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Availability of Lands: Physical Conditions
ARTICLE 4 - AVAILABILITY OF LANDS; PHYSICAL CONDITIONS
4.1 Availability of Lands. OWNER shall furnish, as indicated in the Contract Documents, the lands upon which the Work is to be performed, rights-of-way and easements for access thereto, and such other lands which are designated to be made available by OWNER for the use of CONTRACTOR. Easements for permanent structures or permanent changes in existing facilities will be obtained and paid for by OWNER, unless otherwise provided in the Contract Documents. If CONTRACTOR believes that any delay in OWNER's furnishing these lands, rights-of-way or easements entitles CONTRACTOR to an extension of the Contract Time, CONTRACTOR may make a claim therefore as provided in Article 11. CONTRACTOR shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment.
4.2 Subsurface and Physical Conditions (Excluding Underground Facilities). Reports of explorations and tests of subsurface conditions and drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the site (except Underground Facilities) have been utilized and relied upon by ENGINEER in preparing the Contract Documents. CONTRACTOR may rely upon the general accuracy of the "technical data" contained in such reports and drawings but such reports and drawings are not Contract Documents. Such "technical data" is identified in the specifications. Except for reliance on such "technical data", CONTRACTOR may not rely upon and may not make any claim against OWNER, ENGINEER or any of ENGINEER's Consultants with respect to (i) the completeness of such reports and drawings for CONTRACTOR's purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by CONTRACTOR and safety precautions and programs incident thereto, or (ii)other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings.
4.3 Differing Subsurface or Physical Conditions. If CONTRACTOR uncovers, observes or otherwise becomes aware of any subsurface or physical condition (other than Underground Facilities) at or contiguous to the site and believes that such condition either (i) differs materially from that shown or indicated in the Contract Documents, (ii) is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents , or (iii) is of such a nature as to establish that any "technical data" on which CONTRACTOR is entitled to rely as provided in paragraph 4.2 is materially inaccurate; then CONTRACTOR shall, immediately upon becoming aware thereof and before further disturbing or taking other action in respect thereof or performing any Work in connection therewith (except in an emergency as permitted by Section 6.21), notify OWNER and ENGINEER in writing about such condition, which notice shall state the CONTRACTOR'S recommendations or proposals for taking action in connection with the conditions.
4.3.1 CONTRACTOR shall not further disturb such conditions or perform any Work in connection therewith (except as aforesaid) until receipt of a written directive from OWNER or ENGINEER to do so, but to the fullest extent possible CONTRACTOR shall continue to prosecute all other Work not affected by the conditions;
4.3.2 ENGINEER will promptly review the pertinent conditions, determine the necessity of obtaining additional explorations or tests with respect thereto and advise OWNER in writing (with a copy to CONTRACTOR) of ENGINEER's findings and conclusions;
4.3.3 If OWNER in consultation with the ENGINEER concludes that a change in the Contract Documents or other action is required because of the conditions, a Work Directive Change or other instructions or interpretations may be issued as provided in Article 9 to reflect and document the consequences of the conditions;
4.3.4 In each such case, an increase or decrease in the Contract Price or an extension or shortening of the Contract Time, or any combination thereof, may be allowable, but only to the extent that (i) evidence of such conditions could not with the exercise of reasonable competence and diligence have been discovered or foreseen by CONTRACTOR prior to submission of the CONTRACTOR's Bid, (ii) the CONTRACTOR, by the terms of the Contract Documents, has not assumed the risk of such conditions and (iii) CONTRACTOR has explicitly fulfilled the written notice requirements provided by this Section 4.3. The CONTRACTOR shall in no event be entitled to an increase in the Contract Price in excess of direct costs to perform authorized additional or changed Work to address the conditions, without additional allowances for delays or suspension of Work. If OWNER and CONTRACTOR are unable to agree as to the amount or length of the adjustment to the Contract Price or Time, a claim may be made therefor as provided in Articles 10 and 11. However, OWNER and ENGINEER shall not be liable to CONTRACTOR for any costs, losses or damages sustained by CONTRACTOR on or in connection with any other project or anticipated project.
4.4 Underground Facilities.
4.4.1 Shown or Indicated: The information and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or contiguous to the site is based on information and data furnished to OWNER or ENGINEER by the owners of such Underground Facilities or by others. OWNER and ENGINEER shall not be responsible for the accuracy or completeness of any such information or data. CONTRACTOR shall have the sole responsibility for reviewing and checking all such information and data, for locating all Underground Facilities, shown or indicated in the Contract Documents, for coordination of the Work with the owners of such Underground Facilities during construction, for the safety and protection thereof as provided in Section 6.20 and for repairing any damage thereto resulting from the Work or CONTRACTOR's operations, the cost of all of which having been included in the Contract Price.
4.4.2 Not Shown or Indicated: If an Underground Facility is uncovered or revealed at or contiguous to the site which was not shown or indicated in the Contract Documents and of which CONTRACTOR could not reasonably have been expected to be aware, CONTRACTOR shall promptly after becoming aware thereof and before further disturbing conditions affected thereby (except in an emergency as permitted by Paragraph 6.21), notify the owner of such Underground Facility and give written notice thereof to that owner and to OWNER and ENGINEER. ENGINEER will promptly review the Underground Facility to determine the extent to which the Contract Documents should be modified to reflect and document the consequences of the existence of the Underground Facility, and the Contract Documents will be amended or supplemented to the extent necessary. During such time, CONTRACTOR shall be allowed an increase in the Contract Price or an extension of the Contract Time, provided such delay affects the critical path, or both, to the extent that they are attributable to the existence of any Underground Facility that was not shown or indicated in the Contract Documents and of which CONTRACTOR could not reasonably have been expected to be aware. If the parties are unable to agree as to the amount or length thereof, CONTRACTOR may make a claim therefore as provided in Articles 10 and 11. However, OWNER and ENGINEER shall not be liable to CONTRACTOR for any claims, costs, losses or damages incurred or sustained by CONTRACTOR on or in connection with any other project or anticipated project or for any claims, costs, losses or damages caused by or arising from any assessment, penalty or other liability imposed upon CONTRACTOR by utility companies or third parties.
4.5 Reference Points and Layout. OWNER or other parties will provide engineering surveys for construction to establish reference points for construction as determined by ENGINEER to be necessary to enable CONTRACTOR to proceed with the Work. Unless otherwise specified, CONTRACTOR shall be responsible for laying out the Work, shall locate all mechanical and electrical services uncovered by excavation, shall establish all grades, lines, levels and bench-marks, and shall protect and preserve the established reference points and shall make no changes or relocations without the prior written approval of OWNER. CONTRACTOR shall report to ENGINEER when any reference point is lost or destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for the accurate replacement or relocation of such reference points by professionally qualified personnel. CONTRACTOR shall maintain a bound surveyor's field notebook to accurately record all discrepancies, if any, discovered in OWNER's data. The field notebook shall be furnished to and become the property of OWNER upon completion of the Work.
4.6 Lines and Grades
4.6.1 All work under this Contract shall be constructed in accordance with the lines and grades shown on the Plans, or as given by ENGINEER. The full responsibility for keeping alignment and grade shall rest upon CONTRACTOR. CONTRACTOR shall establish base line controlling points. Reference marks for lines and grades shall be set by CONTRACTOR as the Work progresses and will be located to cause as little inconvenience to the prosecution of the Work as possible. CONTRACTOR shall place excavation and other materials so as to cause no inconvenience in the use of the reference marks provided. CONTRACTOR shall remove any obstructions placed by CONTRACTOR contrary to this provision at no cost to OWNER.
4.6.2 CONTRACTOR shall furnish and maintain, at his own expense, stakes and other such materials, and give such assistance, including qualified helpers, as may be required by ENGINEER for setting and checking line and grade reference marks. CONTRACTOR shall check such reference marks by such means as he may deem necessary and, before using the reference marks, shall call ENGINEER'S attention to any inaccuracies. CONTRACTOR shall, at his own expense, establish all working or construction lines and grades as required from the reference marks set by ENGINEER, and shall be solely responsible for the accuracy thereof. CONTRACTOR shall, however, be subject to the check and review of ENGINEER. CONTRACTOR shall keep ENGINEER informed a reasonable time in advance as to his need for line and grade reference marks, in order that they may be furnished and all necessary measurements made for record and payment with the minimum of inconvenience to ENGINEER or of delay to CONTRACTOR. When necessary, working operations shall be suspended for such reasonable time as ENGINEER may require for this purpose.
4.6.3 CONTRACTOR shall safeguard all points, stakes, grade marks, monuments and bench-marks made or established on the Work, bear the cost of reestablishing them if disturbed, and bear the entire expense of rectifying work improperly installed due to not maintaining or protecting or to removing without authorization such established points, stakes and marks. CONTRACTOR shall safeguard all existing and known property corners, monuments and marks adjacent to but not related to the Work and, if required, shall bear the cost of reestablishing them if disturbed or destroyed.
4.6.4 All elevations indicated or specified refer to the Mean Sea Level Datum Plane, 1929 General Adjustment, of the United States Coast and Geodetic Survey and are expressed in feet and decimal parts thereof, or in feet and inches.
4.7 Hazardous Materials
4.7.1 For the purpose of this section, "Hazardous Material" means any hazardous, special, radioactive or toxic substance, material or waste which is or becomes regulated by any local government authority, the State of Indiana or the United States Government. The term "hazardous material" includes, without limitation, any material or substance which is (i) defined as a "hazardous substance" under I.C. 13-7-8.7-1 of the Indiana Hazardous Substance Response Trust Fund Act, (ii) petroleum, (iii) asbestos, (iv) designated as a hazardous substance pursuant to the Federal Water Pollution Control Act (33 U.S.C. _1251 et seq.), (v) defined as a "hazardous waste" pursuant to the Federal Resource Conservation and Recovery Act (42 U.S.C. _ 6901 et seq.), (vi) defined as a "hazardous substance" pursuant to the Comprehensive Environmental Response, Compensation and Liability Act (42 U.S.C. _ 9601 et seq., (vii) defined as a "regulated substance" pursuant to the Solid Waste Disposal Act (42 U.S.C. _ 6991 et seq.), (viii) defined as a toxic "chemical substance" pursuant to the Toxic Substance Control Act (7 U.S.C. _ 136 et seq.), (ix) defined as a "hazardous chemical" or "hazardous substance" pursuant to the Emergency Planning and Community Right to Know Act (42 U.S.C. _ 11001 et seq.) or (x) defined as a "radioactive waste" pursuant to the Atomic Energy Act (42 U.S.C. _ 2011 et seq.)
4.7.2 OWNER shall be responsible for the existence of any Hazardous Materials uncovered or revealed at the site which were not shown or indicated in Drawings or Specifications or identified in the Contract Documents to be within the scope of the Work. OWNER shall not be responsible for any such materials brought to the site by CONTRACTOR, Subcontractor, Supplier or anyone else for whom CONTRACTOR is responsible.
4.7.3 CONTRACTOR shall be the party responsible for reporting to the appropriate agencies and authorities any release or discharge of any Hazardous Materials.
4.7.4 Upon encountering any Hazardous Materials CONTRACTOR shall immediately (1) stop all Work in connection with such Hazardous Materials and in any area affected thereby (except in an emergency as required by Section 6.21), (ii) notify the appropriate agencies or authorities, (iii) notify OWNER and ENGINEER (and thereafter confirm such notice in writing), (iv) establish site security by excluding unnecessary traffic and personnel from the affected area, (v) conduct operations within the affected area to minimize exposure to personnel and the general public and to eliminate the potential for airborne dispersion, and (vi) as necessary to carry out the requirements of this section, handle and/or store Hazardous Materials in a proper manner.
If CONTRACTOR, without negligence on CONTRACTOR's part and as a result of complying with the provisions of this section, is held liable for matters related to said Hazardous Materials, OWNER shall indemnify CONTRACTOR for all reasonable costs and expenses thereby incurred. CONTRACTOR shall provide OWNER written notice, within fifteen (15) days of receipt, of any claim filed or made against CONTRACTOR for which CONTRACTOR may seek indemnity from OWNER.
4.7.5 CONTRACTOR shall remain responsible for the jobsite until OWNER has been notified of the uncovering or revealing of Hazardous Materials and OWNER has assumed formal control of the worksite from CONTRACTOR.
4.7.6 After completing the above obligations, CONTRACTOR shall not be required to resume Work in connection with such Hazardous Materials.
4.7.7 OWNER shall obtain any required permits related to such Hazardous Materials and shall establish any special terms or conditions under which such Work shall be performed.
4.7.8 CONTRACTOR claims qualifying under this section are intended to be treated as differing subsurface or physical conditions and therefore the provisions of Sections 4.2 and 4.3 apply. Nothwithstanding the provisions of the preceding sentence, in the event that CONTRACTOR does not resume Work in connection with such Hazardous Materials, CONTRACTOR may only make a claim under Article II for a Change in Contract Time and may not make a claim under Article 10 for a Change in Contract Price related to any and all suspensions of, delays or interferences in or hindrances to the performance of the Work arising out of or related to the encountering of such Hazardous Materials.
4.8 Rights in and Use of Materials found in the Project site.
4.8.1 Except for hazardous materials as defined in Section 4.7, all materials designated to be removed from the Project and not incorporated into the Work shall become the property of CONTRACTOR, unless otherwise set out in the Contract Documents. The value of the materials shall be taken in account when the bid is being prepared.
4.8.2 Construction materials such as gravel, stone, or sand found in excavation shall not be used for purposes other than indicated on the Plans without written approval of OWNER. When such approval is given, it shall state explicitly the provisions under which it is granted.
4.8.3 If specified in the Contract Documents, all items having a salvage value and which are to be removed, shall remain the property of OWNER.
4.8.4 If archaeological artifacts are encountered during excavations, the CONTRACTOR immediately shall cease work in the immediate vicinity and shall notify ENGINEER. OWNER will obtain a determination of the significance of and the disposition of such artifacts.
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