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Warranties, Test and Defective Work
ARTICLE 12 - WARRANTIES, TESTS AND DEFECTIVE WORK
12.1 Warranty. CONTRACTOR warrants and guarantees to OWNER and ENGINEER that all Work will be performed, supplied, furnished and installed, and that the Work will perform in strict accordance with the Contract Documents and will not be Defective. Notice of all Work determined or suspected to be Defective or not in conformity with the Contract Documents shall be given to CONTRACTOR within a reasonable time after observance thereof.
12.2 Access to Work. OWNER, ENGINEER and their respective representatives, and all governmental agencies with jurisdictional interests in respect of the Work or the activities of CONTRACTOR or its subcontractors shall be afforded complete and unhindered access to the Work for their observation, inspecting and testing. CONTRACTOR shall provide proper and safe conditions for such access and advise them of CONTRACTOR's site safety procedures and programs so that they may comply therewith as applicable.
12.3 Tests and Inspections. CONTRACTOR shall give ENGINEER timely notice of readiness of the Work for all required inspections, tests or approvals. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) to specifically be inspected, tested or approved, CONTRACTOR shall assume full responsibility therefore, pay all costs in connection therewith and furnish ENGINEER the required certificates of inspection, testing or approval. CONTRACTOR shall also be responsible for and shall pay all costs in connection with OWNER's or ENGINEER's acceptance of materials or equipment proposed to be incorporated in the Work, or of materials or equipment submitted for approval prior to CONTRACTOR's purchase thereof for incorporation in the Work. The cost of all other inspections, tests and approvals which are required by Contract Documents shall be paid by OWNER except as otherwise specified. All inspections, tests or approvals other than those required by Laws or Regulations of any public body having jurisdiction shall be performed by organizations acceptable to OWNER and CONTRACTOR or by ENGINEER if so specified. Neither observations by ENGINEER nor inspections, tests or approvals by others shall relieve CONTRACTOR from CONTRACTOR's obligations to perform the Work in accordance with the Contract Documents.
12.4 Uncovering Work. If any Work is covered contrary to written request of ENGINEER, it shall, if requested by ENGINEER, be uncovered for ENGINEER's observation and replaced at CONTRACTOR's expense. If any Work (including the work of others) that is to be inspected, tested or approved is covered or reasonable access thereto is impaired without written concurrence of ENGINEER, it must, if requested by OWNER or ENGINEER, be uncovered or access thereto open for observation. Such uncovering shall be at CONTRACTOR's expense unless CONTRACTOR has given ENGINEER timely notice of CONTRACTOR's intention to cover such Work and ENGINEER has not acted with reasonable promptness in response to such notice. If ENGINEER considers it necessary or advisable that covered Work be observed by ENGINEER or inspected or tested by others, CONTRACTOR, at ENGINEER's request, shall uncover, expose or otherwise make available for observation, inspection or testing as ENGINEER may require, that portion of the Work in question, furnishing all necessary labor, material and equipment. If it is found that such Work is Defective, CONTRACTOR shall bear all direct, indirect and consequential costs of such uncovering, exposure, observation, inspection and testing and of satisfactory reconstruction, (including but not limited to fees and charges of engineers, architects, attorneys, and other professionals) and OWNER shall be entitled to an appropriate decrease in the Contract Price by Change Order or Written Agreement. If, however, such Work is not found to be Defective, CONTRACTOR shall be allowed an increase in the Contract Price or an extension of the Contract Time, or both, directly attributable to such uncovering, exposure, observation, inspection, testing and reconstruction; and, if the parties are unable to agree as to the amount or extent thereof, CONTRACTOR may make a claim therefore as provided in Articles 10 and 11.
12.5 OWNER May Stop the Work. If the Work is determined by OWNER or ENGINEER to be Defective, or CONTRACTOR fails to supply sufficient skilled workers or suitable materials or equipment, or fails to furnish or perform the Work in such a way that the completed Work will conform to the Contract Documents, OWNER may order CONTRACTOR to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of OWNER to stop the Work shall not give rise to any duty on the part of OWNER to exercise this right for the benefit of CONTRACTOR or any other party.
12.6 Pre-Completion Correction or Removal of Defective Work. If required by OWNER or ENGINEER prior to Substantial Completion, CONTRACTOR shall promptly, as directed, either correct all Defective Work, whether or not fabricated, installed or completed, or, if the Work has been rejected by OWNER or ENGINEER, remove it from the site and replace it with non-Defective Work. CONTRACTOR shall bear all direct and consequential costs of such correction or removal, made necessary thereby, including but not limited to fees and charges of engineers, architects, attorneys and other professionals.
12.7 Post-Completion Correction Period. Except as otherwise required by the Contract Documents or provided by any special warranties furnished thereunder, CONTRACTOR shall promptly and properly repair, replace, restore or rebuild, as OWNER determines, any finished Work in respect of which defects of materials or workmanship may appear or to as to which damage may occur because of such defects during the following periods: (i) for defects in materials, a period of three (3) calendar years commencing on the date of Substantial Completion, and (ii) for defects in workmanship, a period of three (3) calendar years commencing on the date of Final Acceptance.
12.7.1 In circumstances where OWNER determines that a defect does not involve an imminent threat to persons, property or OWNER's ability to comply with governmental orders, laws or regulations, OWNER shall give CONTRACTOR written notice of such defect. CONTRACTOR shall, at its sole cost and within seven (7) calendar days after receipt of OWNER's written notice, commence the repair, replacement, restoration or rebuilding of the damaged or Defective Work using his own personnel or those of a third party, and shall diligently and without interruption complete all such required corrective action within a reasonable time.
12.7.2 In circumstances where OWNER determines that a defect does involve an imminent threat to persons, property or OWNER's ability to comply with governmental orders, laws or regulations, OWNER may, without notice to CONTRACTOR, immediately take such action as OWNER deems necessary to effectuate the repair, replacement, restoration or rebuilding of any damaged or Defective Work or the protection and preservation of other Work or property threatened thereby. As soon as practicable thereafter , OWNER shall notify or otherwise afford CONTRACTOR a reasonable opportunity to investigate and continue or complete corrective action as required, if any. If CONTRACTOR fails to commence and continue required corrective action in a prompt and timely manner, OWNER may complete the repair, replacement, restoration or rebuilding of the damaged or Defective Work using its own personnel or those of a third party.
12.7.3 In all circumstances, CONTRACTOR and its surety shall be liable for any and all costs and damages sustained by OWNER in respect of any such defect.
12.7.4 Nothing contained in this Section shall be construed to establish a period of limitation with respect to other obligations of CONTRACTOR under the Contract Documents, including without limitation CONTRACTOR's obligations under Warranties. Establishment of time periods in this Section relates only to the specific obligation of CONTRACTOR to correct the Work, and has no relationship to the time within which proceedings may be commenced to establish or enforce CONTRACTOR's liability with respect to obligations other than specifically to correct defects in the Work as prescribed by this Section.
12.8 Option To Accept Defective Work. Instead of requiring correction or removal and replacement of Defective Work, OWNER may elect to accept such Work in the condition as provided. CONTRACTOR shall bear all direct, indirect and consequential costs attributable to OWNER's evaluation of and determination to accept such Defective Work, to include but not be limited to fees and charges of engineers, architects, attorneys and other professionals. If any such acceptance occurs prior to ENGINEER's recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and OWNER shall be entitled to an appropriate decrease in the Contract Price to account for such costs and damages. If the acceptance occurs after such recommendation of final payment, such costs and damages shall be paid by CONTRACTOR and its surety to OWNER.
12.9 OWNER May Correct Defective Work. If CONTRACTOR fails within a reasonable time to proceed to correct Defective Work or to remove and replace rejected Work as provided by Section 12.6, or if CONTRACTOR fails in any respect to perform the Work in accordance with the Contract Documents or if CONTRACTOR fails to comply with any other provision of the Contract Documents, OWNER may, after seven (7) days written notice to CONTRACTOR, correct and remedy any such deficiency , and may exclude CONTRACTOR from all or part of the site, take possession of all or part of the Work, suspend CONTRACTOR's services related thereto, and take possession of CONTRACTOR's tools, appliances, construction equipment and machinery at the site and incorporate in the Work all materials and equipment stored at the site or for which OWNER has paid CONTRACTOR but which are stored elsewhere. CONTRACTOR shall allow OWNER, ENGINEER, their respective representatives and other contractors full and unhindered access to the site to enable OWNER to exercise the rights and remedies under this Section. All claims costs, losses and damages incurred or sustained by OWNER in exercising such rights and remedies will be charged against CONTRACTOR and its surety and OWNER shall be entitled to a corresponding decrease in the Contract Price and a Change Order or Written Agreement will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work. Such direct, indirect and consequential costs shall include, but not be limited to fees and charges of engineers, architects, attorneys and other professionals, all court and arbitration costs and all costs of repair and replacement of work or property of OWNER or others destroyed or damaged by correction, removal or replacement of CONTRACTOR's Defective Work. CONTRACTOR shall not be allowed an extension of the Contract Time because of any delay or hindrance in performance of the Work attributable to the exercise by OWNER of OWNER's rights and remedies hereunder.
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