Terms and conditions
ARTICLE 1 GENERAL PROVISIONS
1.1. BASIC DEFINITIONS 1.1.1 Contract for Construction. The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated Agreement between the parties hereto and supersedes prior negotiations, representations, or agreements, either written or oral. The Contract may be amended or modified only by a Modification.
1.1.2 Contract Documents. The Contract Documents consist of the Agreement between Owner and Contractor (from now on the Agreement), Conditions of the Contract (General, Supplementary and other Conditions), Drawings, Specifications, addenda issued before execution of the Contract, advertisement or invitation to bid, Instructions to Bidders, other documents listed in the Agreement and Modifications issued after execution of the Contract. In the event of conflicts among the contract documents, the Specifications shall take precedence over the Drawings, and the Supplementary Conditions shall take precedence over the General Conditions. The Contract Documents shall not be construed to create a contractual relationship between the Owner and a Subcontractor or Sub-subcontractor.
1.1.3 Contractor. The person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. Unless otherwise stated, "Contractor" means the General Contractor or the General Contractor's authorized representative.
1.1.4 Drawings. The Drawings are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, showing the work's design, location, and dimensions, generally including plans, elevations, sections, details, schedules, and diagrams.
1.1.5 Designer. The Architect or Engineer registered by the provisions of Chapter 89C of the NC General Statutes, identified as such in the Contract for Construction, is referred to throughout the Contract Documents as if singular in number. The term "Designer" refers to the Designer or the Designer's authorized representative(s). The Designer shall be entitled to the performance and enforcement of obligations under the Contract for Construction intended to facilitate the implementation of the Designers’ duties.
1.1.6 Modification. A Modification is (1) a written amendment to the Contract signed by the parties, (2) a Change Order, (3) a Construction Change Directive, or (4) a written order for a minor change in the Work issued by the Designer.
1.1.7 Owner. The person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Owner" means the Owner or the Owner's authorized representative.
1.1.8 Project. The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and may include construction by the Owner or by separate contractors.
1.1.9 Project Manual. The Project Manual is the volume usually assembled for the Work, which may include the bidding requirements, sample forms, Contract Conditions, and Specifications.
1.1.10 Specifications. The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards and artistry for the Work, and performance of related services.
1.1.11 Work. The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all other labor, materials, equipment, and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the project.
1.2 EXECUTION, CORRELATION, AND INTENT
1.2.1 The Contract Documents shall be signed by the Owner and Contractor as provided in the Agreement. Suppose either the Owner or Contractor or both do not sign all the Contract Documents. In that case, the Designer shall identify such unsigned Documents and ensure that the necessary parties properly sign them.
1.2.2 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions under which the Work is to be performed, correlated personal observations with requirements of the Contract Documents have checked and verified all site conditions, and at this moment waives any claims, present or future, for misrepresentation on the part of the Owner or Designer.
1.2.3 the Contract Documents intend to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all.
1.2.4 Organization of the Specifications into divisions, sections, and articles, and arrangement of Drawings shall not control the Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any Subcontractor.
1.2.5 Unless otherwise stated in the Contract Documents, words that have well-known technical or construction industry meanings are used in the Contract Documents by such recognized intentions.
1.3 OWNERSHIP AND USE OF DESIGNER'S DRAWINGS, SPECIFICATIONS, AND OTHER DOCUMENTS
1.3.1 The Drawings, Specifications, and other documents prepared by the Designer are instruments of the Designer's service through which the Work to be executed by the Contractor is described. The Contractor may retain one contract record set. Neither the Contractor nor any Subcontractor, Sub-subcontractor, or material or equipment supplier shall own or claim copyright in the Drawings, Specifications, and other documents prepared by the Designer. The Owner will retain all common law, statutory, and other reserved rights, in addition to the copyright of the drawings, specifications, and other documents prepared by the Designer. All copies of them, except the Contractor's record set, shall be returned or suitably accounted for to the Designer, on request, upon completion of the Work. The Drawings, Specifications, and other documents prepared by the Designer, and copies thereof furnished to the Contractor, are for use solely concerning this Project; they are not to be used by the Contractor or any Subcontractor, Sub-subcontractor or material or equipment supplier on other projects without the specific written consent of the Owner and Designer. The Contractor, Subcontractors, Sub-subcontractors, and content or equipment suppliers are granted a limited license to use and reproduce applicable portions of the Drawings, Specifications, and other documents prepared by the Designer appropriate to and for use in the execution of their Work under the Contract Documents. All copies made under this license shall bear the statutory copyright notice, if any, shown on the Drawings, Specifications, and other documents prepared by the Designer. Submittal or distribution to meet official regulatory requirements or for other purposes in connection with this Project is not to be construed as publication in derogation of the Owner's copyright or other reserved rights.
1.4 CAPITALIZATION Terms capitalized in these General Conditions include those which are (1) specifically defined, (2) the titles of numbered articles and identified references to Paragraphs, Subparagraphs, and Clauses in the document, or (3) the titles of other documents.
1.5 INTERPRETATION In the interest of brevity, the Contract Documents frequently omit to modify words such as "all" and "any" and articles such as "the" and "an," but the fact that a modifier or an essay is absent from one statement and appears in another is not intended to affect the interpretation of either statement. ARTICLE
2 OWNER 2.1 INFORMATION AND SERVICES REQUIRED OF THE OWNER
2.1.1 The Owner shall furnish the plan and profile of existing County utilities. The Contractor is responsible for locating all existing utilities before Work.
2.1.2 Except for permits and fees, which are the Contractor's responsibility under the Contract Documents, the Owner shall secure and pay for necessary approvals, easements, assessments, and charges required for the construction, use, or occupancy of permanent structures or permanent changes in existing facilities.
2.1.3 The Owner shall furnish information or services under the Owner's control with reasonable promptness to avoid delay in the orderly progress of the Work.
2.1.4 Unless otherwise provided in the Contract Documents, the Contractor will be furnished, free of charge, such copies of Drawings and Project Manuals as are reasonably necessary for the execution of the Work.
2.2 OWNER'S RIGHT TO CARRY OUT THE WORK If the Contractor defaults or neglects to carry out the Work by the Contract Documents and fails within seven days after receipt of written notice from the Owner to commence and continue correction of such default or neglect with diligence and promptness, the Owner may after such seven-day period, without prejudice to other remedies the Owner may have, correct such deficiencies. In such case, an appropriate Change Order shall be issued deducting from payments then or after that due the Contractor the cost of remedying such defects, including compensation for
the Designer's additional services and expenses made necessary by such default, neglect or failure. Such action by the Owner and amounts charged to the Contractor are both subject to prior review and confirmation by the Designer. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner.
ARTICLE 3 CONTRACTOR
3.1. REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
3.1.1 The Contractor shall carefully study and compare the Contract Documents with each other and with the information furnished by the Owner under Section 2.1 and shall at once report to the Designer errors, inconsistencies, or omissions discovered. Suppose the Contractor performs any construction activity knowing or should have known it involves an error, inconsistency, or omission in the Contract Documents without such notice to the Designer. In that case, the Contractor shall assume full responsibility for such performance and bear the total costs for correction.
3.1.2 The Contractor shall take field measurements, verify field conditions, and carefully compare such field measurements and conditions and other information known to the Contractor with the Contract Documents before commencing activities. Errors, inconsistencies, or omissions discovered shall be reported to the Designer immediately.
3.1.3 The Contractor shall perform the Work by the Contract Documents and submittals approved under Section 3.11.
3.2 SUPERVISION AND CONSTRUCTION PROCEDURES
3.2.1 The Contractor shall supervise and direct the Work using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Work under the Contract unless Contract Documents give other specific instructions concerning these matters.
3.2.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors and their agents and employees, and other persons performing portions of the Work under a contract with the Contractor.
3.2.3 The Contractor shall not be relieved of obligations to perform the Work by the Contract Documents either by activities or duties of the Designer in the Designer's administration of the Contract or by tests, inspections, or approvals required or performed by persons other than the Contractor.
3.2.4 The Contractor shall be responsible for the inspecting portions of Work already performed under this Contract to determine that such amounts are in proper condition to receive subsequent Work.
3.3 LABOR AND MATERIALS
3.3.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work.
3.3.2 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Contract. The Contractor shall not permit the employment of unfit persons or persons not skilled in tasks assigned to them.
3.3.3 Materials, equipment, or items required for a complete job which are shown on the drawings but not mentioned in the specifications or materials, equipment or things required by the specifications but not shown on the pictures, shall be furnished and installed the same as though both shown on the pictures and directed by the specifications.
3.4 WARRANTY
3.4.1 The Contractor warrants to the Owner and Designer that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents; that the Work will be free from defects not inherent in the rate needed or permitted; and that the Work will conform with the requirements of the Contract Documents. Work not doing to these requirements, including substitutions not properly approved and authorized, may be considered defective. If the Designer requires, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.
3.4.2 Except as stated below, the Contractor shall guarantee his materials and artistry against defect due to faulty materials or faulty artistry or negligence for twelve (12) months following Substantial Completion of the Work. The Contractor shall repair or replace such defective materials, equipment or workmanship to the complete satisfaction of the Owner within the stipulated guarantee period without cost to the Owner. Where the manufacturer's warranty on equipment or parts exceeds twelve (12) months, the guarantee period on such equipment or parts thereof shall be extended to include the manufacturer's full warranty.
3.5 TAXES The Contractor shall pay sales, consumer, use, and similar taxes for the Work or portions thereof provided by the Contractor, which is legally enacted when bids are received or negotiations concluded, whether or not yet practical or merely scheduled to go into effect.
3.6 PERMITS, FEES, AND NOTICES
3.6.1 Unless otherwise provided in the Contract Documents, the Client shall secure and pay for the building permit and other permits and governmental fees, licenses, and inspections necessary for proper execution and completion of the Work, which is customarily attached after execution of the Contract for Construction and which are legally required when bids are received, or negotiations concluded.
3.6.2 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations, and lawful orders of public authorities bearing on the work performance.
3.6.3 It is not the Contractor's responsibility to ascertain that the Contract Documents are by applicable laws, statutes, ordinances, building codes, and rules and regulations. However, suppose the Contractor observes that portions of the Contract Documents are at variance in addition to that. In that case, the Contractor shall promptly notify the Designer and Owner in writing, and necessary changes shall be accomplished by appropriate Modification.
3.6.4 If the Contractor performs Work the Contractor knows or should have known it to be contrary to laws, statutes, ordinances, building codes, and rules and regulations without such notice to the Designer and Owner, the Contractor shall assume full responsibility for such Work and shall bear the attributable costs.
3.7 ALLOWANCES
3.7.1 The Contractor shall include in the Contract Sum all allowances stated in the Contract Documents. Items covered by allowances shall be supplied for such amounts and by persons or entities as the Owner may direct. Still, the Contractor shall not be required to employ persons or entities against which the Contractor makes a reasonable objection.
3.7.2 Unless otherwise provided in the Contract Documents: (1) materials and equipment under an allowance shall be selected promptly by the Owner to avoid delay in the Work; (2) allowances shall cover the cost to the Contractor of materials and equipment delivered to the site and all required taxes, less applicable trade discounts; (3) Contractor's costs for unloading and handling at the site, labor, installation costs, overhead, profit and other expenses contemplated for stated allowance amounts shall be included in the Contract Sum and not in the allowances; (4) whenever costs are more than or less than allowances, the Contract Sum shall be adjusted accordingly by a Change Order. The amount of the Change Order shall reflect (a) the difference between actual costs and the allowances under Clause
3.7.2. (2) and (b) changes in Contractor's costs under Clause
3.7.2.(3).
3.8 SUPERINTENDENT The Contractor shall employ a competent superintendent and necessary assistants who shall attend to the Project site during the work performance. The superintendent shall represent the Contractor, and communications given to the superintendent shall be as binding as if given to the Contractor. Critical contacts shall be confirmed in writing upon request.
3.9 CONTRACTOR'S CONSTRUCTION SCHEDULES
3.9.1 Promptly after being awarded the Contract, the Contractor shall prepare and submit for the Designer's review and comment on a construction schedule for the Work. The program shall not exceed time limits provided in the Contract Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work. Suppose the Owner awards separate prime contracts in connection with this Project. In that case, the Contractor shall additionally submit a Contractor's construction schedule for the Work to the General Contractor for the General Contractor to carry out its duties under Article 6.
3.9.2 The Contractor shall prepare and keep current, for the Designer's approval, a schedule of submittals that are coordinated with the Contractor's construction schedule and allows the Designer reasonable time to review submittals.
3.9.3 The Contractor shall conform to the most current schedules.
3.10 DOCUMENTS AND SAMPLES AT THE SITE The Contractor shall maintain at the site for the Owner one record copy of the Drawings, Specifications, addenda, Change Orders, and other Modifications in good order and marked currently to record changes and selections made during construction, and in addition approved Shop Drawings, Product Data, Samples and similarly required submittals. These shall be available to the Designer and delivered to the Designer for submittal to the Owner upon completion of the Work.
3.11 SHOP DRAWINGS, PRODUCT DATA, AND SAMPLES
3.11.1 Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier, or distributor to illustrate some portion of the Work.
3.11.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams, and other information furnished by the Contractor to illustrate materials or equipment for some portion of the Work.
3.11.3 Samples are physical examples illustrating materials, equipment, or artistry and establishing standards by which the Work will be judged.
3.11.4 Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents. The purpose of their submittal is to demonstrate for those portions of the Work for which submittals are required the way the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Designer is subject to the limitations of Paragraph 4.1.6.
3.11.5 The Contractor shall review, approve and submit to the Designer Shop Drawings, Product Data, Samples, and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or the activities of the Owner or separate contractors. Submittals made by the Contractor which are not required by the Contract Documents may be returned without action.
3.11.6 The Contractor shall perform no portion of the Work requiring submittal and review of Shop Drawings, Product Data, Samples, or similar submittals until the respective submittal has been reviewed and approved or other appropriate action taken by the Designer. Such Work shall be by approved submittals.
3.11.7 By approving and submitting Shop Drawings, Product Data, Samples, and similar submittals, the Contractor represents that the Contractor has determined and verified materials,
Field measurements and field construction criteria related to it, or will do so and has checked and coordinated the information contained within such submittals with the requirements of the Work and the Contract Documents.
3.11.8 The Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Designer's review and approval of Shop Drawings, Product Data, Samples, or similar submittals unless the Contractor has specifically informed the Designer in writing of such deviation at the time of submittal. The Designer has given written approval to the specific departure. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals by the Designer's approval.
3.11.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples, or similar submittals, to revisions other than those requested by the Designer on previous submittals.
3.11.10 Informational submittals upon which the Designer is not expected to take responsive action may be identified in the Contract Documents.
3.11.11 When the Contract Documents require professional certification of performance criteria of materials, systems, or equipment, the Designer shall be entitled to rely upon the accuracy and completeness of such calculations and certifications.
3.12 USE OF SITE The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits, and the Contract Documents and shall not unreasonably encumber the site with materials or equipment. 3.13 CUTTING AND PATCHING
3.13.1 The Contractor shall be responsible for cutting, fitting, or patching required to complete the Work or to make its parts fit together correctly.
3.13.2 The Contractor shall not damage or endanger a portion of the work or fully or partially completed construction of the Owner or separate contractors by cutting, patching, or otherwise altering such structure or excavation. The Contractor shall not cut or otherwise modify such construction by the Owner or a separate contractor except with written consent of the Owner and the such independent contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold the Contractor's consent to cutting or otherwise altering the Work from the Owner or a separate contractor.
3.14 CLEANING UP
3.14.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by operations under the Contract. At the completion of the Work, the Contractor shall remove from and about the Project waste materials, debris, the Contractor's tools, construction equipment, machinery, and surplus materials.
3.14.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so, and the cost thereof shall be charged to the Contractor.
3.15 ACCESS TO WORK The Contractor shall provide the Owner and Designer access to the Work in preparation and progress wherever located.
3.16 ROYALTIES AND PATENTS The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of patent rights and shall hold the Owner and Designer harmless from loss unless a particular design, process, or product of a specific manufacturer or manufacturer is required by the Contract Documents. However, suppose the Contractor has reason to believe that the required design, process, or product is an infringement of a patent. In that case, the Contractor shall be responsible for such loss unless such information is promptly furnished to the Designer.
3.17 INDEMNIFICATION
3.17.1 To the fullest extent permitted by law, the Contractor shall indemnify and hold harmless the Owner, Designer, Designer's consultants, and agents and employees of any of them from and against claims, damages, economic losses, and expenses of any kind (including but not limited to fees of engineers, attorneys, and other professionals and costs related to court action or arbitration), arising out of or resulting from the performance of the Work under this Agreement, provided such claim, damage, loss or expense is attributable to bodily injury, sickness, disease or death, or to injury to or destruction of tangible property (other than the Work itself) including loss of use resulting from that place, caused in whole or in part by negligent acts or omissions of the Contractor, a Subcontractor, anyone directly or indirectly employed by them or anyone for whose actions they may be liable unless caused in whole or part by the negligence of Owner. Such obligation shall not be construed to negate, abridge, or reduce other rights or obligations of indemnity which would otherwise exist as to a party or person described in this Section 3.17.
3.17.2 In claims against any person or entity indemnified under this Section 3.17 by an employee of the Contractor, a Subcontractor, anyone directly or indirectly employed by them, or anyone for whose acts they may be liable, the indemnification obligation under this Section 3.17, shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts.
3.17.3 The obligations of the Contractor under this Section 3.17 shall not extend to the liability of the Designer, the Designer's consultants, and agents and employees of any of them arising out of (a) the preparation or approval of maps, drawings, opinions, reports, surveys, Change Orders, designs or specifications, or (b) the giving of or the failure to give directions or instructions by the Designer, the Designer's consultants, and agents and employees of any of them provided such giving or failure to give is the primary cause of the injury or damage. ARTICLE
4 ADMINISTRATION OF THE CONTRACT
4.1 DESIGNER'S ADMINISTRATION OF THE CONTRACT
4.1.1 The Designer will provide administration of the Contract as described in the Contract Documents and will be the Owner's representative during construction through final payment, and with the Owner's concurrence, from time to time during the correction period described in Paragraph 11.2. The Designer will advise and consult with the Owner. The Designer will have authority to act on behalf of the Owner only to the extent provided in the Contract Documents unless otherwise modified by written instrument by other provisions of the Contract.
4.1.2 The Designer will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences, or procedures, or for safety precautions and programs in connection with the Work since these are solely the Contractor's responsibility as provided in Paragraph 3.2. The Designer will not be responsible for the Contractor's failure to carry out the Work by the Contract Documents. The Designer will not have control over or charge of and will not be responsible for acts or omissions of the Contractor, Subcontractors, their agents or employees, or any other persons performing portions of the Work. 4.1.3 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall endeavor to communicate through the Designer. Communications by and with the Designer's consultants shall be through the Designer. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors shall be through the Designer. 4.1.4 Based on the Designer's inspections, observations, and evaluations of the Contractor's Applications for Payment, the Designer will review and certify the amounts due the Contractor and will issue Certificates for Payment in such amounts. 4.1.5 The Designer will have the authority to reject Work that does not conform to the Contract Documents. Whenever the Designer considers it necessary or advisable to implement the intent of the Contract Documents, the Designer will have the authority to require additional inspection or testing of the Work by Paragraphs 12.5.2 and 12.5.3, whether or not such Work is fabricated, installed, or completed. However, neither this authority of the Designer nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility of the Designer to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons performing portions of the Work. 4.1.6 The Designer will review and approve or take other appropriate action upon the Contractor's submittals, such as Shop Drawings, Product Data, and Samples but only for the limited purpose of checking for conformance with the information given and the design concept expressed in the Contract Documents. The Designer's action will be taken with such reasonable promptness as to cause no delay in the Work or the activities of the Owner, Contractor, or separate contractors while allowing sufficient time in the Designer's professional judgment to permit adequate review. Review of such submittals is not conducted to determine the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the Contract Documents. The Designer's review of the Contractor's submittals shall not relieve the Contractor of the obligations under Article 3. The Designer's review shall not constitute approval of safety precautions or, unless otherwise specifically stated by the Designer, of any construction means, methods, techniques, sequences, or procedures. The Designer's approval of a specific item shall not indicate approval of an assembly of which the item is a component. 4.1.7 The Designer will prepare Change Orders and Construction Change Directives and may authorize minor changes in the Work as provided in Paragraph 7.4. 4.1.8 The Designer will conduct inspections to determine the date or dates of Substantial Completion and the date of completion will receive and forward to the Owner for the Owner's review and records, written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the requirements of the Contract Documents. 4.1.9 The Designer will interpret and decide matters concerning performance under and requirements of the Contract documents on the written request of either the Owner or Contractor. The Designer will respond to such requests with reasonable promptness and within any time limits agreed upon. Suppose no agreement is made concerning the time within which interpretations required of the Designer shall be furnished in compliance with this Paragraph 4.1.9. In that case, delay shall not be recognized on account of failure by the Designer to furnish such interpretations until 15 days after the written request is made for them. 4.1.10 Interpretations and decisions of the Designer will be consistent with the intent of and reasonably inferable from the Contract Documents. They will be in writing or the form of drawings. When making such interpretations and decisions, the Designer will endeavor to secure faithful performance by both Owner and Contractor and will not show partiality to either. 4.1.11 The Designer's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents. 4.1.12 If the Contractor fails to correct Work which is not by the requirements of the Contract Documents as required by Article 11.2 or persistently fails to carry out Work by the Contract Documents, the Designer may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right of the Designer to stop the Work shall not give rise to a duty on the part of the Designer to exercise this right for the benefit of the Contractor or any other person or entity. 4.2 CLAIMS AND DISPUTES 4.2.1 A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment, or interpretation of Contract terms, payment of money, an extension of time, or other relief concerning the terms of the Contract. The term "Claim" also includes other disputes and matters between the Owner and Contractor arising out of or relating to the Contract. Claims must be made under the Dispute Resolution Procedure outlined in Paragraph 4.4. The responsibility to substantiate Claims shall rest with the party making the Claim. 4.2.2 DECISION OF THE DESIGNER. Claims, including those alleging an error or omission by the Designer, shall be referred initially to the Designer for action as provided in Paragraph 4.4. A decision by the Designer shall be required as a condition precedent to mediation and litigation of a Claim between any party involved in this construction Project as to all such matters arising before the date final payment is due, regardless of whether such matters relate to execution and progress of the Work or the extent to which the Work has been completed. The decision by the Designer in response to a Claim shall not be a condition precedent to litigation in the event (1) the position of Designer is vacant, (2) the Designer has not received evidence or has failed to render a decision within agreed time limits, or (3) 45 days have passed after the Claim has been referred to the Designer. 4.2.3 TIME LIMITS ON CLAIMS. Claims by the Contractor must be made within ten days after the the event giving rise to such Claim or within ten days after the Contractor first recognizes the condition giving rise to the Claim, whichever is later. Claims must be made by written notice. Change Order has implemented an additional Claim made after the initial Claim will not be considered. 4.2.4 CONTINUING CONTRACT PERFORMANCE. Pending the final resolution of a Claim, unless otherwise agreed in writing, the Contractor shall proceed diligently with the performance of the Contract, and the Owner shall continue to make payments by the Contract Documents. 4.2.5 WAIVER OF CLAIMS: FINAL PAYMENT. The making of final payment shall constitute a waiver of Claims by the Owner except those arising from: (1) unsettled claims arising out of the Contract; (2) failure of the Work to comply with the requirements of the Contract Documents; or (3) terms of certain warranties required by the Contract Documents. 4.2.6 CLAIMS FOR CONCEALED OR UNKNOWN CONDITIONS. If conditions are encountered at the site which is (a) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (b) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, then notified by the observing party shall be given to the other party promptly before conditions are disturbed and in no event later than ten days after the first observance of the conditions. The Designer will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor's cost of, or time required for, the performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or Contract Time, or both. Suppose the Designer determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in terms of the Contract is justified, the Designer shall so notify the Owner and Contractor in writing stating the reasons. In that case, Claims by either party in opposition to such determination must be made within 21 days after the Designer has given notice of the decision. Suppose the Owner and Contractor cannot agree on an adjustment in the Contract Sum or Contract Time. In that case, the adjustment shall be referred to the Designer for the initial determination, subject to further proceedings under paragraph 4.4. 4.2.7 CLAIMS FOR ADDITIONAL COST. If the Contractor wishes to claim for an increase in the Contract Sum, written notice as provided herein shall be given before proceeding to execute the Work. Prior notice is not required for Claims relating to an emergency endangering life or property arising under Paragraph 10.3. If the Contractor believes the additional cost is involved for reasons including but not limited to (a) a written interpretation from the Designer, (b) a written order for a minor change in the Work issued by the Designer, (c) termination of the Contract by the Owner, Claim shall be filed by the procedure established herein. This Article and Article 7 shall be the exclusive means by which the Contractor may claim additional cost or damages from the Owner, and the Contractor at this moment waives any right to claim additional cost or damages by any other remedy including, without limitation, quantum meruit, subrogation, or implied contract. 4.2.8 CLAIMS FOR ADDITIONAL TIME. If the Contractor wishes to claim for an increase in the Contract Time, written notice as provided herein shall be given. The Contractor's Claim shall include an estimate of cost and the probable effect of delay on the work's progress. In the case of a continuing delay, only one Claim is necessary. Adverse weather conditions shall not be a basis for a Claim for additional time or costs. 4.3 INJURY OR DAMAGE TO PERSON OR PROPERTY If either party to the Contract suffers injury or damage to person or property because of an act or omission of the other party, of any of the other party's employees or agents, or of others for whose acts such party is legally liable, written notice as such injury or damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding ten days after the first observance. The notice shall provide sufficient detail to enable the other party to investigate the matter. If a Claim for additional cost or time related to this Claim is to be asserted, it shall be filed as provided in Subparagraphs 4.2.7 or 4.2.8. 4.4 DISPUTE RESOLUTION PROCEDURE 4.4.1 To prevent all disputes and litigation, it is agreed by the parties that any claim, question, difficulty, or dispute arising from this Agreement or the construction process shall be first submitted to the Designer to address the issue. Upon review of the Claim, the Designer shall take one or more of the following preliminary actions within ten (10) days of receipt of a Claim: (1) request additional supporting data from the claimant, (2) submit a schedule to the parties indicating when the Designer expects to take action, (3) reject the Claim in whole or in part stating reasons for rejection, (4) recommend approval of the Claim by the other party, or (5) suggest a compromise. The Designer may also, but is not obligated to, notify the surety, if any, of the nature and amount of the Claim. 4.4.2 If a Claim has been resolved, the Designer will prepare or obtain appropriate documentation. 4.4.3 If a Claim has not been resolved, the party making the Claim shall, within ten (10) days after the Designer's preliminary response, take one or more of the following actions: (1) submit additional supporting data requested by the Designer, (2) modify the initial Claim and resubmit it to the Designer, or (3) notify the Designer that the initial Claim stands and submit the Claim to the Durham County Manager for mediation under Paragraph 4.4.4, below. 4.4.4 The Durham County Manager, as a mediator, shall address any properly submitted claim, question, difficulty, or dispute arising from this Agreement or the construction process, which the Designer has not satisfactorily resolved. Such requests shall be made to the Durham County Manager in writing within ten (10) days after the Designer's preliminary response. The mediator shall notify the Contractor in writing of the decision within thirty (30) calendar days from the submission date of the claim, question, difficulty, or dispute unless the mediator requires additional time to gather information or allow the parties to provide additional information. The mediator's orders, decisions, and decrees shall be non-binding. Pursuant to this Section, mediation shall be a pre-condition to initiating litigation concerning the dispute. During the pendency of any dispute and after a determination thereof, the parties to the dispute shall act in good faith to mitigate any potential damages, including utilization of construction schedule changes and alternate means of construction. 4.4.5 The mediation session shall be private. Before commencement of mediation, if requested by either party or the mediator, the parties and the mediator shall execute a written confidentiality agreement per the provisions of North Carolina law. All such mediation sessions shall be held in Durham County, North Carolina. 4.4.6 If, as a result of mediation, a voluntary settlement is reached and the parties to the dispute agree that such settlement shall be reduced to writing, the mediator shall be deemed appointed and constituted an arbitrator for the sole purpose of signing the mediated settlement agreement. Such agreement shall have the same force and effect as an arbitration award. Judgment may be entered upon by applicable law in any court of competent jurisdiction. 4.4.7 If the disputed issue cannot be resolved in mediation or either party disagrees with the mediation results, the parties may seek resolution in the General Court of Justice in the County of Durham and the State of North Carolina. Suppose a party fails to comply in strict accordance with the requirements of this Article. In that case, the non-complying party specifically waives all of its rights provided hereunder, including its rights and remedies under State law. 4.4.8 The dispute resolution procedure outlined in this Section shall be made available to any party involved in this construction project, including the County, Contractor, Designer, Subcontractors, as well as Sub-subcontractors, and is a precondition to initiation of litigation concerning the dispute. ARTICLE 5 SUBCONTRACTORS 5.1 DEFINITIONS 5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site. The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a separate contractor. 5.1.2 A Sub-subcontractor is a person or entity who has direct or indirect contact with a Subcontractor to perform a portion of the Work at the site. The term "Sub-subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Sub-subcontractor or an authorized representative of the Sub-subcontractor. 5.2 AWARD OF SUBCONTRACTS AND OTHER CONTRACTS FOR PORTIONS OF THE WORK 5.2.1 Unless otherwise stated in the Contract Documents or the bidding requirements, the Contractor, as soon as practicable after awarding of the Contract, shall furnish in writing to the Owner through the Designer the names of persons or entities (including those who are to furnish materials or equipment fabricated to a special design) proposed for each principal portion of the Work, including (1) Heating, ventilating, and air conditioning, (2) Plumbing, (3) Electrical, and (4) General. The Designer will promptly reply to the Contractor in writing stating whether or not the Owner or the Designer, after due investigation, has reasonable objection to any such proposed person or entity. Failure of the Owner or Designer to reply promptly shall constitute notice of no reasonable objection. 5.2.2 The Contractor shall NOT substitute any person or company listed in the Contractor’s original Bid Proposal, except (1) if the Contractor later determines the listed subcontractor’s bid to be non-responsible or non-responsive, or the listed subcontractor refuses to enter into a contract for the complete performance of the work, or (2) with the approval of the Owner for a good cause shown by the Contractor. 5.3 SUBCONTRACTUAL RELATIONS By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms and conditions of the Contract Documents and Contract for Construction, and to assume toward the Contractor all the obligations and responsibilities which the Contractor, by these documents, assumes toward the Owner and Designer. Each subcontract agreement shall preserve and protect the rights of the Owner and Designer under the Contract Documents concerning the Work to be performed by the Subcontractor so that subcontracting thereof will not prejudice such rights and shall allow to the Subcontractor, unless specifically provided otherwise in the subcontract agreement, the benefit of all rights, remedies, and redress against the Contractor that the Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, before the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which may be at variance with the Contract Documents. Subcontractors shall similarly make copies of applicable portions of such documents available to their respective proposed Sub-subcontractors. ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS 6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's forces and to award separate contracts in connection with other portions of the Project or other construction or operations on the site. 6.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner- Contractor Agreement. 6.1.3 The General Contractor shall coordinate the activities of each separate Contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate Contractors and the General Contractor in reviewing their construction schedules. The Contractor shall make any revisions to the construction schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules to be used by the Contractor and separate contractors until subsequently revised. 6.1.4 Unless otherwise provided in the Contract
Documents, when the Owner performs construction or operations related to the Project with the Owner's forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights which apply to the Contractor under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this Article 6, and Articles 10 and 11. 6.1.5 The General Contractor shall be responsible for scheduling the Work of all contractors, the progress schedule for all prime contractors for this Project, and the Designer's gner'scationny changes in the progress schedule. 6.2 MUTUAL RESPONSIBILITY 6.2.1 The Contractor shall afford the Owner and separate Contractors reasonable opportunity to introduce and store their materials and equipment and perfoactstheir activities and shall connect andContractor'sthe Contractor's construction and operations with theirs as required by the Contract Documents. 6.2.2Contractor'sthe Contractor's Work depends on proper execution or results upon construction or operations by the Owner or a separate Contractor; the Contractor shall, before proceeding with that portion of the Work, promptly report to the Designer apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor to report shall constitute an acknowleOwner'sthat the OwneContractors'ate Contractors' completed or partially completed construction is fit and properContractor'sthe Contractor's Work, except for defectsdisableasonably discoverable. 6.2.3 Costs caused by delays, improperly timed activities, defective construction, or any other damages shall be borne by the party responsible. The Owner shall not be liable nor responsible for any delays or damages to the Contractor caused by separate Contractors or the Designer. 6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate Contractors as provided in Paragraph 10.2.5. 6.2.5 Claims and other disputes and matters in question between the Contractor and a separate Contractor shall be subject to the provisions of Sections 4.2 and 4.4, provided the separate Contractor has reciprocal obligations. 6.2.6 The Owner and each separate Contractor shall have the same cutting and patching responsibilities as described for the Contractor inOWNER'Saph 3.13. 6.3 OWNER'S RIGHT TO CLEAN UP If a dispute arises among the Contractor, separate Contractors, and the Owner as to the responsibility under their respective contracts for maintaining the premises and surrounding area free from waste materials and rubbish as described in Paragraph 3.14, the Owner may clean up and allocate the cost among those responsible as the Designer determines to be. ARTICLE 7 CHANGES IN THE WORK 7.1 CHANGES 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change Order, Construction Change Directive, or order for a minor change in the Work, subject to the limitations stated in this Article 7 and elsewhere in the Contract Documents. 7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor, and Designer; a Construction Change Directive requires agreement by the Owner and Designer and may or may not be agreed to by the Contractor; an order for a minor change in the Work may be issued by the Designer alone under Paragraph 7.4. 7.1.3 Changes shall be performed under applicable Provisions of the Contract Documents. The Contractor shall proceed promptly unless otherwise provided in the Change Order, Construction Change Directive, or order for a minor change in the Work. 7.1.4 If unit prices are stated in the Contract Documents or subsequently agreed upon, and if quantities originally contemplated are so changed in a proposed Change Order or Construction Change Directive that application of such unit prices to quantities of Work proposed will cause substantial inequity to the Owner or Contractor, the applicable unit prices shall be equitably adjusted. 7.1.5 Overhead and profit shall not exceed 15% of the value of labor and material for Work peSubcontractory Contractor or subcontractor. If a subcontractor performs the worktime Contractor's OverheaOverheadofit shall not exceed 5%. 7.2 CHANGE ORDERS 7.2.1 A Change Order is a written instrument prepared by the Designer and signed by the Owner, Contractor, and Designer, stating their agreement upon all of the following: (1) a change in the Work; (2) the amount of the adjustment in the Contract Sum, if any; and (3) the extent of the adjustment in the Contract Time, if any. 7.2.2 Methods used toact Sum adjutor determine Contract Sum adjustmentsstmentsse listed in Paragraph 7.3.3. 7.3 CONSTRUCTION CHANGE DIRECTIVES 7.3.1 A Construction Change Directive is a written order prepared by the Designer and signed by the Owner and Designer, directing a change in the Work and stating a proposed basis for adjustment, if any, in the Contract Sum or Contract Time, or both. The Owner may, by Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions, or other revisions, the Contract Sum and Contract Time being adjusted accordingly. 7.3.2 A Construction Change Directive shall be used without total agreement on the terms of a Change Order. 7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be based on one of the following methods: mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit evaluation; unit prices stated in the Contract Documents or subsequently agreed upon; cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or (4) as provided in Paragraph 7.3.6. 7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the changContractor'sk involved and advise the Designer of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change Directive for determining the proposed adjustment in the Contract Sum or Contract Time. 7.3.5 A Construction ChContractor'sve signed by the Contractor indicates the Contractor's agreement in addition to that, including adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately and recorded as a Change Order. 7.3.6 If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the method and the adjustment shall be determined by the Designer based on reasonable expenditures and savings of those performing the Work attributable to the change, including in case of an increase in the Contract Sum, a reasonable allowance for Overhead and profit. In such case, Overhead under clause 7.3.3(3), the Contractor shall keep and present, in such form as the Designer may prescribe, an itemized accounting together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs for this Paragraph 7.3.6 shall be limited to the following: costs of labor, including social security, old age workers'ployment insurance, fringe benefits required by agreement or custom, and workers' compensation insurance; costs of materials, supplies, and equipment, including the cost of transportation, whether incorporated or consumed; rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others; costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work; and additional costs of supervision and field office personnel directly attributable to the change. 7.3.7 Pending final determination of the cost to the Owner, amounts not in dispute may be included in Applications for Payment. The amount of credit to be allowed by the Contractor to the Owner for deletion or change which results in a net decrease in the Contract Sum shall be the actual net cost as confirmed by the Designer. When both additions and credits covering related Work or substitutions are involved in a change, the allowance for Overhead and profit shall be figureOverhead the basis of net increase, if any, concerning that change. 7.3.8 If the Owner and Contractor do not agree with the adjustment in Contract Time or the method for determining it, the adjustment or the method shall be referred to the Designer for determination. 7.3.9 When the Owner and Contractor agree with the determination made by the Designer concerning the adjustments in the Contract Sum and Contract Time or otherwise reach an agreement upon the adjustments, such agreement shall be effective immediately and shall be recorded by preparation and execution of an appropriate Change Order. 7.4 MINOR CHANGES IN THE WORK The Designer will have the authority to order minor changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and binding on the Owner and Contractor. The Contractor shall carry out such written orders promptly. ARTICLE 8 TIME 8.1 DEFINITIONS 8.1.1 Unless otherwise provided, Contract Time is the period, including authorized adjust'Work'sallotted in the Contract Documents for Substantial Completion of the Work. 8.1.2 Thpo'Werk's commencement dates commencement dateished in the Agreement. The date shall not be postponed by the failure to act of the Contractor or of persons or entities for whom the Contractor is responsible. 8.1.3 T" e substantial compate is the dcompletion dateied by the Designer by Paragraph 9.9. 8.1.4 The term "day" used in thentract Documents shall mean calendar day unless otherwise dROGRESS AND COMPLETION 8.2.1 Time limits stated in the Contract Documents are of the Contractor'she Contract. By executing the Agreement, the Contractor confirms that the Contract Time is reasonable for perfming the Wo Contractor and the Contractor's surety shall be liable for and shall pay the Owner such sums as shall be outlined in the Agreement between Owner and Contractor as liquidated damages each calendar day of delay until the Work is substantially complete. 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence operations on the site or elsewhere before the effective date of insurance required by the Contract for Construction to be furnished by the Contractor. The date of commencement of the Work shall not be changed by the effective date of such insurance. Unless the date of commencement is established by a notice to proceed given by the Designer, the Contractor shall notify the Owner and Designer in writing not less than five days before commencing the Work. 8.2.3 The Contractor shall proceed expeditiously with adequate forces and achieve Substantial Completion within the Contract Time. 8.3 DELAYS AND EXTENSIONS OF TIME 8.3.1 If the Contractor is delayed at any time in the progress of the Work by an act or neglect of the Owner or Designer, or of an employee of either, or of a separate Contractor'smployed by the Owner, or by changes ordered in the Work, or by labor disputes, fire, unusual delay in deliveries, unavoidably casualties or other causes beyond the Contractor's control, or by delay authorized by the Owner pending litigation, or by other causes which the Designer determines may justify the delay. The Contract Time shall be extended by Change Order for a such reasonable time as the Designer may determine. 8.3.2 Claims relating to time shall be made by applicable provisions of Paragraph 4.2.8. 8.3.3 Should the Work be interrupted or hindered by the Owner or Designer, the Contractor shall be entitled to an extension of time under Paragraph 4.2 in an amount equal to such interruption or hindrance, but such interruption or hindrance shall not constitute a claim for damages nor loss of anticipated profits by the Contractor. 8.3.4 Should the Work be delayed in whole by any act or acts of the Contractor, the Contractor shall not be entitled to an extension of time under Paragraph 4.2, nor shall such delay constitute a claim either for damages or for loss of anticipated profits by the Contractor. Should the Work be delayed in part by any act or acts of the Contractor and in part by any act or acts of the Owner or Designer, the Contractor shall be entitled to an extension of time under Paragraph 4.2 in an amount equal to that portion of the delay for which the Contractor is not responsible. Still, such delay shall not constitute a claim either for damages or for loss of anticipated profits by the Contractor. 8.3.5 Should the Work be delayed, interrupted or hindered, in whole or in part, by any act or acts of any separate prime contractors, the Contractor shall be entitled to an extension of time under Paragraph 4.2.8 in an amount equal to such delay, interruption or hindrance but such delay, interruption or hindrance shall not constitute a claim for damages nor loss of anticipated profits by the Contractor. ARTICLE 9 PAYMENTS AND COMPLETION 9.1 CONTRACT SUM The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the Owner to the Contractor for the performance of the Work under the Contract Documents. 9.2 SCHEDULE OF VALUES Before the first Application for Payment, the Contractor shall submit to the Designer a Schedule of Values allocated to various portions of the WoContractor's in such form and supported by such data to substantiate its accuracy as the Designer may require. This Schedule of Values, unless objected to by the Designer, shall be used as a basis for reviewing the Contractor's Applications for Payment. 9.3 APPLICATIONS FOR PAYMENT 9.3.1 At least twenty (20) days before the date established for each progress paymeContractor'sractor shall submit to the Designer an itemized Application for Payment for operations completed by the schedule of values. Such application shall be notarized, supported by such data substantiating the Contractor's right to payment as the Owner or Designer may require, such as copies of requisitions from subcontractors and material suppliers and reflecting retainage if provided for elsewhere in the Contract Documents. 9.3.2 Such applications may include requests for payment on account of changes in the Work which have been properly authorized by Construction Change Directives but not yet included in Change Orders. 9.3.3 Such applications may not include requests for payment of amounts the Contractor does not intend to pay to a Subcontractor or material supplier because of a dispute or other reason. 9.3.4 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work. If approved in advance by the Owner, payment may similarly be made for materials and equipment suitably stoOwner's the site at a location agreed upon in writing. Payment for mateOwner'snd equipment stored on or off the site shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner's title to such materials and equipment or otherwise protect the Owner's interest and shall include applicable insurance, storage,, and transportation to the site for such materials and equipment stored off the site. 9.3.5 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the timeContractor's The Contractor further warrants that upon submittal of an Application for Payment, all Work for which Certificates for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor's knowledge, information, and belief, be free and clear of liens, claims, security interests, or encumbrances in favor of the Contractor, Subcontractors, material suppliers, or other persons or entities claiming because of having provided labor, materials, and equipment relating to the Work. 9.3.6 Provided an Application for Payment is received by the Designer no later than the noth (10th) day of a month, the Owner shall make payment to the Contractor no later than the nortieth (30th) day of the month. 9.4 RETAINAGE To ensure proper performance of this Contract, the Owner shall retain five percent (5%) of the amount of each approved Application for Payment until the project work is 50% completeContractor'sat the Contractor continues to perform satisfactorily and any non-conforming work identified in writing prior to that date has been corrected by the Contractor and accepted by the Owner. Suppose the Owner determSupposees the Contractor'sPojectrformance is unsatisfactory. In that case, the Owner may rei. In that case,state retainaContractor'sount of 5% for each subsequent periodic Application for Payment until the Contractor's performance becomes satisfactory. The Project shall be deemed fifty percent (50%) complete when the Contractor's gross project invoices, excludicontractor's of materials stored off-site, equal or exceed fifty percent (Project the value of the contract, except the value of materials stored oProjectshall not exceed twenty percent (20%) of the Contractor's gross project invoices for the purpose of determining whether the Project is fifty percent (50%) complete. Following 50% completion Projectproject, the Owner may also withhold additional retainage from any subsequent periodic payment, not to exceed 5%, to allow the Owner to retain two ½% total retainages through the completion of the Project. Within sixty (60) days after the submission of a final pay application, the Owner, with the written consent of the Surety, shall Project to the Contractor all retainage on payments held by the Owner Projectthe Owner receives a certificate of substantial completion from the architect, DeProjector design consultant in charge of this Project, or (2) the Owner receives beneficial occupancy or use of the Project. However, the Owner may retain sufficient funds to secure the completion of the Project or corrections to any work. If the Owner retains funds, the amount rContractor'sl not exceed two and one-half times the eContractor'st of the Work to be completed or corrected. Any reduction in the amount of retainage on payments shall be with the consent of the Contractor's Surety. Retainer provisions contained n Contractor's subcontracts may not exceed the terms and conditions for retainage provided herein. The Contractor is further required to satisfy the retainage provisions of N.C.G.S. 143- 134.1(b2) about subcontracts for early finishing trades (structural steel, piling, caisson, and demolition) and to coordinate the release of retainage for such trades from the retainage held by Owner form the Contractor pursuant to statute. Nothing herein shall prevent the Owner from withholding payment to the Contractor in addition to the amounts identified herein for unsatisfactory job progress, defective construction not remedied, disputed Work, or third paContractor'siled against the Owner or reasonable evidence that a third party claim will be filed. 9.5 CERTIFICATES FOR PAYMENT 9.5.1 The Designer will, within seven days after receipt of the Contractor's Application for Payment, eitherDesigner'sthe Owner a Certificate for Payment, with a copy to the Contractor, for such amount as the Designer dDesigner'sis properly due, or notify the Contractor and Owner in writing of the Designer's reasonsDesigner'solding certification in whole or in part as provided in Contractor's6.1. 9.5.2 The Designer's certification for payment shall constitute a representation to the Owner, based on the Designer's inspections at the site and on the data comprising the Contractor's Application for Payment, that the Work has progressed to the point indicated and that the inspections of the construction, repairs, or installations have been conducted with the degree of care and professional skill and judgment ordinarily exercised by a member of his prDesigner'sand that to the best of his knowledge and in the professional opinion of the Designer, the Contractor has fulfilled the obligations of such plans, specifications, and contract. The Designer's certification for payment shall be signed and sealed by the Designer and presented to the Owner. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract Documents upon Substantial Completion, to results of subsequent tests and inspections, to minor deviations from the Contract Documents correctable prior to completion and to specific qualifications expressed by the Designer. The issuance of a Certificate for Payment shall further constitute a representation by the Designer, that the Contractor is entitled to payment in the amount certified. 9.6 DECISIONS TO WITHHOLD CERTIFIDesigner's.1 The Designer may decide not to certify payment and may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the Owner, if in the Designer's opinion, the representations to the Owner required by Paragraph 9.5.2 cannot be made. If the Designer is unable to certify payment in the amount of the Application, the Designer will notify the Contractor and Owner as provided in Paragraph 9.5.1. If the Contractor and Designer cannot agree on a revised amount, the Designer will promptly issue a Certificate for Payment for the amount for which the Designer is able to make such representations to the Owner. The Designer may also decide not to certify payment or, becDesigner'sbsequently discovered evidence or subsequent observations, may nullify the whole or a part of a Certificate for Payment previously issued, to such extent as may be necessary in the Designer's opinion to protect the Owner from loss due to: defective Work not remedied; third party claims filed or reasonable evidence indicating probable filing of such claims; failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment; reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum; damage to the Owner or another contractor; (6) reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would not be adequate to cover actual or liquidated damages for the anticipated delay; or persistent failure to carry out the Work in accordance with the Contract Documents. 9.5.2 When the above reasons for withholding certification are removed, certification will be made for amounts previously withheld. 9.7 PROGRESS PAYMENTS 9.7.1 After the Designer has issued a Certificate Subcontractorthe Owner shall make payment in the manner and within the time provided in the Contract Documents andSubcatrractor'sy the Designer. 9.7.2 The Contractor shall promSubcontractor Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on accountor'sntractor'ontractor'sfportion of the Work, the amount to which said Subcontractor is entitled, reflecting percentagesSubcontractorained from payments to the Contractor on account of such Subcontractor's portion of the Work. By appropriate agreement with each Subcontractor, the Contractor shall require each Subcontractor to make payments to Sub-subcontractors in a similar manner. 9.7.3 The Designer will furnish to a Subcontractor, upon request and if practicableSubcontractor regarding percentages of completion or amounts applied for by the Contractor and action taken thereon by the Designer and Owner on account of portions of the Work done by such Subcontractor. 9.7.4 Neither the Owner nor Designer shall have an obligation to pay or to see to the payment of money to a Subcontractor except as may otherwise be required by law. 9.7.5 Payment to material suppliProjectll be treated in a manner similar to that provided in Paragraphs 9.7.2, 9.7.3, and 9.7.4. 9.7.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not constitute accptance of Work not in accordance with the Contract Documents. 9.8 FAILURE OF PAYMENT The Contractor shall not stopprojecr'srpsogressre of the Designer to issue a Certificate of Payment, or the Owner to make timely payment. 9.9 SUBSTANTIAL COMPLETION 9.9.1 Substantial Completion is the stage in the progress of the Project when the Work or designated portion thereof is sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work for its intended use. 9.9.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially complete, the Contractor shall prepare and submit to the Designer a comprehensive list of items to be completed or corrected. The Contractor shall proceed promptly to complete and contractor's on the list. Failure to include an item or such list does not alter the responsibility of the Contractor to complete all Work by the contract Documents. Upon receipt of the ContractoContractor'se Designer will inspect to determine whether the Work or designated portion thereof is substantially complete. If the Designer's inspection discloses any item, whether or not included on the Contractor's list, which is not in accordance with the requirements of the Contract Documents, the Contractor shall, before issuance of the Certificate of Substantial Completion, complete or correct such item upon notification by the Designer. The Contractor shall then submit a request for another inspection by the Designer to determine Substantial Completion. When the Work or designated portion thereof is substantially complete, the Designer will prepare a Certificate of Substantial Completion, which shall establish the date of Substantial Completion, shall establish the responsibilities of the Owner and Contractor for security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial Completion. The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of responsibilities assigned to them in such Certificate. 9.9.3 Upon Substantial Completion of the Work or designated portion thereof and upon application by the Contractor and certification by the Designer, the Owner shall make payment, reflecting adjustment in retainage, if any, for such Work or portion thereof as provided in the Contract Documents. 9.10 PARTIAL OCCUPANCY OR USE 9.10.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when the such portion is designated by separate agreement with the Contractor, provided such occupancy or use is authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, retainage if any, security, maintenance, heat, utilities, damage to the Work and insurance, and have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion substawork'sy complete, the Contractor shall prepare and submit a list to the Designer as provided under Subparagraph 9.9.2. Consent of the CDesigner's partial occupancy or use shall not be unreasonably withheld. The woOwwork'storss stage shall be determined by written agreement between the Owner and Contractor or, if no agreement is reached, by the Designer'Unl'sision. 9.10.2 Immediately before partial occupancy or use, the Owner, Contractor, and Designer shall jointly inspect the area occupied or a portion of the Work to be used to determine and record the condition of the Work. 9.10.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of Work not complying with the requirements of the Contract Documents. 9.11 FINAL COMPLETION AND FINAL PAYMENT 9.11.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final Application for Payment, the Designer wilDesigner make such inspections and when the Designer finds tDesigner'sceptable under the Contract Documents and the Contract fully performed, the Designer will promptly issue a Final Certificate for Payment stating that to the best of the Designer's knowledge, information and belief, and base sigedr'n Designer's observations and inspections, the Work has been completed by terms and conditions of the Contract Documents andContractor'stire balance found to be due the Contractor and noted in said Final Certificate is due and payable. The Designer's Final Certificate for Payment will constitute a further representation that the conditions listed in Paragraph 9.11.2 as precedent to the Contractor's being entitled to final payment have been fulfilled. 9.11. Owner'ser final payment nor any remaining retained percentage shall become due until the Contractor submits to the Designer (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied, (2) a certificate evidencing that insurance required by the Contract for Construction to remain in force after final payment is currently in effect and will not be canceled or allowed to expire until at least 30 days prior written notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents, (4) consent of surety, if any, to final payment and (5) if required by the Owner, other or additional data establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or encumbrances rising out of the Contract, to the extent and in such form as may be designated by the Owner. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Contractor may furnish a bond satisfactory to attorneys new to indemnify the Owner against the such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees. 9.11.3 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor or by the issuance of Change Orders affecting final completion, and the Designer so confirms, the Owner shall, upon application by the Contractor and certification by the Designer, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance for Work not fully completed and accepted is less than retainage stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Designer prior to certification of such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a waiver of claims. 9.11.4 Acceptance of final payment by the Contractor, Subcontractor or material supplier shall constitute a waiver of claims by that payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment. ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY 10.1 SAFETY PRECAUTIONS AND PROGRAMS 10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising al" safety precautions and programs in connectiContractore performance of the ConWorkt and construction of the Project. 10.1.2 In the event the Contractor encounters on the site material Workonably believed to be asbestos or polychlorinated biphenyl (hereinafter APCB”) which has not been rendered harmless, the Contractor shall immediately stop Work in the area affected and report tWorkondition to the Owner and Designer by phone and in writing. The Work in the affected area shall not thereafter be resumed except by written agreement of the Owner and Contractor if in fact the material is asbestos or PCB and has not been rendered harmless. The Work in the affected area shall be resumed in the absence of asbestos or PCB, or when it has been rendered harmless, by written agreement of the Owner and Contractor, or by final determination by the Designer. 10.1.3 The Contractor shall not be required to prm without consent of Owner and Designer any Work relating to asbestos or PCB. 10.2 SAFETY OF PERSONS AND PROPERTY 10.2.1 The Contractor shall take reasonable precautions for safety of, and shall provide reasonable protection to prevent damage, injury or loss to: employees on working on
the Project and other persons who may be affected thereby; the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care, custody or control of the Contractor or the Contractor's Subcontractors or Sub-subcontractors; and (3) other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and utilities not designated for removal, relocation or replacement in the course of construction. 10.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations, and lawful orders of public authorities bearing on safety of persons or property or their protection from damage, injury, or loss. 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable safeguards for safety and protection, including erecting necessary barricades or other temporary walls and structures as required during the period of construction, posting danger signs and other warnings against hazards, promulgating safety regulations, and notifying owners and users of adjacent sites and utilities. 10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution of Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel. 10.2.5 The Contractor shall promptly remedy damage and loss to property referred to in Paragraphs 10.2.1.(2) and (3), caused in whole or in part by the Contractor, Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may be liable and for which the Contractor is responsible under Paragraphs 10.2.1.(2) and (3), except damage or loss attributable to acts or omissions of the Owner or Designer and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in addition to the Contractor's obligations under Article 3. All costs to repair any damage and loss to property referred to in Paragraphs 10.2.1.(2) and (3), shall be the sole responsibility of the Contractor and such repair or replacement shall be performed expeditiously without cost to the Owner. 10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the prevention of accidents. This person shall be the Contractor's Superintendent, required under Paragraph 3.8, unless otherwise designated by the Contractor in writing to the Owner and Designer. 10.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety. 10.2.8 Existing utilities have been identified and described in the Contract Documents insofar as information is reasonably available, however, it is the Contractor’s responsibility to verify such information and to preserve all existing utilities whether shown in the Contract Documents or not. If utility conflicts are encountered by the Contractor during construction, Contractor shall file sufficient notice to the owners of the utilities so that they may make the necessary adjustments, as well as the Designer or Designer. 10.3 EMERGENCIES In an emergency affecting the safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an emergency shall be determined as provided in Paragraphs 4.2.7, 4.2.8 and Article 7. ARTICLE 11 UNCOVERING AND CORRECTION OF WORK 11.1 UNCOVERING OF WORK 11.1.1 If a portion of the Work is covered contrary to the Designer's request or to requirements specifically expressed in the Contract Documents, it must, if required in writing by the Designer, be uncovered for the Designer's observation and be replaced at the Contractor's sole expense without change in the Contract Time. 11.1.2 If a portion of the Work has been covered which the Designer has not specifically requested to observe prior to its being covered, the Designer may request to see such Work and it shall be uncovered by the Contractor. If such Work is not in accordance with the Contract Documents, the Contractor shall pay such costs unless the condition was caused by the Owner or a separate contractor in which event the Owner or separate contractor shall be responsible for payment of such costs. If such work is in accordance with the Contract Documents, the Owner, by appropriate Change Order, shall be charged with the cost of uncovering and replacement. 11.2 CORRECTION OF WORK 11.2.1 The Contractor shall promptly correct Work rejected by the Designer or failing to conform to the requirements of the Contract Documents, whether observed before or after Substantial Completion and whether or not fabricated, installed or completed. The Contractor shall bear any and all costs of correcting such rejected Work, including additional testing and inspections and compensation for the Designer's services and expenses made necessary thereby. 11.2.2 If, within one year after the date of Substantial Completion of the Work or designated portion thereof, or after the date for commencement of warranties established under Paragraph 9.10.1 or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written notice from the Owner to do so unless the Owner has previously given the Contractor a written acceptance of such condition. This period of one year shall be extended with respect to portions of Work first performed after Substantial Completion by the period of time between Substantial Completion and the actual performance of the work. This obligation under this Paragraph 11.2.2 shall survive acceptance of the Work under the Contract and termination of the Contract. The Owner shall give such notice promptly after discovery of the condition. 11.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the Contract Documents and are neither corrected by the Contractor nor accepted by the Owner. 11.2.4 If the Contractor fails to correct nonconforming Work within a reasonable time, the Owner may correct it in accordance with Paragraph 2.2. If the Contractor does not proceed with correction of such nonconforming Work within a reasonable time fixed by written notice from the Designer, the Owner may remove it and store the salvageable materials or equipment at the Contractor's expense. If the Contractor does not pay costs of such removal and storage within ten days after written notice, the Owner may upon ten additional days written notice sell such materials and equipment at auction or at private sale and shall account for the proceeds thereof, after deducting costs and damages that should have been borne by the Contractor, including compensation for the Designer's services and expenses made necessary thereby. If such proceeds of sale do not cover costs which the Contractor should have borne, the Contract Sum shall be reduced by the deficiency. If payments then or thereafter due the Contractor are not sufficient to cover such amount, the Contractor shall pay the difference to the Owner. 11.2.5 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed, of the Owner or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the requirements of the Contract Documents. 11.2.6 Nothing contained in this Section 11.2 shall be construed to establish a period of limitation with respect to other obligations which the Contractor might have under the Contract Documents. Establishment of the time period of one year as described in Paragraph 11.2.2, relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the time within which the obligation to comply with the Contract Documents may be sought to be enforced nor to the time within which proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than specifically to correct the work. 11.3 ACCEPTANCE OF NONCONFORMING WORK If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the Owner may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and equitable. Such adjustment shall be effected whether or not final payment has been made. ARTICLE 12 MISCELLANEOUS PROVISIONS 12.1 GOVERNING LAW. This Contract for Construction shall be governed by and in accordance with the laws of the State of North Carolina. All actions relating in any way to this Contract, shall be brought in the General Court of Justice in the County of Durham and the State of North Carolina, after exhausting the dispute resolution procedure set forth in Section 4.4, herein. 12.2 SUCCESSORS AND ASSIGNS. The Owner and Contractor respectively bind themselves, their partners, successors, assigns, and legal representatives to the other party hereto and to partners, successors, assigns, and legal representatives of such other party in respect to covenants, agreements, and obligations contained in the Contract Documents. Neither party to the Contract shall assign the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent, that party shall nevertheless remain legally responsible for all obligations under the Contract. 12.3 WRITTEN NOTICE. Written notice shall be deemed to have been duly served if delivered in person to the individual or a member of the firm or entity or to an officer of the corporation for which it was intended, or if delivered at or sent by registered or certified mail to the business address listed in the Contract for Construction. 12.4 RIGHTS AND REMEDIES. Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law. 12.5 WAIVER OF A RIGHTS. No action or failure to act by the Owner or Designer shall constitute an obligation or duty afforded them under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may be specifically agreed in writing. 12.6 COMPLIANCE WITH LAWS. Contractor represents that it is in compliance with all Federal, State, and local laws, regulations or orders, as amended or supplemented. The implementation of this contract will be carried out in strict compliance with all Federal, State, or local laws regarding discrimination in employment. 12.7 TESTS AND INSPECTIONS 12.7.1 Tests, inspections, and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules, regulations or orders of public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise provided, the Contractor shall make arrangements for such tests, inspections, and approvals with an independent testing laboratory or entity acceptable to the Owner, or with the appropriate public authority, and the Owner shall bear the costs of tests, inspections, and approvals. Should any retest be necessary due to the failure of the Work to pass the first test or for any other reason whatsoever, the Contractor shall bear all related costs of retests, inspections or re-inspections, and approvals. The Contractor shall give the Designer timely notice of when and where tests and inspections are to be made so the Designer may observe such procedures. 12.7.2 If the Designer, Owner, or public authorities having jurisdiction determine that portions of the Work require additional testing, inspection, or approval not included under Paragraph 12.5.1, the Designer will, upon written authorization from the Owner, instruct the Contractor to make arrangements for such additional testing, inspection, or approval by an entity acceptable to the Owner, and the Contractor shall give timely notice to the Designer of when and where tests and inspections are to be made so the Designer may observe such procedures. 12.7.3 If such procedures for testing, inspection or approval under Paragraphs 12.5.1 and 12.5.2 reveal failure of the portions of the Work to comply with requirements established by the Contract Documents, the Contractor shall bear all costs made necessary by such failure including those of repeated procedures and compensation for the Designer's services and expenses. 12.7.4 Required certificates of testing, inspection, or approval shall, unless otherwise required by the Contract Documents, be secured by the Contractor and promptly delivered to the Designer. 12.7.5 If the Designer is required by the Contract Documents to observe tests, inspections, or approvals, the Designer will do so promptly and, where practicable, at the normal place of testing. 12.7.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the Work. 12.8 COMMENCEMENT OF STATUTORY LIMITATION PERIOD As between the Owner and Contractor: Before Substantial Completion. As to acts or failures to act occurring prior to the relevant date of Substantial Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than such date of Substantial Completion; Between Substantial Completion and Final Certificate for Payment. As to acts or failures to act occurring subsequent to the relevant date of Substantial Completion and prior to issuance of the Final Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of issuance of the Final Certificate for Payment; and After Final Certificate for Payment. As to acts or failures to act occurring after the relevant date of issuance of the Final Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and all events not later than the date of any act or failure to act by the Contractor pursuant to any warranty provided under Paragraph 3.4, the date of any correction of the Work or failure to correct the Work by the Contractor under Section 11.2 or the date of actual commission of any other act or failure to perform any duty or obligation by the Contractor or Owner, whichever occurs last. ARTICLE 13 TERMINATION OR SUSPENSION OF THE CONTRACT 13.1 TERMINATION BY THE CONTRACTOR 13.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 180 consecutive days through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons performing portions of the Work under contract with the Contractor, for any of the following reasons: issuance of an order of a court or other public authority having jurisdiction; an act of government, such as a declaration of national emergency, making material unavailable; because the Designer has not issued a Certificate for Payment and has not notified the Contractor of the reason for withholding certification as provided in Paragraph 9.6. 13.1.2 If one of the above reasons exists, the Contractor may, upon seven (7) additional days written notice to the Owner and Designer, terminate the Contract and recover from the Owner payment for work executed and for proven loss with respect to materials, equipment, tools, and construction equipment and machinery, not including overhead, profit, or damages. 13.2 TERMINATION BY THE OWNER FOR CAUSE 13.2.1 The Owner may terminate the Contract if the Contractor: persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials; fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between the Contractor and the Subcontractors; persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; or otherwise is in substantial breach of a provision of the Contract Documents. 13.2.2 When any of the above reasons exist, the Owner, upon certification by the Designer that sufficient cause exists to justify such action, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor's surety, if any, seven days written notice, terminate employment of the Contractor and may, subject to any prior rights of surety: take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon owned by the Contractor; and finish the Work by whatever reasonable method the Owner may deem expedient. 13.2.3 When the Owner terminates the Contract for one of the reasons stated in Paragraph 13.2.1, the Contractor shall not be entitled to receive further payment. 13.2.4 If the unpaid balance of the Contract Sum does not cover the cost of finishing the Work, the Contractor shall pay the difference to the Owner. The amount to be paid to the Owner, shall be certified by the Designer, upon application, and this obligation for payment shall survive termination of the Contract. 13.3 SUSPENSION BY THE OWNER FOR CONVENIENCE The Owner may, without cause, order the Contractor in writing to suspend, delay, or interrupt the Work in whole or in part for such period of time as the Owner may determine. 13.4 BANKRUPTCY 13.4.1 The bankruptcy of the Contractor shall not terminate this Contract until such time that it is specifically rejected by the Trustee or Contractor in bankruptcy. During the election period the Contractor has to assume or reject this Contract, the Contractor shall continue to perform its Work under the Contract. 13.4.2 In the event the Contractor in Bankruptcy assumes the Contract, the Contractor shall apply progress payments to all of its unpaid obligations on this project before using any of these monies for either administrative expenses of the bankruptcy or as general assets of the estate. 13.5 SECURITY OF NON-PUBLIC RECORDS Pursuant to N.C.G.S. § 132-1.7 entitled, “Sensitive Public Security Information”, public records, as defined in N.C.G.S. § 132-1, shall not include information containing specific details of public security plans and arrangements or the detailed plans and drawings of public buildings and infrastructure facilities. Therefore, all information provided, received, gathered or obtained by Contractor containing specific details of public security plans and arrangements or the detailed plans and drawings of public buildings and infrastructure facilities shall be held confidential and shall be used by the Contractor only for the purpose of fulfilling the terms of this Agreement. All plans and drawings shall be returned to the County, or otherwise destroyed at the direction of the County, upon termination or expiration of this Agreement. Any breach of this paragraph by Contractor shall result in the immediate termination of this contract.
Contact Information
Quality Builders Group LLC
5600 Kirby Dr
Suite 5
Houston, TX 77005
Phone (844) 844-2711
Sales@qbgrp.com