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Miscellaneous
ARTICLE 16 - MISCELLANEOUS
16.1 Giving Notice. Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have been validly given if delivered in person or by facsimile telephone transmission (FAX) to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or if delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice.
16.2 Computation of Time. When any period of time is referred to in the Contract Documents by days, it shall be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day shall be omitted from the computation. A "day" and a "calendar day" are defined as twenty-four hours measured from midnight to the next midnight.
16.3 Injury to Persons and Property. Should OWNER or CONTRACTOR suffer injury or damage to his person or property because of any error, omission or act of the other party or of any of the other party's employees or agents or others for whose acts the other party is legally liable, claim will be made in writing to the other party within a reasonable time of the first observance of such injury or damage. The provisions of this Section shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitations or repose.
16.4 Cumulative Duties and Rights. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and not to be construed in any way as a limitation of any rights and remedies available by Laws and Regulations, by special warranty or guarantee or by other provisions of the Contract Documents, and the provisions of this Section shall be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right and remedy to which they apply.
16.5 Assignment. Except as provided for in Section 6.8, CONTRACTOR may not delegate his duty of performance or assign all or part of his obligations or rights under the Contract Documents without OWNER's prior written consent. Subject to the restrictions of the preceding sentence, the Contract Documents are binding upon OWNER and CONTRACTOR, their successors or assigns.
16.6. Governing Law. The Contract Documents shall be interpreted in accord with and governed by the laws of the State of Indiana. If any provision of the Contract Documents is found to be in conflict with those laws, the remaining provisions of the Contract Documents shall remain in effect. OWNER and CONTRACTOR agree that any litigation associated with or arising from this Agreement shall be filed with a court of competent jurisdiction within the State of Indiana.
16.7 Salvage of Existing Equipment and Materials. Unless otherwise provided all existing equipment and materials as listed in the Technical Specifications, removed from existing facilities shall remain the property of OWNER. Such equipment and materials shall be stored on-site at locations identified by ENGINEER. All other existing equipment and materials removed from existing facilities shall be the property of CONTRACTOR and shall be removed from the site.
16.8 English Language Requirement. All submittals, including, but not limited to, all shop drawings, catalog cuts, manufacturers' recommendations, and assembly and maintenance instructions shall only be written in the English language.
16.9 Trade Practice. In the event of any inconsistencies between the requirements of the Contract Documents and normal practice in the trade, the requirements of the Contract Documents shall control.
16.10 Cross-References. Cross-references in the Contract Documents are not intended as complete lists of related requirements specified elsewhere. The absence of a cross-reference to another section of the Contract Documents should not be deemed or construed to indicate that such other section does not specify related requirements where the two sections, read together, indicate otherwise.
16.11 Accounting Records. CONTRACTOR shall maintain proper accounting records for the work to be performed under this Agreement and shall provide an accounting for all charges and expenditures as may be necessary for auditing purposes. All such records shall be subject to examination and inspection by OWNER representatives at reasonable hours.
16.12 Steel Products. In accordance with Indiana Code 5-16-8, if steel products are to be utilized or supplied in the performance of any contract or subcontract, only domestic steel products shall be used. Reference is hereby made to such statute for definitions applicable to this Section. OWNER may not authorize or make any payment to CONTRACTOR unless OWNER is satisfied that CONTRACTOR has fully complied with this provision.
16.13 Non-Discrimination
16.13.1 CONTRACTOR and his Subcontractors shall not discriminate against any employee or applicant for employment, to be employed in the performance of this Agreement, with respect to his hire, tenure, terms, conditions or privileges of employment or any matter directly or indirectly related to employment, because of his race, religion, color, sex, age, handicap, national origin, ancestry, disabled veteran status or Vietnam era veteran status. Breach of this covenant may be regarded as material breach of the Agreement.
16.13.2 CONTRACTOR certifies for himself and all his Subcontractors compliance with existing laws of the State of Indiana and the United States regarding (i) prohibition of discrimination in employment practices on the basis of race, sex, creed, color, religion, national origin, ancestry, age, handicap, disabled veteran status and Vietnam era veteran status;, and (ii) the utilization of Minority and Women Business Enterprises. CONTRACTOR further certifies that he has formulated his own Affirmative Action Plan for recruitment, training and employment of minorities and women, including goals and timetable and (ii) strongly encourages the use of small businesses, minority-owned businesses and women-owned businesses in his operations.
16.13.3 CONTRACTOR further agrees (i) That in the hiring of employees for the performance of work under this Agreement or any sub-agreement hereunder, no CONTRACTOR, or Subcontractor, nor any person acting on behalf of such CONTRACTOR or Subcontractor, shall by reason of race, religion, color, sex, national origin or ancestry, discriminate against any citizen of the State of Indiana who is qualified and available to perform the work to which the employment relates; (ii) That no CONTRACTOR, Subcontractor, or any person on his behalf, shall, in any manner, discriminate against or intimidate any employee hired for the performance of work under this Agreement on account of race, religion, color, sex, national origin or ancestry; (iii) That there may be deducted from the amount payable to CONTRACTOR, by OWNER, under this Agreement, a penalty of five dollars ($5.00) for each person for each calendar day during which such person was discriminated against or intimidated in violation of the provisions of this Agreement; and (iv) That this Agreement may be canceled or terminated by OWNER and all money due or to become due hereunder may be forfeited, for a second or any subsequent violations of the terms or conditions under this section of the Agreement.
16.13.4 CONTRACTOR shall advise the OWNER, not less frequently than every three (3) months, of the status of his compliance with the applicable MBE and WBE requirements and goal achievement. At a minimum, the latter shall identify the completion date and actual final dollar value of work completed pursuant to each MBE and WBE subcontract. Any and all changes in previously reported anticipated MBE and WBE utilization shall be reported to the OWNER promptly, in writing, with appropriate documentation and reasons. In the event the CONTRACTOR fails to conform to his MBE and WBE obligations, he shall explain to the OWNER, in writing, the reason for non-utilization of the MBE or WBE. If there is non-utilization without good cause the OWNER will advise the CONTRACTOR, in writing, of corrective actions to be initiated. If the CONTRACTOR fails to initiate such actions, the OWNER may withhold progress payments and/or institute appropriate actions pursuant to the provisions of the Contract Documents.
16.14 Operating Instructions. CONTRACTOR, through qualified individuals, shall adequately instruct designated employees of the OWNER in the operation and care of all equipment installed hereunder, except for equipment that may be furnished by the OWNER. CONTRACTOR shall also furnish and deliver to ENGINEER within forty-five (45) days of the shop drawing approval date, five (5) complete sets for permanent files, identified in accordance with the section headed "Working Drawings" hereof, of instructions, technical bulletins and any other printed matter, such as diagrams, prints or drawings, containing full information required for the proper operation, maintenance and repair of the equipment installed and the ordering of spare parts, except for equipment that may be furnished by OWNER.
16.15 Operation and Maintenance Manual. CONTRACTOR shall prepare and submit to ENGINEER five (5) copies of an Operation and Maintenance (O&M) Manual for all equipment and associated control systems furnished and installed under this Contract. When the work reaches sixty-five (65) to seventy (70) percent completion CONTRACTOR shall submit to ENGINEER for approval two (2) copies of the manual with all specified material that is available at that time. The submittal shall accompany CONTRACTOR's partial payment request for the specified completion. Within thirty (30) days after ENGINEER's approval of the two-copy submittal, CONTRACTOR shall furnish to ENGINEER the five (5) copies of the manual. Appropriate space shall be left in the manual for material not available at the time of submittal. All missing material for the manual shall be submitted prior to the request for final payment.
16.15.1 Each copy of the manual shall be prepared and arranged as follows:
1. One copy of each manufacturer's operation, lubrication and maintenance instructions and spare parts list for all equipment and controls furnished. All equipment operating, lubrication and maintenance instructions and procedures and parts lists shall be furnished on 8 1/2 x 11 inch commercially printed or typed forms. Such forms shall include equipment name, serial number and other identifying references.
2. List of electrical relay settings and control and alarm contact settings.
3. Electrical interconnection wiring diagram for equipment furnished including all control and lighting systems.
16.15.2 Each copy of the manual shall be assembled in one or more binders, each with the title page, typed table of contents, and heavy section dividers with copper reinforced holes and numbered plastic index tabs. Each manual shall be divided into sections paralleling the "Workmanship and Materials" equipment specifications. Binders shall be 3-ring, hard-back Type No. S-43772 as manufactured by Marshall-Jackson Co., Chicago, Illinois, or equal. All loose data shall be punched for binding and composition and printing shall be arranged so that punching does not obliterate any data. The cover and binding edge of each manual shall have the project title, and manual title printed thereon, all as furnished and approved by ENGINEER.
16.15.3 All operating and maintenance material that comes bound by the equipment manufacturer shall be left that way. The appropriate sections of CONTRACTOR's O&M Manual shall cross-reference the manufacturer's bound manuals.
16.15.4 Where more than one (1) binder is required they shall be labeled Vol. 1, Vol. 2, and so on. The table of contents for the entire set, identified by volume number, shall appear in each binder.
16.15.5 The five (5) copies of the manuals and data included therein shall be provided in conformance with the subsection headed "Working Drawings" and, in addition, to the requirements of the Technical Specifications - Workmanship and Materials Section. The costs of the Operation and Maintenance Manual shall be included in the lump sum Contract Price and no separate payment will be made therefore. The Operation and Maintenance Manual shall be included as a separate item in CONTRACTOR's schedule of values.
16.16 Service of Manufacturer's Representatives. The Contract Price shall include the costs of furnishing competent and experienced engineers, superintendents or other technically qualified representatives who shall represent equipment manufacturers and shall assist CONTRACTOR, when required, to install, adjust, test and place in operation equipment in conformity with the Contract Documents. When equipment is ready for permanent operation, such engineers, superintendents or representatives shall make all adjustments and tests required by ENGINEER to prove that such equipment is in proper and satisfactory operating condition, and shall instruct such personnel as may be designated by OWNER in the proper operation and maintenance of such equipment.
16.17 Water. CONTRACTOR shall provide, at its expense, the necessary water supply for CONTRACTOR's activities , and shall, if necessary, provide and lay necessary water lines from existing mains to the place where such water service is required, and shall secure all necessary permits and pay for all hookups, meters, and taps to water mains or hydrants and for all water used at the established rates.
16.18 Light and Power. CONTRACTOR shall provide, at its own expense, temporary lighting and power facilities required for the proper prosecution and inspection of the Work, unless specified otherwise. CONTRACTOR shall meter and pay for CONTRACTOR's share of all power utilized.
16.19 Prevention, Control and Abatement of Erosion and Water Pollution. CONTRACTOR shall be responsible for prevention, control and abatement of erosion, siltation and water pollution resulting from construction of the project until Final Acceptance of the project.
16.19.1 CONTRACTOR shall provide, install, construct, and maintain coverings, mulching, sodding, sand bagging, berms, slope drains, sedimentation structures, or other devices necessary to meet OWNER, State and Federal regulatory agency codes, rules and laws.
16.19.2 CONTRACTOR shall take sufficient precautions to prevent pollution of adjacent rivers and streams with fuels, oils, bitumens, or other harmful materials. Also, he shall conduct and schedule his operations so as to avoid or otherwise minimize pollution or siltation of the waters.
16.19.3 Storm drainage facilities, both open and closed conduit, serving the construction area shall be protected by the CONTRACTOR from pollutants and contaminants. If it is determined that siltation of drainage facilities has resulted due to the project, ENGINEER will advise CONTRACTOR to remove and properly dispose of the deposited material. Should CONTRACTOR fail to or elect not to remove the deposits, OWNER will provide maintenance cleaning as needed and will charge all costs of such service against the amount of money due or to become due CONTRACTOR.
16.19.4 Excavated material shall not be deposited in streams, ditches or impoundments, or in a position close enough thereto to be washed away by high water or runoff.
16.19.5 CONTRACTOR shall not disturb lands or waters outside the limits of construction and public rights of way. The location of and methods of operation in all detention areas, borrow pits, material supply pits and disposal areas furnished by CONTRACTOR shall meet the approval of ENGINEER as being such that erosion during and after completion of the Work will not likely result in detrimental siltation or water pollution.
16.19.6 CONTRACTOR shall schedule operations such that the area of unprotected erodible earth exposed at any one time is not larger than the minimum area necessary for efficient construction operations; and the duration of exposed, uncompleted construction to the elements shall be as short as practicable.
16.19.7 Clearing and grubbing shall be so scheduled and performed that grading operations can follow immediately thereafter; and grading operations shall be so scheduled and performed that permanent erosion control features can follow immediately thereafter if conditions on the project permit.
16.19.8 The surface areas of unprotected erodible earth exposed by clearing and grubbing, excavation or filling operations shall be kept to a minimum. Immediate erosion or pollution control measures to prevent siltation or contamination of any stream, ditch or other impoundment or to prevent damage to the project or property outside the project limits shall be provided when necessary.
16.20 Air Borne Particulate. CONTRACTOR shall comply with Indianapolis Air Pollution Regulation II-4 which is hereby incorporated into this Section by reference. A copy of such regulation will be furnished to CONTRACTOR upon request.
16.21 Professional Fees and Court Costs Included. Whenever reference is made to claims, costs, losses or damages recoverable by OWNER against CONTRACTOR or its surety, such recovery shall include, but not be limited to, all fees and charges of engineers, architects, attorneys and other professionals and all court or arbitration or other dispute resolution costs.
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