitable
adjustment of the Contract Price; or any compensatory, acceleration, or disruption
damages; or any other damages or costs of any kind or nature for any such delays or
hindrances, including, but not limited to, damages or costs resulting from, aris ing out of,
or in any way related to increases in time-related costs; increases in costs of labor,
equipment, materials, or supplies; costs of additional personnel; costs of additional
equipment; costs of additional premium time for personnel or equipment; increase in costs
for Bond or insurance premiums; lower labor productivity; lost profits or alternative
income; effects on other contracts; and costs of demobilization and remobilization.
2.4 Extensions of Contract Time
A. Anticipated Delays. Difficulties or obstructions that may arise out of,
or be encountered as a result of, adverse weather conditions, equipment breakdowns,
subsurface, underground or other concealed conditions or obstructions, buried structures,
utility locations or conditions, adverse soil conditions, and changed site conditions due to
work by other contractors are inherent in the nature of the Work of this Contract.
Allowances and contingencies for dealing with such difficulties or obstructions are t o be
allowed for in Contractor’s schedule and shall not be treated as unavoidable delays
pursuant to Subsection 2.4C below. Changes in the sequence in which the Work is
provided, performed, and completed resulting from delays or hindrances that affect only
part of the Work but not the provision, performance, or completion of other parts of the
Work, nor completion of the whole of the Work, are also inherent in the nature of the Work
of this Contract. Allowances and contingencies for such changes are to be allowed for in
Contractor’s schedule and shall not be treated as unavoidable delays pursuant to
Subsection 2.4C below.
B. Extensions for Increased Work. Subject to Subsection 2.4A above,
when a Change Order causes an increase in the time required to complete the Work, an
extension of the Contract Time shall be granted as part of such Change Order for a period
of time equal to the additional time required to complete the Work.
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C. Extensions for Unavoidable Delays. Subject to Subsection 2.4A
above, for any delay or hindrance in completing the Work that may result from causes
that could not be avoided or controlled by Contractor, as determined by Owner,
Contractor shall upon timely written application, immediately upon the occurrence of any
event giving rise to such unavoidable delay and, in any event, no later than two business
days thereafter, be entitled to issuance of a Change Order providing for an extension of
the Contract Time for a period of time equal to the delay resulting from such unavoidable
cause.
D. Extensions for Suspensions. If Owner orders Contractor to suspend
the whole of the Work or to suspend a part of the Work that increases the time required
to complete the Work, Owner shall, unless such suspension was due to Contractor’s
failure to perform in accordance with the requirements of this Contract, extend the
Contract Time for a period of time equal to the delay caused b y such suspension.
2.5 Constructive Change Orders
Sections 2.2 through 2.4 set forth the sole means by which an equitable
adjustment in the Contract Price or Contract Time shall be allowed. No claims for
equitable adjustments in the Contract Price or Contract Time shall be made or allowed
unless embodied in a Change Order initiated by Owner pursuant to Section 2.1 or
requested by Contractor, and approved by Owner, pursuant to this Section 2.5. If Owner
fails to issue a Change Order including, or fully including, an equitable adjustment in the
Contract Price or Contract Time to which Contractor claims it is entitled under Sections
2.2 through 2.4, Contractor may assert a claim that it is entitled to a constructive change
order for, but only for, the equitable adjustment due under said Sections pursuant to the
procedures of this Section 2.5. If Contractor believes that any requirement, direction,
instruction, interpretation, determination, or decision of Owner or Engineer entitles
Contractor to an equitable adjustment in the Contract Price or Contract Time under
Sections 2.2 through 2.4 that has not been included, or fully included, in a Change Order,
then Contractor shall submit to Engineer, with a copy to Owner, a written request for the
issuance of, or revision of, a Change Order, including the equitable adjustment, or the
additional equitable adjustment, in the Contract Price or Contract Time that Contractor
claims has not been included, or fully included, in a Change Order. Such request shall,
whenever feasible, be submitted before Contractor proceeds with any Work for which
Contractor claims an equitable adjustment is due and shall, in all events, be submitted no
later than two business days after receipt of notice of such requirement, direction,
instruction, interpretation, determination, or decision. Upon receipt by Engineer of any
such request, the parties shall proceed as provided in Article VI of these General
Conditions of Contract pertaining to disputes and remedies. Notwithstanding the
submission of any such request, Contractor shall proceed wi thout delay to perform the
Work as required, directed, instructed, interpreted, or decided by Owner or Engineer and
shall, pending a final resolution of the issue, keep a daily record of such Work in the
manner provided in Paragraph 2.3A3 above. Unless Contractor submits such a request
within two business days after receipt of notice of such requirement, direction, instruction,
interpretation, determination, or decision, Contractor shall be conclusively deemed (1) to
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have agreed that such requirement, direction, instruction, interpretation, determination, or
decision does not entitle Contractor to an equitable adjustment in the Contract Price or
Contract Time and (2) to have waived all claims based on such requirement, direction,
instruction, interpretation, determination, or decision.
2.6 No Waiver and Release
Except to the extent embodied in a Change Order, neither the provisions of
this Article II nor any communication between or among Owner, Engineer, and Contractor
shall operate to relieve Contractor of its duty to perform the Work in full compliance with,
and as required by or pursuant to, this Contract, within the Contract Time, and for the
Contract Price, or to release or discharge Contractor from any duty arising under this
Contract.
2.7 No Other Compensation
No payments, compensation, damages, reimbursements, or monetary
consideration of any kind shall be paid or owing to Contractor in connection with, or arising
out of, this Contract other than, and subject to deduction as provided for in this Contract,
the lump sum amount or amounts stated in the Schedule of Prices, for Work to be paid
on a lump basis, the Unit Price stated in the Schedule of Prices for each acceptable unit
of each Unit Price Item installed and complete in place, measured on the basis defined in
the Contract Drawings and Specifications or, in the absence of such definition, on the
basis determined by Engineer, for Work to be paid on a Unit Price basis, the equitable
adjustment in the Contract Price included in any Change Order, and any bonuses
provided for, and only to the extent provided in, the Special Conditions of Contract.
Contractor shall not claim or be entitled to any other payment, compensation, damage,
reimbursement, or monetary consideration of any kind for the provision, performance, or
completion of the Work.
2.8 Specific References Exemplary
No specific provision of this Contract to the effect that there shall be no
change or adjustment in the Contract Price or Contract Time shall be construed to be an
exclusive listing of the circumstances in which there shall be no adjustment in Contract
Price or Contract Time, but, rather, all such provisions shall be construed to be exemplary
only.
ARTICLE III
CONTRACTOR’S RESPONSIBILITY FOR DEFECTIVE WORK
3.1 Inspection; Testing; Correction of Defects
A. Inspection. Until Final Payment, all parts of the Work shall be subject
to inspection and testing by Owner, by Engineer, by any public authority having
jurisdiction, and by any other Person designated by Owner. Contractor shall furnish, at
its own expense, all reasonable access, assistance, and safe and proper facilities
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required by such Persons for such inspection and testing, both at the Work Site and at
any Subcontractor’s or Supplier’s plant or other source of supply, with full permission to
take samples of any materials or supplies that may or might be used in the Wor k, at
Contractor’s own expense. Contractor shall notify Owner and Engineer of the readiness
of any part of the Work for any inspection or test that may be required by or pursuant to
this Contract or applicable Laws. Owner and Engineer shall perform all of their
inspections and tests so as not to delay the Work unduly, but Contractor shall schedule
the Work in light of the need for time to perform such inspections and tests. No part of
the Work as to which any specific inspection or test is required shall be covered or closed
until such inspection or test has been completed. If such Work is covered or closed, then
it shall be uncovered or opened and, after the inspection or test, recovered or reclosed,
by Contractor, all at Contractor’s expense.
B. Additional Inspections. If any Work for which an inspection or test is
not required by this Contract has been covered or closed so as to prevent inspection or
testing, Owner shall nevertheless have the right to order such Work to be inspected or
tested and, if so ordered, such Work shall be uncovered or opened by Contractor. If the
Work thus uncovered or opened is found to be free from defects, damage, and flaws and
to be suitable for its intended purpose and to be otherwise in conformity with this Con tract,
then Owner shall pay the cost of uncovering, opening, re-inspecting, re-testing, covering,
or closing, as the case may be. If the Work uncovered or opened is not free from defects,
damage, and flaws or is not suitable for its intended purpose or is otherwise not in
conformity with this Contract, then Contractor shall pay all such costs.
C. Re-Inspections. Re-inspection and re-testing of any Work may be
ordered by Owner at any time, and, if so ordered, any covered or closed Work shall be
uncovered or opened by Contractor. If the Work thus uncovered or opened is found to
be free from defects, damage, and flaws and to be suitable for its intended purpose and
to be otherwise in conformity with this Contract, then Owner shall pay the cost of
uncovering, opening, re-inspecting, re-testing, covering, or closing, as the case may be.
If the Work uncovered or opened is not free from defects, damage, and flaws or is not
suitable for its intended purpose or is otherwise not in conformity with this Contract, then
Contractor shall pay all such costs.
D. Correction. Until Final Payment, Contractor shall, promptly and
without charge, repair, correct, or replace all or any part of the Work that is defective,
damaged, flawed, or unsuitable or that in any way fails to conform strictly to the
requirements of this Contract and shall pay to Owner all resulting costs, expenses, losses,
or damages suffered by Owner as a result of any such defect, damage, flaw, unsuitability
or nonconformity.
E. No Waiver. No inspection or test, failure to inspect or test, or waiver
of inspection or testing by Owner or Engineer shall relieve Contractor of its duty to
complete the Work in full compliance with, and as required by or pursuant to, this
Contract. Failure or neglect on the part of Engineer to condemn Work that is defective,
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damaged, flawed, unsuitable, or nonconforming shall not be construed as acceptance of
such Work nor as a waiver of compliance with the requirements of this Contract.
3.2 Warranty of Work
A. Scope of Warranty. Contractor warrants that the Work and all of its
components shall be free from defects and flaws in design, workmanship, and materials;
shall strictly conform to the requirements of this Contract; and shall be fit, sufficient, and
suitable for the purposes expressed in, or reasonably inferred from, this Contract.
Contractor further warrants that the strength of all parts of all equipment, materials, and
supplies incorporated into the Work shall be adequate and as specified and suffic ient to
meet the performance requirements of this Contract. The warranty herein expressed
shall not be the sole and exclusive warranty but, rather, shall be in addition to any other
warranties expressed in this Contract, or expressed or implied by Law, which are hereby
reserved unto Owner.
B. Repairs; Extension of Warranty. Contractor shall, promptly and
without charge, correct any failure to fulfill the above warranty that may be discovered or
develop at any time within two years after Final Payment or such longer period as may
be prescribed in the Contract Drawings and Specifications, in the Special Conditions of
Contract, or by Law. The above warranty shall be extended automatically to cover all
repaired and replacement parts and labor provided or performed under such warranty
and Contractor’s obligation to correct Work shall be extended for a period of two years
from the date of such repair or replacement. Nothing contained in this Subsection 3.2B
shall be construed to establish a period of limitation with respect to other obligations that
Contractor has under this Contract. The time period established in this Subsection 3.2B
relates only to the specific obligation of Contractor to correct Work and has no relationship
to the time within which the obligations to comply with this Contract may be sought to be
enforced, nor to the time within which proceedings may be commenced to establish
Contractor’s liability with respect to Contractor’s obligations other than specifically to
correct the Work.
3.3 Contractor Duty to Correct Without Delay
In the event of any claim by Owner pursuant to Section 3.1 or Section 3.2
above that the Work is defective, damaged, flawed, unsuitable, nonconforming, or that
the Work fails to fulfill the above warranty, Contractor shall be given a reasonable
opportunity to confirm the validity of such claim, but Contractor shall not, unless
authorized in writing by Owner, delay correction of the claimed defect, damage, flaw,
unsuitability, nonconformity, or failure while making such determination. In the event any
such claim is shown to be invalid following such correction by Contractor, Owner shall
pay the cost of such correction.
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3.4 Owner’s Right to Correct
If, within two business days after Owner gives Contractor notice of any
defect, damage, flaw, unsuitability, nonconformity, or failure to meet warranty subject to
correction by Contractor pursuant to Section 3.1 or Section 3.2 above, Contractor fails,
refuses, or neglects to make, or to undertake with due diligence to make, the necessary
corrections, then Owner shall be entitled to make, either with its own forces or with
contract forces, the corrections and to recover from Contractor all resulting costs,
expenses, losses, or damages, including attorneys’ fees and administrative expenses.
If in the judgment of Owner, the delay required to give Contractor the
aforesaid two business days-notice would cause serious damage or loss that could be
avoided by immediate action, Owner shall have the right, without giving prior notice to
Contractor, to perform, or to have performed, all work necessary to make the corrections
and to recover from Contractor the cost of such corrections. In such event, Contractor
shall be notified as promptly as possible and shall assist, whenever possible, in making
the necessary corrections.
3.5 Subcontractor and Supplier Warranties
Whenever the Special Conditions of Contract or the Specifications require
a Subcontractor or Supplier to provide a guaranty or warranty, Contractor shall be solely
responsible for obtaining said guaranty or warranty in form satisfactory to Owner and
assigning said warranty or guaranty to Owner. Acceptance of any assigned warranties
or guaranties by Owner shall be a precondition to Final Payment and shall not relieve
Contractor of any of its guaranty or warranty obligations under this Contract.
Whenever the Special Conditions of Contract or the Specifications require
a Subcontractor or Supplier to provide a guaranty or warranty, Contractor shall be solely
responsible to obtain from the guarantying or warranting Person a written certification, in
form satisfactory to Owner, that (1) all things required for the successful operation of the
warranted item in accordance with the Specifications have been designed, manufactured
and installed in accordance with all requirements of the guarantying or warra nting Person;
(2) all requirements and conditions necessary to validate the guaranty or warranty,
whether specified in this Contract or not, have been complied with; and (3) all procedures
necessary to maintain the guaranty or warranty in full force and ef fect during the
applicable guaranty or warranty period, including but not limited to maintenance
obligations and storage conditions, have been provided to Owner in writing and written
acknowledgments of all such disclosed procedures have been provided by O wner to the
warranting or guarantying Person. Acceptance of any such certification by Owner shall
be a precondition to Final Payment and shall not relieve Contractor of any of its obligations
under this Contract to provide additional or other certifications.
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ARTICLE IV
INSURANCE
4.1 Required Coverages
Contractor shall, prior to and at all times while providing, performing, or
completing the Work, including, without limitation, at all times while repairing, correcting,
or replacing all or any part of the Work that is defective, damaged, flawed, unsuitabl e,
nonconforming, or that fails to meet warranty subject to correction by Contractor pursuant
to Section 3.1 or Section 3.2 of these General Conditions of Contract, procure, maintain,
and keep in force, at Contractor’s expense, all insurance necessary to p rotect and save
harmless Owner, the Work, the Work Site, and all property located at or about the Work
Site, including but not limited to the insurance coverages specified in Section 4.3 below
and in Section 4 of the Special Conditions of Contract (“Required Coverages”).
4.2 Insurance Companies
All Required Coverages shall be provided by insurance companies rated A
minus or better in Best’s Insurance Guide and otherwise acceptable to, and approved by,
Owner. Required Coverages may be in any combination of primary, excess, and umbrella
policies. Any excess or umbrella policy must provide excess coverage over underlying
insurance on a following-form basis such that when any loss covered by the primary policy
exceeds the limits under the primary policy, the excess or umbrella policy becomes
effective to cover such loss. No policy may have a deductible or self-insured retention of
more than one percent of the policy limit. Contractor shall furnish to Owner two copies of
a certificate of insurance for each Required Coverage. Each such certificate a nd policy
shall be in a form satisfactory to Owner and shall provide that no change, modification in,
or cancellation of the insurance represented by it shall become effective until the
expiration of 30 Days after written notice thereof shall have been given by the insurance
company to Owner and any Additional Insured.
4.3 Insurance Minimum Coverages
Certificates of Insurance shall be presented to the Village within fifteen (15)
days after the receipt by the contractor of the Notice of Award and the unexecuted contract,
it being understood and agreed that the Village will not approve and execute the contract,
nor will the bid guarantee be returned until acceptable insurance certificates are received
and approved by the Village.
Each contractor performing any work pursuant to a contract with the Village of
Oak Brook and each permittee working under a permit as required pursuant to the provisions
of Article III of Chapter 12 of the Code of Ordinances of the Village of Oak Brook (hereinafter
referred to as "Insured") shall be required to carry such insurance as specified herein. Such
contractor and permittee shall procure and maintain for the duration of the contract or permit
insurance against claims for injuries to persons or damages to property, which may arise
from or in connection with the performance of the work under the contract or permit, by either
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the contractor, permittee, or their agents, representatives, employees or subcontractors.
A contractor or permittee shall maintain insurance with limits no less than:
A. General Liability - $2,000,000 combined single limit per occurrence for bodily
injury, personal injury and property damage, provided that when the estimated
cost of the work in question does not exceed $5,000, the required limit shall be
$500,000;
B. Automobile Liability (if applicable) - $1,000,000 combined single limit per
accident for bodily injury and property damage;
C. Worker's Compensation and Employer's Liability - Worker's Compensation limits
as required by the Labor Code of the State of Illinois and Employer's Liability
limits of $1,000,000 per accident.
Any deductibles or self-insured retention must be declared to and approved by
the Village. At the option of the Village, either the insurer shall reduce or eliminate such
deductible or self-insured retention as respects the Village, its officers, officials, employees,
volunteers and agents; or the Insured shall procure a bond guaranteeing payment of losses
and related investigations, claim administration and defense expenses to the extent of such
deductible or self-insured retention.
The policies shall contain, or be endorsed to contain, the following provisions:
D. General Liability and Automobile Liability Coverage -
(1) The Village, its officers, officials, employees and volunteers are to be
covered as additional insureds as respects: liability arising out of activities
performed by or on behalf of the Insured; premises owned, occupied or
used by the Insured. The coverage shall contain no special limitations on
the scope of protection afforded to the Village, its officers, officials,
employees, volunteers and agents.
(2) The Insured's insurance coverage shall be primary insurance as respects
the Village, its officers, officials, employees and volunteers. Any insurance
or self-insurance maintained by the Village, its officers, officials,
employees or volunteers shall be in excess of the Insured's insurance and
shall not contribute with it.
(3) Any failure to comply with reporting provisions of the policies shall not
affect coverage provided to the Village, its officers, officials, employees or
volunteers.
(4) The Insured's insurance shall apply separately to each covered party
against whom claim is made or suit is brought except with respect to the
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limits of the insurer's liability.
E. Worker's Compensation and Employer's Liability Coverage
The policy shall waive all rights of subrogation against the Village, its
officers, officials, employees, and volunteers for losses arising from work
performed by the insured for the Village.
Each insurance policy shall be endorsed to state that coverage shall not be
suspended, voided, canceled by either party, reduced in coverage or in limits except after
thirty (30) days prior written notice by certified mail has been given to the Village. Each
insurance policy shall name the Village, its officers, officials, employees, volunteers and
agents as additional Insureds. Insurance is to be placed with insurers with a Best's rating
of no less than A: VII.
Each Insured shall furnish the Village with certificates of insurance and with
original endorsements effecting coverage required by this provision. The certificate and
endorsements for each insurance policy are to be signed by a person authorized by that
insurer to bind coverage on its behalf. The certificates and endorsements are to be on forms
approved by the Village and shall be subject to approval by the Village Attorney before work
commences. The Village reserves the right to require complete, certified copies of all
required insurance policies, at any time.
Each insured shall include all subcontractors as insureds under its policies or
shall furnish separate certificates and endorsements for each subcontractor. All coverages
for subcontractors shall be subject to all of the requirements stated herein.
4.4 Additional Coverages
The insurance coverages and limits required by Section 4.3 above shall be
deemed to be minimum coverages and limits and shall not be construed in any way as a
limitation on Contractor’s duty to carry adequate insurance as required by Section 4.1
above or on Contractor’s liability for losses and damages under this Contract. Contractor
shall at all times carry such additional coverages and limits as may be necessary to fully
comply with this Contract.
4.5 Subcontractor Insurance
Unless otherwise provided in the Special Conditions of Contract or unless
otherwise approved by Owner in a Change Order, Contractor shall not allow any
Subcontractor to commence or continue any part of the Work until and unless such
Subcontractor provides and has in force Commercial General Liability insurance
coverage equal to $2,000,000 or the amount of its Subcontract, whichever is greater, and
Workers’ Compensation and Employer’s Liability and Commercial Motor Vehicle Liability
insurance coverages equal to those required of Contractor by this Article.
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ARTICLE V
PAYMENT
5.1 Progress Payments
A. General. Owner shall pay to Contractor in monthly installments,
subject to any additions, deductions, or withholdings provided for in this Contract,
90 percent of the Value of the Work, determined in the manner set forth in
Subsection 5.1C below, installed and complete up to the Day before the Pay Request ,
less the aggregate of all previous Progress Payments. The total amount of Progress
Payments made prior to Final Acceptance by Owner shall not exceed 90 percent of the
Contract Price.
B. Pay Requests. Contractor shall, as a condition precedent to its right
to receive each Progress Payment, submit to Engineer four (unless otherwise provided
in the Specifications) originally executed copies of a request for payment in the form
provided by Owner and accompanied by such supporting data and documentation as may
be required by this Contract or by Owner or Engineer (“Pay Request”). The first Pay
Request shall be submitted not sooner than 30 Days following the Commencement of the
Work. Owner may, by written notice to Contractor, designate a specific Day of each
month on or before which Pay Requests must be submitted.
Pay Requests shall include the following minimum data and documentation,
all of which shall be on forms supplied by, or otherwise acceptable to, Owner:
(i) Contractor’s certification of the Value of the Work for which payment
is then requested. If such certification is accepted by Engineer, it
shall constitute the Value of the Work for the purpose of determining
the amount of the current Progress Payment. If such certification is
not accepted by Engineer, and if Engineer and Contractor are unable
to agree as to the Value of the Work in question, such value shall,
for the purpose of determining the amount of the current Progress
Payment, be determined by Engineer in accordance with
Subsection 5.1C below.
(ii) Contractor’s certification that all prior Progress Payments have been
properly applied to the payment or reimbursement of the costs with
respect to which they were paid.
(iii) Contractor’s Sworn Statement.
(iv) Contractor’s partial or final waiver of lien.
(v) Subcontractors’ and Suppliers’ Sworn Statements.
(vi) Subcontractors’ and Suppliers’ partial or final waivers of lien.
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(vii) Such other receipts, releases, affidavits, certificates, and other
evidence as may be necessary to establish, to Owner’s satisfaction,
Contractor’s, and its Subcontractors’ and Suppliers’, entitlement to
the Progress Payment being requested, prior pa yment for all labor,
equipment, materials, supplies, and other things covered by the Pay
Request; and the absence of any interest, whether in the nature of a
Lien or otherwise, of any Person in the Work, the Work Site, or any
other property belonging to, or being held by, Owner.
C. Value of Work. The Value of the Work shall be determined as
follows:
1. Lump Sum Items. For all Work to be paid on a lump sum
basis, Contractor shall, not later than 10 days after execution of the Contract Agreement
unless otherwise provided in the Specifications and, in all events, before submitting its
first Pay Request, submit to Engineer a schedule showing the value of each component
part of such Work, and the quantity of discrete units comprising such component part of
the Work, in form and with substantiating data and documentat ion acceptable to Engineer
(“Breakdown Schedule”). The sum of the items listed in the Breakdown Schedule shall
equal the amount or amounts set forth in the Schedule of Prices for lump sum Work.
Overhead and profit shall not be listed as separate items in the Breakdown Schedule. An
unbalanced Breakdown Schedule providing for overpayment of Contractor on component
parts of the Work to be performed first will not be accepted. The Breakdown Schedule
shall be revised and resubmitted until acceptable to Engineer. No payment shall be made
for any lump sum Work until Contractor has submitted, and Engineer has approved, an
acceptable Breakdown Schedule.
Engineer may require that the approved Breakdown Schedule be revised
based on developments occurring during the provision and performance of the Work. If
Contractor fails to submit a revised Breakdown Schedule that is acceptable to Engineer,
Owner shall have the right either to suspend Progress and Final Payments for lump sum
Work or to make such Payments based on Engineer’s determination of the value of the
Work completed.
2. Unit Price Items. For all Work to be paid on a Unit Price basis,
the value of such Work shall be determined by Engineer on the basis of the actual number
of acceptable units of Unit Price Items installed and complete in place, multiplied by the
applicable unit price set forth in the Schedule of Prices. The actual number of acceptable
units installed and complete in place shall be measured on the basis defined in the
Contract Drawings and Specifications or, in the absence of such definition, on the basi s
determined by Engineer. For lump sum Unit Prices, Contractor shall submit, as and when
required pursuant to Paragraph 5.1C1 above, a Breakdown Schedule for such lump sum
Unit Price Items.
The number of units of Unit Price Items stated in the Schedule of Prices are
Engineer’s estimate only and shall not be used in establishing the Progress and Final
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Payments due Contractor. The Contract Price shall be adjusted, by a Balancing Change
Order, to reflect the actual number of acceptable units of Unit Price Items installed and
complete in place upon Final Acceptance.
D. Date of Payment. Contractor shall be paid no later than 45 Days
following Owner’s approval of each Pay Request, and the amount of the Progress
Payment requested, at a meeting of Owner’s governing body. Owner shall have no
obligation to approve any Pay Request that is not in full compliance with the requirements
of this Contract.
5.2 Final Acceptance and Final Payment
A. Notice of Completion. When the Work has been completed and is
ready in all respects for acceptance by Owner, Contractor shall notify Engineer, with a
copy to Owner, and request a final inspection (“Notice of Completion”). Contractor’s
Notice of Completion shall be given sufficiently in advance of the Completion Date to
allow for scheduling of the final inspection and for completion or correction before the
Completion Date of any items identified by such inspection as being defective, damaged,
flawed, unsuitable, nonconforming, incomplete, or otherwise not in full compliance with
the requirements of this Contract (“Punch List Work”). Before giving its Notice of
Completion, Contractor shall satisfy itself that the whole Work, and every part thereof,
has been completed in full compliance with, and as required by or pursuant to, this
Contract, that all defects, damage, flaws, and non -conformities have been corrected, and
that the Work Site and adjacent areas are fully restored, clean, and in good order.
B. Punch List and Final Acceptance. The Work shall be finally accepted
when, and only when, the whole and all parts thereof shall have been completed to the
satisfaction of Owner in full compliance with, and as required by or pursuant to, this
Contract and the Work Site and adjacent areas shall have been fully restored, cleaned,
and placed in good order and in at least the same condition as immediately prior to
commencement of the Work. Upon receipt of Contractor’s Notice of Completion and at a
time mutually agreeable to Owner, Engineer, and Contractor, Engineer shall make a
review of the Work and shall either notify Contractor in writing of all Punch List Work, if
any, to be completed or corrected (“Punch List”) and of the time, not later than the
Completion Date, by which Contractor shall complete or correct all Punch List Work or, if
the Work is complete in full compliance with, and as required by or pursuant to, this
Contract and the Work Site and adjacent areas are fully restored, clean, and in good or der
and in at least the same condition as immediately prior to commencement of the Work,
prepare and deliver to Owner a written recommendation that the Work be finally accepted.
Following Contractor’s completion or correction of all Punch List Work, Engineer shall
make another review of the Work and shall either prepare and deliver to Contractor
another Punch List or, if the Work is complete in full compliance with, and as required by
or pursuant to, this Contract and the Work Site and adjacent areas are f ully restored,
clean, and in good order and in at least the same condition as immediately prior to
commencement of the Work, prepare and deliver to Owner a written recommendation
that the Work be finally accepted.
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The failure of Engineer to list any item on a Punch List shall not relieve
Contractor of its obligation to provide, perform and complete the Work in full compliance
with, and as required by or pursuant to, this Contract.
Whenever any permit, license, site agreement, or other approval or
authorization that may be required in connection with the Work requires that the Work
within public or private property not owned by Owner be installed, and the property
restored, to a condition satisfactory to such approving or authorizing Person, Contractor
shall be responsible for obtaining a written acknowledgment of the acceptance of such
Person in form satisfactory to Owner. Acceptance of any such acknowledgment by
Owner shall be a precondition to Owner’s final acceptance of the Work and shall not
relieve Contractor of any of its obligations under this Contract to provide additional or
other acknowledgments.
In the event more than two inspections and Punch Lists are required before
Engineer is prepared to deliver to Owner its written recommendation that the Work be
finally accepted, Contractor shall be charged the total cost incurred by Engineer for all
subsequent inspections and the preparation of such additional Punch Lists. If the amount
due Contractor is not sufficient to cover such costs, Contractor shall reimburse Owner for
such costs upon demand.
Upon being satisfied that the Work and Work Site are ready for final
acceptance pursuant to the requirements of this Contract, Owner shall issue its written
notice of final acceptance of the Work to Contractor (“Final Acceptance”).
C. Final Payment. As soon as practicable, but not more than 60 Days,
after Final Acceptance, Contractor shall submit to Engineer four originally executed
copies of a Pay Request requesting Final Payment (“Final Pay Request”) for Engineer’s
review and recommendation of appropriate payment. Owner shall pay to Contractor the
balance of the Contract Price, as determined by Engineer, after deducting therefrom all
charges against Contractor as provided for in this Contract and all amounts, if any, to be
retained under the Special Conditions of Contract (“Final Payment”). Final Payment shall
be made not later than 15 Days after the expiration of the time within which claims for
labor performed or equipment, materials, or supplies provided must be filed under any
applicable Law pertaining to Liens, or the expiration of 30 Days after Owner approves the
Final Pay Request, whichever is later; provided, however, that Owner shall not be
obligated to make Final Payment unless and until Contractor has submitted and has
caused its Subcontractors and Suppliers to submit all required data and documentation
to Owner and all such data and documentation is complete and in proper form.
5.3 Title to Work and Liens
A. Title. Nothing in this Contract shall be construed as vesting in
Contractor any right of property in any equipment, materials, supplies and other items
provided under this Contract after they have been installed in, incorporated into, attached
to, or affixed to, the Work or the Work Site. All such equipment, materials, supplies and
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other items shall, upon being so installed, incorporated, attached or affixed, become the
property of Owner, but such title shall not release Contractor from its duty to insure and
protect the Work in accordance with the requirements of this Contract.
B. Waivers of Lien. Contractor shall, from time to time, at Owner’s
request and in any event prior to Final Payment, furnish to Owner such receipts, releases,
affidavits, certificates, and other evidence as may be necessary to establish, to the
reasonable satisfaction of Owner, that no liens against the Work or the public funds held
by Owner exist in favor of any Person whatsoever for or by reason of any equipment,
material, supplies, or other item furnished, labor performed, or other thing done in
connection with the Work or this Contract (“Lien”) and that no right to file any Lien exists
in favor of any Person whatsoever.
C. Removal of Liens. If at any time any notice of any Lien is filed for or
by reason of any equipment, materials, supplies, or other item furnished, labor performed,
or other thing done in connection with the Work or this Contract, then Contractor shall,
promptly and without charge, discharge, remove, or otherwise dispose of such Lien, or, if
permitted by Owner, furnish a Bond or other collateral satisfactory to Owner to indemnify
Owner against such Lien. Until such discharge, removal or disposition, or f urnishing of
any permitted Bond or other collateral, Owner shall have the right to retain from any
money payable under this Contract an amount that Owner, in its sole judgment, deems
necessary to satisfy such Lien and to pay the costs and expenses, includi ng attorneys’
fees and administrative expenses, of any actions brought in connection therewith or by
reason thereof.
D. Protection of Owner Only. This Section shall not operate to relieve
Contractor’s surety or sureties from any of their obligations under the Bonds, nor shall it
be deemed to vest any right, interest or entitlement in any Subcontractor or Supplier.
Owner’s retention of funds pursuant to this Section shall be deemed solely for the
protection of its own interests pending removal of such Liens by Contractor, and Owner
shall have no obligation to apply such funds to such removal but may, nevertheless, do
so where Owner’s interests would thereby be served.
5.4 Deductions
A. Owner’s Right to Withhold. Notwithstanding any other provision of
this Contract and without prejudice to any of Owner’s other rights or remedies, Owner
shall have the right at any time or times, whether before or after approval of any Pay
Request, to deduct and withhold from any Progress or Final Payment that may be or
become due under this Contract such amount as may reasonably appear necessary to
compensate Owner for any actual or prospective loss due to: (1) Work that is defective,
damaged, flawed, unsuitable, nonconforming, or incomplete; (2) damage for which
Contractor is liable under this Contract; (3) state or local sales, use, or excise taxes from
which Owner is exempt; (4) Liens or claims of Lien regardless of merit; (5) claims of
Subcontractors, Suppliers, or other Persons regardless of merit; (6) delay in the progress
or completion of the Work; (7) inability of Contractor to complete the Work; (8) reasonable
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doubt that this Contract can be completed for the balance of the Contract Price then
unpaid; (9) reasonable doubt that the balance of the Contract Price then unpaid is not
adequate to cover actual or liquidated damages, if any; (10) failure of Contractor to
properly complete or document any Pay Request; (11) any other failure of Contractor to
perform any of its obligations under this Contract; (12) the cost to Owner, including
attorneys’ fees and administrative expenses, of correcting any of the aforesaid matters or
exercising any one or more of Owner’s remedies set forth in Section 6.6 of these General
Conditions of Contract; or (13) engineering and inspection charges imposed pursuant to
Subsection 1.3F, Section 1.13, or Subsection 5.2B of these General Con ditions of
Contract.
B. Use of Withheld Funds. Owner shall be entitled to retain any and all
amounts withheld pursuant to Subsection 5.4A above until Contractor shall have either
performed the obligation or obligations in question or furnished security for such
performance satisfactory to Owner. Owner shall be entitled to apply any money withheld
or any other money due Contractor under this Contract to reimburse itself for any and all
costs, expenses, losses, damages, liabilities, suits, judgments, awards, attorneys’ fees,
and administrative expenses incurred, suffered, or sustained by Owner and chargeable
to Contractor under this Contract.
5.5 Application of Payments
All Progress and Final Payments made by Owner to Contractor shall be
applied to the payment or reimbursement of the costs with respect to which they were
paid and not to any preexisting or unrelated debt between Contractor and Owner or
between Contractor and any other Person.
5.6 Work Entire
This Contract and the Work are entire and the Work as a whole is of the
essence of this Contract. Notwithstanding any other provision of this Contract, each and
every part of this Contract and of the Work are interdependent and common to one
another and to Owner’s obligation to pay all or any part of the Contract Price or any other
consideration for the Work. Any and all Progress Payments made pursuant to this Article
are provided merely for the convenience of Contractor and for no other purpose.
ARTICLE VI
DISPUTES AND REMEDIES
6.1 Notice of Dispute
If Contractor disputes or objects to any requirement, direction, instruction,
interpretation, determination, or decision of Owner or Engineer (“Disputed Decision”),
Contractor may, immediately upon receiving any such Disputed Decision, notify Engineer
in writing, with a copy to Owner, of its dispute or objection and of the amount of any
equitable adjustment to the Contract Price or Contract Time to which Contractor claims it
will be entitled as a result thereof (“Notice of Dispute”); provided, however, that Contractor
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shall, nevertheless proceed without delay to perform the Work as required, directed,
instructed, interpreted, determined, or decided by Owner or Engineer without regard to
such dispute or objection and such Notice of Dispute. Unless Contractor so notifies
Engineer not later than two business days after receipt of such Disputed Decision, and,
whenever feasible, prior to taking any action based upon such Disputed Decision,
Contractor shall be conclusively deemed (1) to have agreed to and accepted such
Disputed Decision as being fair, reasonable, and finally determinative of Contractor’s
obligations and rights under this Contract; (2) to have waived all grounds for dispute of or
objection to such Disputed Decision; and (3) to have waived all claims for damages and
equitable adjustments to the Contract Price and Contract Time based on such Disputed
Decision.
6.2 Negotiation of Disputed Decisions
To avoid and settle without litigation any Disputed Decision, Owner and
Contractor agree to engage in good faith negotiations as provided in this Section. Within
three business days after Engineer’s receipt of any Notice of Dispute, Engineer shall
deliver to Contractor, with a copy to Owner, Engineer’s preliminary written response either
rejecting Contractor’s claim, recommending to Owner approval of Contractor’s claim,
suggesting a compromise of Contractor’s claim, or requesting additional information.
Within three business days after Contractor’s receipt of Engineer’s preliminary written
response, Contractor shall deliver to Engineer any additional information requested and
notify Engineer whether Contractor is withdrawing, modifying or reaffirming its Notice of
Dispute. Within three business days after Engineer’s receipt of Contractor’s reply, a
conference among Owner, Engineer, and Contractor shall be held to resolve the dispute.
6.3 Owner’s Final Decision
Within three business days after the end of the conference required
pursuant to Section 6.2 above, Engineer shall deliver to Contractor Owner’s final written
decision.
6.4 Contractor’s Final Demand
If Contractor objects to Owner’s final decision, Contractor shall, within three
business days of the receipt thereof, give Owner written notice of such objection and shall,
in such notice, state its final demand for settlement of the Disputed Decision. Un less
Contractor so notifies Owner, Contractor shall be conclusively deemed (1) to have agreed
to and accepted Owner’s final decision and (2) to have waived all claims based on such
final decision.
6.5 Contractor’s Remedies
If Owner fails or refuses to satisfy a final demand made by Contractor
pursuant to Section 6.4 above, or to otherwise resolve the Disputed Decision which is the
subject of such demand to the satisfaction of Contractor, within 15 Days following receipt
of such demand, Contractor shall be entitled to pursue such remedies, not inconsistent
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with the provisions of this Contract, as it may have in law or equity; provided, however,
that Contractor agrees that its compliance with the dispute resolution procedures set out
in Sections 6.1 through 6.4 above shall be a condition precedent to the init iation of any
legal action concerning any matter subject to the provisions of said Sections; and
provided further, however, that Contractor agrees that any claim for an equitable
adjustment in the Contract Price or Contract Time or both, as the case may be , shall be
conditioned upon Contractor having first complied with the procedures set out in Section
2.5 of these General Conditions of Contract and shall in no event exceed, and shall be
further limited to, the amount of equitable adjustment in the Contrac t Price or Contract
Time or both, as the case may be, included in Contractor’s written request submitted in
accordance with Section 2.5 of these General Conditions of Contract.
6.6 Owner’s Remedies
A. Events of Default. Each of the following acts or omissions of
Contractor shall be a default by Contractor of its obligations under this Contract (“Event
of Default”) and the occurrence or existence of any such Event of Default shall entitle
Owner to invoke any or all of the remedies set forth in Subsection 6.6B below:
1. Contractor’s initiation of, acquiescence in, or failure to have
withdrawn any voluntary or involuntary petition in bankruptcy or for
reorganization or for relief from its creditors or for any similar relief.
2. Contractor’s initiation of, acquiescence in, or failure to have
withdrawn any action or agreement for the appointment of a receiver
for its business or any of its property.
3. Contractor being or becoming insolvent, making a general
assignment for the benefit of creditors, or assigning its right to any or
all payments due under this Contract or to any part of the Work.
4. Contractor’s failure or refusal to pay any of its debts as they come
due, including failure to pay when due any money owed to any
Subcontractor or Supplier.
5. Contractor’s failure, refusal, or delay to prosecute the Work, or any
part thereof, diligently at a rate that assures completion of the Work
in full compliance with, and as required by or pursuant to, this
Contract on or before the Completion Date.
6. Contractor’s failure, refusal, or delay to provide, perform, and
complete the Work, or any part thereof, free from defects, damage,
and flaws; in strict conformity to the requirements of this Contract;
and in a manner suitable for its intended purposes.
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7. Contractor falsely making, or being found to have falsely made, any
representation or warranty in any Bidding Document or in or pursuant
to this Contract.
8. Contractor executing the Work in bad faith.
9. Contractor’s failure, refusal, or delay to perform, to satisfy, or to be
in full compliance with, any other requirement of this Contract.
B. Owner’s Remedies for Contractor’s Default. If it should appear at
any time prior to Final Payment, whether as a result of any inspection or test or otherwise,
that an Event of Default has occurred or is in existence, and if Contractor should fail to
cure and eliminate such Event of Default within five business days after Contractor’s
receipt of Owner’s written notice of such Event of Default, then Owner shall have the right,
at its election and without prejudice to any other remedies provided by law or equity, to
pursue any one or more of the following remedies:
1. Owner may require Contractor, within such reasonable time as may
be fixed by Owner, to complete or correct all or any part of the Work
that is defective, damaged, flawed, unsuitable, nonconforming, or
incomplete; to remove from the Work Site any such Wo rk; to
accelerate all or any part of the Work; and to take any or all other
action necessary to bring Contractor and the Work into strict
compliance with this Contract.
2. Owner may perform or have performed all Work necessary for the
accomplishment of the results stated in Paragraph 6.6B1 above and
withhold or recover from Contractor all the cost and expense,
including attorneys’ fees and administrative costs, incurred by Owner
in connection therewith.
3. Owner may accept the defective, damaged, flawed, unsuitable,
nonconforming, incomplete, or dilatory Work or part thereof and
make an equitable reduction in the Contract Price.
4. Owner may terminate this Contract without liability for further
payment of amounts due or to become due under this Contract.
5. Owner may, without terminating this Contract, terminate Contractor’s
rights under this Contract and, for the purpose of completing or
correcting the Work, evict Contractor and take possession of all
equipment, materials, supplies, tools, appliances, plans,
specifications, schedules, manuals, drawings, and other papers
relating to the Work, whether at the Work Site or elsewhere, and
either complete or correct the Work with its own forces or contracted
forces, all at Contractor’s expense.
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6. Upon any termination of this Contract or of Contractor’s rights under
this Contract, and at Owner’s option exercised in writing, any or all
Subcontracts of Contractor shall be deemed to be assigned to Owner
without any further action being required, but Owner shall not thereby
assume any obligation for payments due under such Subcontracts
for any Work provided or performed prior to such assignment.
7. Owner may withhold from any Progress Payment or Final Payment,
whether or not previously approved, or may recover from Contractor,
any and all costs, including attorneys’ fees and administrative
expenses, incurred by Owner as the result of any Event of Default or
as a result of actions taken by Owner in response to any Event of
Default.
8. Owner may recover any damages suffered by Owner.
C. Owner’s Special Remedy for Delay. If the Work is not completed by
Contractor, in full compliance with, and as required by or pursuant to, this Contract, within
the Contract Time as such time may be extended by Change Order, then Owner may
invoke its remedies under Subsection 6.6B above or may, in the exercise of its sole and
absolute discretion, permit Contractor to complete the Work but charge to Contractor, and
deduct from any Progress or Final Payments, whether or not previously approved, [a per
diem charge for each Day completion of the Work is delayed beyond the
Completion Date computed on the basis of $250.00 per Day, as liquidated damages
and not as a penalty; it being understood that it will be difficult and impracticable
to ascertain and determine the amount of damage that Owner will sustain by reason
of such failure] OR [administrative expenses and costs for each Day completion of
the Work is delayed beyond the Completion Date computed on the basis of a per
diem charge of $500.00 per Day, as well as any additional damages caused by such
delay or any liquidated damages provided for in the Special Conditions of
Contract]. Notwithstanding an election made pursuant to this Subsection, Owner may
thereafter exercise any of its remedies under Subsection 6.6B above if Owner at any time
is not, in Owner’s opinion, adequately assured of prompt completion of the Work.
D. Remedies Cumulative. Each of the remedies listed in this Section
shall be deemed to be cumulative of all other remedies listed in this Section or elsewhere
in this Contract and to exist in addition to every other such remedy and in addition to all
other remedies provided by law or equity.
E. Provisions Exemplary. Any reference in this Contract to Owner’s
right to invoke the remedies of this Section are not intended to be, nor shall they be
construed to be, an exclusive listing of the circumstances under which these remedies
may be exercised, but rather they are intended to be only exemplary.
F. Termination or Suspension Deemed for Convenience. Any
termination or suspension of Contractor’s rights under this Section 6.6 for an alleged
GENERAL CONDITIONS
-43-
Event of Default that is ultimately held unjustified shall be deemed a termination or
suspension for the convenience of Owner under Section 1.12 of these General Conditions
of Contract.
ARTICLE VII
DEFINITIONS
7.1 Defined Terms
A. Addendum. Any written or graphic instrument issued prior to the
execution of this Contract, dated and signed by Owner or Engineer, that modifies,
interprets, or corrects the Bidding Documents or this Contract.
B. Additional Insureds. The Persons identified in Section 4 of the
Special Conditions of Contract.
C. Approved Rate. See Paragraph 2.3A3 of these General Conditions
of Contract.
D. Approved Schedule. See Paragraph 1.1B2 of these General
Conditions of Contract.
E. Balancing Change Order. See Paragraph 5.1C2 of these General
Conditions of Contract.
F. Bid Package. The bound set of documents based upon which Owner
solicited proposals for this Contract, consisting of the Bidding Documents and this
Contract.
G. Bidder’s Proposal. The proposal to enter into this Contract,
completed and executed by Contractor, and based upon which this Contract was awarded
by Owner to Contractor.
H. Bidding Documents. The documents incorporated by reference in
Section 3 of the Invitation for Bidder’s Proposals and included in the Bid Package.
I. Bond. Performance Bond, Labor and Material Payment Bond, and
any other instrument of security, furnished, or required by this Contract to be furnished,
by Contractor or its surety or sureties.
J. Breakdown Schedule. See Paragraph 5.1C1 of these General
Conditions of Contract.
K. Change Order. A written order to Contractor executed by Owner
authorizing or directing a change in this Contract; an addition to, deletion from, or revision
in the Work or the Work Site; or an equitable adjustment in the Contract Price or the
Contract Time.
GENERAL CONDITIONS
-44-
L. Commencement Date. The date set forth in Section 2.1 of the
Contract Agreement.
M. Completion Date. The date set forth in Section 2.2 of the Contract
Agreement.
N. Contract. The Contract Agreement and all Contract Documents.
O. Contract Agreement. The contract agreement executed by Owner
and Contractor.
P. Contract Documents. The documents listed in Section 1.2 of the
Contract Agreement.
Q. Contract Drawings. All (i) drawings furnished with the Invitation for
Bidder’s Proposals, (ii) supplementary drawings furnished to clarify and to define in
greater detail the intent of the drawings and specifications furnished with the Invitation for
Bidder’s Proposals, (iii) drawings submitted by Contractor to Engineer pursuant to this
Contract and reviewed and stamped by Engineer with no exception noted or an equivalent
notation, and (iv) drawings submitted to Contractor by Engineer during the progres s of
the Work as provided for in this Contract.
R. Contract Price. The lump sum amount or amounts, if any, stated in
the Schedule of Prices and, for each acceptable unit of each Unit Price Item, if any,
installed and complete in place, measured on the basis provided for in the Contract
Drawings and Specifications, the Unit Price for such Unit Price Item stated in the Schedule
of Prices, subject to any additions or deductions provided for in this Contract.
S. Contract Time. The period of time allowed, including the
Commencement Date and Completion Date, pursuant to Article II of the Contract
Agreement for Contractor to provide, perform, and complete the Work, as such period of
time may be modified by Change Order.
T. Contractor. See Subparagraph 1.3A2(a) of the Contract Agreement.
U. Day. Except where otherwise expressly defined, a calendar day of
24 hours, measured from midnight to the next midnight.
V. Decreased Work. See Subsection 2.3B of these General Conditions
of Contract.
W. Disputed Decision. See Section 6.1 of these General Conditions of
Contract.
X. Engineer. See Subparagraph 1.3A2(b) of the Contract Agreement.
GENERAL CONDITIONS
-45-
Y. Event of Default. See Section 6.6 of these General Conditions of
Contract.
Z. Final Acceptance. See Subsection 5.2B of these General Conditions
of Contract.
AA. Final Pay Request. See Subsection 5.2C of these General
Conditions of Contract.
BB. Final Payment. See Subsection 5.2C of these General Conditions
of Contract.
CC. General Instructions to Bidders. The instructions to bidders included
in the Bid Package.
DD. Increased Work. See Subsection 2.3A of these General Conditions
of Contract.
EE. Invitation for Bidder’s Proposal. The invitation for bidder’s proposals
included in the Bid Package and by which Owner invited proposals to enter into this
Contract.
FF. Laws. All laws, statutes, ordinances, regulations, orders, decrees
and other legal requirements, whether federal, state or local existing on or after the date
of execution of this Contract.
GG. Lien. See Subsection 5.3B of these General Conditions of Contract.
HH. Notice of Completion. See Subsection 5.2A of these General
Conditions of Contract.
II. Notice of Dispute. See Section 6.1 of these General Conditions of
Contract.
JJ. Overtime Work. See Section 1.13 of these General Conditions of
Contract.
KK. Owner. See Subparagraph 1.3A2(c) of the Contract Agreement.
LL. Pay Request. See Subsection 5.1B of these General Conditions of
Contract.
MM. Person. Any corporation, partnership, individual, joint venture, trust,
estate, association, business, enterprise, proprietorship or other legal entity of any kind,
either public or private, and any legal successor, agent, representative or authorized
assign of the above.
GENERAL CONDITIONS
-46-
NN. Price Proposal. The total compensation proposed to be accepted by
Contractor for the Work in the Bidder’s Proposal and from which the Contract Price is
derived.
OO. Progress Payment. The monthly installment payment to be made by
Owner to Contractor in accordance with, and subject to the terms and conditions set forth
in, Article V of these General Conditions of Contract.
PP. Punch List. See Subsection 5.2B of these General Conditions of
Contract.
QQ. Punch List Work. See Subsection 5.2A of these General Conditions
of Contract.
RR. Required Coverages. See Section 4.1 of these General Conditions
of Contract.
SS. Required Submittals. See Subsection 1.3A of these General
Conditions of Contract.
TT. Specifications. All (i) specifications furnished with the Invitation for
Bidder’s Proposals, (ii) supplementary specifications furnished to clarify and to define in
greater detail the intent of the drawings and specifications furnished with the Invitation for
Bidder’s Proposals, (iii) specifications submitted pursuant to this Contract by Contractor
to Engineer and reviewed and stamped by Engineer with no exception noted or an
equivalent notation, and (iv) specifications submitted to Contractor during the progress of
the Work as provided for in this Contract. Unless otherwise noted, the term
“Specifications” as used in this Contract shall not refer to any other standard
specifications.
UU. Subcontract. Any written or oral contract between Contractor and a
Subcontractor or Supplier.
VV. Subcontractor. Any Person, other than Contractor, that provides,
performs or completes any part of the Work at the Work Site, and the duly authorized
officers, employees, agents, and representatives of any such Person.
WW. Supplier. Any Person, other than Contractor, that supplies
equipment, materials or supplies for the Work, including that fabricated to a special
design, but that does not provide or perform labor at the Work Site, and the duly
authorized officers, employees, agents, and representatives of any such Person.
XX. Unit Price. The price set forth in the Schedule of Prices to be paid
for each acceptable unit of each Unit Price Item, if any, installed and complete in place,
measured on the basis provided for in the Contract Drawings and Specifications.
GENERAL CONDITIONS
-47-
YY. Unit Price Items. The items set forth in the Schedule of Prices, if any,
to be paid for on a Unit Price basis.
ZZ. Value of the Work. The value of the Work, determined in accordance
with Subsection 5.1C of these General Conditions of Contract, for purposes of
determining the then current amount of any Progress Payment to be made by Owner
under this Contract.
AAA. Work. See Subparagraph 1.3A2(d) of the Contract Agreement.
BBB. Work Site. See Subparagraph 1.3A2(e) of the Contract Agreement.
7.2 Word Usage
A. Tense and Form. Words used or defined in one tense or form shall
include other tenses and derivative forms.
B. Number. Words in the singular number shall include the plural
number, and words in the plural number shall include the singular number.
C. Shall and May. The word “shall” is mandatory. The word “may” is
permissive.
D. Subjective Standards. Whenever in this Contract the terms “as
ordered,” “as directed,” “as required,” “as allowed,” “as approved,” or terms of like effect
or import, or the adjectives “reasonable,” “suitable,” “acceptable,” “proper,” or
“satisfactory,” or adjectives of like effect or import, are used to describe a requirement,
direction, review, or judgment of Owner or Engineer as to the Work, it is intended that
such requirement, direction, review, or judgment shall be solely to evaluate the Work for
compliance with this Contract, shall not relieve Contractor of the entire responsibility for
the performance of the Work in full compliance with the requirements of this Contract,
and shall not be regarded as any assumption of risk or liability by Owner or Engineer.
E. Headings. In case of any difference of meaning or implication
between any provision of this Contract and any heading, the Contract provision shall
control and no heading shall be construed to limit the scope or intent of any provision of
this Contract.
-i-
VILLAGE OF OAK BROOK
CONTRACT FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
SPECIAL CONDITIONS OF CONTRACT
TABLE OF CONTENTS
Section Page
1. Scheduling ............................................................................................................ 1
2. Special Construction Requirements ..................................................................... 1
3. Special Technical Requirements .......................................................................... 1
4. Special Financial Assurances ............................................................................... 1
-1-
VILLAGE OF OAK BROOK
CONTRACT FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
SPECIAL CONDITIONS OF CONTRACT
1. Scheduling
2. Special Construction Requirements
3. Special Technical Requirements
4. Special Financial Assurances
A. Additional Insureds/Indemnities. As provided in Subsection 4.2 and
Section 4.3 of the Contract Agreement, the following Persons, including the elected and
appointed officers, agents, employees, and officials of said Persons (the “Additional
Insureds”) shall be named as additional insureds on the Commercial General Liability
insurance required pursuant to this Contract, and the hold harmless and indemnification
protection specified in Section 4.3 of the Contract Agreement shall be extended to such
Additional Insureds as third-party beneficiaries thereof:
1) Village of Oak Brook, its officers, officials, employees, and volunteers
are listed as additional insured.
2) Trotter and Associates, Inc. are listed as additional insured
-1-
VILLAGE OF OAK BROOK
CONTRACT FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
LIST OF CONTRACT DRAWINGS
SHEET
NOS.
SHEET TITLES DATE LAST
REVISED
Cover Cover Sheet 01/24/2023
G.1 General Notes and Legend 01/24/2023
C.1 – C.9 Water Main Plan and Profiles 01/24/2023
C.10 – C.13 Restoration Plans 01/24/2023
C.14 – C.17 Details 01/24/2023
VILLAGE OF OAK BROOK
CONTRACT FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
SPECIFICATIONS
Refer to Specifications - Table of Contents
-1-
VILLAGE OF OAK BROOK
CONTRACT FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS: that [FULL NAME, ADDRESS
AND ORGANIZATION OF CONTRACTOR], as Principal, hereinafter called Contractor,
and [FULL NAME AND ADDRESS OF SURETY], as Surety, a corporation organized
and existing under the laws of the State of [INCORPORATION], hereinafter called Surety,
are held and firmly bound unto the Village of Oak Brook, as Obligee, hereinafter called
Owner, in the full and just sum of [CONTRACT PRICE] Dollars ($[CONTRACT PRICE]),
for the payment of which sum of money well and truly to be made, Contractor and Surety
bind themselves, their heirs, executors, administrators, successors and assigns, jointly
and severally, firmly by these presents, said amount to include payment of actual costs
and damages and for attorneys’ fees, architectural fees, design fees, engineering fees,
accounting fees, testing fees, consulting fees, administrative costs, court costs, interest
and any other fees and expenses resulting from or incurred by reason of Contractor’s
failure to promptly and faithfully perform its contract with Owner, said contract being more
fully described below, and to include attorneys’ fees, court costs and administrative and
other expenses necessarily paid or incurred in successfully enforcing performance of the
obligation of Surety under this bond.
WHEREAS, Contractor has entered into a written agreement dated [DATE
OF CONTRACT AGREEMENT], with Owner entitled “Contract Agreement Between
Village of Oak Brook and [CONTRACTOR’S NAME] for the Construction of Harger Road
Water Main Replacement” (the “Contract”), the terms and conditions of which are by this
reference incorporated herein as though fully set forth herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH
THAT if Contractor shall well, truly, and promptly perform all the undertakings, covenants,
terms, conditions, and agreements of said Contractor under the Contract, including, but
not limited to, Contractor’s obligations under the Contract: (1) to provide, perform and
complete at the Work Site and in the manner specified in the Contract all necessary work,
labor, services, transportation, equipment, materials, apparatus, machinery, tools, fuels,
gas, electric, water, waste disposal, information, data, and other means and items
necessary for the design, if any, construction, and installation of the Harger Road Water
Main Replacement, together with related attachments, equipment, and appurtenances
thereto; (2) to procure and furnish all permits, licenses, and other governmental approvals
and authorizations necessary in connection therewith except as otherwise expressly
provided in the Special Conditions of Contract; (3) to procure and furnish all bonds and
certificates and policies of insurance specified in the Contract; (4) to pay all applicable
federal, state, and local taxes; (5) to do all other things required of Contractor by the
PERFORMANCE BOND
-2-
Contract; and (6) to provide, perform, and complete all of the foregoing in a proper and
workmanlike manner and in full compliance with, and as required by and pursuant to, the
Contract; all of which is herein referred to as the “Work,” whether or not any of said Work
enter into and become component parts of the improvement contemplated, then this
obligation shall be null and void; otherwise it shall remain in full force and effect.
Surety, for value received, hereby stipulates and agrees that no changes,
modifications, alterations, omissions, deletions, additions, extensions of time, or
forbearances on the part of either Owner or Contractor to the other in or to the terms of
said Contract; in or to the schedules, plans, drawings, or specifications; in or to the
method or manner of performance of the Work; in or to Owner -furnished facilities,
equipment, materials, services, or sites; or in or to the mode or manner of payment
therefor, shall in any way release Contractor and Surety or either or any of them, or any
of their heirs, executors, administrators, successors, or assigns, or affect the obligations
of Surety on this bond, all notice of any and all of the foregoing changes, modific ations,
alterations, omissions, deletions, additions, extensions of time, or forbearances, and
notice of any and all defaults by Contractor or of Owner’s termination of Contractor being
hereby waived by Surety.
Notwithstanding anything to the contrary in the foregoing paragraph, in no
event shall the obligations of Surety under this bond in the event of Contractor’s default
be greater than the obligations of Contractor under the Contract in the absence of such
Contractor default.
In the event of a default or defaults by Contractor, Owner shall have the
right to take over and complete the Contract upon 30 calendar days’ written notice to
Surety, in which event Surety shall pay Owner all costs incurred by Owner in taking over
and completing the Contract.
At its option, Owner may instead request that Surety take over and complete
the Contract, in which event Surety shall take reasonable steps to proceed promptly with
completion no later than 30 calendar days from the date on which Owner notifies Surety
that Owner wants Surety to take over and complete the Contract.
Owner shall have no obligation to actually incur any expense or correct any
deficient performance of Contractor in order to be entitled to receive the proceeds of this
bond.
No right of action shall accrue on this bond to or for the use of any person
or corporation other than Owner or the heirs, executors, administrators, or successors of
Owner.
PERFORMANCE BOND
-3-
Signed and sealed this ___ day of ______, 20___.
Attest/Witness: PRINCIPAL: [NAME OF CONTRACTOR]
By: ____________________ By: _______________________________
[NAME OF CONTRACTOR’S
EXECUTING OFFICER]
Title: ______________________ Title: [TITLE OF CONTRACTOR'S
EXECUTING OFFICER]
Attest/Witness: SURETY: [NAME OF SURETY]
By: ____________________ By: _______________________________
Title: ______________________ Title: _______________________________
Telephone: __________________________
SEE GENERAL INSTRUCTIONS TO BIDDERS, SECTION 8,
FOR SIGNATURE REQUIREMENTS
-1-
VILLAGE OF OAK BROOK
CONTRACT FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
LABOR AND MATERIAL PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS: that [FULL NAME, ADDRESS
AND ORGANIZATION OF CONTRACTOR], as Principal, hereinafter called Contractor,
and [FULL NAME AND ADDRESS OF SURETY], as Surety, a corporation organized
and existing under the laws of the State of [INCORPORATION], hereinafter called Surety,
are held and firmly bound unto the Village of Oak Brook, as Obligee, hereinafter called
Owner, for the use and benefit of itself and of claimants as hereinafter defined, in the full
and just sum of [CONTRACT PRICE] Dollars ($[CONTRACT PRICE]), to be paid to it or
the said claimants or its or their assigns, to which payment well and truly to be made
Contractor and Surety bind themselves, their heirs, executors, administrators,
successors, and assigns, jointly and severally, firmly by these pre sents, said amount to
include attorney’s fees, court costs, and administrative and other expenses necessarily
paid or incurred in successfully enforcing performance of the obligation of Surety under
this bond.
WHEREAS, Contractor has entered into a written agreement dated [DATE
OF CONTRACT AGREEMENT], with Owner entitled “Contract Agreement Between
Village of Oak Brook and [CONTRACTOR’S NAME] for the Construction of Harger Road
Water Main Replacement” (the “Contract”), the terms and conditions of which are by this
reference incorporated herein as though fully set forth herein.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH
THAT if Contractor shall promptly pay or cause to be paid all sums of money that may be
due to any claimant with respect to Contractor’s obligations under the Contract: (1) to
provide, perform, and complete at the Work Site and in the manner specified in the
Contract all necessary work, labor, services, transportation, equipment, materials,
apparatus, machinery, tools, fuels, gas, electric, water, waste disposal, information, data,
and other means and items necessary for design, if any, construction, and installation of
the Harger Road Water Main Replacement, together with related attachments,
equipment, and appurtenances thereto; (2) to procure and furnish all permits, licenses,
and other governmental approvals and authorizations necessary in connection therewith
except as otherwise expressly provided in the Special Conditions of Contract; (3) to
procure and furnish all bonds and certificates and policies of insurance specified in the
Contract; (4) to pay all applicable federal, state, and local taxes; (5) to do all other things
required of Contractor by the Contract; and (6) to provide, perform, and complete all of
the foregoing in a proper and workmanlike manner and in full compliance with, and as
required by and pursuant to, the Contract; all of which is herein referred to as the “Work,”
whether or not any of said Work enter into and become component parts of the
PAYMENT BOND
-2-
improvement contemplated, then this obligation shall be null and void; otherwise it shall
remain in full force and effect.
For purpose of this bond, a claimant is defined as one having a direct
contract with Contractor or with a subcontractor of Contractor to provide, perform or
complete any part of the Work.
Contractor and Surety hereby jointly and severally agree that every claimant
who has not had all just claims for the furnishing of any part of the Work paid in full,
including, without limitation, all claims for amounts due for materials, lubricants, oil,
gasoline, rentals of, or service or repairs on, machinery, equipment, and tools consumed
or used in connection with the furnishing of any part of the Work, may sue on this bond
for the use of such claimant, may prosecute the suit to final judgment for such sum or
sums as may be justly due such claimant, and may have execution therein; provided,
however, that Owner shall not be liable for the payment of any costs or expenses of any
such suit. The provisions of 30 ILCS 550/1 and 30 ILCS 550/2 shall be deemed inserted
herein, including the time limits within which notices of claim must be filed and actions
brought under this bond.
Contractor and Surety hereby jointly agree that Owner may sue on this bond
if Owner is held liable to, or voluntarily agrees to pay, any claimant directly, but nothing in
this bond shall create any duty on the part of Owner to pay any claimant.
Surety, for value received, hereby stipulates and agrees that no changes,
modifications, alterations, omissions, deletions, additions, extensions of time, or
forbearances on the part of Owner or Contractor to the other in or to the terms of said
Contract; in or to the schedules, plans, drawings, or specifications; in or to the method or
manner of performance of the Work; in or to Owner-furnished facilities, equipment,
materials, services, or sites; or in or to the mode or manner of payment therefor shall in
any way release Contractor and Surety or either or any of them, or any of their heirs,
executors, administrators, successors, or assigns, or affect the obligations of said Surety
on this bond, all notice of any and all of the foregoing changes, modificati ons, alterations,
omissions, deletions, additions, extensions of time, or forbearances and notice of any and
all defaults by Contractor or of Owner’s termination of Contractor being hereby waived by
Surety.
PAYMENT BOND
-3-
Signed and sealed this ___ day of ______, 20___.
Attest/Witness: PRINCIPAL: [NAME OF CONTRACTOR]
By: ____________________ By: _______________________________
[NAME OF CONTRACTOR’S
EXECUTING OFFICER]
Title: ______________________ Title: [TITLE OF CONTRACTOR'S
EXECUTING OFFICER]
Attest/Witness: SURETY: [NAME OF SURETY]
By: ____________________ By: _______________________________
Title: ______________________ Title: _______________________________
Telephone: __________________________
SEE GENERAL INSTRUCTIONS TO BIDDERS, SECTION 8,
FOR SIGNATURE REQUIREMENTS
VILLAGE OF OAK BROOK
CONTRACT FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
PREVAILING WAGE ORDINANCE
Certified Payrolls. Contractor shall, in accordance with Section 5 of the Illinois Prevailing
Wage Act, 820 ILCS 130/5, submit to the Department of Labor, on a monthly basis, a
certified payroll. The certified payroll shall consist of a complete copy of those records
required to be made and kept by the Prevailing Wage Act. The certified payroll shall be
accompanied by a statement signed by the Contractor o r subcontractor which certifies
that: (1) such records are true and accurate; (2) the hourly rate paid is not less than the
general prevailing rate of hourly wages required by the Prevailing Wage Act; and (3)
Contractor or subcontractor is aware that filing a certified payroll that he or she knows to
be false is a Class A misdemeanor. A general contractor may rely upon the certification
of a lower tier subcontractor, provided that the general contractor does not knowingly rely
upon a subcontractor's false certification. Upon seven business days' notice, Contractor
and each subcontractor shall make available for inspection and copying at a location
within this State during reasonable hours, the records required to be made and kept by
the Act to: (i) the Village, its officers and agents; (ii) the Director of Labor and his deputies
and agents; and (iii) to federal, State, or local law enforcement agencies and prosecutors.
Prevailing Wage. Pursuant to Section 4 of the Illinois Prevailing Wage Act, 820 ILCS
130/4, Contractor agrees and acknowledges that not less than the applicable rate of
prevailing of wages, as found or ascertained by the Department of Labor and made
available on the Department’s official website or determined by the court on review, shall
be paid for each craft or type of worker needed to execute this contract or to perform such
work, and it shall be mandatory upon the contractor to whom the contract is awarded and
upon any subcontractor under him, to pay not less than the specified rates to all laborers,
workers and mechanics employed by them in the execution of this contract.
PREVAILING WAGE AFFIDAVIT
I, ___________________________(name of signatory), on oath hereby state and certify
that _____________________________ (name of Contractor), pursuant to a Contract dated
___________, 2023, with the Village of Oak Brook for the ______________
Project, has complied and will comply with all laws, including those relating to the
employment of labor, the payment of the current general prevailing rate of hourly wages for each
craft or type of worker or mechanic needed to execute the Contract or per form such work, and
also the current general prevailing rate for legal holiday and overtime work, as ascertained by the
Illinois Department of Labor for DuPage County, Illinois, and those prevailing rates are paid and
shall be paid for each craft or type of worker or mechanic needed to execute the aforesaid
Contract or to perform such work. _____________________________ (name of Contractor) has
also complied and will comply with all record keeping requirements established in the Prevailing
Wage Act (820 ILCS 130/0.01, et seq.
CONTRACTOR:
By: _____________________________________
Title: ___________________________________
SUBSCRIBED AND SWORN TO BEFORE
ME THIS _____ DAY OF _______________, 2023
________________________________________
NOTARY PUBLIC
CERTIFICATION OF PAYROLL RECORDS
I, ___________________ (name of person executing this certificate), do hereby certify
that I am the duly qualified and acting __________________ (title) for ____________________
, (name of Contractor) and, as such, am authorized to certify payroll records as true and
accurate for such company in accordance with the requirements of Section 5 of the Prevailing
Wage Act (820 ILCS 130/5) (the "Act").
I do hereby further certify that the following document is a true and accurate copy of the
records of all laborers, mechanics, and other workers employed by _____________ (name
of Contractor) on the _____________ Project (the
"Project") for the Village of Oak Brook (the “Village”), including each such worker's name, address,
telephone number, social security number, classification or classifications; and the hourly wages
paid in each pay period, hours worked each day, and the starting and ending times of work each
day for each such worker on such Project.
I do hereby further certify that the hourly rate paid to each worker is not less than the
general prevailing rate of hourly wages required by the Act, and that _______________
(name of Contractor), and I on behalf of such Contractor, are fully aware that filing a
certified payroll that we know to be false is a Class B misdemeanor. I further certify that upon two
(2) business days' notice, if requested, we and any Subcontractor hired by us shall make available
for inspection the records required in the Act to the District, its officers and agents, and to the
Director of Labor, his deputies and agents, at reasonable hours at a location within the State of
Illinois.
Date: ____________________, 2023
____________________________________
(Name of Contractor)
____________________________________
(Signature)
____________________________________
(Printed Name)
____________________________________
(Title)
SUBSCRIBED AND SWORN TO BEFORE
ME THIS _____ DAY OF _______________, 2023
________________________________________
NOTARY PUBLIC
VILLAGE OF OAK BROOK
CONTRACT FOR THE CONSTRUCTION OF
HARGER ROAD WATER MAIN REPLACEMENT
ADDENDA NOS.