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Ordinance No. 191
AN ORDINANCE OF THE CITY OF THE COLONY, TEXAS, AUTHORI- ZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH THE NITY DEVELOPMENT DEPARTMENT EQUIPMENT STORAGE BUILDING; ATTACHING THE APPROVED FORM OF THE CONTRACT AS EXHIBIT "A"; AND PROVIDING AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF THE COLONY, TEXAS: SECTION 1. That the City Manager of the City of The Colony, Texas, is hereby authorized to execute on behalf of the City a contract with the firm of-'-----~ ~~ ~.~"~'~ ~ for ('-) ~ amount ofy~/c~/l~'7~ ~ the construction o a Community Develop- in the ment Department storage building. The approved form of such contract is attached hereto as Exhibit "A", and made a part hereof for such purposes. SECTION 2. This Ordinance shall take effect immediately from and after its passage by the City Council of the City of The Colony, Texas. DULY PASSED by the City Council of the City of The Colony, ATTEST: PROVED: ~'I T '~' SECRETARY / /APF~OVED AS TO FORM: CITY ATTORNEY STANDARD FORi I OF AGREEMENT As Adopted By THE TEXAS SECTION OF THE AMERICAN SOCIETY OF CIVIL ENGINEERS October 7, 1971 Revised November 17, 1928 Revised April 15, 1932 Revised October 27, 1934 Revised October 19, 1945 Revised April 8, 1954 Re~i~,~ April 21, 1960 Revised October 7, 1971 Approved as to Legal Form by Legal Counsel STATE OF TEXAS COUNTY OF Denton ~ THIS AGREEMENT, made and entered into this 4th day of. January , A. D. 19 82., by and between the City of The Colony of the County of_ Denton __and State of Texas, acting through Mayor Richard Turner _thereunto duly authorized so to do, Party of the First Part, hereinafter termed OWNER, and Tyler Building Systems Company, Inc. of the City of. Lewisville _, County of. Denton , }'arty of the Second Part, hereinafter termed and State of_ Texas CONTRACTOR. WITNESSETH: That for and in consideration of the payments and agreements herein- after mentioned, to be made and performed by the Party of the First Part (OWNER), and under the conditions expressed in the bond bearing evee date herewith, the said Party of the Second Part (CONTRACTOR), hereby agrees with the said Party of the First Part (OWNER) to commence and complete the construction of certain iml:,rovements described as follows: A 24~ wide x 3-25~ bay long Metal BnSlding for a cost of $10,797.00 and all extra work in connection therewith, under the terms as stated in the General Conditions of the Agreement and at his (or their) own proper cost and expense to furnish ali the materials, supplies, machinery, equipment, tools, superintendence, labor, insurance, and other accessories and services necessary to complete the saal construction, in accordance with ~he conditions and prices stated in the Proposal attached hereto, and in accordance with the Notice to Contractors, General and Special Conditions of Agreement, Plans and other drawings and printed or written explanatory matter thereof, and the Specifications and addenda therefor, as prepared by__ Hunter Associates, Inc., Consulting Engineers 5630 Yale Blvd., Dallas, Texas 75206 hereiu entitled the I~.~ (,INEI~R. eat. h of which has hcen identit'icd by thc ('()NTRA('TOR and the E, (,INELR. together with the CONTRACTOR'.q written l'r(q).sal, the General Conditions .f the Agreement, and tht~Perfornutuceaud l'aymcnt B.nds hereto attac}..d: allof which are made a part hereof and c.lhwtively t'vidiqlce aud c.uslitute the cnlirc c,mlr;wl. SF-1 o., *,.- --.,.,. ^~z The CONTRACTOR hereby agrees to'commence work within ten (10) days after the date written notice to do so shall have been given to him, and to substantially complete the same calendar days within_ 60 ~l~qi~ after the date of the written notice to commence work, subject to such extensions of time as are provided by the General and Special Conditions. THE OWNER agrees to pay the CONTRACTOR in current funds the price or prices sh(wn in the proposal, which forms a part of this contract, such payments to be subject to the General and Special Conditions of the contract. IN WITNESS WHEREOF, the parties to these presents have executed this Agreement in the year and day first above written. City o~ The Colo~ Tyler Building Systems Company, Inc. B By' ,- '~ ~' ~ ~' A · cha~ rner, MaZor -' ~' Gary C. Mi~n~s // SF-2 ~ ...... ~ ...... ~ .... TABLE OF CONTENTS FOR GENERAL CONDITIONS OF AGREEMENT 1.01 Owner, Contractor and Engineer1' Definition of Terms Page 1.02 Contract Documents ...................... G-1 1.03 Sub-Contractor 1.04 Written Notice ............................ G-1 1.05 Work 1.06 Extra Work ..................... G-1 1.07 Working Day . G-1 1.08 Calendar Day ............................. G-1 1.09 Substantially Completed ......................... G-1 2. Responsibilities of the Engineer and the Contractor 2.01 Owner-Engineer Relationship ....................... G-2 2.02 Professional Inspection by Engineer .................... G-2 2.03 Payments for Work G-2 2.04 Initial Determinations .......................... G-2 2.05 Objections 2.06 Lines and Grades ........................... G-2 2.07 Contractor's Duty and Superintendence ................... G-2 2.08 Contractor's Understanding 2.09 Character of Workmen ........................ G-3 2.10 Contractor's Buildings ......................... G-3 2.11 Sanitation ......................... G-3 2.12 Shop Drawings ............................. G-4 2.13 Preliminary Approval .......................... G-4 2.14 Defects and Their Remedies 2.15 Changes and Alterations ....................... G-4 3. General Obligations and Responsibilities 3.01 Keeping of Plans and Specifications Accessible 3.02 Ownership of Drawings ................ G-5 3.03 Adequacy of Design ......................... G-5 3.04 Right of Entry. 3.05 Collateral Contracts ........................... G-5 3.06 Discrepancies and Omissions 3.07 Equipment, Materials and Construction Plant ................. G-5 3.08 Damages TC-1 3.09 'rotection Against Accident to Employees and the Public ............ G-6 3.10 Performance and Payment Bonds ......................... G-6 3.11 Losses from Natural Causes ............................ G-6 3.12 Protection of Adjoining Property ......................... G-6 3.13 Protection Against Claims of Sub-Contractors, Etc ................. G-6 3.14 Protection Against Royalties or Patented Invention ................ G-7 3.15 Laws and Ordinances ............................... G-7 3.]6 Assignment and Subletting ............................ G-7 3.17 Indemnification ................................. G-7 3.18 Contractor's Liability Insurance ......................... G-8 3.18.1 Certificate of Insurance ............................. (1-8 4. Prosecution and Progress 4.01 Time and Order of Completion .......................... G-8 4.02 Extension of Time ................................ G-9 4.03 Hindrances and Delays .............................. G-9 5. Measurement and Payment 5.01 Quantities and Measurements ........................... G-9 5.02 Estimated Quantities ............................... G-9 5.03 Price of Work ................................... G-9 5.04 Partial Payment .................................. G-10 5.05 Use of Completed Portions ............................ G-10 5.06 Final Completion and Acceptance ........................ GdO 5.07 Final Payment .................................. GdO 5.08 Payments Withheld ................................ G-10 5.09 Delayed Payments ................................ G-11 6. Extra Work and Claims 6.01 Change Orders ................................... G.A1 6.02 Minor Changes .................................. G-11 6.03 Extra Work ................................... G-11 6.04 Time of Filing Claims ............................. G-12 6.05 Arbitration ..................................... G-12 7. Abandonmcu~ of Contract 7.01 Abandonment by Contractor ........................... G-13 7.02 Abandonment by Owner ............................. G-14 TC-2 ® ~ ~' ...... ,~ GEN,.XAL CONDITIONS OF AGi ,EMENT 1. DEFINITIONS OF TERMS 1.01 OWNER, CONTRACTOR AND ENGINEER. The OWNER, the CONTRACTOR and the ENGINEER are those persons or organizations identified as such in the Agreement and are referred to throughout the Contract Docnments as if singular in number and masculine in gender. The term ENGINEER means the ENGINEER or his duly authorized representative. The ENGI- NEER shall be understood to be tile t£NGINf~ER of the OWNER, and nothing contained in the Cc ntract Documents shall create any contractn d or agency relationship between the ENGINEER aud the CONTRACTOR. 1.02 CONTRACT DOCUMENTS. i",,e Contract Documents shall consist of the Notice to (lnstructkms to Bidders), Proposal, signed Contractors (Advertisement), Special Conditions Agreement, Performance and Payment Bonds (when required). Special Bonds (when required), General Conditions of tile Agreement, Technical Specifications, Plans, and all modifications thereof incorporated in any of tile documents before the execution of the agreement. Tile Contract Documents are complementary, and what is called for by any one shall be as binding as if called for by all. In case of conflict between any of the Contract Documents, priority of interpretation shall be in tile following order: Signed Agreement, Performance and Payment Bonds, Special Bonds (if an>,,), Proposal, Special Conditions of Agreement, Notice to Contractors, '?ethnical Specifications, Phms, and General Conditions of Agreement. as employed herein, includes only 1.03 SUB-CONTRACTOR. The term Sub-Contractor, those having a direct contract with the CONTRACTOR and it includes one who furnishes material worked to a special design according to tile plans or specifications of this work, but does not include one who merely furnishes material not so worked. 1.04 WRITTEN NOTICE. Written notice shall be deemed to have been duly served if delivered in oerson to the individual or to a member of tile firm or to an officer of tile corporation for whom it is intended, or if delivered at or sent by r0gistered mail to tile last business address known to him who gives the notice. ' 1.05 WORK. Tile CONTRACTOR shall provide and for all pa5' materials, supplies, machin- ery, equipment, tools, superintendence, labor, services, insurance, and alt xvater, light, power, fuel, transportation and other facilities necessary for the execution and completion of the work covered by the contract documents. Unless otherwise specified, ;ill materials shall be new and both workmanship and materials shall be of a good quality. The CONTRACTOR shall, if required. furnish satisfactory evidence as to the kind and quality of materials. Materials or work described in words which so applied have a well known techuical or trade meaning shall be held to refer to such recognized standards. 1.06 EXTRA WORK. The term "Extra Work" as used in this contract shall be understood to meun and include all work that may be required fly the ENGiNEI':II or OWNER to be done by the CONTRACTOR to accomplish any change, alteration or addition to the work shown upon the plans, or reasonably implied by the specifications, and not covered by the CONTRACTOR'S Proposal, except as provided under "Changes and Alterat'ons ', herein. 1.07 WORKING DAY. A "Working Day" is defined as any day not including Saturdays, Sundays or any LegaL holidays, in which weather nr other condilions, nnt under the control 'of of the principal units of the work for a period of tho CONTRACTOR, will permit construction not less than seven (7) hours between 7:00 a.m. and 6:00 p.m. 1.08 CALENDAR DAY. "Calendar Day" is any day of the week or month, no days being excepted. ' 1.09 SUBSTANTIALLY COMPLETED. By tile term 'subs)ant'ally completed" is meant that the structure has been made suitable for use or occupancy or the facility is in condition to serve its intended purpose, but stilL may require minor iniscellaneous work and adjustment. 2. RESPONSIBILITIES OF TIlE ENGINEER AND TIlE ,~ONTRACTOR 2.01 OWNER.ENGINEER RELATIONSHIP. The ENGINEER will be the OWNER'S representative during construction. The duties, responsibilities and limitations of authority of the ENGINEER as the OWNER'S representative during construction are as set forth in the ~ontract Documents and shall not be extended or limited without written consent of the OWNER and ENGINEER. The ENGINEER will advise and consult with the OWNER, and all of OWNER'S instructions to the CONTRACTOR shall be issued through tbe ENGINEER. 2.02 PROFESSIONAL INSPECTION BY ENGINEER. The ENGINEER shall make periodic visits to the site to familiarize himself generally with tile progress of the executed work and to determine if such work generally meets the essential performance and design features and the technical and functional engineering reqoizements of the Contract Documents; provided and except, however, that the ENGINEER shall not be responsible for making any detailed, exhaus- tlve, comprehensive or continuous on-site inspection of the quality or quantity of the work or be in .my way responsible, directly or indirectly, for the construction means, methods, techniques, quenees, qnality, prncedures, programs, safety precautions or lack of same incident thereto or in connection tberewith. Notwithstanding any other provision of this agreement or any other Contract l)ocument, the ENGINEER shall not be in any way responsible or liable l'or any acts, errors, omissions or negligence of the CONTRACTOR, any subcontractor or any of the CONTRACTOR'S or subcontractor's agents, servants or employees or any other person, firm or corporation perform- ing or attempting to perform any of tile work. ;~.03 PAYMENTS FOR WORK. Tile ENGINEER shall review CONTRACTOR'S applications for payment and supporting data, determine the amount owed to the CONTRACTOR and approve, in writing, payment to CONTRACTOR in such amounts; sucb approval of payment to CONTRAC- TOR constitutes a representation to the OWNER of ENGINEER'S professional judgment that the work bas progressed to tbe point indicated to the best of his knowledge, information and belief, but such approva, l of an application for payment to CONTRACTOR shall not be deemed as a representation by ENGINEER that ENGINEER bas made any examination to determine how or for what purpose CONTRACTOR has used tile moneys paid on account of the Contract price. 2.04 INITIAL DETERMINATIONS. The ENGINEER initi~dly shall determine all claims, disputes and other matters in question between the CONTRACTOR and the OWNER relating to the execution or progress of the work or the interpretation of tile Contract Documents and the ENGINEER'S decision shall be rendered in writing within a reasonable time. Should the ENGI- NEER fail to make such decision within a reasonable time, appeal to arbitration may be taken as if his decision had been rendered against the party appealing. 2.05 OBJECTIONS. In the event the ENGINEER renders any decision which, in the opinion of either party hereto, is not in accordance with the meaning and intent of this contract, either party may file with the ENGINEER witbin thirty days his written objection to the decision, and by such action may reserve the right to submit the question so raised to arbitration as hereinafter provided. 2.06 LINES AND GRADES. Unless otherwise specified, all lines and grades shall be furnished by the ENGINEER or his representative. Whenever necessary, construction work shall be suspended to permit performance of this work, but such suspension will be as brief as practicable and the CONTRACTOR shall be allowed no extra compensation therefor. The CONTRACTOR shall give the ENGINEER ample notice of tile time and place where lines and grades will be needed. All stakes, marks, etc., shall be carefully preserved by the CONTRACTOR, and in case of careless destruction or removal by him or his employees, such stakes, marks, etc., shall be replaced at the CONTRACTOR'S expense. 2.07 CONTRACTOR'S DUTY AND SUPERINTENDENCE. The CONTRACTOR shall give adequate attention to the faithful prosecution and completion of this contract and shall keep on the work, during its progress, a competent superintendent and any necessary assistants. The superintendent shall represent the CONTRACTOR in his absence and all directions given to him shall be as binding as if given to the CONTRACTOR. G-2 The CONTRACTOR is and at all .times shall remain an inu~i)endent contractor, solelv responsible for the manner and method of completing his work under this contract, with power and authority to select the means, methoa and manner of performing such work, so long as such methods do not adversely affect the completed improvements, the OWNER and ENGINEER being interested only in the result obtained and conformity of such completed improvements to the plans, specifications and contract. Likewise, the CONTRACTOR shall be solely responsible for the safety of himself, his employ- ees and other persons, as well as for the protection of the safety of the improvements being erected and the property of himself or any other person, as a result of his operations hereunder. Engineer- lng construction drawings and specifications as well as any additional information concerning the work to be performed passing from or through the ENGINEER shall not be interpreted as requiring or allowing CONTRACTOR to d ,~'iatc t'rom the plans and specifications, tile intent of such drawings, specifications and any other such instructions being to define with particularity the agreement of the parties as to the work the CONTRACTOR is to perform. CONTRACTOR shall be fully and completely liable, at his own expense, for design, construction, installation and use, or non-use, of all items and methods incident to performance of the contract, and for all loss, damage or injury incident thereto, either to person or property, including, without limitation, the adequacy of all temporary supports, shoring, bracing, scaffolding, machinery or equipment, safety precau- tions or devices, and similar items or devices used by him during construction. Any review of work in process, or any visit or observation during construction, or any clarification of plans and specifications, by the ENGINEER, or any agent, employee, or represen- tative of either of them, whether through personal observation on the project site or by means of approval of shop drawings for temporary construction or construction processes, or by other means or method, is agreed by the CONTRACTOR to be for tile purpose of observing the extent and nature of work completed or being performed, as measured against the drawings and specifications constituting the contract, or for tile purpose of enabling CONTRACTOR to more fully understand the plans and specifications so that the completed construction work will conform thereto, and shall in no way relieve tile CONTRACTOR from full and complete responsibility for the proper performance of his work on tile project, including but without limitation the propriety of means and methods of the CONTRACTOR in performing said contract, and the adequacy of any designs, plans or other facilities for accomplishing such performance. Deviation by the CONTRACTOR from plans and specifications that may have been in evidence during ,~ny such visitation or observation by the ENGINEER, or any of his representatives, whether called to the CONTRAC- TOR'S attention or not shall in no way relieve CONTRACTOR from bis responsibility to complete all work in accordance with said plans and specifications. 2.08 CONTRACTOR'S UNDERSTANDING. It is understood and agreed that tile CON- TRACTOR has, by careful examination, satisfied himself as to the nature and location of tile work, the conformation of the ground, the character, quality and quantity of the materials to be encoun- tered, the character of equipment and facilities needed preliminary to and during the prosecution of the work, the general and local conditions, and all other matters which can in any way affect the work under this contract. No verbal agreement or conversation with any officer, agent or employee of ti · OWNER or ENGINEER either before or after tile execution of'this contract, shall affect or modi!y any of the terms or obligations herein contained. 2.09 CHARACTER OF WORKMEN· The CONTRACTOR agrees to employ only orderly and competent men, skillful in the performance of tile type of work required under this contract, to do the work; and agrees that whenever the ENGINEER shall inform him in writing that any man or men on the work are, in his opinion, incompetent, unfaithful or disorderl.;, such man or men shall be discharged from the work and shall not again be employed on the work without the ENGINEER'S written consent. 2.10 CONTRACTOR'S BUILDINGS. The building of structures for housing men, or the erection of tents or other forms of protection, will be permitted only ;it such places as the ENGINEER shall direct, and the sanitary conditions of tile grounds in or about such structures shall at all times be maintained in a manner satisfactory to the ENGINEER. 2.11 SANITATION. Necessary sanitar:~: conveniences for t,.. use of laborers on the work, properly secluded from public observation, shall be constructed and maintained by the CONTRAC- TOR in such manner and at such points as shall b~' approved hy tile ENGINEER, and their use shall be strictly enforced. 2.12 SHOP DRAWINGS. The CONTRACTOR shall submit to tile ENGINEER, with such promptness as to cause no delay in his own work or in that of an?,' Giber Contractor, four checked copies, unless otherwise specified, of all shop and/or setting drawings and schedules required for the work of the various trades, and the EN(i[NEER shall pass upon them with reasonable prompt- ness, making desired corrections. The CONTRACTOR shall make atiy corrections required by the ENGINEER, file with him two corrected copies and furnish such other copies as may be needed. The ENGINEER'S approval of such drawings or schedules shall not relieve ti~e CONTRACTOR from responsibility for deviations from drawings or specifications, unless he has in writing called the ENGINEER'S attention to such deviations at the time of submission, nor shall it relieve him from responsibility for errors of any sort in shop drawings or schedules. It shall be the CONTRAC- TOR'S responsibility to fully and completely review all shop drawings to ascertain their effect on his ability to perform the required contract work in accordance with the plans and specifications and within the contract time. Such review by the ENGINEER shall be for the sole purpose of determining the sufficiency of said drawings or schedules to result in finished improvements in conformity with the plans and specifications, and shall not relieve the CONTRACTOR of his duty as an independent contractor as previously set forth, it being expressly understood and agreed that the ENGINEER does not assume any duty to pass upon the propriety or adequacy of such drawings or schedules, or any means or methods reflected thereby, in relation to the safety of either person or property during CONTRACTOR'S performance hereunder. 2.13 PRELIMINARY APPROVAL. The ENGINEER shall not bare the power to waive the obligations of this contract for the furnishing by the CONTRACTOR of good material, and of his performing good work as herein described, and in full accordance with the plans and specifica- tions. No failure or omission of the ENGINEER to discover, object to or condemn any defective work or material shall release the CONTRACTOR from the obligations to fully and properly perform the contract, including without limitations, the obligation to at once tear out, remove and properly replace the same at any time prior to final acceptance upon the discovery of said defective work or material; provided, however, that the ENGINEER shall, upon request of the CONTRAC- TOR, inspect and accept or reject any material furnished, and in event the material has been once accepted by the ENGINEER, such acceptance shall be binding on the OWNER, unless it can be clearly shown that such material furnished does not meet the specifications for this work. Any questioned work may be ordered taken up or removed for re-examination, by the ENGINEER, prior to final acceptance, and if found not in accordance with the specificaLions for said work, all expense of removing, re-examination and replacement shall be borne by tile CONTRACTOR, otherwise the expense thus incurred shall be allowed as EXTRA WORK, and shall be paid for by tile OWNER; provided that, where inspection or approval is specifically required by the specifications prior to performance of certain x,"~rk, should the CONTRACTOR proceed with such work without requesting prior inspection or ak?oval he shall bear all expense of taking up, removing, and replacing this work if so directed by the ENGINEER. 2.14 DEFECTS AND THEIR REMEDIES. It is further agreed that if the work or any part thereof, or any material brought on the site of the work for use in the work or selected for the same, shall be deemed by the ENGINEER as unsuitable or not in conformity with the speci- fications, the CONTRACTOR shall, after receipt of written notice thereof from the ENGINEER, forthwith remove such material and rebuild or otherwise remedy such work so that it shall be in full accordance with this contract. 2.15 CHANGES AND ALTERATIONS. Tbe CONTRACTOR further agrees that tile OWNER ~: ~y make such changes and alterations as the OWNER may see fit, in the line, grade, form, dimensions, plans or materials for the work herein contemplated, or any part thereof, either before or after the beginning of the construction, without affecting tile validity of this contract and the accompanyiiIg Performance and Payment Bonds. If such changes or alterations diminish the quantity of the work to be done, they shall not constitute the basis for a claim for damages, or anticipated profits on the work that may be dispensed with, except as provided for unit price items under Section 5 "Measurement and Pay- ment.'' If the amount of work is increased, and the work can fairly be classified under the speci- fications, such increase shall be paid for according to the quantity actually done and at the unit price, if any, established for such work under this contract, except as provided for unit price items under Section 5 "Measurement and Payment;" otherwise, such additional work shall be paid for as provided under Extra Work. In case the OWNER shall make such changes or alterations as shall make useless any work already done or material already furnished or used in said work, then the OWNER shall recompense the CONTRACTOR for any material or labor so used, and for any actual loss occasioned by such chan~e, due to actual expenses incurred in preparation for the work as originally planned. 3. GENERAL OBLIGATIONS AND RESPONSIBILITIES 3.01 KEEPING OF PLANS AND SPECIFICATIONS ACCESSIBLE. The ENGINEER shall furnish the CONTRACTOR with an adequate and reasonable number of copies of all plans and specifications without expense to him, and the CONTRACTOR shall keep one copy of the sa, ~e constantly accessible on the work, with the latest revisions noted thereon. 3.02 OWNERSHIP OF DRAWINGS. All drawings, specifications and copies thereof furnished by the ENGINEER shall not be reused on other work, and, with the exception of the signed contract sets, are to be returned to him on request, at the completion of the work. All models are the property of the OWNER. 3.03 ADEQUACY OF DESIGN. It is understood that the OWNER believes it has employed competent engineers and designers. It is, therefore, agreed that the OWNER shall be responsible for the adequacy of the design, sufficiency of the Contract Documents, the safety of the structure and the practicability of the operations of the completed project; provided the CONTRACTOR has complied with the requirements of the said Contract Documents, all approved modifications thereof, and additions and alterations thereto approved in writing by the OWNER. The burden of proof of such compliance shall be upon tbe CONTRACTOR to show that he has complied with the said requirements of the Contract Documents, approved modifications thereof and all approved additions and alterations thereto. 3.04 RIGHT OF ENTRY. The OWNER reserves the right to enter the property or location on which the works herein contracted for are to be constructed or installed, by such agent or agents as he may elect, for the purpose of inspecting the work, or for the purpose of constructing or installing such collateral work as said OWNER may desire. 3.05 COLLATERAL CONTRACTS. The OWNER agrees to provide by separate contract or otherwise, all labor and material essential to the completion of the work specifically excluded from this contract, in such manner as not to delay the progress of the work, or damage said CONTRAC- TOR, except where such delays are specifically mentioned elsewhere in the Contract Documents. 3.06 DISCREPANCIES AND OMISSIONS. It is further agreed that it is the intent of this contract that all work must be done and all material must be furnished in accordance with the generally accepted practice, and in the event of any discrepancies between the separate contract documents, the priority of interpretation defined under "Contract Documents" shall govern. In the event that there is still any doubt as to the meaning and intent of any portion of the contract, specifications or drawings, the ENGINEER shall define which is intended to apply to the work. 3.07 EQUIPMENT, MATERIALS AND CONSTRUCTION PLANT. The CONTRACTOR shall be responsible for the care, preservation, conservation, and protection of all materials, supplies, machinery, equipment, tools, apparatus, accessories, facilities, all means of construction, and any and all parts of the work, whether the CONTRACTOR has been paid, partially paid, not or paid for such work, until the entire work is completed arid accepted. G-5 ~ 3.08 DAMAGES. In the ~qent the CONTRACTOR is damaged in ,,e course of the comple- tion of the work by the act, neglect, omission, mistake or default of the OWNER, or of the ENGINEER, or of any other CONTRACTOR employed by the OWNER upon the work. therebv causing loss to the CONTRACTOR, the OWNER agrees that he will reimburse the CONTRACTOR for such loss. In the event the OWNER is damaged in the course of the work by the act, negligence, omission, mistake or default of the CONTRACTOR, or should the CONTRACTOR unreasonably delay the progress of the work being done by others on the job so as to cause loss for which the OWNER becomes liable, then the CONTRACTOR sh~[I reimburse the OWNER for such loss. 3.09 PROTECTION AGAINST ACCIDENT TO EMPLOYEES AND THE PUBLIC. The CONTRACTOR shall at all times exercise reasonable precautions for the safety of employees and others on or near the work and shall comply ~vitb all applicable provisions of Federal, State, and Municipal safety laws and building and construction codes. All machinery and equipment and other physical hazards shall be guarded in accordance with the "Manual of Accident Prevention in Construction" of the Associated General Contractors of America except where incompatible with Federal, State, or Municipal laws or regulations. The CONTRACTOR shall provide such machinery guards, safe walkways, ladders, bridges, gangplanks, and other safety devices. The safety precautions actually taken and their adequacy shall be the sole responsibility ~)f the CONTRACTOR, acting at his discretion as an independent contractor. 3.10 PERFORMANCE AND PAYMENT BONDS. Unless otherwise specified, it is further agreed by the parties to this Contract that the CONTRACTOR will execute separate performance and payment bonds, each in the sum of one hundred (100) percent of the total contract price, in standard forms for this purpose, guaranteeing faithful performance of the work and the fulfillment of any guarantees required, and further guaranteeing payment to all persons supplying labor and materials or furnishing him any equipment in the execution of the Contract, and it is agreed that this Contract shall not be in effect until such performance and payment bonds are furnished and approved by the OWNER. Unless otherwise approved in writing by the OWNER, the surety company underwriting the bonds shall be acceptable according to the latest list of companies holding certificates of authority from the Secretary of the Treasury of the United States. Unless otherwise specified, the cost of the preminm for the performance and payment bonds shall be included in the CONTRACTOR'S proposal. 3.11 LOSSES FROM NATURAL CAUSES. Unless otherwise specified, all loss or damage to the CONTRACTOR arising out of ~he nature of tile work to be done, or from the action of the elements, or from any unforeseen circumstance in the prosecution of the same, or from unusual obstructions or difficulties which may be encountered ill the prosecution of the work, shall be sustained and borne by the CONTRACTOR at his own cost and expense. 3.12 PROTECTION OF ADJOINING PROPERTY. The said CONTRACTOR shall take proper means to protect the adjacent or adjoining property or properties in any way encountered, which might be injured or seriously affected by any process of construction to be undertaken under this Agreement, from any damage or injury by reason of said process of construction; and he shall be liable for any and all claims for such damage on account of his failure to fully protect all adjoining property. The CONTRACTOR agrees to iudemnify, save and hold harmless the OWNER and ENGINEER against any claim or claims for damages due to any injury to any adjacent or adjoining property, arising or growing out of the performance of the contract; but any such indemnity shall not apply to any claim of any kind arising out of tile existence or character of the work. 3.13 PROTECTION AGAINST CLAIMS OF SUB-CONTRACTORS, LABORERS, MATER. IALMEN AND FURNISHERS OF MACHINERY, EQUIPMENT AND SUPPLIES. The CONTRAC- TOR agrees that he will indemnify and save the OWNER and ENGINEER harmless from all claims growing out of the lawful demands of sub-contractors, laborers, workmen, mechanics, materialmen and furnishers of machinery and parts thereof, equipment, power tools, and all supplies, including commissary, incurred in the furtherance of the performance of this contract. When so desired by the OWNER, the CONTRACTOR shall furnish satisfactory evidence that all obligations of the G-6 © ................ , nature hereinabove designated have been paid, discharged or waived. If the CONTRACTOR fails so to do, then the OWNER may at the option of the CONTRACTOR either pay directly any unpaid bills, of which the OWNER has written notice, or withhold from the CONTRACTOR'S unpaid compensation a sum of money deemed reasonably sufficient to liquidate any and all such lawful claims until satisfactory evidence is furnished that all liabilities have been fully discharged, whereupon payments to the CONTRACTOR shall be resumed in fn!l, in accordance with the terms of this contract, but in no event shall the provisions of this sentence be construed to impose any obligation upon the OWNER by either the CONTRACTOR or his Surety. 3.14 PROTECTION AGAINST ROYALTIES OR PATENTED INVENTION. The CON- TRACTOR shall pay all royalties and license fees, and shall provide for the use of any design, device, material or process covered by letters patent or copyright by suitable legal agreement with the patentee or owner. The CONTRACTOR shall defend all suits or claims for infringement of any patent or copyright rights and shall indemnify and save the OWNER and ENGINEER harmless from any loss on account thereof, except that the OWNER shall defend all such suits and claims and ~shall be responsible for all such loss when a particular design, device, material or process or the product of a particular manufacturer or manufacturers is specified or required by the OWNER; provided, however, if choice of alternate design, device, m~terial or process is allowed to the CONTRACTOR, then CONTRACTOR shall indemnify and save OWNER harmless from any loss on account thereof. If h~e material or process specified or required by the OWNER is an infringe- ment, the CONTRACTOR shall be responsible for such loss unless he promptly gives such info:m: tion to the OV~qqER. 3.15 LAWS AND ORDINANCES. The CONTRACTOR shall at all times observe and comply with all Federal, State and local laws, ordinances and regulations, which in any manner affect the contract or the work, and shall indemnify and save harmless the OWNER and ENGINEER against any claim arising from the violation of any such laws, ordinances, and regulations whether by the CONTRACTOR or his employees, except wl~ere such violations are called for by the provisions of the Contract Documents. If the CONTRACTOR observes that the plans and specifications are at variance therewith, he shall promptly notify the ENGINEER in writing, and any necessary changes shall be adjusted as provided in the contract for changes in the work. If the CONTRAC- TOR performs any work knowing it to be contrary to such laws, ordinances, rules and regulations, ' · 'ER and without such notice to the ENGINE , he shall bear all costs arising therefrom. In case the OWNER is a body politic and corporate, the law from which it derives its powers, insofar as the same regulates the objects for which, or the manner in which, or the conditions under which the OWNER may enter into contract, shall be controlling, and shall be considered as part of this contract, to the same effect as though embodied herein. 3.16 ASSIGNMENT AND SUBLETTING. The CONTRACTOR further agrees that he will retain personal control and will give his personal attention to the fulfillment of this contract and that he will not assign by Power of Attorney, or otherwise, or sublet said contract without the written consent of the ENGINEER, and that no part or feature of the work will be sublet to anyone objectionable to the ENGINEER or the OWNER. The CONTRACTOR further agrees that the subletting of any portion or feature of the work, or materials required in the performance of this contract, shall not relieve the CONTRACTOR from his full obligations to the OWNER, as provided by this Agreement. 3.17 INDEMNIFICATION. The CONTRACTOR shall defend, indemnify and hold harmless the OWNER and the ENGINEER and their resnective officers, agents and employees, from and against all damages, claims, losses, demands, suits, judgments and costs, including reasonable attorneys' fees and expenses, arising out of or resulting from the performance of the work, provided that any such damages, claim, loss, demand, suit, judgment, cost or expense: (1) Is attributable to bodily injury, sickness, disease or death or to injury to or destruction of tangible property (other than the work itself) including the loss of use resulting therefrom; and, (2) Is caused in whole or'in part by any negligent act or omission of the Contractor, any Subcontractor, anyone directly or indirectly employed by any one of them or anyone for whose acts any of them may be liable, regardless of whether or not it is caused in part by a party indemnified hereunder. The obligation of the CONTRACTOR under this Paragraph shall not extend to the liability of the ENGINEER, his agents or employees arising out of the preparation or approval of maps, drawings, reports, surveys, Change Orders, designs or specifications, or the giving of or the failure to give directions or instructions by the ENGINEER, his agents or employees, provided such giving or failure to give is the primary cause of the injury or damage. 3.18 INSURANCE. The CONTRACTOR at his own expense shall purchase, maintain and keep in force such insurance as will protect him from claims set forth below which may arise out of or result from the CONTRACTOR'S operations under' the Contract, whether such operations be by himself or b~, any Subcontractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts any of them may be liable: (1) Workmen'b ~ompensation claims, disability benefits and other similar employee benefit acts; (2) Claims for damages because of bodily injury, occupational sickness or disease, or death of his employees, and claims insured by nsual bodily injury liability coverages; (3) Claims for damages because of bodily injury, sickness or disease, or death of any person other than his employees, and claims insured by usual bodily injury liability coverages; and (4) Claims for damages because of injury to or destruction of tangible property, including loss of use resulting therefrom~ 3.18.1 CERTIFICATE OF INSURANCE. Before commencing any of the work, C©NTRAC- TOR shall file with the OWNER valid Certificates of Insurance acceptable to the OWNER and the ENGINEER. Such Certificates shall contain a provision that coverages afforded under the policies will not be cancelled until at least fifteen days' prior written notice has been given to the OWNER. The CONTRACTOR shall also file with the OWNER valid Certificates of Insurance covering ail sub-contractors. ~1. PROSECUTION AND PROGRE&~ 4.01 TIME AND ORDER OF COMPLETION. It is the meaning and intent of this contract, unless otherwise herein specifically provided, that the CONTRACTOR shall be allowed to prosecute his work at such times and seasons, in such order of precedence, and in such manner as shall be most conducive to economy of construction: provided, however, that the order and the time of prosecution shall be such that the work shall be substantially completed as a whole and in part, in accordance with this contract, the plans and specifications, and within the time of completion designated in the Proposal; provided, also, that when the OWNER is having other work done, either by contract or by his own force, the ENGINEER may direct the time and manner of constructing the work done under this contract, so that conflict will be avoided and the construction of the various works being done for the OWNER shall be harmonized. The CONTRACTOR shall submit, at such times as may reasonably be requested by the ENGINEER, schedules which shall show the order in which the CONTRACTOR proposes to carry on the work, with dates at which the CONTRACTOR will start the several parts of the work, and estimated dates of completion of the several parts.. 4.02 EXTENSION OF TIME. Sbouht the CONTRACTOR be delayed in the completion of the work by any act or neglect of the OWNER or ENGINEER, or of any employee of either, or by other contractors employed by the OWNER, or by changes ordered in the work, by or strikes, lockouts, fires, and unusual delays by common carriers, or nnavoidable cause or causes beyond the CONTRACTOR'S control, or by any cause which the ENGINEER shall decide justifies the delay, then an extension of time shall be allowed for completing the work, sufficient to comc¢nsate for the delay, the amount of the extension to be determined by tile LNGINEt'.P~, pr(>v~.led, however, that the CONTRACTOR shall give the ENGINEER prompt notice in writing of t~hc cause of such delay. 4.03 HINDRANCES AND DELAYS. No claims sball be made by tile CONTRACTOR for damages resulting from hindrauces or delays from any cause (except where the work is stopped by : order of the OWNLR) during the progress of aay portion of the work embraced in this contract. In case said work shall be stopped by the act of tbe OWNER, then such expense as in the judgment of the ENGINEER is caused by such stoppage of said work shall be paid by the OWNER to the CONTRACTOR. 5. MEASUREMENT AND PAYMENT 5.01 QUANTITIES AND MEASUREMENTS. No extra or customary measurements of any kind will be allowed, but the actual measured and/or computed length, area, solid contents, number and weight only shall be considered, unle~ otherwise specifically provided. 5.02 ESTIMATED QUANTITIES. This agreement, including the specifications, plans and estimate, is intended to show clearly all work to be done and material to be furnished hereuuder. Where the estimated quantities are shown for the various classes of work to be done and material to be furnished under this contract, they are approximate and are to be used only as a basis for estimating the probable cost of the work and for comparing the proposals offered for the work. It is understood and agreed tbat the actual amount of work to be done and material to be furnished under this contract may differ somewhat from these estimates, and that where the basis for payment under this contract is the unit price method, payment shall be for the actual amount of such work done and the material furnished. Where payment is based on the unit price method, the CONTRACTOR agrees that he will make no claim for damages, anticipated profits or otherwise on account of any differences which may be found between the quantities of work actually done, the material actually furnished under this contract and the estimated quantities contemplated and contained in the proposal; provided, however, that in case the actual quantity of any major item sbouId become as much as 20C~ more than, or 20C~ less than the estimated or contemplated quantity for such items, then either party to this Agreement, upon demand, shall be entitled to a revised consideration upon the portion of the work above or below 20% of the estimated quantity. A "Major Item" shall be construed to be individual bid item incnrred in the any proposal that has a total cost equal to or greater than five (5) per cent of the total contract cost, computed on the basis of the proposal quantities and the contract unit prices. Any revised consideration is to be determined by agreement between the parties, otherwise by the terms of this Agreement, as provided under "Extra Work." 5.03 PRICE OF WORK. In consideration of the furnishing of all the necessary labor, equipment and material, and tile completion of all work by the CONTRACTOR, and on the completion of all work and of tile delivery of all material embraced in this Contract in full conformity with the specifications and stipulations herein contained, the OWNER to agrees ['ay the CONTRACTOR the prices set forth in the Proposal hereto attached, which has been made a part of this contract. Tt~e CONTRACTOR hereby agrees to receive such prices in full for furnishing all material and all labor required for the aforesaid work, also for all expense incurred by him, and for well and truly performing the same and tile whole tberetyf in the manner and according to this Agreement. 5.04 PARTIAL PAYMENTS. 0u or before the 10th day of each month, tile CONTRACTOR shall prepare and submit to tile ENt;INEER for approwd or modification a statement showing as completely as practicable tile total value of the work done by the CONTItACTOR up to and including the last day of the preceding monlb: said statement shall also include the value of all sound materials delivered on the site of the work that are to bt, fabricated into the work. Tbe OWNER shall then pay the CONTRACTOtl on or before the 15th day of the current month the total amount of the approved statement, less 10 per cent of the amount thereof, which 10 per cent shall be retained until final payment, and further lexs all previous payments and all further sums that may be retained by the OWNER under the terms of this Agreement. It is understood, however, that in case the wb[fie work be near to completion and some unexpected and unusual delay occurs due to no fault or neglect on the part of the CONTRACTOR, the OWNER may-upon writteu recommendation of lite ENGINI£ER -pay portion of the retained percentage to tile CONTRACTOR. or the CONTRACTOR at the OWNER'S option, may bo relieved of the obligation to fn!!v complete the work and, thereupon, the CON- TRACTOR shall receive payment of the balance due him under the contract subject only to the conditions stated under "Final Payment." 5.05 USE OF COMPLETED PORTIONS. The OWNER shall hax<~ the right to take possession of and use any completed or partially completed portions of the work, notwithstanding the time for completing the entire work or such portions may not bare expired but sucb taking posse~ion and use shall not be deemed an acceptance of any work not completed in accordance with tile Contract Documents. If such prior use increases the cost of or delays tile work, the CONTRACTOR sha!l be entitled to such extra compensation, or extension of time, or both, as tile ENGINEEt~. may determine. ' The CONTRACTOR shall notify the ENG1NEER when, in the CONTRACTOR'S opinion, the contract is "substanlia y completed" a d wbe*l so u )tit'vine tl e I"NGINF TOR shall furnish to ti*lo ENGINEI:R in wr't' *lg a detaded list et tint n s md work. I lie eNGINEER will review the CONTRACTOR'S list of unfinished work and will add thereto such items as the CONTRACTOR }las failed to include. The "substantial completion" of the structure tlr facility shall not excuse the CONTRACTOR from performing all of the work undertaken, whet}mr of a minor or major nature, and thereby completing tile structure or facility in accordance with the Contract Documents. 5.0B FINAL COMPLETION AND ACCEPTANCE. Withbx tcu (10) days after tho CON- TRACTOR has given tile ENGINEER written notice that the work has be~.,n completed, or substantially completed, the ENGINEI£R and the OWNER shall inspect tile work and within said time, if tile work be found to be completed or snbstautiallv completed in accordaace with I e Contract Docmneuts, the ENGINEER shall issue to the ()WN}']R and the CONTRACTOR his Certificate of Completion, and tbereupt,n it shall be the duty of the OWNER within ten (I0) days to issue a Certificate of Acceptance of the work to the CONTRACTOR or to advise the CONTRAC- TOR in writing of the reason for non-acceptance. 5.07 FINAL PAYMENT. Upon tile issuance of the Certificate of Completion, the ENGI- NEER shall proceed to make final nmasurements and prepare fiual statement of the value of all work performed and materials furuished under tile terms of the Agreement and shall certify same to )be OWNER, who shall pay to the CONTRACTOR on or after the 30th It;iv. and before the 35th day, after the date of the Certificate of Completion, the balance due tile CONTRACTOR under the terms of this Agreement, provided he has fully performed his coutriu:tual obligations under the terms of this contract: and said paymeut sh;dl become due in any event upon said performance by the CONTRACTOR. Neither the Certificate of Acceptance nor'the final payment, nor any provision iu the Contract Documeuts, sball relieve tile CONTRACTOI{ of the obligation for fulfillment of any warranty which may be required. 5.08 PAYMENTS WITHHELD. The OWNER may, on accouut of subsequently dicovered evidence, withhold or nullify the whole or part of al{y certificate to such extent as may be necessary to protect himself from lo~$ on account (a) Defective work not remedied. (b) Claims filed or reasonable evidence indicating probable filing of claims. (c) Failure of the CONTRACTOR to make payments properly to sub- contractors or for material or labor. (d) Damage to another contractor. (e) Reasonable doobt that the work can be completed for the unpaid balance of the contract amount. (f) Reasonable indication that the work will not be completed ~ithin the contract time. When the above grounds are removed or the CONTRACTOR provides a Surety Bond satisfactory to the OWNER, which will protect tim OWNER in tbe amount withheld, payment shall be made for amounts withheld becanse of them. 5.09 DELAYED PAYMENTS. Should the OWNER fail to make payment to tile CONTRAC- TOR of the sum named in any partial or final statement, when payment is due, then the OWNER shall pay to the CONTRACTOR, in addition to the sum shown as due by such statement, interest thereon at the rate of six (6) per cent per annum, unless otherwise specified, from date due as provided under "Partial Payments" and "Final Payments," until fully paid, which shall fully liquidate any injury to the CONTRACTOR growing out of such delay in payment, but the right is expressly reserved to the CONTRACTOR in the event payments be not promptly made, as provided under "Partial Payments," to at any time thereafter treat the contract as abandoned by the OWNER and recover compensation, as provided under "Abandonment of Contract," ~mless such payments are withheld in accordance with the provisions of "Payments Withheld." 6. EXTRA WORK AND CLAIMS 6.01 CHANGE ORDERS: Without invalidating this Agreement, the OWNER may, at any time or from time to time, order additions, deletions or revisions to the work; such changes will be authorized by Change Order to be prepared by the ENGINEER for execution by the 3WNER and the CONTRACTOR. The Change Order shall set forth the basis for any change ir, contract price, as hereinafter set forth for Extra Work, and any change in contract time which may result from ~hc change. In ~he event the CONTRACTOR sball refuse to execute a Change Order which has been prepared by the ENGINEER and executed by the OWNER, the ENGINEER may in writing instruct the CONTRACTOR to proceed with the work as set forth in the Change Order and the CONTRACTOR may make claim against the OWNER for Extra Work involved therein, as herein. after provided. 6.02 MINOR CHANGES: The ENGINEER may authorize minor changes in the work not inconsistent with the overall intent of the Contract Documents and not involving an increase in Contract Price. If the CONTRACTOR believes that any minor change or alteration authorized by the ENGINEER involves Extra Work and entitles him to an increase in the Contract Price, the CONTRACTOR shall make written request to the ENGINEER for a written Field Order. In such case, the CONTRACTOR by copy of his communication to the ENGINEER or otherwise in writing shall advise the OWNER of his request to the ENGINEER for a written Field Order and that the work involved may result in an increase in the Contract Price. Any request by the CONTRACTOR for a change in Contract Price shall be made prior to beginning the work covered by the proposed change. 6.03 EXTRA WORK: It is agreed that the basis or' compensation to the CONTRACTOR for work either added or deleted by a Change Order or for which a claim for Extra Work is made shall be determined by one or more of the following methods: Method (A)-By agreed unit prices; or Method (B)--By agreed lump sum; or Method (C)--If neither Method (A) nor Method (B) be agreed upon before the Extra Work is commenced, then the CONTRACTOR shall be paid the "actual field cost" of the work, plus fifteen (15) percent. In the event said Extra Work be performed and paid for under Method (C)~ then the pro- visions of this paragraph shall apply and the "actual field cost" is hereby defined t~ include the cost to the CONTRACTOR of all workmen, such as foreman, timekeepers, mechanics and laborers, and materials, supplies, teams, trucks, rentals on machinery and equipment, for the time actually employed or used on such Extra Work, plus actual transportation charges necessarily incurred, together with all power, fuel, lubricants, water and similar operating expenses, also all necessary incidental expenses incurred directly on account of such Extra Work, including Social Security, Old Age Benefits and otber payroll taxes, and, a rateable proportion of premiums on Performance and Payment Bonds and Maintenance Bonds, Public Liability and Property Damage and Workmen's Compensation, and all other insurance as may be required by any law or ordinance, or directed by the OWNER, or by them agreed to. The ENGINEER may direct the form in which accounts of the "actual field cost" shall be kept and the records of these accounts shall be made available to the ENGINEER. The ENGINEER or OWNER may also specify in writing, before the work commences, .the method of doing the work and the type and kind of machinery and equip- m~nt to be used; otherwise these matters shall be determined by the CONTRACTOR. Unless otherwise agreed upon, the prices for the use of machinery and equipment shall be determined by using 100 per cent, unless otherwise specified, of the latest schedule of Equipment Ownership Expense, adopted by the Associated General Contractors of America. Where practicable the terms and prices for the use of machinery and equipment shall be incorporated in the Written Extra Work Order. The fifteen (15%) per cent of tile "actual field cost" to be paid the CONTRAC- TOR shall cover and compensate him for his profit, overhead, general superintendence and field office expense, and all other elements of cost and expense not embraced within the "actual field cost" as herein defined, save that where the CONTRACTOR'S Camp or Field Office must be maintained primarily on account of such Extra Work; then the cost to maintain and opera, re the same shall be included in the "actual field cost." No claim for Extra Work of any kind will be allowed unless ordered in writing by the ENGINEER. In case any orders or instructions, either oral or written, appear to the CONTRAC- TOR to involve Extra Work for which he should receive compensation or an adjustment in the construction time, he shall make written reqnest to the ENGINEER for written order authorizing such Extra Work. Should a difference of opinion arise as to what does or does not constitute Extra Work, or as to the payment therefor, and the ENGINEER insists upon its performance, the CONTRACTOR shall proceed with the work after making written request for written order and shall keep an accurate account of the "actual field cost" thereof, as provided under Method (C). The CONTRACTOR will thereby preserve the right to submit the matter of payment to arbitration, as hereinbelow provided. 6.04 TIME OF FILING CLAIMS. It is further agreed by both parties hereto that all questions of dispute or adjustment presented by the CONTRACTOR shall be in writing and filed with the ENGINEER within thirty (30) days after the ENGINEER has given any directions, order or instruction to which the CONTRACTOR desires to take exception. The ENGINEER shall reply within thirty (30) days to such written oxceptions by the CONTRACTOR and render his final decision in writing. In case the CONTRACTOR should appeal from the ENGINEER'S decision, any demand for arbitration shall be filed with the ENGINEER and the OWNER in v .iting within ten (10) days after the date of delivery to CONTRACTOR of the ENGINEER'S liaal decision. It is further agreed that final acceptance of the work by the OWNER and the acceptance by the CONTRACTOR of the final payment shall be a bar to any claims by either party, except where noted otherwise in the Contract Documents. 6.05 ARBITRATION. All questions of dispute under this Agreement shall be submitted to arbitration at the request of either party to the dispute. The parties may agree upon one arbiter, otherwise, there shall be three, one named in writing by each party, and tile third chosen G-12 by the two arbiters so selected; or if the arbiters fail to select ,~ third within ten (10) days, he shall be chosen by a District Judge serving the County in which the major portion of the project is located, unless otherwise specified. Should the party demanding arbitration fail to name an arbiter within ten (10) days of the demand, his right to arbitrate shall lapse, and the decision of the ENGINEER shall be final and binding on him. Should the otber party fail to choose an arbiter within ten (10) days, the ENGINEER shall appoint such arbiter. Should either party refuse or neglect to supply the arbiters with any papers or information demanded in writing, the arbiters are empowered by both parties to take ex parte proceedings. The arbiters shall act with promptness. The decision of any two shall be binding on both parties to the contract. The decision of the arbiters upon any question submitted to arbitration under this contract shall be a condition precedent to any right of legal action. The decision of the arbiter or arbiters may be filed in court to carry it into effect. The arbiters, if they deem the case demands it, are authorized to award the party whose contention is sustained, such sums as they deem proper for the time, expense and trouble incident to the appeal, and if the appeal was taken without reasonable cause, they may award damages for any delay occasioned thereby. The arbiters shall fix their own compensation, unless otherwise provided by agreement, and shall assess the cost and charges of the arbitration upon either or both parties. The award of the arbiters must be made in writing. 7. ABANDONMENT OF CONTRACT 7.01 ABANDONMENT BY CONTRACTOR. In case the CONTRACTOR should abandon and fail or refuse to resume work within ten (10) days after written notification from the OWNER, or the ENGINEER, or if the CONTRACTOR fails to comply with the orders of the ENGINEER, when such orders are consistent ,with the Contract Documents, then, and in that case, where performance and payment bonds exist, the Sureties on these bonds shall be notified in writing and directed to complete the work, and a copy of said notice shall be delivered to the CONTRACTOR. After receiving said notice of abandonment the CONTRACTOR shall not remove from the work any machinery, equipment, tools, materials or supplies then on the job, but ti~e same, together with any materials and equipment under contract for the work, may be held for use on the work by the OWNER or the Surety on the performance bond, or another contractor in completion of the work; and the CONTRACTOR shall not receive any rcutal or credit therefor (except when used in connection with Extra Work, where credit shall be nih)wed as provided for umler Section 6, Extra Work and Claims), it being understood that the use of such equipment and materials will ultimately reduce the cost to complete the work and be reflected in the final settlement. Where there is no performance bond provided or in ~ase the Surety should fail to commence compliance with the notice for completion hereinbefore provided for, within ten (10) days after service of such notice, then the OWNER may provide for completion of the work in either of the following elective manners: 7.01.1 The OWNER may thereupon employ such force of men and use such machinery, equipment, tools, materials and supplies as said OWNER may deem necessary to complete the work and charge the expense of such labor, machinery, equipment, tools, materials and supplies to said CONTRACTOR, and expense so charged shall be deducted and paid by the OWNER out of such moneys as may be due, or that may thereafter at any time become due to the CONTRAC- TOR under and by virtue of this Agreement. In case such expense is less than the sum which wotdd have been payable under this contract, if the same had been completed by the CONTRACTOR, the~ said CONTRACTOR shall receive the difference. In case such expense is greater than the sum which would have been payable under this contract, if the same had been completed by said CONTRACTOR, then tile CONTRACTOR and/or his Surety shall pay tile amount of such excess to the OWNER; or 7.01.2 The OWNER under sealed bids, after five (5) days notice published one or more times in a newspaper having general circulation in the county of the location of the work, may let the contract for the completion of the work under substantially the same terms and conditions which are provided in this contract. In case any increase in cost to the OWNER under the new contract as compared to what would have been the cost under this contract, such increase shall be charged to the CONTRACTOR and the Surety shall be and remain bound therefor. However, should the cost to complete any such new contract prove to be less than what would have been the cost to complete under this contract, the CONTI{ACTOR 'and/or his Surety shall be credited therewith. When the work shall have been substantially completed the CONTRACTOR and his Surety shall be so notified and Certificates of Completion and Acceptance, as provided in Paragraph 5.06 hereinabove, shall be issued. A complete itemized statement of the contract accounts, certified to by the ENGINEER as being correct, shall then be prepared and delivered to the CONTRACTOR and his Surety, whereupon the CONTRACTOR and/or his Surety, or the OWNER as the case may be, shall pay the balance due as reflected by said statement, within fifteen (15) days after the date of such Certificate of Completion. In the event the statement of accounts shows that the cost to complete the W?tk is less than that which would have been the cost to the OWNER had the work been completed by the CONTRACTOR under the terms of this contract; or when the CONTRACTOR and/or his Surety shall pay the balance shown to be due by them to the OWNER, then all machinery, equipment, tools, materials or supplies left on the site of the work shall he turned over to the CONTRACTOR and/or his Surety. Should the cost to complete the work exceed the contract price, and the CONTRACTOR and/or his Surety fail to pay the amount due the O!~qER within the time designated bereinabove, and there remains any machinery, equipment, tools, materials or supplies on the site of the work, notice thereof, together with an itemized list of such equipment and materials, shall be mailed to the CONTRACTOR and his Surety at the respective addresses designated in this contract, provided, however, that actual written notice given in any manner will satisfy this condition. After mailing, or other giving of such notice, such property shall be held at the risk of the CONTRA~R and his Surety subject only to the duty of the OWNER to exercise ordinary care to protect such property. After fifteen (15) days from the date of said notice the OWNER may sell such machinery, equipment, tools, materials or supplies and apply the net sum derived from such sale to the credit of the CONTRACTOR and his Surety. Such sale may be made at either public or private sale, with or without notice, as the OWNER may elect. The OWNER shall release any machinery, equipment, tools,' materials, or supplies, which remain on the work, and belong to persons other than the CONTRACTOR or his Surety, to their proper owners. The books on all operations provided herein shall be open to the CONTRACTOR and his Surety. 7.02 ABANDONMENT BY OWNER. In case the OWNER shall fail to comply with the terms of this contract, and should fail or refuse to comply with said terms within ten (10) days after written notification by the CONTRACTOR, then the CONTRACTOR may suspend or wholly abandon the work, and may remove therefrom all machinery, tools and equipment, and all materials on the site of work that have not been included in payn~ents to the CONTRACTOR and have not been wrought into the work. And thereupon the ENGINEER shall make an estimate of the total amount earned by the CONTRACTOR, which estimate shall include the value of all work actually completed by said CONTRACTOR (at the prices stated in ~he attached proposal where unit prices are used), the value of all partially completed work at a fair and equitable price, and the amount of all Extra Work performed at the prices agreed upon, or provided for by the terms of this contract, and a reasonable sum to cover the cost of any provisions made by the CONTRACTOR to carry the whole work to completion and which cannot be utilized. The ENGINEER shall then make a final statement of tile balance due tile CONTRACTOR by deducting from the above estimate all previous payments by the OWNER and all other sums that may be retained by the OWNER under the terms of this Aereement and shall certify same to the OV~ER who shall pay to the CONTRACTOR on or before thirty (30) days after the date of the notification by the CONTRACTOR the balance shown by said final statement as due the CONTRACTOR, under the terms of this Agreement.