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Change of Contract Time, Liquidated Damages; Delays and Hindrances
ARTICLE 11 - CHANGE OF CONTRACT TIME; LIQUIDATED DAMAGES; DELAYS AND HINDRANCES
11.1 Liquidated Damages - Assessment. If CONTRACTOR does not achieve Substantial Completion or Final Completion of all elements of the Work within the time required by the Contract Documents, and liquidated damages are established by the Agreement or other Contract Documents to be assessed and recovered by OWNER to compensate OWNER for such delay in completion, it is understood and agreed that OWNER will incur substantial damages and losses which are and will hereafter be difficult or impossible to quantify, ascertain and prove as actual damages for such delay. Such damages are foreseen to include, without limitation, extended or additional costs for observation, inspection, engineering, utilities, insurance, administration, and also indeterminate damages, hindrance, or inconvenience to members of the public, deprivation of use and operation, and impairment of financing. Accordingly, and in lieu of actual damages, CONTRACTOR and his Surety shall be liable to OWNER, and OWNER shall be entitled to collect and recover such liquidated damages from CONTRACTOR and his Surety, in lieu of actual damages and not as a penalty, in the respective amounts per day for each calendar day that Substantial Completion or Final Completion of the entire Work, as appropriate, is delayed beyond the date(s) or time limitation(s) provided by the Contract Documents. Neither partial acceptance nor partial Beneficial Occupancy or use of portions of the Work by OWNER prior to achievement of Substantial Completion of all elements of the Work shall defeat or impair OWNER's rights in respect to liquidated damages as provided by this Article.
11.2 Liquidated Damages - Reasonable Amount. The original Contract Price provided in the Contract Documents shall be deemed to include adequate consideration and payment to compensate CONTRACTOR for the risk of liability imposed upon CONTRACTOR under this Section in respect to liquidated damages and CONTRACTOR acknowledges and agrees that the respective amounts of such liquidated damages are reasonable with due consideration for the type, nature and extent of the Work and the Contract Price and that such liquidated damages fairly approximate the nature and amount of actual damages which OWNER may incur as a result of delayed completion, and that such liquidated damages may be assessed and recovered by OWNER without proof or evidence concerning the types or amounts of such actual damages.
11.3 Delay Following Termination. The liquidated damages provided by this Article shall apply equally to delay in the achievement of Substantial Completion following abandonment of the Work by CONTRACTOR or termination by OWNER because of CONTRACTOR's default, to the extent that such delays are caused in whole or in part by such abandonment, termination, default or other acts or omissions for which CONTRACTOR is responsible. No delay or forbearance by OWNER in enforcing any rights or remedies under the Contract Documents, including without limitation, the right to termination of the CONTRACTOR's right to proceed and the right to engage completion contractor's to complete the Work, shall constitute a waiver by OWNER or deprive OWNER of its right to retain, receive and recover such liquidated damages from CONTRACTOR and its surety or diminish the period of delayed completion from which such liquidated damages are to be determined.
11.4 Extension of Contract Time. If CONTRACTOR is delayed or hindered at any time in the progress of the Work by any act or neglect of OWNER or ENGINEER, or by any employee of either, or by changes ordered in the Work, or by unavoidable labor disputes, fire, unusual delay in transportation, unavoidable casualties, unforeseeable abnormal and unusually severe weather conditions, or any other causes beyond CONTRACTOR's control and the risks of which are not otherwise assumed by CONTRACTOR under the Contract Documents (collectively referred to as Excusable Delays), or by delay authorized by OWNER pending arbitration, or by any other cause which OWNER, in consultation with ENGINEER, determines may justify the delay, then the Contract Time shall be extended by Change Order for such reasonable time as OWNER may determine. CONTRACTOR shall not be entitled to an extension of time for delays or hindrances caused by weather conditions or other natural phenomena of normal intensity for the locality and season during which Work is performed, unsuitable ground conditions except as may be provided in Article 4, inadequate construction forces, financial difficulties of CONTRACTOR or his Subcontractors or the failure of CONTRACTOR or its subcontractors or material suppliers to provide shop drawings or other required submittals on a timely basis and as scheduled or to place orders for equipment or materials sufficiently in advance to insure timely and proper delivery.
11.5 Notice of Delays or Hindrances. The Contract Time may only be extended by a Change Order or by a Written Agreement. CONTRACTOR's entitlement to an increase in the Contract Time shall be conditioned upon CONTRACTOR furnishing a written notice to the OWNER and ENGINEER no later than twenty (20) days) after the occurrence of the event or the commencement of a series of events giving rise to the request for extension, which notice shall particularly state the factual basis and grounds for the request and the duration of time sought as an extension of the Contract Time. Additional supporting data as required by OWNER or ENGINEER, shall be delivered to OWNER or ENGINEER within thirty (30) days after such notice, unless OWNER, for good cause shown, allows an additional period of time for CONTRACTOR to ascertain and present accurate supporting data. A notice of time extension request by CONTRACTOR under this Section shall be conclusively presumed to include all direct, indirect and cumulative impact upon the time required by CONTRACTOR to perform and complete the Work as a result of all facts, occurrences and events giving rise thereto. Nothing provided in this Section shall be construed to afford the CONTRACTOR any rights or claims otherwise precluded by any other provisions of these General Conditions or other Contract Documents. The burden of proof for such a claim shall be on the claimant.
11.6 Time Extension As Exclusive Remedy. As between CONTRACTOR and OWNER, CONTRACTOR shall assume the risk of any and all suspensions of, delays or interferences in or hindrances to the performance of the Work, regardless of the length thereof or the party responsible therefor and arising from any and all causes whatsoever, including without limitation, those due to any acts or omissions of or interference by OWNER, ENGINEER, other contractors or Subcontractors, except only to the extent that an extension of time may be due to CONTRACTOR as expressly provided for in this Article for such suspension, delay, interference or hindrance. CONTRACTOR shall bear all direct or indirect costs, expenses and liabilities which he may incur in connection with such suspensions, delays, hindrances or interferences and all such suspensions, delays, interferences or hindrances, costs, expenses and liabilities of any nature whatsoever, whether or not specifically described or referred to in the Contract Documents, shall conclusively be deemed to have been within the contemplation of the parties.
11.7 Limitations on Time Extensions. Contract Time extensions will be granted only to the extent that Excusable Delays occur without concurrent non-excusable delays and actually extend the time required by CONTRACTOR to perform and complete critical Work elements and activities and which thereby cause an actual delay to achievement of Project completion. Extensions of Contract Time shall be based solely upon the effect of delays to the Work as a whole. The Contract Time shall not be extended for delays to parts of the Work, whether or not changed by any Change Order, that are not on the critical path of the progress schedule. Concurrent Work activities which are not critical to Project completion shall not be the subject of additional time extensions or compensation if those work activities are performed, or could be performed, within a moveable time frame concurrent with a critical item.
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