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Bid Packetf ~. r. = . _ ::.CONSTRUCTION BlD AND CONTRACT _- _. NO 13-013. .. _ ~ TOWN OF 1NAPPINGER .,., _ .<. .. _. ,; _ _ ..... FOR THE . . -_ MARTZ FIELD EAST. ... _~ -. _. -~~ ` TENNISCOU.RT RECONSTRUCTI.ON PROJEC, - .. ;. ~'`''' ' ~, ' OR F ., ;~.:~ x TOWN OF WAPPINGER - `'~ ~`~ TOWN HALL - ~ t" 20 MIDDLEBUSH ROAD '~"` ~ WAPPINGERS FALLS, NEW YORK 12590 ;;~' .:• k,. BARBARA GUTZLER -SUPERVISOR ~~:~- r `` COUNCIL PEOPLE: `~`.!~' 3 w ~~ - x~: ~ "' .. .. ~ ~ *, FIRST WARD ......................................WIILIAM H. SECOND WARD ..................................VINCENT BETTINA THIRD WARD ......................................ISMAY CZARNIECKI FOURTH WARD .................................. MICHAEL KUZMICZ TOWN CLERK .....................................CHRISTINE FULTON TOWN ATTORNEY ..............................ALBERT P. ROBERTS CONTRACT BID PACKAGE MA #W21305.00 JULY 2013 PREPARED BY: MORRIS ASSOCIATES fir. ENGINEERING CONSULTANTS, PLLC 9 Elks Lane, Poughkeepsie, New York 12601 Tel: (845) 454-3411 Fax: (845) 473-1962 389 Fairview Avenue, Hudson, New York 12534 Tel: (518) 828-2300 Fax: (518) 828-3963 ~r. TOWN OF WAPPINGER MARTZ FIELD EAST CONTRACT NO 13-013 TENNIS COURT RECONSTRUCTION PROJECT TABLE OF CONTENTS Notice to Bidders ...................................................... ............ 3 DIVISION 100 Instructions to Bidders .............................................. ............ 5 DIVISION 200 Bid Form ................................................................... ..........15 DIVISION 300 Contract .................................................................... ..........28 DIVISION 400 General Conditions ........................................... .........46 DIVISION 500 Special Conditions ............................................ .........81 DIVISION 600 Technical Specifications ..................................... ........83 01310 Project Management and Coordination ................. .........84 01320 Construction Progress Documentation ... ............... .........87 01770 Closeout Procedures ......................................... .........91 01781 Project Record Documents ................................. .........93 DIVISION 700 Prevailing Wage Rates ....................................... .........98 -2- NOTICE TO BIDDERS NOTICE IS HEREBY GIVEN that the Town Board of the Town of Wappinger invites sealed proposals for the furnishing of all materials and labor necessary for the Martz Field East -Tennis Court Reconstruction Project, Contract 13-013, Wappingers Falls, New York. This Contract includes drawings and specifications prepared by Morris Associates Engineering Consultants, PLLC, 9 Elks Lane, Poughkeepsie, NY 12601. All such sealed proposals must be received by the Town Clerk at the Town Hall, 20 Middlebush Road, Wappingers Falls, NY 12590 on or before 12:00 Noon, July 24, 2013. The bids will be publicly opened and read aloud with the contract being awarded as soon as practicable thereafter. Copies of the proposed contract documents, including plans and specifications, and the forms of proposals for the contract, are available for public inspection at the Town Clerk's office during business hours, Monday through Friday and will become available July 10, 2013 at the office of the Town Clerk. Pursuant to the provisions of GML 102, persons desiring to take a copy may obtain them, subject to a deposit in the amount of $25.00 for each set, payable by check or money order, to guarantee their safe return, such deposits to be refunded or partially refunded under the provisions of GML 102. The documents will also available for examination on July 10, 2013 at the offices of Morris Associates, 9 Elks Lane, Poughkeepsie, New York. The Town of Wappinger has enacted Local Law No. 2005-3 entitled "Apprenticeship Training Programs for Town Construction Contracts" which requires that any contractor that has a construction contract with the Town must have an Apprenticeship Agreement appropriate for the type and scope of work to be perFormed and which has been registered with and approved by the New York State Commissioner of Labor in accordance with Article 23 of the New York State Labor Law. Contractors shall follow the provisions of the Town Apprenticeship Training Program at all times for any project with a bid of $500,000 or more. All proposals shall be made and received upon the following conditions and requirements, along with additional conditions and requirements that are more fully set forth in the contract bid package: Oniy such proposals as are made and filed upon the forms included in the contract bid package will be accepted. 2. All bids shall contain the non-collusion certificate in a form meeting the requirements of GML 103-d. 3. Proposals shall be enclosed in a sealed envelope. 4. Each proposal must be accompanied by a certified check in the amount of five percent (5%) of the amount bid, payable to the order of the Town of Wappinger, or a bond in the amount of five percent (5%) of the amount bid, with sufficient sureties, to be approved by the Supervisor, as Chief Financial -3- Officer, and conditioned that if the proposal is accepted, the bidder will enter into a contract for the same and will provide acceptable security, in the form of cash, certified check, performance bond, or letter of credit, as set forth in the contract bid package, for the faithful performance of the contract, within 15 days from the acceptance of the proposal. 5. Pursuant to the provisions of GML 105, no bid may be withdrawn unless no contract is awarded for more than 45 days after the bid opening thereof. Upon proper withdrawal of a bid, the bid bond shall be forthwith returned. After award of the contract, all bid bonds except that of the successful bidder will be returned. The Town Board reserves the right, in its discretion, to waive technical noncompliance or irregularities that are not material or substantial, and to reject all bids and to rebid the project. By order of the Town Board Dated: May 28, 2013 Christine Fulton, Town Clerk Town Hall 20 Middlebush Road Wappingers Falls, NY 12590 845-297-5771 ~r -4- DIVISION 100 Z INSTRUCTIONS TO BIDDERS -5- ARTICLE A: GENERAL PROVISIONS A.1 Location and Description of Project a. The work proposed is located at the Martz Field East located on Montfort K Road opposite Pye Lane in the Town of Wappinger, Dutchess County, New York. This contract consists mainly of the following: • Dismantle the existing chain fink fence, rails, posts and gates, and store at a location to be approved by the Town Recreation Department. Backfill the post footing holes. Remove and refurbish the existing backstop. • Remove and dispose of existing net posts and concrete footings. Backfill the post footing holes. • Remove and dispose of existing tennis court pavement. ., Install new concrete footings for the net posts and center tie down straps.. • Furnish and install variable thickness lift of compacted "item 4" and fine grade to elevations on plan. Check for smoothness tolerance and correct ~„ as needed. The contract includes an allowance amount of 160 CY for this work that shall be included in the price bid. • Furnish and install 3" compacted thickness lift of asphalt leveling course (mix design as recommended by producer for use on tennis courts, max 3/4" stone). Check for smoothness tolerance and correct as needed. • Furnish and install 1'/z" compacted thickness [ift of asphalt top course (mix design as recommended by producer for use on tennis courts, max 3/8" stone). Check for smoothness tolerance and correct as needed. • Flood finish pavement to determine areas to be shimmed ("birdbaths") as needed to obtain a uniform plane playing surface. • Furnish and install new liquid acrylic surface system and court lines (colors to match the playing surface on the Martz Field tennis courts across Montfort Road). • Furnish and install new net posts, hardware and nets. ~ Construct new chain link fence and gates per plan upon completion of tennis court reconstruction (may be done before color coats are applied). • Blend grading to match adjoining grass, construct topsoil, seed and mulch in regraded and disturbed areas. b. TIME IS OF THE ESSENCE in this contract. The work shall be completed within 60 calendar days of the date of the Notice to Proceed. A.2 Definitions r a. "Bid Documents" shall mean the Bidding Requirements and the Contract Documents, listed below, both as a whole and severally. Except for titles, • sub-titles, headings, running headlines, table of contents and indices (all of which are printed herein merely for convenience), the following, except for such portions thereof as may be specifically excluded, shall be deemed to be part of this proposal: -6- Bidding Requirements 1) Notice to Bidders 2) Instructions to Bidders 3) Bid Form 4} Sample Contract 5) Certification of Non-Collusion by Bidders 6) Bid Bond 7) Contractor's Statement of Qualifications Cor 1) 2) 3) 4} 5) ~ 6) 7) 8) 9) 1 Q) itract Documents Contract Performance Bond and Labor and Material Payment Bond General Conditions for Contract Special Conditions for Contract Technical Specifications, Drawings All Addenda All provisions required by law to be inserted in the Contract whether actually inserted or not. Change Orders Prevailing wage Rates b. "Bid" - a complete and properly signed proposal to do the work for the sums named therein, submitted in complete accordance with the bid requirements. The words "bid" and "proposal" are used interchangeabiythvoughout the bid advertisement and the contract bid package. Bid can also mean the dollar amount and proposal can also refer to the work to be done. See also Owner's Proposal below. c. "Bidder" -the individual, firm or corporation who submits a bid and proposal. d. "Owner's Proposal (also called simply Proposal}" - all the bidding requirements and contract documents offered by the Owner for acceptance by bidders and which will become the contract upon acceptance by the Owner of a bid. The Owner's Proposal includes the bound volume of bidding requirements (the contract bid package) and the plans, specifications and addenda. e. Other definitions are listed in the General Conditions in the contract bid ~" package. A.3 Estimates of Bid Quantities. a. Bidders shall examine the drawings and specifications and exercise their own judgment as to the nature and amount of the whole of the work to be done, and, for the prices bid, shall assume all risk of variance by -7- ~. whomsoever made in any computation or statement of amounts or quantities necessary to fully complete the work in strict compliance with the contract documents. b. The work shall be paid as a lump sum, including the 160 CY allowance amount for "Item 4". c. Upon contract award, the contractor shall furnish a schedule of values to be used by the Town when making progress and final payments. Note that for mobilization and bonds and insurances, the maximum total amount that the Town will pay in the first request for payment shall be 5% of the total bid "" amount. The scheduled amount for mobilization and bonds and insurances shall be payable with the first request for payment, but not as a separate earlier payment. A.4 Site Conditions `~ a. The Owner does not guarantee that all pipes, ducts, utilities, and other underground structures are shown on the plans. The information given is intended only as a guide to the bidder. The contractor shall request a utility mark-out as required by NYS law. „ b. By submission of a bid, the bidder agrees and represents that he/she has visited the site prior to the time of submitting the bid and has inspected and given consideration to the conditions under which the work is to be ~,,,, performed. In addition, the bidder shall carefully examine the site of the proposed work and all premises adjacent thereto. The bidder shall satisfy and fully inform himself/herself from his/her own investigation or research as ~,,, t0: (1) the nature and location of the work, (2) the general and local conditions, (3) the various means of approach to the site, (4) the sites and facilities for delivering, unloading, storage, and handling of materials and equipment (the Town will permit the adjacent area to the work site to be used by the contractor, subject to complete site restoration upon completion of the project), (5) the character, quality, and quantity of existing materials, (6) the kind and extent of equipment, labor, materials, and facilities needed, (7) all difficulties likely to be encountered, 4 and all other items, which may in any way affect the work or its performance "" in accordance with the contract requirements. -8- i V c. In addition to making the careful examination referred to above, the bidder, at his/her own expense and only after having received written approval from the Engineer, may make borings, test pits or such other methods as he/she may prefer to satisfy himself/herself as to the character, location and amounts of water, mud, clay, sand, gravel, quicksand, boulders, conglomerate, rock and other material which may be encountered in the locations where the proposed work is to be performed. A.5 Governing Laws and Regulations a. The bidder shall comply with the contract requirements for labor laws, labor safety, labor rates, labor standards, and non-discrimination. b. The wage rates are not separately printed and included in the owner's proposal. A link to the NYSDOL prevailing wage determination is included below. The "Request for Wage and Supplement Information" (PW 39) has been accepted, and a Prevailing Rate Case Number PRC# 2013006089 has been assigned to the project. To view the PDF file of the schedule, click on or copy and paste into your browser http~//wpp labor state ny us/wpp/publicViewProject.do?method= ~` showlt&id=903359 c. The Town of Wappinger is an exempt organization under the Tax Laws and is exempt from payment of Sales and Compensating Use Taxes of the State r of New York and cities and counties of the State for all materials which are to be incorporated into the construction, pursuant to the provisions of the contract. These are not to be included in the bid. However, this is not to be +rr construed by bidders as relieving them from any obligation to pay a sales tax on applicable items pursuant to terms of the present Sales Tax Law. A.6 Addenda and Interpretations Any discrepancies or omissions found in the drawings or specifications shall be brought to the attention of the Engineer, Morris Associates. No interpretation of the -9- ~. meaning of the drawings, specifications, or other contract documents will be made to any bidder orally. Prospective bidders must request in writing such interpretation from the Engineer and such interpretation will be given in writing. To be given consideration, such request must be received at least seven (7) working days prior to the date fixed for the opening of the bids. Any and all such interpretations and any supplemental instructions will be in the form of written addenda which, if issued, will be sent by registered mail, with return receipt requested, to all prospective bidders (at the respective addresses furnished for such purposes) not later than five ~ (5) working days prior to the date fixed for the opening of the bids. All addenda so issued shall become part of the contract documents. A.7 Apprenticeship Program The Town enacted Local Law No. 4 of 2008 entitled "Apprenticeship Training Programs for Town Construction Contracts" which requires that any contractor that has a construction contract with the Town in excess of $500,000.00 must have an Apprenticeship Agreement appropriate for the type and scope of work to be performed and which has been registered with and approved by the New York State Commissioner of Labor in accordance with Article 23 of the New York State Labor Law. The Contractor shall follow the provisions of the Town Apprenticeship Training Program at all times during the performance of the contract. ARTICLE B: BIDDING PROCEDURE All Bidders shall note the following: r"" The Owner is not pre-qualifying bidders and subcontractors. However, the successful bidder and subcontractors shall meet the following qualifications. a. The paving contractor/subcontractor shall be able to document having successfully completed minimum 5 tennis court projects, surfacing or resurfacing. b. The color coat contractor/subcontractor shall be able to document having successfully competed minimum 10 tennis court projects, new or refinishing. c. The fence contractor/subcontractor shall be able to document having successfully competed minimum 5 sports field chain link fence projects. d. A statement of qualifications, certifying to the above requirements, shall be included with each bid, for every contractor and subcontractor included in the proposal. A complete list of projects and references is not required with the bid, but may be required after bid opening from the apparent lowest bidder, see Article C.3 below. B.1 Form of Bid a. A bid must be submitted only on the designated form, all blank spaces of which must be filled in, in ink, in both words and figures with the total sum for -10- ~• which the bid is made. In case of a discrepancy, the word description will govern. Bid Form must remain attached to and bound in this Contract Bid Package. b. The complete form shall be without erasures, interlineations, or alterations. c. No oral, telegraphic or telephonic bid or bid modifications will be considered. d. The signature(s) on the bid and all other contract documents must be in ink and in longhand. An officer or a principal of a corporation or a partnership signing for the bidder shall print or type the legal name of the person, partnership, or corporation on the line provided and place his/her signature in the appropriate space. All other information required shall be typed or printed on the lines provided. ~r e. The Certification of Non-Collusion by Bidders, attached hereto, shall be considered to be a part of the bid and no bid will be considered unless it ~ remains attached to the bid and bears the signature or initials of the bidder or his/her authorized agent. The bidder shall also be responsible at the time of bidding for completing any other certifications required by these bid documents. f. Prior to submitting h'is/her bid, the bidder shall verify that he/she has received all addenda issued. The bidder shall acknowledge receipt of the addenda on the outside, sealing covering of the bid. Failure of the bidder to receive all addenda or interpretations shall not relieve the bidder from any obligation under the bid as submitted. B.2 Bid Security a. As assurance that the bid is made in good faith, the bid must be accompanied by: (1) A certified check drawn on a solvent bank or trust company with its principal place of business in New York State, in an amount equal to five percent (5%) of the amount bid and made payable to the Town of Wappingers or, (2) A bond issued by a surety authorized to do business in New York State, to be approved by the Supervisor, as Chief Financial Officer, in an amount equal to five percent (5%) of the amount bid, preferably on the form attached hereto. Since failure to provide an acceptable bond shall mean that the bid will be rejected, bidders are cautioned to have their proposed bonding surety approved in advance by the Town Supervisor. ( b. Said check or bid bond shall be given as a guarantee that the bidder will enter ~"'' into a contract with the Owner within fifteen (15) days after notification by -11- ~r. registered mai{ of the acceptance of his/her bid. c. In case of refusal, or of failure, of the selected bidder to enter into a contract within the stipulated time, that bidder shall be considered to have abandoned the contract and the check or bond will be declared forfeited to the Owner as liquidated damages. No plea of mistake in a bid (except excusable error) shall be available to the bidder for the recovery of his/her bid security or as a defense to any action based on neglect or refusal to execute a contract. d. The bid security of the three (3) lowest bidders may be held for forty-five (45) days as permitted by State law at the discretion of the Owner and then returned. Security of the other bidders will be returned within ten (10) days after the opening of the bids. B.3 Submission of Bid a. Bids will be received by the Owner at the Office of the Town Clerk of the ~` Town of Wappinger, Town Hall, 20 Middlebush Road, Wappingers Falls, New York until the date and time stated in the Notice to Contractors, at which time and place they will be publicly opened and read aloud. b. Any bid may be withdrawn prior to the scheduled time for the opening of bids and authorized postponement thereof. ~ c. Bid modification by amendment may be considered on condition that: (1) the amendment arrives before the time set for the bid opening, and (2) the i,,, amendment is in writing and signed by the bidder, and (3) the bid, as amended, conforms in all respects with the bidding requirements. d. Any bid received after the time set for opening will not be considered and will be returned unopened to the bidder. tir e. The bid must be submitted in a sealed envelope, bearing on the outside the name of the bidder, his/her mailing address and street address, and the name and number of the contract for which the bid is being submitted. If +.r forwarded by mail, preferably by registered mail, the sealed envelope(s) containing the bid and marked as directed above must be enclosed in ~` another envelope addressed to the Town of Wappinger, Town Hall, 20 Middlebush Road, Wappingers Falls, New York 12590. The Owner may consider as irregular any bid not prepared and submitted in accordance with ,„ the provisions hereof. Bid shall remain in force for forty-five (45) days from the bid opening date, pursuant to the provision of General Municipal Law 105. ARTICLE C: AWARD OF CONTRACT ~"" C.1 Award of Contract -12- +r. ~fr a. If awarded, the contract may be awarded to the lowest responsible bidder furnishing the required security as will best promote the public interest. b. If alternates or options are described or requested by Owner in the contract documents, the Owner reserves the right to accept or reject any or all alternates or options. The lowest bid will be determined by the sum of the base bid and the accepted alternates or options. ""' c. The Owner reserves the right to reject any or all bids, and advertise for new bids, if in its opinion the best interest of the Town will thereby be promoted. In the event that all bids are rejected, each bidder will be so notified. ~- C.2 Irregular Bids a. Any bid, which fails to conform to the requirements of the contract documents, may be rejected. Failure to complete all required certifications may cause the bid to be considered irregular and therefore not eligible for award. b. The Owner may waive any informality or afford the bidder an opportunity to remedy any deficiency resulting from a minor irregularity. C.3 Determination of Contractor's Responsibility a. The law requires that contracts for public work in the State of New York be awarded to the lowest responsible bidder as will best promote the public interest. In order to assist the Owner in determining whether the apparent low bidder meets this standard, the Owner reserves the right to require the apparent low bidder to submit a statement containing the following: sr. (1) a statement as to any competitively bid project on which the bidder submitted the low bid but was not awarded a contract, within the previous five years, (2) a certified financial statement showing assets (including a list of equipment owned by the bidder), liabilities and net worth, (3) a list of the officers and principals of the bidder, and a fist of all subsidiary or affiliated companies in which the bidder's principals have ~- any financial interest, (4) a list of the number of full time personnel of the bidder and a description of the construction experience of the bidder's principals and supervisory personnel, ~`"' (5) a statement as to any projects which the bidder or his/her -13- predecessors failed to complete or any litigation in which the bidder has been involved within. the previous three fiscal years, (6) a list and description of all contracts completed by the bidder within the previous three fiscal years, including a fist of project names, references and telephone numbers, (7) a list and description of the status of all uncompleted contracts of the bidder, ~, (8) statements of the bidder's net total billings and average backlogs of uncompleted work on outstanding contracts for each of the previous three fiscal years, (9} description of experience with projects of comparable size, complexity and cost within the last 5 years, (10) disclosure of convictions for violations of any prevailing wage or employment regulations, OSHA requirements, unemployment insurance tax provisions, workers' compensation regulations, or any federal, state or municipal environmental or health laws, codes, rules or regulations, and ~, (11) demonstration of ability and capacity to perform substantial portion of the project with its own forces; identification of all work to be subcontracted, and a fist of all proposed subcontractors. b. Any of the above information with respect to proposed subcontractors may also be requested. C.4 Security for Faithful Performance a. The successful bidder, simultaneously with the execution of the contract, shall submit on the form provided herein, a performance bond in the amount of one hundred percent (100%) of the contract price, as a guarantee that he/she shall well, truly and faithfully perform the duties, undertakings, covenants, terms, conditions and agreements of said contract during the original term thereof and any extensions thereof which may be granted by the Owner and during the one year guaranty period. The performance bond shall serve as security for the faithful performance of this contract. ~'' C.5 Security for Faithful Payment a. The successful bidder, simultaneously with the execution of the contract, shall submit on the form provided herein, a Labor and Material Payment Bond in the amount of one hundred percent (100%) of the contract price, as a guarantee that he/she will, truly and faithfully make payment of all persons ~`"'" performing labor and furnishing materials in connection with the contract. -14- Said bond shall be issued by a surety company authorized to do business in the State of New York and approved by the Owner's attorney. Attorneys-in- i' fact who sign labor and material payment bonds must file with such bonds a certified copy of the power of attorney to sign such bonds. ARTICLE D: GENERAL INFORMATION D.1 Bidding and Contract Award Steps (1) Plans and specifications shall be obtained only from the Town Clerk. ~. (2) Bids will be opened by the Town Clerk, and then taken by the Engineer for review. ~ (3) The Engineer will return all bids to the Town Clerk, along with a recommendation for award. The Town Attorney should also review the bids, ,, including accompanying documents. (4) The Town Board will vote to award the contract at a Town Board meeting, following which the Town Clerk will send the Notice of Award along with three blank contract forms and blank bond forms to the successful bidder. ,.,, (5) The Contractor shall complete the forms and return them to the Supervisor for signature. Note that the date on the bonds shall not be earlier than the date of the Supervisor's signature. Owner in its discretion may accept a ~. binder for the required bonds. (6) One original contract shall be given to the Town Clerk, and a copy shall be given to the Engineer. (7) Upon receipt of the actual bonds, the Town Clerk will issue the Notice to Proceed. A copy should be given to the Engineer. (8) Upon receipt of the Notice to Proceed, the Contractor shall request to it schedule the pre-construction conference. At the meeting, the Contractor will be furnished four sets of plans, specifications and all addenda at no charge. The Contractor may purchase additional plans, specifications, and addenda at the cost to the Town for such materials. (9) Progress and final payments shall be made in accordance with the General Conditions Article 8. The applications shall be made on originals of AIA forms, or equivalent original forms may be used. All other supporting documentation shall also be on originals of the AIA forms or equivalent forms. Applications made on photocopies of copyrighted forms will not be processed. -15- cfl rr. ~: Yr DIVISION 200 BID FORM -17- TOWN OF WAPPINGER MARTZ FIELD EAST CONTRACT 13-013 TENNIS COURT RECONSTRUCTION PROJECT BID FORM THE TOWN RESERVES THE RIGHT TO REJECT ANY OR ALL BIDS. EACH BID FORM SHALL BE ACCOMPANIED BY BID SECURITY (AS DESCRIBED IN THE INSTRUCTIONS TO BIDDERS). TO THE TOWN BOARD, TOWN OF WAPPINGER, NEW YORK Pursuant to and in compliance with your invitation to bid contained in the Notice to Contractors dated , (month) (day) (year) the undersigned hereby proposes to furnish all labor, machinery, equipment, facilities, tools, transportation, supplies, materials, insurances, permits, certificates, tests, guarantees, protection of equipment and property and life during construction; as well as f competent and qualified supervision for all phases of the work, and other facilities and things necessary or proper for or incidental to the Martz Field East -Tennis Court Reconstruction Project, Contract 13-013, Town of Wappinger, as required by and in strict accordance with the plans, specifications and all other documents, for the prices stipulated i`. and as shown on this bid form. Name of Bidder: (Individual, Partnership, Corporation or LLC)" * Circle applicable word ~ The undersigned declares that the bidding and contract documents have been carefully examined and that all things necessary for the completion of the work shall be provided. Receipt of the following addenda is hereby acknowledged: DATE ADDENDUM NO. 1 ~,,, ADDENDUM NO. 2 ir. ADDENDUM NO. 3 ADDENDUM NO. 4 -18- SIGNATURE Irr +Ir In consideration of, and to induce the award of this contract to him/her, the bidder represents and warrants that: (a) If this bid is accepted by the Town Board, Town of Wappinger, as evidenced ~ by issuance of a Notice of Award by the Owner, and mailed by registered mail with return receipt requested to the address of the bidder as indicated on his/her bid, the bidder will execute a contract on the form of agreement herein provided and will comply with all provisions of said Notice of Award. (b) This bid is made without any understanding, agreement or connection with any other person, firm or corporation making a bid for the same work, and that it is in all respects fair and without collusion or fraud. ~„ (c) He/She has carefully examined and fully understands all of the parts of the contract documents, and that he/she will execute the contract and will completely perform it in strict accordance with the provisions thereof for the sum set forth on the bid. (d) No officer or employee of the Town Board, Town of Wappinger, or any person whose salary is payable in whole or in part by the Town Board is, shall be, or shall become interested directly or indirectly as a contracting party, partner, stockholder, surety or otherwise in this bid or in the performance of the contract or in the supplies, materials or equipment, or to work or labor to which it relates, or in any portion of the profits thereof. (e) He/She is not in arrears to the Town Board upon debt or contract and is not a defaulter as surety, contractor, or otherwise upon any obligation to the Town Board, Town of Wappinger. (f7 All work shall be completed within the time allotted, from the date specified ' in the Notice to Proceed or set by the contract documents, mailed to the undersigned by registered mail with return receipt requested to the legal address of the bidder as indicated on his/her bid. (g) If the bid documents contain any unlawful provision not an essential part of the bid and which shall not appear to have been a controlling or material inducement to the making thereof, the same shall be deemed of no effect and will upon notice by either the Owner or the bidder be deemed stricken from the bid documents without affecting the binding force of the remainder. r"` (h) Each and every provision of any law and clause required by law to be inserted in the bid documents shall be deemed to be inserted herein and the "` bid documents shall be read and enforced as though it were included herein; ~""" and if through mistake or otherwise any such provision is not inserted or is not correctly inserted, then upon the application of either party, the bid documents shall forthwith be physically amended to make such insertion. -19- 1rr (i} That he/she is financially solvent and sufficiently experienced and com etent P ~, to perform the work. (j) The work can be performed as called for by the owner's proposal and that the plans and specifications are in all respects suitable and adequate for the work. (k) That the facts stated in his/her bid and the information given by him/her are true and correct in all respects. (I) That he/she is fully informed regarding all the conditions affecting the work to be done and labor and materials to be furnished for the completion of this contract, and that his/her information was secured by personal investigation and research. (m) In the event of a lawsuit, the bidder agrees that said suit shall be filed in the same federal district or county as the location of the project. BID FOR CONTRACT WORK: BASE BID: The Bidder proposes to perform the work required in accordance with the contract documents for the Martz Field East Tennis Court Reconstruction Project, for the lump sum of, which amount includes the allowance amount of 160 CY of "Item 4",: (Words) it (Figures) `,,, By signing below, the Bidder hereby certifies that he/she and each of his/her proposed subcontractors meets the minimum experience qualifications per the i' Instructions to Bidders, Article B. - 20 - +lr ~. .~- Sign Bid Here Print Name Title Official Company Name, Company Mailing Address AUTHORIZED SIGNATURE (Individual, Partnership, Corporation, LLC)* * Circle applicable word STREET CITY STATE ZIP CODE Federal Employer Identification No. Telephone No. Fax No. -21 - (If bidder is a corporation, fill in the following blanks.) w. Organized under the laws of the State of: Name and Address of President: Name and Address of Secretary: Name and Address of Treasurer: (If bidder is a Limited Liability Company, fill in the following blanks.) Organized under the laws of the State of: Name of Manager or Managing Member: Agent for Service of Process: Address for Service of Process: -22- "" STATE OF NEW YORK ) ss: COUNTY OF ) On the day of ,before me, the undersigned, a Notary Public in and for said State, personalty appeared °`° personally known to me or proved to me on the basis of satisfactory evidence to be the Et individual whose name is subscribed to the within instrument and acknowledged to me that ~`` he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the w instrument. NOTARY PUBLIC W -23- Q~n Qn~in .. +~. C~ ~r ~- ~< If a bond is used, the form bound in this manual should be used. No other form may be used except with prior approval by the Owner after review by the Town Attorney which approval may be granted or withheld, in the Owner's discretion. -24- BID BOND KNOW ALL MEN BY THESE PRESENTS: that ** as Principal; and as Surety, are hereby held and firmly bound unto the Town Board, Town of Wappinger, New York in the amount of: Dollars $ for the payment whereof Principal and Surety bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. Signed this day of 20 WHEREAS, the condition of the above obligation is such that, whereas the Principal has submitted to the Town Board a certain bid, attached hereto and hereby made a part hereof, to enter into a contract in writing for the Martz Field East, Contract 13-013, -Tennis Court ~ Reconstruction Project for the Town of Wappinger, New York, as shown and specified. NOW THEREFORE, ,~, (a) if said Bid shall be rejected, or in the alternate (b) If said Bid shall be accepted and the Principal shall execute and deliver a contract in the Form of an Agreement attached hereto (properly completed in accordance ,,, with said Bid) and shall in all respects perform the agreement created by the acceptance of said Bid, then this obligation shall be void. Otherwise, the same shall remain in force and effect, it being expressly understood and agreed that the liability ~„ of the Surety for any and all claims hereunder shall, in no event, exceed the amount of this obligation as herein stated. The Surety, for value received, hereby stipulates and agrees that the obligations of said Surety and its bond shall in no way be impaired or affected by any extension of the time within which the Principal may accept such bid; and said Surety does hereby waive notice of any such extension. IN WITNESS WHEREOF, the Principal and the Surety have hereunto set their hands and +~+ seals, and such of them as are Corporations have caused their Corporate seals to be hereto affixed and these presents to be signed by their proper officers, the day and year first set forth above. -25- ~. it Y Wr (SEAL) r. .. *Insert Bidder's Name **Insert Surety's Name PRINCIPAL By Signed, sealed and delivered in the presence of (Corporate seal of Contractor if a corporation) Contractor By By (Title of Officer) (Corporate seal of Surety) Attest (Title of Officer) -26- Ir STATE OF NEW YORK ) ss: COUNTY OF On the day of ,before me, the undersigned, a Notary Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. NOTARY PUBLIC r err ~' CERTIFICATION OF NON-COLLUSION BY BIDDER No bid will be considered unless this Certification remains attached to and is submitted with the Bid By submission of this bid, each bidder and each person signing on behalf of any bidder r. certifies, and in the case of a joint bid each party thereto certifies as to its own organization, under penalty of perjury, that to the best of his knowledge and belief: (1) The prices in this bid have been arrived at independently, without collusion, consultation, communication, or agreement for the purpose of restricting competition as to any matter relating to such prices, with any other bidder or with any competitor. (2) Unless otherwise required by law, the prices which have been quoted in this bid have not knowingly been disclosed by the bidder and will not knowingly be disclosed by the bidder, directly or indirectly, to any other bidder or to any competitor, before the time of the bid opening. (3) No attempt has been made or will be made by the bidder to induce any other person, partnership or corporation to submit or not to submit a bid for the purpose of restricting competition. A bid shall not be considered for award nor shall any award be made where (1), (2) and (3) above have not been complied with; provided however, that if in any case the bidder cannot make the foregoing certification, the bidder shall so state and shall furnish with the bid a signed statement which sets forth in detail the reasons therefore. Where (1), (2} and (3) above have not been complied with, the bid shall not be considered for award nor shall any award be made unless the Town Clerk of ,,,,,, the Municipality to which the bid is made, or his/her designee, determines that such disclosure was not made for the purpose of restricting competition. (4) The fact that a bidder (a) has published price lists, rates, or tariffs, covering items being procured, (b) has informed prospective customers of proposed or pending publication of new or revised price lists for such items, or (c) has sold the same items or other customers at the same prices being bid, does not constitute, without more, a disclosure within the meaning of subparagraph (1). (5) Any bid hereafter made to any public authority or to any official of any public authority created by the State or any political subdivision, by a corporate bidder for work of services performed or to be performed or goods sold or to be sold where competitive bidding is required by statute, rule, regulation, or local law, and where such bid contains the certification referred to in the lead paragraph of this section, lir -28- Ir sha-I be deemed to have been authorized by the board of directors of the bidder and such authorization shall be deemed to include the signing and submission of the bid ,,, and the inclusion therein of the certificate as to non-collusion as the act and deed of the corporation. I affirm these statements under penalty of perjury. BIDDER'S SIGNATURE: i~. DATE: r t~ -29- i DIVISION 300 SAMPLE CONTRACT -30- I~r TOWN BOARD ,,, TOWN OF WAPPINGER, NEW YORK CONTRACT 13-013 For ~. MARTZ FIELD EAST TENNIS COURT RECONSTRUCTION PROJECT THIS CONTRACT made and executed this day of ., in the year Two Thousand and thirteen, by and between the Town Board, Town of Wappinger, Owner and ., Contractor. WITNESSETH: in consideration of the mutual agreements herein contained the parties hereto have agreed and hereby agree with each other, the Owner, its successors and assigns, and the Contractor, and his/her successors and assigns, as follows: 1. This Contract includes the plans and specifications for the Project identified thereon as such prepared by Morris Associates plus the following Contract Documents: A. Performance Bond and Labor and Material Payment Bond B. General Conditions of Contract C. Special Conditions for Contract D. Technical Specifications E. Drawings F. All Addenda G. All provisions required by law to be inserted in this contract whether actually inserted or not H. Change Orders, and I. Prevailing Wage Information and Materials 2. The above contract documents are hereby incorporated herein by reference and ~ made a part hereof. Change Orders issued hereafter, and any other amendments executed by the Owner and the Contractor, shall become and be a part of this Contract. Documents not included or expressly contemplated in this Paragraph do not, and shall not, form any part of this Contract. All the above documents constitute the entire and exclusive agreements between the parties with reference to the Project, and said Contract supersedes any and all prior discussions, -31- communications, representations, understandings, negotiations, or agreements. 3. The Owner, Town of Wappinger, New York agrees to pay and the Contractor agrees to accept (unless modified pursuant to the terms set forth in the General Conditions) a total, final and fixed Contract Price of: for Martz Field East, Contract 13-013 -Tennis Court Reconstruction Project 4. The Contractor will furnish all labor and materials necessary to perform the work shown, required to complete the Contract, including: all labor, supervision, machinery, equipment, facilities, tools, transportation, supplies, materials, insurance, permits, certificates, tests, guarantees, protection of equipment and property and life during construction, and all other things whether or not explicitly shown or mentioned, necessary and proper for or incidental to the completion of a workmanlike job, complete in every respect and detail, left ready and in perfect condition for the Owner's use, as called for in the contract documents. 5. Within 7 days of signing this contract, the Contractor shall submit to the Engineer in writing the name of each proposed subcontractor and supplier and obtain the Engineer's written consent to such subcontractor and supplier: The names shall be submitted in ample time to permit acceptance or rejection of each proposed subcontractor and supplier by the Engineer without causing delay in the work of the Project. 6. In order to induce the Owner to execute this Contract and recognizing that the Owner is relying thereon, the Contractor, by executing this Contract, makes the following express representations to the Owner. A. The Contractor is fully qualified to act as the contractor for the Project and has, and shall maintain, any and all licenses, permits or other authorizations necessary to act as the contractor for, and to construct, the Project; B. The Contractor has become familiar with the Project site and the local conditions under which the Project is to be constructed and operated. C. The Contractor has received, reviewed and carefully examined all of the documents which make up this Contract, including, but not limited to, the plans and specifications, and has found them in all respects to be complete, L, accurate, adequate, consistent, coordinated and sufficient for construction. 7. The Contractor agrees to begin work on the day specified in the Notice to Proceed and unless the date for completion is extended pursuant to provisions of the General Conditions, he agrees to complete the work within sixty (60) days of the date stated therein. ,,,, - 32 - L 8. In addition to any and all other duties, obligations and responsibilities of the Contractor set forth in this Contract, the Contractor shall have and perform the following duties, obligations and responsibilities to the Owner: A. The Contractor shall not perform work without adequate plans and specifications, or, as appropriate, approved shop drawings or other submittals. if the Contractor performs work knowing or believing it involves an error, inconsistency or omission in the Contract without first providing written notice to the Engineer and Owner, the Contractor shall be responsible for such work and pay the cost of correcting same; B. All work shall strictly conform to the requirements of this Contract; w C. The work shall be strictly supervised, the Contractor bearing full responsibility for any and all acts or omissions of those engaged in the work on behalf of the Contractor; D. The Contractor hereby warrants that all labor furnished under this Contract shall be competent to perform the task undertaken, that the product of such labor shall yield only first-class results, that all materials and equipment provided shall be new and of high quality, that the completed work will be complete, of high quality, without defects, and that all work strictly complies with the requirements of this Contract. Any work not strictly complying with the requirements of this subparagraph shall constitute a breach of the Contractor's warranty; E. The Contractor shall obtain and pay for all required permits, fees and licenses customarily obtained by the Contractor.. The Contractor shall comply with all legal requirements applicable to the work; F. The Contractor shall employ and maintain at the project site only competent supervisory personnel; G. The Contractor, within fifteen (15) days of commencing the work, shall provide to the Owner and the Engineer, the Contractor's schedule for completing the work. Such schedule shall be in a form acceptable to the ~ Owner. The Contractor's schedule shall be updated no less frequently than monthly (unless the parties otherwise agree in writing} and shall be updated to reflect conditions encountered from time to time and shall apply to the total ~ Project. Each such revision shall be furnished to the Owner and the Engineer. Strict compliance with the requirements of this Subparagraph shall be a condition precedent to payment to the Contractor, and failure by ~„ the Contractor to strictly comply with said requirements shall constitute a material breach of this Contract; -33- ~r +~. b H. The Contractor shall keep an updated copy of this Contract at the site. Additionally, the Contractor shall keep a copy of approved shop drawings and other submittals. All of these items shall be available to the Owner and the Engineer at all regular business hours. Upon final completion of the work, all of these items shall be finally updated and provided to the Owner and shall become the property of the Owner; Shop drawings and other submittals from the Contractor do not constitute a part of the Contract. The Contractor shall not do any work requiring shop drawings or other submittals unless such shall have been approved in writing by the Engineer. All work requiring approved shop drawings or other submittals shall be done in strict compliance with such approved documents. However, approval by the Engineer or the Owner shall not be evidence that work installed pursuant thereto conforms to the requirements of this Contract. The Owner and the Engineer shall have no duty to review partial submittals or incomplete submittals. The Contractor shall maintain a submittal log which shall include, at a minimum, the date each submittal, the date of any resubmittal, the date of any approval or rejection, and the reason for any approval or rejection. The Contractor shall have the duty to carefully review, inspect and examine any and all submittals before submission of same to the Owner or the Engineer; ~ J. The Contractor shall maintain the Project site in a reasonably clean condition during performance of the work. Upon final completion, the Contractor shall thoroughly clean the Project site of all debris, trash and excess materials or ~'• equipment; and shall hand rake all disturbed areas and seed and mulch. K. At all times relevant to this Contract, the Contractor shall permit the Owner and the Engineer to enter upon the Project site and to review or inspect the work without formality or other procedure. 9. The Contractor shall furnish separate performance and payment .bonds to the Owner. Each bond shall set forth a penal sum in an amount not less than the Contract Price. Each bond furnished by the Contractor shall incorporate by reference the terms of this Contract as fully as though they were set forth verbatim in such bonds. In the event the Contract Price is adjusted by Change Order executed by the Contractor, the penal sum of both performance bond and the payment bond shall be deemed increased by like amount. The performance and payment bonds furnished by the Contractor shall be in form suitable to the Owner and shall be executed by a surety, or sureties, reasonably acceptable to the Owner. (See forms attached hereto.) 10. This Contract is governed by the law of the State of New York. 11. The venue for any litigation concerning this contract is hereby established to be the -34- it Ir+ Supreme Court, County of Dutchess, State of New York. 12. The Contractor agrees, in the event he/she fails to complete all the work on time, to pay the Owner liquidated damages in the amount of $250 for each calendar day of delay in the physical completion of the work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that final completion will be inexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving final completion, or any part thereof, forwhich the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages. 13. The Contractor, by placing his/her signature on this Contract, hereby certifies that he/she is familiar with the contents of all bid documents and the contract documents and he/she agrees to abide by and be bound by their contents and by all applicable Federal, State and local laws, ordinances and statutes. 14. Payment, both progress and final, will be made as detailed in the General Conditions section of the Contract Documents. 15. Each party binds itself, its successors, assigns, executors, administrators or other ~" representatives to the other party hereto and to successors, assigns, executors, administrators or other representatives of such other party in connection with all terms and conditions of this Contract. The Contractor shall not assign this Contract without prior written consent of the Owner. Owner Town of V1lappinger Seal (Typed Name) By. (Signature) Barbara Gutzler Supervisor (Printed Name, Title and Address) (Date of Execution) -35- Contractor (Typed Name) Seal BY (Signature) (Printed Name, Title and Address) (Date of Execution) it (Acknowledgment by Contractor if a corporation) STATE of ) ss: COUNTY of ) ~. On the ~h day of, 2013, before me, the undersigned, a Notary Public in and for the said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. Notary Public (Acknowledgment by Supervisor) STATE of New York ) ss: COUNTY of Dutchess ) On the th day of, 2013, before me, the undersigned, a Notary Public in and for the said State, personally appeared Barbara Gutzler personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the instrument. Notary Public +r -36- • PERFORMANCE BOND The form bound in this manual should be used. No other form of performance bond or other acceptable performance security may be used except with prior approval and the Owner, after review by the Town Attorney, which approval may be granted or withheld, in the owner's discretion. rr -37- flr PERFORMANCE BOND as surety ("Surety") , (Insert Proper Name of Surety) ~„ and (Insert Proper Name of Contractor) as principal ("Contractor"), enter into, execute this bond ("Performance Bond"), and bind themselves in favor of (Insert Proper Name of Owner) as obligee ("Owner") in the penal sum of $ as of the (Insert Penal Sum) This Penal Sum shall be deemed (Insert Date of Construction Contract) increased in the same amount that the contract price increases pursuant to change orders executed by the Owner and Contractor (see Article 5 of the General Conditions of Contract). WHEREAS, the Contractor has executed a contract with the Owner of even date herewith ("Construction Contract") for construction of (Insert Description and Location of the Construction Project) and, WHEREAS, the Owner has required the Contractor to furnish this Performance Bond containing the terms and conditions set forth herein as a condition to executing the Construction Contract with the Contractor: NOW THEREFORE, the Surety and the Contractor, both jointly and severally, and for themselves, their heirs, administrators, executors and successors agree: 1. The Construction Contract is hereby incorporated herein and by reference made an art hereof to the same extent and effect as though it were copied verbatim herein. ,,, The Surety and the Contractor are bound for the full performance of the Construction Contract including without exception all of its terms and conditions, both express and implied. w. -38- ~; 2. If the Contractor is in default of the Construction Contract and the Owner, by written notice to the Contractor and the Surety, declares the Contractor to be in default and terminates the right of the Contractor to proceed, the Surety shall thereupon promptly notify the Owner in writing as to which of the actions permitted to the Surety in Paragraph 3 it will take. 3. Upon the default and termination of the Contractor and notice to the Contractor and Surety as provided in Paragraph 2 above, the Surety shall within 30 days proceed to take one or, at its option, more than one of the following courses of action: a. Proceed itself, or through others acting on its behalf, to complete full performance of the Construction Contract including, without limitation, correction of defective and nonconforming work performed by or on behalf of the Contractor. During such performance by the Surety the Owner shall pay the Surety from its own funds only such sums as would have been due and payable to the Contractor in the absence of the default and termination; b. Applicable law permitting, and with the prior written consent of the Owner, obtain bids or proposals from contractors previously identified as being ~r• acceptable to the Owner, for full performance of the Construction Contract. The Surety shall furnish the Owner a copy of such bids or proposals upon receipt of same. The Surety shall promptly select, with the agreement of the Owner, the best responsive bid or proposal and shall promptly tender the contractor submitting it together with a contract for fulfillment and completion of the Construction Contract executed by the completing contractor, to the '~"' Owner for the Owner's execution. Upon execution by the Owner of the contract for fulfillment and completion of the Construction Contract, the completing contractor shall furnish to the Owner a performance bond and a separate payment bond, each in the form of those bonds previously furnished to the Owner for the project by the Contractor. Each such bond shall be in the penal sum of the (1) fixed price for completion, (2) guaranteed maximum price for completion, or (3) estimated price for completion, whichever is applicable. The Owner shall pay the completing contractor from its own funds only such sums as would have been due and payable to the Contractor under the Construction Contract as and when- they would have been due and payable to the Contractor in the absence of the default and termination. To the extent that the Owner is obligated to pay the completing contractor sums which would not have then been due and payable to the Contractor under the Construction Contract, the Surety shall provide the Owner with such sums in a sufficiently timely manner that the Owner can utilize such sums in making timely payment to the completing contractor; or, c. Take any and all other acts, if any, mutually agreed upon in writing by the Owner and the Surety. -39- 4. In addition to those duties set forth hereinabave, the Surety shall promptly pay the Owner all loss, costs and expenses resulting from the Contractor's default(s), including, without limitation, fees, expenses and casts for architects, engineers, consultants, testing, surveying and attorneys, liquidated or actual damages, as ~: applicable, for delay in completion of the Project, and fees, expenses and costs ,~„ incurred at the direction, request, or as a result of the acts of omissions of the Surety. 5. In no event shall the Surety be obligated to the Owner hereunder for any sum in excess of the Penal Sum. 6. The Surety waives notice of any changes to the Construction Contract including, without limitation, changes in the contract time, the contract price, or the work to be performed. 7. This performance bond is provided by the Surety for the sole and exclusive benefit of the Owner and, if applicable, any dual obligee designated by rider attached ~• hereto, together with their heirs, administrators, executors, successors or assigns. No other party, person or entity shall have any rights against the Surety hereunder. 8. Any and all notices to the Surety, the Contractor or the Owner shall be given by Certified Mail, Return Receipt Requested, to the address set forth for each party below. Surety: Contractor: Owner: 9. Any action hereon may be instituted so long as the applicable statute of limitations governing the Construction Contract has not run out or expired, any statutory limitation which may be contractually superseded to the contrary notwithstanding. -4Q- } it Contractor Seal (Typed Name) By (Signature) Surety Seal (Typed Name) gv (Signature) (Printed Name, Title and Address) (Printed Name, Title and Address) (Date of Execution) (Date of Execution) NOTES: 1. Date of Bond must not be prior to date of Contract. 2. If Contractor is a Partnership all partners should execute the bond. 3. Surety Companies executing Bonds must be authorized to do business in New York State and be approved by the Owner's attorney. 4. All bonds shall be in a form acceptable in all respects to the Owner's attorney and shall be approved by the Owner's attorney. -41 - ilr STATE F O NEW YORK ) )ss.: COUNTY OF 1 On the day of ,before me, the undersigned, a Notary l Public in and for said State, personally appeared personally known to me or proved to me on the basis of satisfactory evidence to be the individual whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the «.- instrument. NOTARY PUBLIC it k - 42 - is LABOR AND MATERIAL PAYMENT BOND The form bound in this manual should be used. No other form of payment bond may be used except with prior approval of the Owner, after review by the Town Attorney, which approval may be granted or withheld, in the Owner's discretion. ,,, - 43 - `. 1n liar LABOR AND MATERIAL PAYMENT BOND (Insert Proper Name of Surety} and as surety ("Surety"), (insert Proper Name of Contractor) as principal ("Contractor"), enter into, execute this bond ("Payment Bond"}, and bind themselves in favor of (Insert Proper Name of Owner) as obligee ("Owner") in the penal sum of $ (Insert Penal Sum) as of the (Insert Date of Construction Contract) WHEREAS, the Contractor has executed a contract with the Owner of even date herewith ("Construction Contract") for construction of (Insert Description and Location of the Construction Project) ("PROJECT"); and, WHEREAS, the Owner has required the Contractor to furnish this Payment Bond containing the terms and conditions set forth herein as a condition to executing the Construction Contract with the Contractor; NOW THEREFORE, the Surety and the Contractor, both jointly and severally, and for themselves, their heirs, administrators, executors and successors agree: 1. The Construction Contract is hereby incorporated herein and by reference made a part hereof to the same extent and effect as though it were copied verbatim herein. The Surety and the Contractor are bound for the full performance of the Construction Contract including without exception of all its terms and conditions, both express and implied, and, without limitation, specifically including Contractor's obligation to pay for labor, materials, services and equipment provided in connection with the Construction Contract performance; -44- r- rr 2. For purposes of this Payment Bond, Beneficiary is defined as a person or entity who has actually provided labor, material, equipment, services or other items for use in furtherance of the Construction Contract, and having: (A) a direct contract with the Contractor; or (B) a direct contract with a subcontractor of the Contractor; or (C} rights, under the laws of the jurisdiction where the Project is located, to file a lien, a claim or notice of lien, or otherwise make a claim against the Project or against funds held by the Owner, if the Project is, or were, subject to such filing. 3. The Surety shall not be obligated hereunder to a Beneficiary other than a Beneficiary having a direct contract with the Contractor unless such Beneficiary has given written notice of its claim to the Contractor and the Surety within the longer of: (A) ninety (90) days of after such Beneficiary provided labor, material, equipment, services or other items for use in furtherance of the Construction Contract; or, (B) the period of time provided by the jurisdiction wherein the Project is located for (1) filing of a lien, claim of lien, notice of lien, if the Project is, or were, subject to such filing, or (2) otherwise making a claim against the Project or ~"'~ against funds held by the Owner; stating the amount claimed and identifying, by name and address, the person or entity to whom such labor, material, equipment, services or other items were provided. 4. In no event shall the Surety be obligated hereunder for sums in excess of the Penal Sum. The Penal Sum shall be deemed increased by any amount by which the ~" contract price increases by virtue of change order. See Article 5 of the General Conditions of Contract. ~ 5. Upon receipt of a claim from a Beneficiary hereunder, the Surety shall promptly, and in no event later than 30 days after receipt of such claim, respond to such claim in writing (furnishing a copy of such response to the Owner) by: (A) making payment of all sums. not in dispute; and, (B) stating the basis for disputing any sums not paid. 6. No action shall be commenced by a Beneficiary hereunder after the passage of the longer of one (1) year following final completion of the Construction Contract or, if this bond is provided in compliance with applicable law, any limitation period provided therein. if the (imitation period contained in this Paragraph is unenforceable, it shall be deemed amended to provide the minimum period for an action against the Surety on a payment bond by a third-party beneficiary thereof. t -45- r 7. Any and all notices to the Surety or the Contractor shall be given by Certified Mail, Return Receipt Requested, to the address set forth for each party below: SURETY: CONTRACTOR: OWNER: CONTRACTOR SEAL (TYPED NAME) By: (SIGNATURE) (PRINTED NAME, TITLE & ADDRESS) SURETY SEAL (TYPED NAME) By (SIGNATURE) (PRINTED NAME, TITLE & ADDRESS) w. (DATE OF EXECUTION) (DATE OF EXECUTION) NOTES: 1. Date of Bond must not be prior to date of Contract. 2. If Contractor is a Partnership all partners should execute the bond. 3. Surety Companies executing Bonds must be authorized to do business in New York State and be approved by the Owner. 4. All bonds shall be in a form acceptable to and shall be approved by the Owner. - 46 - ~ STATE OF NEW YORK ) ss: '' COUNTY OF ) ~. On the day of ,before me, the undersigned, a Notary Public in and for said State, personalty appeared tr. personally known to me or proved to me on the basis of satisfactory evidence to be the ~: individual whose name is subscribed to the within instrument and acknowledged to me that ~. he executed the same in his capacity, and that by his signature on the instrument, the individual, or the person upon behalf of which the individual acted, executed the r. instrument. NOTARY PUBLIC ~. - 47 - k, ~r DIVISION 400 GENERAL CONDITIONS - 48 - TABLE OF ARTICLES/CONTENTS SECTIONS PAGE ARTICLE 1: DEFINITIONS ...........................................................................................50 1.1 Words and Expressions ..................................................................................50 ARTICLE 2: ROLES AND RESPONSIBILITIES ...........................................................52 2.1 The Contractor ................................................................................................ 52 2.2 The Owner ......................................................................................................53 2.3 Engineer's Authority ........................................................................................ 54 ARTICLE 3: INTERPRETATION OF CONTRACT DOCUMENTS ............................... 55 3.1 Conflicting Plans and Specifications ...............................................................55 3.2 Shop Drawings ............................................................................................... 56 3.3 Materials ......................................................................................................... 57 3.4 Royalties and Patents .....................................................................................58 ARTICLE 4: PERFORMANCE OF THE CONTRACT ..................................................58 4.1 Responsibility for Damage .............................................................................. 58 4.2 Claim for Damages by Contractor ...................................................................59 4.3 Coordination of Separate Contractors ............................................................ 59 4.4 Contractor's Supervision ................:................................................................ 60 4.5 Permits and Compliance .................................................................................60 4.6 Boundaries ......................................................................................................60 4.7 Refuse and Debris .......................................................................................... 60 4.8 Subcontractors and Suppliers ......................................................................... 61 4.9 Contractor's Work Requirements ....................................................................61 ARTICLE 5: CHANGE IN THE WORK .........................................................................61 5.1 Procedure ....................................................................................................... 61 5.2 Payment for Change Orders ...........................................................................63 ARTICLE 6: TIME OF COMMENCEMENT COMPLETION AND TERMINATION FOR CAUSE .........................................................63 6.1 Time of Commencement and Completion ...................................................... 63 6.2 Extension of Time ........................................................................................... 64 6.3 Liquidated Damages Upon Failure to Complete ............................................. 64 -49- Y: ~:. TABLE OF ARTICLES/CONTENTS Continued ~. SECTfONS PAGE 6.7 Termination by the Contractor ....................................................................... 68 6.4 Termination by the Owner ..............................................................................65 6.4.1 Termination for the Convenience .................................................65 6.4.2 Termination for Cause ...................................................................66 6.5 Cease and Desist Order ................................................................................. 67 6.6 Suspension of Work ....................................................................................... 67 ARTICLE 7: INSPECTION AND ACCEPTANCE .........................................................68 7.1 Inspection .......................................................................................................68 7.2 Contractor's Obligation to Correct Defective Work ......................................... 68 7.3 Progress Reports ............................................................................................ 69 7.4 Inspection Prior to Acceptance .......................................................................69 ARTICLE 8: PAYMENTS ..............................................................................................70 8.1 Payment ............................................................................ 70 8.2 .............................. Progress Payments 8.3 ........................................................................................ Substantial Completion 70 8.4 ................................................................................... Final Payment 72 8.5 ................................................................................................. Acceptance of Final Payment 73 8 6 ......................................................................... Contract Quantities 75 . 8.7 ......................................................................................... Maintenance and Guarantee ........................................ 75 75 8 8 .................................. No Esto el . pp .................................................................................................... 76 ARTICLE 9: BONDS AND INSURANCE ......................................................................76 9.1 Contract Security ............................................................................................ 76 9.2 Insurance ........................................................................................................ 77 ARTICLE 10: MISCELLANEOUS PROVISIONS ..........................................................78 10.1 Compliance with Codes and Laws ..................................................................78 10.2 Service of Notices ...........................................................................................78 10.3 Labor Standards ............................................................................................. 78 10.4 Record-Keeping Requirement ........................................................................ 79 10.5 Non-Assignment Clause ................................................................................. 79 10.6 Non-Collusive Bidding Requirements ............................................................. 79 -50- f TABLE OF ARTICLES/CONTENTS Continued SECTIONS PAGE 10.7 Wage and Hours Provisions ......................................... ..................................79 10.8 Workers' Compensation Benefits ................................. .................................. 80 10.9 Nondiscrimination Requirements .................................. ..................................80 10.10 Archaeological Salvage ................................................ ..................................80 10.11 Plans and Specifications ....................................... ..............................80 - 51 - ARTICLE 1: DEFINITIONS 1.1 WORDS AND EXPRESSIONS r. A. The following words and expressions, or pronouns used in their stead, shall, wherever they appear in this Contract, be construed as follows, unless a different meaning is clear from the context. "Act of God" shall mean an act, event, happening, or occurrence, and disaster and effect due to natural causes and inevitable accident, or disaster; a natural and inevitable necessity which implies entire exclusion of all human agency which operates without interference or aid from man and which results .from natural causes and is in no sense attributable to human agency. 2. "Addendum" or "Addenda" shall mean the additional contract provisions issued in writing by the Engineer priorto the receipt of bids. 3. "Certificate of Completion" shall mean a letter or notice signed by the Supervisor after the Engineer has determined that no further work is to be done. 4. "Certificate of Substantial Completion" shall mean a letter or notice signed by the Engineer when the work or a designated portion thereof is sufficiently complete that the Owner may occupy or use the work for the use for which it is intended. 5. "Change Order" shall mean a written order to the Contractor executed by the Owner and the Engineer after execution of this Contract, directing a change in the work and may include a change in the Contract Price or the time for the Contractor's performance, or any combination thereof: 6. "Contract" or "Contract Documents" shall mean each of the various parts of the contract listed below, both as a whole and severally: 7. Except for titles, sub-titles, headings, running headlines, tables of the following, except for such portions thereof as may be specifically excluded, shall be deemed to be part of this contract: a. Contract b. Performance Bond and Labor and Material Payment Bond c. General Conditions for Contract d. Special Conditions for Contract e. Technical Specifications f. Drawings -52- r ~""` g. All Addenda h. All provisions required by law to be inserted in this contract whether actually inserted or not i. Change Orders 8. "Contractor" shall mean the person, partnership, firm or corporation with whom the Owner has executed the Contract Agreement. 9. "Contract Work" shall mean everything expressly or implicitly required to be furnished and done by the Contractor by any one or more parts of the Contract defined herein, except extra work as defined herein. 10. Engineer shall mean the consulting engineer for the Town Board, Town of 'Wappinger, New York as designated and duly appointed by that Board, directed or assigned by them to this Contract, with the powers and duties as stated in the contract documents. 11. "Extra Work" shall mean work other than that required either expressly or implicitly by the contract in its present form. It may include work in areas designated on the plans as areas of future work, or in areas within the contract limits or adjacent thereto. Extra work shall be authorized by a change order. 12. "Final Acceptance" shall mean acceptance of the work by the Supervisor as evidenced by his signature upon the final Certificate of Completion. Such acceptance shall be deemed to have taken place only if and when such signature is affixed to said Certificate of Completion. 13. "Inspector" shall mean an authorized representative of the Owner assigned to make any and all necessary inspections of the work performed and materials furnished by the Contractor. ~' 14. "Owner" shall mean the party of the first part hereto, the Town of Wappinger, New York, as represented by the Town Board, or the Supervisor, or any other person designated by them to act on their behalf. 15. "Plans" shall mean only those drawings specifically titled as such and listed in the Specifications or in any addendum. 16. "Project" shall mean the entire improvement to which this contract relates. 17. "Site" shall mean the area upon or in which the Contractor's operations are carried on, and such other areas adjacent thereto as may be designated as such by the Engineer. -51 - 18. "Specifications" shall mean all of the directions, requirements, and standards of performance applying to the work as hereinafter detailed and designated as such or as stated on the plans. 19. Subcontractor shall mean any person, firm or corporation, other than ,employees of the Contractor, who or which contracts with the Contractor to furnish, or actually furnishes, labor, materials or Tabor and equipment at the site. 20. "Supervisor" shall mean the chief executive officer of the Town of Wappinger, New York. 21. "Surety" shall mean any person, firm or corporation that has executed as ~„ surety, and bond or bonds required to be executed by the Contractor as they relate to the provisions of the Contract. 22. "Town Attorney" (owner's attorney) shall mean the attorney for the Town Board, Town of Wappinger, New York as designated and duly appointed by that Board, directed or assigned by them to this contract, with the powers and duties established by the Town Board. 23. "The Work" shall mean everything expressly or implicitly required to be ~. furnished and done by the Contractor under the contract and shall include both contract work and extra work. 24. Whenever they refer to the work or its performance, the words "directed", "required", "permitted", "ordered", "designated", "prescribed", and words of like import are used, they shall imply the direction, requirement, permission, order, designation or prescription of the Engineer and "approved", "acceptable", "satisfactory", "in the judgment of', and words of like import, shall mean approved by, or acceptable to, or satisfactory to, in the judgment. of the Engineer. ARTICLE 2: ROLES AND RESPONSIBILITIES 2.1 THE CONTRACTOR A. The Contractor shall perform all of the work required, implied or reasonably inferable from this Contract including, but not limited to, the following: (1) Construction of the Project; (2) The furnishing of any required surety bonds and insurance; (3) The provision or furnishing, and prompt payment therefore, of labor, -52- supervision, services, materials, supplies, equipment, fixtures, appliances, facilities, tools, transportation, storage, power, fuel, heat, light, cooling, or other utilities, required for construction and all necessary building permits and other permits required for the construction of the Project; (4) The creation and submission to the Owner of detailed and comprehensive as-built drawings depicting all as-built construction. Said as-built drawings shall be submitted to the Owner upon final ~' completion of the Project and receipt of same by the Owner shall be a condition precedent to final payment to the Contractor. B. The Contractor acknowledges that the Owner does not guarantee that all pipes, ducts, utilities and other underground structures are shown on the plans, and that the information given is intended only as a guide to the Contractor. The Contractor shall not claim damages and shall not be entitled to payment because of any omission or faulty location on the plans of any pipes, ducts, utilities or other underground structures. C. The Contractor shall do all work and pay all costs of cutting, protecting, supporting, maintaining, relocating and restoring all surface, subsurface or overhead structures, and all other property, including pipes, conduits, ducts, tubes, chambers, and appurtenances, public or private, in the vicinity of the work (except such which by law, franchise, permit contract, consent or agreement the owner thereof is required to protect, support, maintain, relocate or restore), repairing the same if damaged and restoring to their original conditions all areas disturbed. He shall not claim or be entitled to any damages for delay or otherwise by reason of such required work, and he hereby assumes all risks in connection therewith. 2.2 THE OWNER A. The Owner, in addition to those matters expressly made subject to its determination, direction or approval in this contract, shall have the power: (1) To determine finally any and all questions in relation to this contract and its performance, which determination shall be final and conclusive upon the Contractor; (2) To modify or change this contract so as to require the performance of extra work, or the omission of contract work, or both, whenever it deems it in the public interest to do so; a. (3) To suspend the whole or any part of the work or terminate the entire project whenever, in its judgment, such suspension or termination is -53- ~. required (a) in the interest of the Owner generally, or (b) to coordinate the work of the various Contractors engaged in this project, or (c} to expedite the completion of the entire project even though the completion of this particular Contract may be thereby delayed, without compensation to the Contractor for such suspension other than extending the time for the completion of the work, as much as t may have been, in the opinion of the Engineer, delayed by such suspension; ~ (4) If before the final completion of all the work contemplated herein, it shall be deemed necessary by the Owner to take over, use, occupy or operate any part of the completed or partly completed work, the Owner shall have the right to do so and the Contractor will not, in any way, interfere with or object to the use, occupation or operation of j,,. such work by the Owner after receipt of notice in writing from the Supervisor that such or part thereof will be used by the Owner on and ; after the date specified in such notice. 2.3 ENGINEER'S AUTHORITY A. The Engineer, in addition to those matters elsewhere herein expressly made subject to his determination, direction or approval, shall have the power: (1) To inspect the performance of the work; (2) To determine the amount, kind, quality, sequence, and location of the work to be paid for hereunder; (3) To determine all questions in relation to the work, to interpret the drawings, specifications, and addenda; (4) To make minor changes in the work as he deems necessary, provided such changes do not result in a net increase in the cost to the Owner or to the Contractor of the work to be done under the contract; (5) To amplify the plans, add explanatory information and furnish additional specifications and drawings consistent with the intent of the contract documents. (6) To determine how the work of this contract shall be coordinated with the work of other contractors engaged simultaneously on this project, including the power to suspend any part of the work. (7) The foregoing enumeration shall not imply any limitation upon the -54- ~ir ~"' power of the Engineer; for it is the intent of this contract that all of the. work shall be subject to his determination, approval, and supervision i in accordance with the provisions of Education Law Section 7209(3). ~"' All orders of the Engineer requiring the Contractor to perform work as contract work shall be promptly obeyed by the Contractor. r. (8) The Engineer shall promptly make decisions relating to interpretation of the plans and specifications. ARTICLE 3: INTERPRETATION OF CONTRACT DOCUMENTS 3.1 CONFLICTING PLANS AND SPECIFICATIONS A. The Contractor shall have a continuing duty to read, examine, review, compare and contrast each of the documents which make up this Contract, shop drawings, and other submittals and shall give written notice to the Owner and the Engineer of any conflict, ambiguity, error or omission which the Contractor may find with respect to these documents before proceeding ~"` with the affected work. The express or implied approval by the Owner or the Engineer of any shop drawings or other submittals shall not relieve the Contractor of the continuing duties imposed hereby, nor shall any such ~"` approval be evidence of the Contractor's compliance with this Contract. The Owner has requested the Engineer to only prepare documents for the Project, including the plans and specifications for the Project, which are ` accurate, adequate, consistent, coordinated and sufficient for construction. However, the owner makes no representation or warranty of any nature whatsoever to the Contractor concerning such documents. The Contractor again hereby acknowledges and represents that it has received, reviewed and carefully examined such documents, has found them to be complete, accurate, adequate, consistent, coordinated and sufficient for construction, and that the Contractor has not, does not, and will not rely upon any representations or warranties by the Owner concerning such documents, as no such representations or warranties have been or are hereby made. ~, B. In the case of conflicting information within the plans and specifications as to the type of materials or workmanship to be provided, the Contractor agrees that he will accept the decision of the Engineer as to which was intended or which is in the best interest of the Owner. C. In the event that any provision in any of the following parts of this Contract conflicts with any provision in any other of the following parts, the provision in the part first enumerated below shall govern over any other part, which follows numerically, except as may be otherwise specifically stated. Said parts are the following: -55- $- 1. General Conditions for Contract 2. Special Conditions for Contract 3. Technical Specifications 4. Contract Drawings 5. Addenda D. The Contractor shall verify field conditions, including measurements and other conditions, before the start of construction. Any errors, inconsistencies or omissions shat{ be brought to the Engineer's attention for resolution. 3.2 SHOP DRAWINGS A. Where the nature of the work of the Contract makes it necessary, or where so required by the Engineer, the Contractor shall submit scale and full size shop drawings of the work for review by the Engineer. The shop drawings shall be complete in every detail and show any and all other necessary information in accordance with usual trade practice as particularly required for any special purposes. B. The Contractor shall thoroughly check all shop drawings of the various trades for measurements, sizes of members, materials and details to make sure that they conform to the intent of the plans and specifications and for any and ail other contract requirements. Drawings found to be inaccurate or otherwise in error shall be made correct. Shop drawings prepared by or under the direction of the Contractor shall be checked for accuracy and contract requirements by the Contractor before being forwarded to the Engineer. Shop drawings not so checked and noted will be returned to the Contractor without being examined by the Engineer. Afl measurements shall be verified at the building and/or structures. C. Shop drawings shall be either catalog cuts or drawings showing construction details. The details required will vary but should include dimensions, sizes, ~ type of material, finish, fabrication notes, special care or handling requirements, supplier or vendor name, contract, item number, name of company supplying drawing, date, revision and other information to identify and evaluate the item described. D. The Engineer shall promptly review submitted shop drawings as an aid to the Contractor but review of drawings by the Engineer shall not relieve the Contractor of his responsibility for the proper performance of the work without additional cost to the Owner, whether or not the work was installed in accordance with drawings reviewed by the Engineer. Shop drawings will be reviewed for design and general arrangement only. -56- E. Six (6) sets of shop drawings shalt be submitted. Four (4) sets will be returned to the Contractor. One (1 }set of shop drawings shall be submitted with the final as-built drawings. 3.3 MATERIALS V A. All materials, equipment, and articles (products) incorporated into the permanent work, which will become the property of the Owner, shall be new unless specifically stated or shown otherwise in the contract documents. The word "new" shall not operate to exclude recycled raw materials used in the manufacture of previously unused, i.e. new, materials, equipment and articles (products) for this contract, provided that such items comply with all other contract requirements. B. All materials, equipment, and articles (products) which are specified by brand name (i.e., manufacturer's or supplier's name or trade name and catalog or model number or name) shall be deemed to have the words "or equal" inserted in each instance. The intent is not to limit competition but to establish a standard of quality, which the Engineer has determined, is necessary. The Contractor may use any product equal to that named in the contract documents provided 1) that the Contractor has given timely notice of his intent (in accordance with the submittal and scheduling requirements of this contract) and 2) that the Engineer approves the proposed alternate. C. The Engineer may establish criteria for product approval and shall determine whether a proposed product is to be approved. D. The Contractor shall have the burden of proving at his own cost and expense, to the satisfaction of the Engineer, that the proposed product is equal to that named in the contract documents. Items offered by some manufacturers or suppliers may require changes in the contract plans or drawings. The Contractor shall bear the cost and expense of preparing and providing detailed drawings showing all changes, if any, from details shown in the contract documents, for structures, pipes, seals, controls or other devices required to insure a complete, satisfactory and operating installation. E. Such detailed drawings shall be subject to the Engineer's approval as to conformance with the over-all project requirements. F. The Contractor shall supply the product named 1) if the Engineer determines that the Contractor's proposed product is not equal to the product named in the contract documents or 2) if the Contractor fails to comply with the provisions of this article. The Contractor shall have and make no claim for the extension of time or for damages because 1) the Engineer requires a reasonable period of time to consider a product proposed by the Contractor -57- w ~' or 2) because the Engineer does not approve the Contractor's proposed product. G. Where optional materials or methods are specified, or where "or equal" submissions are approved, the Contractor shall make all adjustments necessary to accommodate the option he selects. 3.4 ROYALTIES AND PATENTS A. The Contractor shall pay all royalties and license fees and include the cost thereof in his bid. He shall defend all suits or claims for infringement of any patent rights and shall save harmless the Owner from loss on account thereof, except that the Owner shall be responsible for all such loss when a particular design, process or the product of a particular manufacturer is specified and the Contractor properly acquires all royalties and license fees at no additional cost to the Owner. ARTICLE 4: PERFORMANCE OF THE CONTRACT 4.1 RESPONSIBILITY FOR DAMAGE A. The Contractor shall faithfully perform and complete all of the work required by the Contract, and has full responsibility for the following risks: (1) Loss or damage, direct or indirect, to the work including the building or structure in which the work is being performed, or any other construction in progress whether being performed by any other contractor or the Owner, or to any plant, equipment, tools, materials or property furnished, used, installed or received by the Engineer under this contract or any other contract. The Contractor shall bear all such risk of loss or damage, until all of the work covered by the Contract has been finally accepted. In the event of such loss or damage, the Contractor shall forthwith repair, replace, and make good any such loss or damage at the direction of the Engineer without additional cost to the Owner. (2) Injury to persons (including death resulting therefrom), or damage to property caused by an occurrence arising out of the performance of this Contract for which the Contractor may be legally liable under the laws of torts. (3) The Contractor shall not be responsible for damages resulting from willful acts of Town officials or employees or from negligence resulting solely from acts or omissions of the Town, its officers or employees. Nothing herein shall vest in third parties any right of action beyond -58- such as may legally exist irrespective of this article. (4) The Contractor shall indemnify and save harmless the Owner, its officers, employees and agents, from suits, actions, damages, and costs of every name and description relating to the performance of this Contract during its prosecution and until the acceptance thereof, and the Owner may retain such moneys from the amount due the Contractor as may be necessary to satisfy any claim for damages recovered against the Owner. The Contractor's obligations under this paragraph shall not be deemed waived by the failure of the Owner to retain the whole or any party of such moneys due the Contractor, nor shall such obligation be deemed limited or discharged by the enumeration or procurement of any insurance for liability for damages imposed by law upon the Contractor, subcontractor or the Owner. (5) The Contractor shall provide written notice to the Engineer within three (3) business days of any loss, damage or injury arising out of ~, the Contractor's performance of the Contract. (6) No claim whatsoever shall be made by the Contractor against any officer, agent, or employee of the Town Board, Town of Wappinger, New York, for, on account of, or by reason of anything done, or omitted to be done, in connection with this contract. 4.2 CLAIMS FOR DAMAGES BY CONTRACTOR A. If the Contractor shall claim compensation for any damage sustained, other than for extra or disputed work by reason of any act or omission of the Owner, its agents or of any persons, he shall, within five (5) days after sustaining such damage, make and deliver to the Engineer a written statement of the nature of the damage sustained and of the basis of the claim against the Owner. If on or before the fifteenth of the month succeeding that in which any damage is alleged to have been sustained, the Contractor shall fail to make and deliver to the Engineer an itemized, verified statement of the details and amount of such damages claimed, it is hereby stipulated that all claims for such compensation shall be forfeited and invalidated and the Contractor shall not be entitled to payment on account of such claims. 4.3 COORDINATION OF SEPARATE CONTRACTORS A. The Owner may award other contracts related to the work. In that event, the Contractor shall coordinate his work with the work of other contractors. Each contractor shall control and coordinate the work of his subcontractors, if any. Any issues regarding coordination shall be addressed in writing to the -59- w ~"' Engineer for prompt resolution. B. If any part of the work depends, for proper execution or results, upon the work of any other contractor, the Contractor shall inspect and promptly report in writing to the Engineer any defects in such work. C. The Contractor shall indemnify the Owner for damages recovered against the Owner by another contractor to the extent that any such claim or judgment is the proximate result of the Contractor's failure to progress the work in accordance with Contract requirements. 4.4 CONTRACTOR'S SUPERVISION A. The Contractor shall designate in writing a competent supervisor for the work to represent the Contractor at the site at all times with authority to act for him and who can communicate effectively with the Owner's representative. All directions given the contractor's representative shall be as binding as if given to the Contractor. The work may be suspended by the Engineer in whole or in part, if the contractor has no such representative on site. The representative shall keep on site copies of the plans and specifications and shall have full authority to supply material and labor as required. 4.5 PERMITS AND COMPLIANCE A. The Contractor shall obtain, maintain and pay for all permits and licenses legally required and shall give all notices, pay all fees and comply with all laws, rules and regulations applicable to the work at no additional cost to the Owner. 4.6 BOUNDARIES A. The Contractor and all subcontractors shall confine their equipment, r„ apparatus, and the storage of materials and supplies of his workmen to limits indicated by law, ordinance, permits or directions of the Engineer. The Contractor shall be responsible for setting all grades, elevations, and „ horizontal and vertical alignment required to layout all work called for on the plans and drawings. 4.7 REFUSE AND DEBRIS A. The Contractor shall at all times keep the refuse and debris at the job site to ~"' a minimum, and at the completion of the contract shall remove all debris, waste and rubbish, tools, equipment, surplus supplies and materials, temporary structures, etc, and leave atl areas raked, topsoiled, seeded and mulched. - 60 - 4.8 SUBCONTRACTORS AND SUPPLIERS A. The Contractor's use of subcontractors and suppliers shall not diminish the Contractor's obligations to complete the work in accordance with the Contract. The Contractor shall control and coordinate the work of his subcontractors. r. B. The Contractor shall be responsible for informing his subcontractors and suppliers of all the terms, conditions, and requirements of the contract documents and also for requiring subcontractors to comply with Labor Law w. 220-A (1 ). In making payment to his subcontractors, the Contractor shall comply with the provisions of New York State General Municipal Law § 106.b. Nothing contained in this Contract shall create any contractual •+ relationship between any subcontractor and the Owner. 4.9 CONTRACTOR'S WORK REQUIREMENTS A. The Contractor shall do all the work and furnish at his own cost and expense, all labor, supervision, machinery, equipment, facilities, tools, transportation, supplies, materials, insurances, permits, certificates, tests, guarantees, protection of equipment and property and life during construction, and all other things whether or not explicitly shown or mentioned, necessary and proper for or incidental to the completion of a workmanlike job, complete in every respect and detail, left ready and in perfect condition for the Owner's use. B. All work performed under this contract shall be according to the highest standards of the trades involved, and shall conform to the requirements of any utilities, and any and all Federal, State and local laws, codes, ordinances and statues as may be in effect at the time of the bid advertisement. C. This shall not be construed as relieving the Contractor from complying with any of the requirements of the plans and specifications, which may be in excess of the requirements mentioned herein. ARTICLE 5: CHANGE IN THE WORK 5.1 PROCEDURE A. One or more changes to the work within the general scope of this Contract may be ordered by Change Order. The Contractor shall proceed with any such changes, and same shall be accomplished in strict accordance with the following terms and conditions: "s -61- "" (1) Change Order shall mean a written order to the Contractor executed by the Owner and the Engineer after execution of this Contract, directing a change in the work and may include a change in the Contract Price or the time for the Contractor's performance, or any combination thereof: (2) if the Contractor encounters a situation or work for which he believes he is entitled to a change order, he shall give the Engineer or inspector notice by telephone or in person within one business day and shall await instructions before proceeding. (3) Any change in the Contract Price resulting from a Change Order shall be determined as follows: (a) By mutual agreement between the Owner and the Contractor as evidenced by (a} the change in the Contract Price being set forth in the Change Order, (b) such change in the Contract Price, together with any conditions or requirements relating thereto, being initialed by both parties and (c) the Contractor's execution of the Change Order: or, (b) If no mutual agreement occurs between the Owner and the Contractor, the change in the Contract Price, if any, shall be derived by determining the reasonable actual costs incurred or savings achieved, resulting from revisions in the work. Such reasonable actual costs or savings shall include a component for direct job site overhead and profit but shall not include home-office overhead or other indirect costs or components. Any such costs or savings shall be documented in the format and with such content and detail as the Owner or the Engineer requires. (4) The execution of a Change Order by the Contractor shall constitute conclusive evidence of the Contractor's agreement to the ordered changes in the work, this Contract as thus amended, the Contract Price and the time for performance by the Contractor. The Contractor, by executing the Change Order, waives and forever releases any claim against the Owner for additional time or compensation for matters relating to or arising out of or resulting from the work included within or affected by the executed Change Order. ~ (5} The Contractor shall notify and obtain the consent and approval of the ~e Contractor's surety with reference to all Change Orders if such notice, consent or approvals are required by the Owner, the Engineer, and the Contractor's surety or by law. The Contractor's execution of the -62- Change Order shall constitute the Contractor's warranty to the Owner that the surety has been notified of, and consents to, such Change Order and the surety shall be conclusively deemed to have been notified of such Change Order and to have expressly consented thereto. 5.2 PAYMENT FOR CHANGE ORDERS A. The value of a change order shall be determined by one of the following methods. (1 } By lump sum or unit prices negotiated or established based on estimated cost plus fifteen percent (15%) as compensation for all other items of profit and cost or expense, including administration, overhead, superintendent, materials used in temporary structures and allowances made by the Contractor to the subcontractors. (2) If no unit prices are set forth and if the parties cannot agree upon a lump sum, then by the actual and reasonable net cost in money to the Contractor of the materials and of the wages of applied labor required ,,, for such extra work (including net premium for workers' compensation insurance, contributions pursuant to the State Unemployment Insurance Law, and withholding taxes pursuant to the Federal Social ~, Security Act) ,plus fifteen percent (15%) as compensation for all other items of profit and cost or expense, including administration, overhead, superintendent, materials used in temporary structures and allowances made by the Contractor to the subcontractors. (3) By prices specifically named in the specifications or on the Bid Form. (4) By estimate of the value as can be determined from the approved detailed estimate. B. The Contractor shall, upon request, furnish satisfactory proof of all labor performed., materials furnished and equipment used in the performance of extra work. ARTICLE 6: TIME OF COMMENCEMENT, COMPLETION AND TERMINATION FOR CAUSE 6.1 TIME OF COMMENCEMENT AND COMPLETION (A} The Contractor must commence work on the day specified therefore in a Notice to Proceed signed by the Owner. Since TIME IS OF THE ESSENCE -63- ~"" in this Contract, the Contractor steal{ thereafter prosecute the work diligently, using such means and methods of construction as will assure its full `` completion in accordance with the requirements of the Contract Documents not later than the specified date or time limit therefore, or on the date to which the time for completion may be extended. `' (B) Unless the date for completion is extended pursuant to the provisions of paragraph 6.2 below, the Contractor shall complete the work within the time allotted as stated in the Contract Agreement. The Engineer shall be the sole `~ judge as to whether the work hereunder has been completed within the time stipulated. 6.2 EXTENSION OF TIME A. It is mutually agreed that no extension beyond the date of completion fixed by the terms of the contract shall be effective unless consented to in writing by the Engineer. An application by the Contractor for extension of time must be in writing, setting forth in detail the reasons and causes of delay and the date upon which each such cause of delay began and ended, and must be submitted to the Engineer within five (5) days after the start of the alleged delay. If the Engineer should determine that the delay was not due to any act or omission on the part of the Contractor or was due to causes beyond the control of the Contractor, the Contractor shall be entitled to an extension of time equal to the number of days actually delayed if such extension shall be required. If, however, the Engineer should determine that the delay was caused directly or indirectly by the actor conduct of the Contractor or any of his subcontractors or suppliers, the Engineer may refuse to grant an extension of time and direct the Contractor to re-arrange his progress schedule so as to complete the work within the time set forth in the contract. B. If the Owner deems it advisable and expedient to have the Contractor complete and finish the work after the expiration of the contract date of completion, and in order that the Owner's fiscal officer may be permitted to make payment to the Contractor for work performed beyond the completion date, the Owner will grant an extension of time necessary to complete the work, conditional upon the assessment and deduction of liquidated damages from the moneys which may become due hereunder. C. In the event of delay for cause, the Contractor's sole remedy shall be the extension of time granted as hereinabove provided, and the Contractor shall have no right to, or cause of, action for damages or additional costs resulting from any such delay. D. Time necessary for review by the Engineer of shop drawings and delays incurred by normal seasonal and weather conditions should be anticipated -64- i~. Irr ~" and are neither compensatory nor eligible for extensions of time. 6.3 LIQUIDATED DAMAGES UPON FAILURE TO COMPLETE A. In the event of a material breach of this Contract by Contractor as determined in accordance with the provisions of Division 300, Contract, paragraph 3 herein, Contractor hereby agrees to pay as liquidated damages the sum of $250.00 for each day beyond the time specified herein during which the work is not complete. Contractor and Owner agree that it is impossible to determine with reasonable accuracy the precise amount of damage to the Town upon Contractor's failure to complete the project as specified herein. Contractor and Town further agree that the damages set forth above are reasonable and in no way can be construed as a penalty or other punitive measure, based upon the facts and circumstances of the parties at the time of entering the Contract and with due regard to future expectations. B. The amount stated in the Contract is hereby stipulated as the liquidated damages for each and every calendar day that the time consumed in completing the work exceeds the time allowed therefore. This amount shall in no event be considered as a penalty or otherwise than as the liquidated and adjusted damages of the Owner because of the said delay and Contractor agrees that the said sum per day for each such day shall be deducted and retained out of the monies which may become due hereunder. 6.4 TERMINATION BY THE OWNER The owner may terminate this Contract in accordance with the following terms and conditions: A. TERMINATION FOR CONVENIENCE j" 1. The Owner may, for any reason whatsoever, terminate performance under this Contract by the Contractor for convenience. The Owner shall give written notice of such termination to the Contractor specifying when termination becomes effective. The Contractor shall incur no further obligations in connection with the work and the Contractor shall stop work when such termination becomes effective. The Contractor shall also terminate outstanding orders and subcontracts. The Contractor shall settle the liabilities and claims arising out of the termination of subcontracts and orders. The Owner may direct the Contractor to assign the Contractor's right, Title and interest under termination orders or subcontracts to the Owner or its „„ designee. The Contractor shall transfer title and deliver to the Owner such completed or partially completed work and materials, equipment, - 65 - ar parts, fixtures, information and Contract rights as the Contractor has. When terminated for convenience, the Contractor shall be compensated as follows: 2. The Contractor shall submit a termination claim to the Owner and the Engineer specifying the amounts due because of the termination for convenience together with costs, pricing or other data required by the Owner or the Engineer. ff the Contractor fails to fife a termination claim within one (1) year from the effective date of termination, the Owner shall pay the Contractor, an amount derived in accordance with Subparagraph (3) below; 3. The Owner and the Contractor may agree to the compensation, if any, due to the Contractor hereunder; 4. Absent agreement to the amount due to the Contractor, the Owner shall pay the Contractor the following amounts; (a) Contract prices for labor, materials, equipment and other services accepted under this Contract; (b) Reasonable costs incurred in preparing to perform and in performing the terminated portion of the work, and in terminating the Contractor's performance, plus a fair and reasonable allowance for direct job site overhead and profit thereon (such profit shall not include anticipated profit or consequential damages); provided however, that if it appears that the Contractor would have not profited or would have sustained a loss if the entire Contract would have been completed, no profit shall be allowed or included and the amount of compensation shall be reduced to reflect the anticipated rate of loss, if any; (c) Reasonable costs of settling and paying claims arising out of the termination of subcontractors or orders pursuant to this irr section. These costs shall not include amounts paid in accordance with other provisions hereof. ~'" 5. The total sum to be paid the Contractor under this Section shall not exceed the total Contract Price, as properly adjusted, reduced by the amount of payments otherwise made, and shall in no event include duplication of payment. t - 66 - B. TERMINATION FOR CAUSE If the Contractor does not perform the work, or any part thereof, in a timely manner, supply adequate labor, supervisory personnel or proper equipment or materials, or if it fails to timely discharge its obligations for labor, equipment and materials, or proceeds to disobey applicable law, or otherwise commits a violation of a material provision of this Contract, then the Owner, in addition to any other rights it may have against the Contractor or others, may terminate the performance of the Contractor and assume possession of the Project site and of all materials and equipment at the site and may complete the work. In such case, the Contractor shall not be paid further until the work is complete. After final completion has been achieved, if any portion of the Contract Price, as if may be modified hereunder, remains after the cost to the Owner of completing the work, including all costs and expenses of every nature incurred, has been deducted by the Owner, such remainder shall belong to the Contractor. Otherwise, the Contractor shall pay and make whole the Owner for such cost. This obligation for payment shall survive the termination of the Contract. In the event the employment of the Contractor is terminated by the Owner for cause pursuant to this Subparagraph and it is subsequently determined by a Court of competent jurisdiction that such termination was without cause, such termination shall thereupon be deemed a Termination for Convenience under Section 6.4.1 and the provisions of Section 6.4.1 shall apply. 6.5 CEASE AND DESIST ORDER A. In the event the Contractor fails or refuses to perform the work as required herein, the Owner may instruct the Contractor to cease and desist from performing further work in whole or in part. Upon receipt of such instruction, the Contractor shall immediately cease and desist as instructed by the Owner and shall not proceed further until the cause for the Owner's Instructions has been corrected, no longer exists, or the Owner instructs that the work may resume. In the event the Owner issues such instructions to cease and desist, and in the further event that the Contractor fails and refuses within seven (7) days of receipt of same to provide adequate assurance to the Owner that the cause of such instructions will be eliminated or corrected, then the Owner shall have the right, but not the obligation, to carry out the work with its own forces, or with the forces of another contractor, and the Contractor shall be fully responsible and liable for the costs of performing such work by the Owner. The rights set forth herein are in addition to, and without prejudice to, any other rights or remedies the ~,,,, Owner may have against the Contractor. } -67- 6.6 SUSPENSION OF WORK A. The Engineer may order the Contractor in writing to suspend, delay, or interrupt performance of all or any part of the work for a reasonable period of time as he, in his sole discretion, may determine. The order shall contain the reason or reasons for issuance which may include but shall not be limited to the fol{owing: latent field conditions, substantial program revisions, civil unrest, acts of God, and failure to have a supervisor on site. B. Upon receipt of a suspension order, the Contractor shall, as soon as practicable, cease performance of the work as ordered and take immediate affirmative measures to protect such work from loss or damage. 6.7 TERMINATION BY THE CONTRACTOR A. If the Owner repeatedly fails to perform its material obligations to the Contractor for a period of thirty (30) days after receiving written notice from the Contractor of its intent to terminate hereunder, the contractor may terminate performance under this Contract by written notice to the Owner and the Engineer. in such event, the Contractor shall be entitled to recover from the Owner as though the Owner had terminated the Contractor's performance under this Contract for convenience pursuant to Subparagraph 6.4.1 hereunder. ARTICLE 7: INSPECTION AND ACCEPTANCE 7.1 INSPECTION A. The Engineer or the Owner's representative will inspect and test the work at reasonable times at the site, unless the Engineer determines to make an inspection or test at the place of production, manufacture or shipment. Such inspection or test shall be conclusive as to whether the material and workmanship inspected or tested conforms to the requirements of the Contract. Such inspection or test shall not relieve the Contractor of responsibility for damages to or loss of the material prior to acceptance, nor in any way affect the continuing rights of the Engineer to reject the completed work. 7.2 CONTRACTOR'S OBLIGATION TO CORRECT DEFECTIVE WORK A. The Contractor shall, without charge, promptly correct any work which the Engineer finds does not conform to the contract documents, unless in the public interest the Owner consents to accept such work with an appropriate adjustment in the Contract sum. The Contractor shall promptly remove -68- t ~"" rejected material from the premises. B. ff the Contractor does not promptly correct rejected work including the work ~""' of other contractors destroyed or damaged by removal, replacement, or correction, the Owner may (1) correct such work and charge the cost thereof to the Contractor; or (2) terminate the Contract in accordance with the section on termination in the General Conditions. C. The Contractor shall furnish promptly and without additional charge all facilities, labor, and material reasonably needed to perform in a safe and convenient manner such inspections and tests as the Engineer requires. D. The Contractor shall promptly correct work rejected by the Engineer 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 costs of correcting such rejected work, including additional testing and inspections and compensation for the Engineer's services and expenses made necessary thereby. 7.3 PROGRESS REPORTS A. The Contractor shall keep the Engineer informed of the progress of his work and particularly when he intends to cover work not yet inspected or tested. When the work is not progressed continuously, except for weekends and holidays, the Contractor shall notify the Engineer again each time before resuming work. Twenty-four hours notice shall be given. All inspection and tests by the Engineer shall be performed in a manner not to unreasonably delay the work. The Contractor shall be charged with any additional cost of inspection when the work is not ready for inspection by the Engineer at the time stated by the Contractor or agreed to by the Engineer and Contractor. 7.4 INSPECTION PRIOR TO ACCEPTANCE ~r A. At the Owner's request, the Engineer may determine at any time before acceptance of the entire work to examine work already completed by ~"" removing, uncovering or testing the same. The Contractor shall, on request, promptly furnish all necessary facilities, labor, and materials to conduct such inspection, examination or test. If such work is found to be defective or nonconforming in any material respect, the Contractor shall defray all the expenses of such examination and satisfactory reconstruction. If the work is found to meet the requirements of the contract documents, the Owner shall compensate the Contractor far the additional services involved in such examination and reconstruction and if completion of the work has been delayed thereby, he shall, in addition, grant the Contractor a suitable extension of time. If the Contractor covers his work prior to allowing -69- inspections and tests by the Engineer, the Contractor shall promptly uncover and make ready all such areas for inspections and tests, and the Contractor shall be liable for and charged with any and all additional associated costs. B. No previous inspection or certificates of payment or final payment shall relieve the Contractor from the obligation to perform the work in accordance with the Contract Documents. In the event that the Contractor has in any way failed to comply with the Contract Documents, the final payment shall not act to relieve the Contractor of his responsibility to comply with the Contract Documents. ARTICLE 8: PAYMENTS 8.1 PAYMENT A. For the Contractor's complete performance of the work, the Owner will pay, and the Contractor agrees to accept subject to the terms and conditions hereof, the total of the lump sum prices and the unit prices at which this Contract was awarded, plus the amount required to be paid for any extra work ordered by the Engineer under Article 5, less credit for any work omitted pursuant to Article 5, and less liquidated changes and any other charge backs permitted in this contract. 8.2 PROGRESS PAYMENTS A. Within ten (10) calendar days of the effective date of the Contract, the Contractor shall prepare and present to the Owner and the Engineer the Contractor's Schedule of Values apportioning the Contract Price among the different elements of the Projects for purposes of periodic and final payment. The Contractor's Schedule of Values shall be presented in whatever format, with such detail, and backed up with whatever supporting information the Engineer or the Owner request. The Contractor shall not imbalance its Schedule of Values nor artificially inflate any element thereof. The violation of this provision by the Contractor shall constitute a material breach of this Contract. The Contractor's Schedule of Values will be utilized for the Contractor's Payment Requests but shall only be so utilized after it has been acknow{edged in writing by the Engineer and the Owner; B. The Owner shall pay the Contract Price to the Contractor in accordance with the procedures set forth in this Paragraph. On or before the first business day of each month after commencement of performance, but no more frequently than once monthly, the Contractor may submit a Payment Request for the period ending the fast day of the previous month. Said Payment Request shall be in such format and include whatever supporting s; - 70 - information as may be required by the Engineer, the Owner, or both. Therein, the Contractor may request payment of ninety-five percent (95%) of that part of the Contract Price allocable to Contract requirements properly provided, labor, materials and equipment property incorporated in the Project, and materials or equipment necessary for the Project and properly stored at the Project site, (or elsewhere if offsite storage is approved in writing by the Owner) less the total amount of previous payments received from the Owner. Any payment on account of stored materials or equipment will be subject to the Contractor providing written proof that the Owner has title to such materials or equipment and that they are fully insured against loss or damage. Each such Payment Request shall be signed by the Contractor and shall constitute the Contractor's representation that the quantity of work has reached the level for which payment is requested, that the Contractor has used previously paid funds to pay subcontractors, ~,,,, laborers, and material and equipment supplies, that the work has been property installed or performed in strict compliance with this Contract, and that the Contractor knows of no reason why payment should not be made as ~,,, requested. Thereafter, the Engineer shall review the Payment Request and may also review the work at the Project site or elsewhere to determine whether the quantity and quality of the work is as represented in the Payment Request and is as required by this Contract. The Engineer shall approve in writing the amount, which, in the opinion of the Engineer, is properly owing to the Contractor. The Owner shall make payment to the Contractor within ~. thirty (30) days, excluding legal holidays, of receipt of the requisition unless such requisition is not approvable in accordance with the terms of the Contract. The amount to each such payment shall be the amount approved for payment by the Engineer less such amounts, if any, otherwise owing by the Contractor to the Owner or which the Owner shall have the right to withhold as authorized by this Contract. The Engineer's approval of the Contractor's Payment Requests shall not preclude the Owner from the exercise of any of its rights as set forth in Subparagraph (c) herein below. The submission by the Contractor of a Payment Request also constitutes an affirmative representation and warranty that all work for which the Owner has previously paid is free and clear of any lien, claim, or other encumbrance of ~'~ any person whatsoever. As a condition precedent to payment, the i~r Contractor shall, if required by the Owner, also furnish to the Owner properly executed waivers of lien, in a form acceptable to the Owner, from all subcontractors, materialmen, suppliers or others having lien rights, wherein said subcontractors, materialmen, suppliers or others having lien rights, shall acknowledge receipt of all sums due pursuant to all prior Payment Requests and waive and relinquish any liens, lien rights or other claims relating to the Project site. Furthermore, the Contractor warrants and represents that, upon payment of the Payment Request submitted, title to all work included in such payment shall be vested in the Owner; -71 - ~. Ir ~" C. When payment is received from the Owner, the Contractor shall within fifteen (15) days pay all subcontractors, materialmen, laborers, and suppliers the amounts they are due for the work covered by such payment pursuant to the applicable provisions of General Municipal Law Section 106-b. However, nothing herein shall create any obligation on the part of the public Owner to pay or to see to the payment of any monies to any subcontractor or materialmen from any contractor, nor shall anything provided herein serve to create any relationship in contract or otherwise, implied or expressed, between the subcontractor or materialmen and the public owner. D. Neither payment to the Contractor, utilization of the Project for any purpose by the Owner, nor any other act or omission by the Owner shall be interpreted or construed as an acceptance of any work of the Contractor not strictly in compliance with this Contract. E. The Owner shall have the right to refuse to make payment and, if necessary, may demand the return of a portion or the entire amount previously paid to the Contractor due to: (1) The quality of a portion, or all, of the Contractor's work not being in accordance with the requirements of this Contract; (2) The quantity of the Contractor's work not being as represented in the ir. Contractor's Payment Request, or otherwise; (3) The Contractor's rate of progress being such that, in the Owner's opinion, substantial or final completion, or both, may be inexcusably delayed; (4) The Contractor's failure to use Contract funds, previously paid the Contractor by the Owner, to pay Contractor's Project-related obligations including, but not limited to, subcontractors, laborers and material and equipment suppliers; (5) Claims made, or likely to be made against the Owner or its property; (6) Loss caused by the Contractor; (7) The Contractor's failure or refusal to perform any of its obligations to the Owner. F. In the event that. the Owner makes written demand upon the Contractor for amount previously paid by the Owner as contemplated in this Subparagraph, the Contractor shall promptly comply with such demand; G. Payments shall be made pursuant to the provisions of General Municipal -72- ^. R ~" Law Section 106-b, including interest payments as required by that section. 8.3 SUBSTANTIAL COMPLETION A. When Substantial Completion has been achieved, the Contractor shall notify the Owner and the Engineer in writing and shall furnish to the Engineer a listing of those matters yet to be finished. The Engineer will thereupon conduct an inspection to confirm that the work is in fact substantially complete. Upon its confirmation that the Contractor's work is substantially complete, the Engineer will so notify the Owner and Contractor in writing and will therein set forth the date of Substantial Completion. If the Engineer, through its inspection, fails to find that the Contractor's work is substantially complete, and is required to repeat all, or any portion, of its Substantial Completion inspection, the Contractor shall bear the cost of such repeat inspections} which cost may be deducted by the Owner from any payment then or thereafter due to the Contractor. Guarantees and equipment warranties required by this Contract shall commence on the date of Substantial Completion. Upon Substantial Completion, the Owner shall pay the Contractor an amount sufficient to increase total payments to the Contractor to one hundred percent (100%} of the Contract Price less any amounts attributable to liquidated damages, together with two hundred percent (200%) of the reasonable costs as determined by the Engineer for completing all incomplete work, correcting and bringing into conformance all defective and nonconforming work and any amounts necessary to satisfy any claims, liens, or judgments pertaining to the project against the Contractor which have not been suitably discharged. B. The Certificate of Substantial Completion may also assign responsibilities for security, maintenance, damage to the work, insurance, etc. The Certificate shall fix the time within which the Contractor shall complete all items fisted as being incomplete or otherwise not ready for final acceptance. ~" C. As the remaining items work (as identified in the Engineer's Certificate of Substantial Completion) are satisfactorily completed or corrected, the Contractor may prepare a request for payment, but not more often than monthly, for any such work. The Owner shall pay as in paragraph 8.2.a. above. 8.4 FINAL PAYMENT A. When the Project is finally complete and the Contractor is ready for a final inspection, it shall notify the Owner and the Engineer thereof in writing. Thereupon, the Engineer will perform a final inspection of the Project. If the Engineer confirms that the Project is complete in full accordance with this -73- L v ~> irw Contract and that the Contractor has performed ail of its obligations to the Owner hereunder, the Engineer will furnish a final Approval for Payment to the Owner certifying to the Owner that the Project is complete and the Contractor is entitled to the remainder of the unpaid Contract Price, less any amount withheld pursuant to this Contract. If the Engineer is unable to issue its final Approval for Payment and is required to repeat its final inspection of the Project, the Contractor shall bear the cost of such repeat inspections}, which costs may be deducted by the Owner from the Contractor's final payment; B. Prior to being entitled to receive final payment and as a condition precedent thereto, the Contractor shall furnish the Owner, in the form and manner required by Owner, if any, with a copy to the Engineer: (1) An affidavit that all of the Contractor's obligations to subcontractor, laborers, equipment or material suppliers, or other third parties in connections with the Project, have been paid or otherwise satisfied; (2} If required by the Owner, separate releases of lien of lien waivers from each subcontractor, lower tier subcontractor, laborer, supplier or other person or entity who has, or might have a claim against the Owner or the Owner's property; (3) If applicable, consent(s) of surety to final payment; (4) All product warranties, operating manuals, instruction manuals and other record documents, drawings and things customarily required of the Contractor, or expressly required herein, as a part of or prior to Project closeout; (5) No final payment shall be made until the contractor files every verified statement required to be obtained by the Contractor from its subcontractors pursuant to Labor Law 220-a (1), attesting that subcontractors have received and reviewed the schedule of wages and supplements, which statement shall also contain information on the amounts due and owing for wages and supplements from the Contractor, and also from subcontractors, all in accordance with the provisions of Labor Law section 220-a (2). (6) The as-built drawings referred to in Article 2.1(D}. ~" C. The Owner shall, subject to its rights set forth in Subparagraph 8.3 above, make final payment of all sums due the Contractor within ten (10) days of the Engineer's execution of a final Approval for Payment. However, no final payment will be subject to such corrections as may be found necessary to -74- 3. ""' bring the total payments into agreement with the contract price. D. Additionally, if the Contractor fails to achieve final completion within 30 days of the date of Substantial Completion, the Contractor shall pay the Owner the sum of two hundred and Fifty Dollars ($250) per day for each and every calendar day of unexcused delay in achieving final completion beyond the date set forth herein for final completion of the work. Any sums due and payable hereunder by the Contractor shall be payable, not as a penalty, but as liquidated damages representing an estimate of delay damages likely to be sustained by the Owner, estimated at or before the time of executing this Contract. When the Owner reasonably believes that final completion will be inexcusably delayed, the Owner shall be entitled, but not required, to withhold from any amounts otherwise due the Contractor an amount then believed by the Owner to be adequate to recover liquidated damages applicable to such delays. If and when the Contractor overcomes the delay in achieving final completion, or any part thereof, for which the Owner has withheld payment, the Owner shall promptly release to the Contractor those funds withheld, but no longer applicable, as liquidated damages. 8.5 ACCEPTANCE OF FINAL PAYMENT A. The acceptance by the Contractor or by anyone claiming by or through him ~"` of the final payment shall operate as and shall be a release to the Owner and every officer and agent thereof, from any and all claims and all liability to the ~ Contractor for any thing done or furnished in connection with this work or project and for any actor neglect of the Owner or of any others relating to or affecting the work. No payment, however, final or otherwise shall operate to release the Contractor or his sureties from any obligations under this contract or the performance bond. B. See also 8.7 B below. 8.6 CONTRACT QUANTITIES A. The quantities actually required to complete the contract work may be less or more than estimated, and, if so, no action for damages or for loss of profits shall accrue to the Contractor by reason thereof. For unit price contracts, a change order may be prepared to bring the actual and estimated quantities and values into agreement. 8.7 MAINTENANCE AND GUARANTEE ~ A. The Contractor shall remedy all defects, paying the cost of any damage to other work resulting therefrom, which shall appear within a period of one year from the date of completion as evidenced by the Owner's Certificate of -75- ~ Completion. The Contractor shall, for this period, indemnify and hold ~_ harmless the Owner, its officers, and agents from any injury done to property or persons as direct or alleged result of imperfections in his work or any other claims, actions or proceedings and the Contractor shall immediately assume and take charge of the defense of such action or suits in like manner and to all intents and purposes as if said actions and suits had been brought directly against the Contractor. i B. To assure compliance with paragraph A above, a Maintenance Bond, in a form acceptable to the Owner, shall be provided by the Contractor for a period of one (1) year from the "Notice of Completion". The bond shall be provided as a condition of final payment. 8.8 NO ESTOPPEL a. A. The Owner or any department, officer, agent, or employee thereof, shall not be bound, precluded, or estopped by any acceptance, return certificate or ~,,, payment made or given under or in connection with this Contract by the Owner, at any time, either before or after final completion and acceptance of ~; the work and payment therefore: 1. showing the true and correct classification amount, quality or character of the work done and materials furnished by the Contractor or any other person under this agreement, or from showing at any time that any such acceptance, return certificate or payment is untrue, incorrect, or improperly made in any particular, or that the work or any part thereof does not in fact conform to the requirements of the contract documents, or 2. from demanding and recovering from the Contractor any overpayments made to him or such damages as it may sustain by reason of his failure to comply with the requirements of the contract documents, or 3. both 8.8.A.1 and 8.8.A.2 above. ARTICLE 9: BONDS AND INSURANCE 9.1 CONTRACT SECURITY A. ff at any time the Owner shall have become dissatisfied with any surety or sureties then upon the performance bond or if for any other reason such bond shall cease to be adequate security for the Owner, the Contractor shall, -76- ~r within five (5) days after notice from the Owner's attorney to do so, substitute 4 an acceptable bond in such form and amount and signed by such other surety as may be satisfactory to the Owner's attorney. The premiums on all bonds shall be paid by the Contractor. No further payments shall be deemed due nor shall be made until the new surety shall have been qualified. `. 9.2 INSURANCE A. Contractor shall secure and maintain during the life of this contract, including any guarantee period, the following insurance: B. COMMERCIAL GENERAL LIABILITY INSURANCE 1. Bodily Injury and Property Damage $1,000,000 per/occurrence $2,000.000 aggregate 2. Products and Completed Operations $2,000,000 Medical Payments $5,000 3. Coverages to include but not limited to: (a.) Blanket contractual (b.) Broad Form Property damage (c.) Fire Legal Liability 4. Conditions: (a.) Owner to be listed as additional named insured on a primary, non-contributory basis. (b.} Insurance to be provided by Carrier with a rating no less than "A" as rated by A. M. Best Co. (c.) All Liabi-ity insurance is to be issued on an occurrence basis. C. AUTOMOBILE LIABILITY INSURANCE 1. Combined single limit $500,000 D. WORKERS COMPENSATION INSURANCE 1. Limits Statutory 2. Employers Liability $1,000,000 -77- E. EXCESS LIABILITY INSURANCE 1. Limit $5,000,000 F. A Certificate of Insurance shall be delivered to the Town at the time of Contract signing and prior to the commencement of the work, as evidence that such insurance is in place and in full force and effect. ARTICLE 10: MISCELLANEOUS PROVISIONS 10.1 COMPLIANCE WITH CODES AND LAWS A. All work performed under this contract shall be according to the highest standards of the trades involved, and shall conform to the requirements of any utilities, and any and all federal, State and local laws, codes, ordinances and statutes as may be in effect at the time of bid opening. B. This shall not be construed as relieving the Contractor from complying with any of the requirements of the plans and specifications, which may be in excess of the requirements mentioned herein. C. The organization or arrangement of the plans and specifications shall not operate to define or establish the work to be performed by any trade or subcontractor. 10.2 SERVICE OF NOTICES A. The Contractor hereby designates the business address specified in his bid as the place where all notices, directions or other communications to the Contractor may be delivered, or to which they may be mailed. Actual delivery of any such notice, direction or communication to the aforesaid place, or depositing it in a postpaid wrapper addressed thereto in any post- office box regularly maintained by the United States Postal Service, shall be conclusively deemed to be sufficient service thereof upon the Contractor as of the date of such delivery or deposit. B. Such address may be changed at any time by an instrument in writing executed and acknowledged by the Contractor and delivered to and receipted for in writing by the Engineer. ~ C. Nothing herein contained shall, however, be deemed to preclude or render inoperative the service of any notice, direction or other communication upon the Contractor personally, or, if the Contractor be a corporation, upon any officer or director thereof. -78- 10.3 LABOR STANDARDS A. The Contractor and its subcontractors shall comply with all local, State and federal rules, including, but not limited to the Occupational Safety and Health Act of 1970, the Contract Work Hours and Safety Standards Act, and the New York State Labor Law including, but not limited to, the provisions regarding hours of work, posting of notices, deductions in wages, apprenticeship training programs, and maintenance of original payrolls. 10.4 RECORD-KEEPING REQUIREMENT i A. The Contractor shall establish and maintain complete and accurate books, records, payroll records, documents, accounts and other evidence directly pertinent to performance under this contract for a period of six (6) years following final payment or the termination of this contract, whichever is later, and any extensions thereto. The Engineer or any other person or entity ~,,, authorized to conduct an examination, as well as the agency or agencies involved in this contract, shall have access to such books, records, documents, accounts and other evidential material during the contract term, extensions thereof and said six (6) year period thereafter for the purposes of inspection, auditing and copying. "Termination of this contract", as used in this clause, shall mean the later of completion of the work of the contract or ~ the end date of the term stated in the contract. 10.5 NON-ASSIGNMENT CLAUSE A. This contract may not be assigned by the Contractor or its right, title or interest therein assigned, transferred, conveyed, subcontracted or otherwise disposed of without the previous consent, in writing, of the Owner and any attempts to assign the contract without the Owner's written consent are null and void. The Contractor may assign its rights to receive payment with the ~"' Owner's prior written consent. 10.6 NON-COLLUSIVE BIDDING REQUIREMENTS A. Contractor warrants, under penalty of perjury, that its bid was arrived at independently and without collusion aimed at restricting competition. Contractor further warrants that, at the time Contractor submitted its bid, an authorized and responsible person executed and delivered to the Owner a Certification of Non-Collusion by Bidders on Contractor's behalf. 10.7 WAGE AND HOURS PROVISIONS A. Neither Contractor's employees nor the employees of its subcontractors may L -79- aS Irr ~`"' be required or permitted to work more than the number of hours or days, except as otherwise provided in the Labor Law and as set forth in prevailing wage and supplement schedules issued by the State Labor Department. "" Furthermore, the Contractor and its subcontractors must pay at least the prevailing wage rate and pay or provide the prevailing supplements, including ` the premium rates for overtime pay, as determined by the State Labor `` Department in accordance with the Labor Law. 10.8 WORKERS` COMPENSATION BENEFITS. A. This Contract shall be void and of no effect unless the Contractor shall provide and maintain coverage during the life of this contract for the benefit of such employees as are required to be covered by the provisions of the Workers' Compensation Law. 10.9 NONDISCRIMINATION REQUIREMENTS A. The Contractor shall not discriminate against any employee or applicant for employment because of race, creed, color, sex or national origin. The Contractor shall take affirmative action to insure that all employees are employed, and that employees are treated equally during employment, without regard to their race, creed, color, sex, or national origin. 10.10 ARCHAEOLOGICAL SALVAGE A. Whenever during the course of construction, historical objects are encountered; such objects shall not be moved or destroyed. Work shall be stopped and re-scheduled to avoid disturbing such areas and the Engineer shall be notified immediately. The Engineer will then contact Archaeological/Cultural Resource, Technical Services, New York State Department of Environmental Conservation at 518-457-381.1, who will issue instructional procedures, which will govern continuation of work in the affected area. 10.11 PLANS AND SPECIFICATIONS A. The plans and specifications are intended to complement each other and any detail or item shown on one, but not the other, shall be assumed to be shown on both and shall be binding as if called for by all. While the plans and specifications are assumed to be complete in a{I major items and details, it is also assumed that the Contractor is competent and expert in his field; therefore, no effort has been made to show or to specify each and every detail or item required for a complete installation. -80- i. ~r DIVISION 500 SPECIAL CONDITIONS -81 - y} E DIVISION 600 TECHNICAL SPECIFICATIONS -82- L SECTION 01310 -PROJECT MANAGEMENT AND COORDINATION PART 1 -GENERAL 1.1 SUMMARY A. This Section includes administrative provisions for coordinating construction operations on Project including, but not limited to, the following: 1. Coordination Drawings. 2. Administrative and supervisory personnel. 3. Project meetings. 1.2 COORDINATION A. Coordination: 1. Schedule construction operations in sequence required to obtain the best results, where execution of one part of the Work depends on execution of others. 2. Where availability of space is limited, coordinate installation of different components to ensure maximum performance and accessibility for required construction and maintenance, service, and repair of all components. B. Prepare memoranda for distribution to Owner and Engineer, outlining special procedures required for coordination. Include such items as required notices, reports, and list of attendees at meetings. C. Conservation: Coordinate construction activities to ensure that operations are carried out with consideration given to conservation of energy, water, and materials. 1.3 SUBMITTALS A. Coordination Drawings: Prepare Coordination Drawings if limited space availability necessitates maximum utilization of space for efficient installation of i" different components or if coordination is required for installation of products and materials fabricated by separate entities. '~ 1. Sheet Size: At least 8-1/2 by 11 inches but no larger than 30 by 40 inches. 2. Number of Copies: Submit two opaque copies of each submittal. Engineer will return one copy. 3. Refer to individual Sections for Coordination Drawing requirements for Work in those Sections. -83- Itr. ~"' 1.4 PROJECT MEETINGS A. General: Schedule and conduct meetings and conferences at Project site, unless othenrvise indicated. 1. Attendees: Inform participants and others involved, and individuals whose presence is required, of date and time of each meeting. Notify Owner and Engineer of scheduled meeting dates and times. 2. Agenda: Prepare the meeting agenda. Distribute the agenda to all invited attendees. 3. Minutes: Record significant discussions and agreements achieved. Distribute the meeting minutes to everyone concerned, including Owner and Engineer, within three days of the meeting. B. Preconstruction Conference: Schedule a preconstruction conference before ""` starting construction, at a time convenient to Owner and Engineer, but no later than 15 days after execution of the Agreement. Hold the conference at Project site or another convenient location. Conduct the meeting to review responsibilities and personnel assignments. 1. Attendees: Authorized representatives of Owner, Engineer, and Contractor and its major supplier. All participants at the conference shall be familiar with Project and authorized to conclude matters relating to the Work. ~"' C. Progress Meetings: Conduct progress meetings at biweekly intervals. Coordinate dates of meetings with preparation of payment requests. PART 2 -PRODUCTS (Not Used) ~. PART 3 -EXECUTION (Not Used) END OF SECTION 01310 SECTION 01320 -CONSTRUCTION PROGRESS DOCUMENTATION PART 1.0 GENERAL 1.1 SUMMARY -84- ... it.. ~""' This Section includes administrative and procedural requirements for documenting the progress of construction during performance of .the Work, including the following: 1. Contractor's Construction Schedule. 2. Daily construction reports. 3. Field condition reports. ~ 1.3 SUBMITTALS A. Contractor's Construction Schedule: Submit two copies of initial schedule, large enough to show entire schedule for entire construction period. B. Field Condition Reports: Submit two copies at time of discovery of differing conditions. PART 2.0 -PRODUCTS 2.1 CONTRACTOR'S CONSTRUCTION SCHEDULE, GENERAL A. Time Frame: Extend schedule from date established for commencement of the Work to date of Final Completion. B. Activities: Treat each story or separate area as a separate numbered activity for each principal element of the Work. Comply with the following: 1. Activity Duration: Define activities so no activity is longer than 20 days, unless specifically allowed by Engineer. 2. Substantial Completion: Indicate completion in advance of date established for Substantial Completion, and allow time for Engineer's administrative procedures necessary for certification of Substantial Completion. 2.2 REPORTS A. Field Condition Reports: Immediately on discovery of a difference between field conditions and the Contract Documents, prepare and submit a detailed report. Submit with a request for interpretation on CSI Form 13.2A. Include a detailed description of the differing conditions, together with recommendations for changing the Contract Documents. PART 3. -EXECUTION -85- a tir. "' 3.1 CONTRACTOR'S CONSTRUCTION SCHEDULE Q A. Contractor's Construction Schedule Updating: At intervals, update schedu{e to ~" reflect actual construction progress and activities. Issue schedule one week before each regularly scheduled progress meeting. ~""' 1 Revise schedule immediately after each meeting or other activity where revisions have been recognized or made. Issue updated schedule concurrently with the report of each such meeting. 2 Include a report with updated schedule that indicates every change, including, but not limited ;, to, changes in logic, durations, actual starts and fmishes, and activity durations. 3. As the Work progresses, indicate Actual Completion percentage for each activity. r. ~. END OF SECTION 01320 -86- 6. ir. w SECTION 01770 -CLOSEOUT PROCEDURES PART 1 -GENERAL 1.1 SUMMARY A. This Section includes administrative and procedural requirements for contract closeout, including, but not limited to, the following: 4. Inspection procedures. 5. Warranties. 6. Final cleaning. a; 1.3 SUBSTANTIAL COMPLETION A. Preliminary Procedures: Before requesting inspection for determining date of Substantial Completion, complete the following. List items below that are incomplete in request. 1. Prepare a list of items to be completed and corrected (punch list), the value of items on the list, and reasons why the Work is not complete. 2. Advise Owner of pending insurance changeover requirements. 3. Submit specific warranties, workmanship bonds, maintenance service agreements, final certifications, and similar documents. 7. Obtain and submit releases permitting Owner unrestricted use of the Work and access to services and utilities. Include occupancy permits, operating certificates, and similar releases. 8. Prepare and submit Project Record Documents, operation and maintenance manuals, Final Completion construction photographs, damage or settlement reports and similar final record information. 9. Submit test records. 10. Terminate and remove temporary facilities from Project site, along with mockups, construction tools, and similar elements. 11. Complete final cleaning requirements, including touchup painting. 12. Touch up and otherwise repair and restore marred exposed finishes to eliminate visual defects. B. Inspection: Submit a written request for inspection for Substantial Completion. On receipt of request, Engineer will either proceed with inspection or notify Contractor of unfulfilled requirements. Engineer will prepare the Certificate of Substantial Completion after inspection or will notify Contractor of items, either on Contractor's list or additional items identified by Engineer, that must be completed or corrected before certificate will be issued. -87- ir11 a %, ~. } ~'` 2.1 FINAL COMPLETION A. Preliminary Procedures: Before requesting final inspection for determining date of Final Completion, complete the following: 1. Submit a final Application for Payment according to Division 1 Section "Payment Procedures." 2. Submit certified copy of Engineer's Substantial Completion inspection list of items to be completed or corrected (punch list), endorsed and dated by Engineer. The certified copy of the list shall state that each item has been completed or otherwise resolved for acceptance. 3. Submit evidence of final, continuing insurance coverage complying with insurance requirements. B. Inspection: Submit a written request for final inspection for acceptance. On receipt of request, Engineer and Owner will either proceed with inspection or notify Contractor of unfulfilled requirements. Engineer will prepare a final Certificate for Payment after inspection or will notify Contractor of construction that must be completed or corrected before certificate will be issued. 2.2 WARRANTIES A. Submittal Time: Submit written warranties on request of Engineer for designated portions of the Work where commencement of warranties other than date of Substantial Completion is indicated. PART 3 -NOT USED PART 4 -NOT USED END OF SECTION 01770 ~. -88- i SECTION 01781 -PROJECT RECORD DOCUMENTS PART 1 -GENERAL 1.1 SUMMARY A. This Section includes administrative and procedural requirements for Project Record Documents, including the following: 1. Record Product Data. 1.3 SUBMITTALS A. Record Product Data: Submit one copy of each Product Data submittal. 1. Where Record Product Data is required as part of operation and maintenance manuals, submit marked-up Product Data as an insert in manual instead of submittal as Record Product Data. PART 2 -PRODUCTS 2.1 RECORD PRODUCT DATA A. Preparation: Mark Product Data to indicate the actual product installation where installation varies substantially from that indicated in Product Data submittal. 1. Give particular attention to information on~concealed products and installations that cannot be readily identified and recorded later. 2. Include significant changes in the product delivered to Project site and changes in manufacturer's written instructions for installation. 3. Note related Change Orders and Record Drawings where applicable. 2.2 MISCELLANEOUS RECORD SUBMITTALS !: A. Assemble miscellaneous records required by other Specification Sections for miscellaneous record keeping and submittal in connection with actual -89- a. ~"' performance of the Work. Bind or file miscellaneous records and identify each, ready for continued use and reference. t. PART 3 EXECUTION 3.1 RECORDING AND MAINTENANCE A. Recording: Maintain one copy of each submittal during the construction period for Project Record Document purposes. Post changes and modifications to Project Record Documents as they occur; do not wait until the end of Project. B. Maintenance of Record Documents and Samples: Store Record Documents and Samples on site. Maintain Record Documents in good order and in a clean, dry, legible condition, protected from deterioration and loss. Provide access to Project Record Documents for Engineer's reference during normal working hours. END OF SECTION 01781 -90- ~r ~r DIVISION 700 PREVAILING WAGE RATES See the Instructions to Bidders for the link to the NYSDOL Wage Rate ,, Determination. The Wage Rate determination is not printed in this contract bid package. -91 -