Purchasing Department
525 Buena Vista SE
Albuquerque, NM 87106
REQUEST FOR PROPOSALS NO.: P-332
TITLE: PAINTING SERVICES-ON CALL
DUE DATE AND TIME:
On Or Before: September 6, 2013, 3:00 PM LOCAL MOUNTAIN TIME
SUBMITTAL TYPE:
Sealed Response
Responses sent by fax or email will not and CANNOT be considered for award.
One (1) Original and Five (5) Copies
NUMBER OF RESPONSES REQUIRED:
BUYER: Keith Adams
Phone: 505-224-4530
Fax: 505-224-4548
E-mail address: [email protected]
NON-MANDATORY PRE-PROPOSAL MEETING
NOTE: Attendance at this non-mandatory meeting is STRONGLY
DATE: August 23, 2013, 9:00–10:00 AM
recommended.
Location: CNM’s LSA Building, located on Buena
Vista Drive SE, just south of the intersection of
Buena Vista and Lead.
FOB Destination Freight Included
FREIGHT TERMS:
Net 30 Days
PAYMENT TERMS:
TABLE OF CONTENTS:
SECTION A:
Proposal Submission Requirements, Format and Content, Tentative Schedule, Submittal
Instructions, Project #1
SECTION B:
Standard Proposal Terms and Conditions
SECTION C:
CNM General Terms and Conditions
SECTION D:
Scope of Services and Evaluation Criteria
SECTION E:
Signature of Firm’s Authorized Representative
SECTION F:
Debarment/Suspension Status & Non-Collusion Affidavit Form
SECTION G:
Resident Veterans Preference Certification
EXHIBIT A:
Insurance Requirements UPON REQUEST BY CNM
EXHIBIT B:
Campaign Contribution Disclosure Form
EXHIBIT C:
CNM Campus Locations
EXHIBIT D:
Floor Plans for Project #1
EXHIBIT E:
Sample Master Construction Agreement
PAGE #:
2-5
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
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SECTION A: PROPOSAL SUBMISSION REQUIREMENTS, FORMAT AND CONTENT,
SUBMITTAL INSTRUCTIONS
Central New Mexico Community College (CNM) invites you to submit a proposal for the services specified in this
Request for Proposals (RFP). Please read carefully all instructions, specifications and terms and conditions.
Failure to comply with the instructions, specifications and terms and conditions of this RFP may result in your
proposal being declared non-responsive. The purchase of materials and/or services awarded under this RFP is
subject to CNM's General Terms and Conditions (see Section C below) as well as all statements contained in this
RFP. All terms and conditions of the RFP shall remain unchanged for the duration of any resultant Master
Agreement(s) (hereinafter “Master Agreement”) and shall supersede and take precedence over any Offeror
agreement forms. Additional or different terms proposed by any Offeror are hereby rejected unless agreed to in
writing by CNM. New Mexico criminal law prohibits bribes, gratuities and kickbacks (13-1-28 through 13-1-199,
NMSA 1978).
More than one award may result from this RFP. It is CNM’s intention to award Master Agreements to successful
and acceptable Offerors to this RFP. As future Projects are identified by CNM that will be subject to the services
sought under this RFP, awards for each Project will be made by way of a Release under the Master Agreement to
one of the Contractors who have received a Master Agreement from CNM as a result of their response to this RFP.
Each Release for a future Project awarded will be accompanied by a Purchase Order from CNM for the Work to be
performed for that Project. CNM does not guarantee any Work to any particular Contractor who is awarded a
Master Agreement. The issuance of Releases for future Projects will depend on cost, Contractor’s availability and
Contractor’s history of performance for Work performed for CNM in the past and any other criteria that CNM
deems necessary.
Per NMSA 13-1-154, no individual Project awarded under a Master Agreement may exceed $500,000 and the
maximum term of the Master Agreement cannot exceed four (4) years or have an aggregate value of more than
$2,000,000 whichever comes first.
Future Projects may be competed and awarded based on a not-to-exceed cost proposal from Contractors who have been
qualified and awarded a Master Agreement under this RFP. Along with cost, CNM will consider Contractor’s
availability and history of performance for Work performed for CNM in the past and any other criteria that CNM
deems necessary. CNM may, at its sole discretion, choose to bid future Projects to other Contractors outside this RFP
or any Master Agreement(s) resulting from this RFP.
PROJECT #1:
The first Project (Project #1) to be awarded as a Release under a resulting Master Agreement will be the painting
of the LSA Building second floor and the Student Resource Center on CNM’s Main Campus (see
attached Exhibit D, Floor Plans). The highest ranked successful Offeror to this RFP will be awarded this first
Project #1 under a Release to their Master Agreement. Offerors must provide a not-to-exceed cost for this Project
#1 in their RFP response.
NON-MANDATORY PRE-PROPOSAL MEETING: There will be a non-mandatory pre-proposal meeting
regarding Project #1 on August 23, 2013 from 9:00-10:00 a.m. at CNM’s LSA Building, located on Buena Vista
Drive SE, just south of the intersection of Buena Vista and Lead.
Any and all clarifications of instructions, specifications, Scope of Work (SOW), requirements, terms and
conditions, insurance, bonds, or proposal preparation, etc. shall be made only by the Buyer listed above. All
requests for clarification or exception to instructions, terms and conditions, specifications, requirements, SOW,
insurance, bonds, or proposal preparation, etc. must be made in writing, addressed to the Buyer listed above and
submitted no later than five (5) days prior to the proposal due date. Technical questions concerning the SOW,
CNM's requirements, needs or expectations and the Offeror's requirements, needs or expectations must be directed
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 2 of 83
SECTION A: PROPOSAL SUBMISSION REQUIREMENTS, FORMAT AND CONTENT,
SUBMITTAL INSTRUCTIONS
to the technical clarification contact listed above. If a technical clarification contact is not listed above, then all
such questions must be directed to the Buyer listed above. If appropriate, in CNM's sole judgment, CNM
Purchasing may issue a written Amendment or Addendum which shall thereafter become part of this RFP. No oral
interpretations shall be binding upon CNM unless reduced to a written amendment issued by CNM Purchasing
prior to the proposal due date and time. Your reliance on any such oral interpretations shall be deemed to be
unreasonable.
Each Offeror, by submitting a response to this RFP, represents that the Offeror has read and completely
understands the request for qualifications documents and agrees to abide by the terms of this RFP and any resulting
Master Agreement. Failure of the selected Offeror to fulfill the provisions of this request for qualifications shall in
no way relieve the obligation of the Offeror to furnish all services necessary to carry out the provisions of the
Master Agreement and any Project awarded thereunder.
In order to be considered, Contractors must provide in their response to this RFP to CNM a copy of and maintain
a New Mexico Contractor’s License and any other licenses required to perform work that may be awarded as a
Project under a resulting Master Agreement. Contractors must be registered with Department of Workforce
Solutions. If it is discovered that either registration has lapsed, any awarded Master Agreement will be suspended
until the registration is reinstated. If, after a reasonable amount of time, the registration has not been reinstated,
the Master Agreement will be canceled and will not be re-issued except through the award of a new RFP.
Contractors’ workers and subcontractors (if any) must possess the proper license(s) to perform their services.
The contents of this RFP, as revised and/or supplemented, and the successful Offeror’s proposal will be
incorporated into and become part of any awarded Master Agreement(s).
Should an Offeror object to any of the terms and conditions of this RFP, the Offeror must expressly identify any
and all exceptions in their RFP response to receive consideration. The Offeror must propose specific alternative
language. CNM may or may not accept the alternative language. General references to the Offeror’s terms and
conditions or attempts at complete substitutions are not acceptable to CNM and will result in disqualification of the
Offeror’s proposal. The final terms and conditions of any resultant Master Agreement may differ from those
provided herein.
CNM is not responsible for representations made by any of its officers or employees prior to the execution of any
Master Agreement(s) unless such understanding or representation is included in the RFP or in subsequent written
Amendments or Addenda or responses provided to all Offerors by CNM’s Purchasing Department. CNM is
responsible only for that which is expressly stated in this solicitation document and any authorized Amendments or
Addenda thereto. Any cost incurred by the Offeror in preparation, transmittal or presentation of any proposal or
material submitted in response to the RFP shall be borne solely by the Offeror.
Offeror shall not be an employee of CNM and is responsible for federal and state payroll and service taxes such as
social security, unemployment and gross receipts taxes. Services required by this RFP for which the successful
Offeror does not identify cost will be borne at the Offeror’s expense and will not be charged to CNM.
SUBMITTAL INSTRUCTIONS:
To submit a proposal, provide a type written document responding to the scope of work/services, specifications,
and evaluation criteria contained herein. Complete the forms labeled “SECTION E: Signature of Firm’s
Authorized Representative,” “SECTION F: Debarment/Suspension Status & Non-Collusion Affidavit Form,”
“EXHIBIT B: Campaign Contribution Disclosure Form,” signed by the firm’s authorized representative, and
submit these forms with your RFP response to Section D, Scope of Services and Evaluation Criteria. Responses
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 3 of 83
SECTION A: PROPOSAL SUBMISSION REQUIREMENTS, FORMAT AND CONTENT,
SUBMITTAL INSTRUCTIONS
shall be signed by a legally authorized representative of the Offeror. Unsigned responses to “SECTION E:
Signature of Firm’s Authorized Representative” and “Section F: Debarment/Suspension Status & Non-Collusion
Affidavit Form” will be rejected as a material failure. Each Offeror shall ascertain, prior to submitting the
Proposal, that the Offeror has received all Addenda issued, and shall acknowledge their receipt in the space
provided in Section E, on the form labeled “Signature of Firm’s Authorized Representative”.
CNM does not desire responses with fancy binders, binding, or sales literature. Instead, Offerors’ proposals
should be organized in a format that promotes the easy and clear evaluation of your proposal. To this end, the
organization of your proposal should generally follow the RFP’s organization so that the RFP and your proposal
can be cross-referenced during the evaluation process. Likewise, information in your proposal should be
presented in same order as the pertinent provisions of the RFP, referencing sections of the RFP on any and all
attachments that you include with your proposal. Each original proposal must be signed in ink by an authorized
representative of your firm; all corrections shall be initialed in ink by person signing the proposal. The contents of
the selected proposal may become part of any resultant award. If you wish to offer more than one proposal,
clearly label the top as an alternate proposal and submit all responses in the same envelope as the original
proposal. Submit the number of copies of your proposal as specified above. Each copy shall include all
supporting documentation. Failure to submit the required number of copies may result in your proposal being
considered non-responsive.
1. REQUIRED SUBMITTAL DOCUMENTS NEEDED WITH YOUR SEALED RESPONSE:
(i) OFFEROR’S point-by-point response to SECTION D, EVALUATION CRITERIA, Paragraph 4, Part A,
Section I through Part E, Section V (pages 21 through 23)
(ii) SECTION E: Signature of Firm’s Authorized Representative
(iii) SECTION F: Debarment/Suspension Status & Non-Collusion Affidavit Form
(iv) EXHIBIT B: Campaign Contribution Disclosure Form
(v) Table of Contents to include section names, section numbers and page numbers
(vi) Letter of Transmittal. The letter of transmittal will fairly and briefly depict the respondent’s proficiency,
experience and capability to serve CNM and why the respondent believes they should be selected.
(vii) Response length and font size: It is requested that proposal responses be limited to 10 double spaced
pages no smaller than 10 point font.
(viii) Submit one (1) original and five (5) copies of your response to this RFP with your SEALED response.
NOTE: Failure to submit items (i) through (iv) noted above will render the offer as being nonresponsive. Non-responsive offers CANNOT be considered for award. Items (ii), (iii), and (iv) MUST
be signed by a legally authorized representative of the Offeror.
2. SUBMITTAL DEADLINE AND LOCATION
All responses must be received in a SEALED envelope by CNM no later than 3:00 PM MDT, September 6,
2013.
Responses are to be submitted via MAIL, COURIER, or HAND DELIVERED to:
Central New Mexico Community College
Purchasing Department, Room A109
525 Buena Vista Drive SE
Albuquerque, NM 87106
Attn: RFP # P-332, Due on or before 3:00 PM MDT, September 6, 2013
PLEASE ENSURE THAT YOUR SEALED ENVELOPE IS LABELED WITH YOUR FIRM’S
NAME, ADDRESS, RFP NUMBER, AND OPENING DATE AND TIME. Failure to properly identify
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 4 of 83
SECTION A: PROPOSAL SUBMISSION REQUIREMENTS, FORMAT AND CONTENT,
SUBMITTAL INSTRUCTIONS
this RFP #, Due Date and Time on the lower left outside corner of your sealed proposal envelope may
result in either premature opening of your proposal or failure to open it upon the correct closing date
and time.
(i) Faxed or electronically mailed responses will NOT be accepted and CANNOT be considered for
award.
(ii) Late submissions of proposals will not be considered unless it is determined by CNM that the late
receipt was due solely to mishandling by CNM or if the proposal is the only one received. All other
late submissions will be returned unopened.
(iii) Responses will not be publicly opened.
(iv) Responses may be withdrawn at any time prior to the time and date set for RFP closing.
(v) CNM reserves the right to accept or reject any or all responses and to waive technical irregularities.
3. TENTATIVE SCHEDULE
RFP advertised:
Non-mandatory pre-proposal meeting
Deadline for questions:
Issue Addenda
Due Date:
Due Time:
Location:
Wednesday, August 21, 2013
Friday, August 23, 2013
Wednesday, August 28, 2013
Thursday, August 29, 2013
Friday, September 6, 2013
3:00 PM, Local Time
CNM Purchasing Office
Building A, Room A109
525 Buena Vista SE
Albuquerque, NM 87106
Shortlist Finalists
Finalist Interviews
Begin Contract Negotiations
Notice of Award on or before
Tuesday, September 10, 2013 (If deemed necessary)
Monday, September 16, 2013 (If deemed necessary)
Tuesday, September 17, 2013
Monday, September 30, 2013
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 5 of 83
SECTION B: STANDARD PROPOSAL TERMS AND CONDITIONS
1.
ACKNOWLEDGMENT
OF
AMENDMENT
/
ADDENDUM. Vendors shall acknowledge receipt of any
amendments/addenda to this Request for Proposals by
identifying the amendment/addendum number and date in the
space provided on the form labeled “Signature of Firm’s
Authorized Representative”.
2.
ADDRESSES FOR NOTICES. Any notice required to be
given or which may be given under this Request for Proposals or
the resultant price agreement shall be in writing and delivered in
person or via first class mail to Central New Mexico Community
College, Purchasing Department, 525 Buena Vista, SE,
Albuquerque, NM 87106.
3.
AWARD OF PROPOSALS. CNM reserves the right to award
this proposal based on price and any other evaluation criteria
contained herein; to reject any and all proposals or any part
thereof, and to accept the proposal that is most advantageous to
CNM, taking into consideration the evaluation factors set forth in
this Request for Proposals.
4.
CANCELLATION. CNM reserves the right to cancel without
penalty this Request for Proposals, the resultant price agreement
or any portion thereof for unsatisfactory performance,
unavailability of funds, or when it is in the best interest of
CNM.
5.
CHANGES/ALTERATIONS AFTER AWARD. Changes or
alterations after the award can only be made if agreed to in
writing by CNM.
6.
CONFIDENTIALITY. Any information provided to or
developed by the successful vendor in the performance of the
resultant agreement shall be kept confidential and shall not be
made available to any other individual or organization by the
successful vendor without prior written approval of CNM.
7.
8.
DAMAGE AND SECURITY OF CNM PROPERTY. The
successful offeror shall be responsible for all damage to persons
or property that occurs as a result of his/her fault or negligence,
or that of any of his/her employees, agents and or
subcontractors. He/she shall save and keep harmless CNM
against all loss, cost, damage, claims, expense or liability in
connection with the performance of the resultant price
agreement. Any equipment or facilities damaged by the
successful vendor's operations shall be repaired and or restored
to their original condition at the vendor's expense, including but
not limited to cleaning and painting. The successful vendor
shall be responsible for security of all his/her equipment and for
the protection of work done under the resultant price agreement
until final acceptance of the work.
DELIVERY. Delivery is an important consideration and may
be a factor in determining the award. Please state your earliest
delivery date in the space provided on the response form.
Delivery to be made to Receiving/Warehousing, Central New
Mexico Community College, 901 Buena Vista SE,
Albuquerque, NM 87106, unless otherwise specified.
9.
DELIVERY DELAYS. If after award, the contractor becomes
aware of possible problems that could result in delay in the
agreed-to delivery schedule, the contractor must immediately
notify the Buyer or the designated representative. The initial
notification of the delay may be verbal with a written
confirmation, giving the probable cause and effect, with
recommendations for alternate action.
Nothing in this
paragraph will be interpreted as relieving the vendor of his/her
contractual obligations. However, failure to notify CNM
promptly will be a basis for determining vendor responsibility
in an otherwise excusable delay.
10. DISCREPANCIES.
Should any interested vendor find
discrepancies in any part of the listed specifications or the terms
and conditions, or find any part of the listed specification or the
terms and conditions to be incomplete or otherwise questionable
in any respect, such vendor shall immediately call such matters
to the attention of the Buyer, in writing, prior to the established
opening date.
11. DISRUPTION OF NORMAL ACTIVITY. All work shall be
performed so as not to interfere with normal CNM activities.
When it is necessary to disrupt normal activities, the schedule of
work and the areas to be affected must be approved by CNM's
authorized representative prior to commencement of the work.
12. EMPLOYEE CERTIFICATION.
The vendor and all
vendor's employees utilized on the work to be performed under
this Request for Proposals must have the proper certification(s)
and license(s) to comply with State and local requirements
connected to this Request for Proposals. The contractor shall
use only fully qualified and approved service technicians to
perform inspections, service and or repairs under this Request
for Proposals.
13. EQUIPMENT REQUIRED. The vendor shall be responsible
for supplying and maintaining all equipment and materials
necessary to complete the work under this Request for
Proposals except as otherwise noted in the Specifications.
14. ERRORS.
CNM is not liable for any errors or
misinterpretations made by the vendor responding to this
Request for Proposals. No advantage shall be taken by Vendors
in the omission of any details. Any misstatements of fact,
misrepresentations or errors in the Vendor’s proposal may, at
the sole discretion of CNM, be cause for disqualification. Each
vendor is responsible for ensuring that all information provided
in its proposal is accurate and complete in its entirety.
15. FORCE MAJEURE. Neither party to the resultant agreement
will be liable to the other for any failure or delay in
performance under the resultant agreement due to
circumstances beyond its reasonable control including, but not
limited to, acts of God, accidents, labor disputes, acts or
omissions and defaults of third parties, and official, government
or judicial action not the result of negligence of the party failing
or late in performing.
16. GENERAL TERMS AND CONDITIONS. CNM's General
Terms and Conditions are an equal and integral part of this
Request for Proposals.
17. GOVERNING LAW. This Request for Proposals and all
resultant price agreements shall be interpreted and governed by
the Laws of the State of New Mexico.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 6 of 83
SECTION B: STANDARD PROPOSAL TERMS AND CONDITIONS
18. INSURANCE REQUIREMENTS. The successful vendors
may be required to carry insurance meeting the requirements in
the Exhibit labeled "INSURANCE REQUIREMENTS" or as
noted in the specifications. The successful vendors shall submit
ONLY UPON REQUEST BY CNM the Certificate of
Insurance to the appropriate Buyer prior to commencing work
under the resultant price agreement. Insurance must remain in
effect for the entire term of the resultant price agreement and
must be extended to coincide with any future price agreement
extension. This Request for Proposals Number must appear on
the Certificate of Insurance. Note: The successful vendor
shall agree to comply with state laws and rules pertaining to
workers’ compensation insurance for its employees. If the
successful vendor fails to comply with the Workers’
Compensation Act and applicable rules when required to do
so, the resultant contract may be canceled effective
immediately.
27. PERIOD FOR PROPOSAL ACCEPTANCE. The Vendor
agrees, if its proposal is accepted within ninety (90) calendar
days of the closing date, to furnish the goods and services at the
prices set forth in its proposal, delivered to the designated
point(s) within the specified time in the delivery schedule.
Failure to comply may result in removal from the bid list. An
additional time period may be requested elsewhere in this
Request for Proposals.
19. INVITATION TERMS PART OF CONTRACT. This
Request for Proposals along with its attachments will be
considered to be part of the resultant price agreement and or
purchase order and is to be incorporated by reference.
29. PROPOSAL NEGOTIATION. Vendors submitting proposals
may be afforded an opportunity for discussion and revision of
proposals. Revisions may be permitted after opening and prior
to award for the purpose of obtaining best and final offer.
Negotiations may be conducted with responsible vendors who
submit offers found reasonably likely to be selected for award.
20. LATE SUBMISSIONS. Late submissions of proposals will
not be considered unless it is determined by CNM that the late
receipt was due solely to mishandling by CNM or if the
proposal is the only one received. All other late submissions
will be returned unopened.
21. MODIFICATIONS. Only modifications received prior to the
time specified for the closing will be accepted.
No
modifications will be accepted following the opening. The
Buyer may request technical clarifications of the proposal
following the opening.
22. NUMBER FOR PROPOSAL CLARIFICATION. The
Vendor should include a local or toll-free number for proposal
clarifications. Failure to do so may result in the proposal being
declared non-responsive.
23. OFFEROR’S TERMS AND CONDITIONS. Offerors must
submit with the proposal a complete set of any additional terms
and conditions they expect to have included in a contract
negotiated with the agency.
24. OPTION TO RENEW. CNM reserves the option to renew the
resultant agreement, contingent upon fiscal funding, as provided
for within Section 13-1-150 NMSA 1978, if such renewal is
found to be in the best interests of CNM. Renewal options will
be exercised in increments of one-year terms unless otherwise
agreed to by both parties.
25. OWNERSHIP OF MATERIAL. During the term of the
resultant agreement, ownership of all data, material, and
documentation originated and prepared by the successful
vendor for CNM shall belong exclusively to CNM.
26. PAYMENT DISCOUNTS. CNM will take advantage of
payment discounts offered whenever possible; however,
payment discounts will not be used as a means to determine the
highest evaluated offer.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
28. POTENTIAL COSTS UNSPECIFIED. The Vendor shall
include in its proposal all goods, material and labor costs that it
knows or should know will be required to complete the work
under this Request for Proposals including any goods, materials,
labor or other costs that are not specifically identified in the
specifications of this Request for Proposals. All such costs shall
be identified in the proposal and separately stated in the price or
pricing proposed in the proposal.
30. PROPOSAL OPENING. Proposals will be opened on the due
date and time specified on the proposal cover sheet in the
Purchasing Department Office. This is not a public opening
and contractors are not invited to attend.
31. PUBLIC INFORMATION. All information, except that
marked as confidential, will become public information at the
time that the Proposal is awarded. Confidential information
must be marked "CONFIDENTIAL" in red letters in the upper
right hand corner of the sheets containing the confidential
information.
Price and information concerning the
specifications cannot be considered confidential.
32. REFERENCES REQUIRED. Vendor must furnish the
minimum number of reference requested herein. Failure to
submit the information may result in your proposal being
considered non-responsive.
Vendor, by furnishing these
references, agrees to allow CNM to contact any person or
organization listed, and to utilize information obtained in the
evaluation of the offer.
33. RELEASES. Upon final payment of the amount due under the
terms of the resultant agreement, the successful vendor shall
release CNM, its Governing Board, officers and employees from
all liabilities, claims and obligations arising from or under the
terms of the resultant agreement. The successful vendor agrees
not to purport to bind CNM to any obligation not assumed herein
by CNM unless CNM has expressly authorized the successful
vendor to do so and then only within the strict limits of that
authority.
34. REPORTS AND INFORMATION. At such times and in such
forms as CNM may require, there shall be furnished to CNM
such statements, records, reports, data and information, as CNM
may request pertaining to matters covered by all resultant
agreements to this Request for Proposals.
Page 7 of 83
SECTION B: STANDARD PROPOSAL TERMS AND CONDITIONS
35. RESPONSIBLE VENDOR. CNM reserves the right to
conduct any investigations deemed necessary to determine the
responsibility of a vendor (i.e., prove that its financial resources,
production or service facilities, personnel, service reputation
and experience are adequate to make satisfactory delivery of the
services, construction or items of tangible personal property
described in the Request for Proposals). Vendor shall provide
audited financial statements if requested by CNM.
36. RESPONSIVENESS OF PROPOSALS. Vendors are hereby
expressly instructed that all proposals in response to this
solicitation shall meet all specifications and requirements of this
solicitation.
37. SEVERABILITY. If any provision of the resultant agreement
is found invalid or unenforceable, the remainder of the resultant
price agreement will be enforced to the maximum extent
permissible and the legality and enforceability of the other
provisions of the resultant agreement will not be affected.
38. SIGNATURE. The response must be signed by an authorized
representative in order for proposal to be considered responsive.
Compete and return the form labeled “Signature of Firm’s
Authorized Representative” with proposal response.
39. STATE AND LOCAL ORDINANCES. The successful
vendor shall perform work under the resultant price agreement
in strict accordance with the latest version of all State and local
codes, ordinances, and regulations governing the work
involved. All materials and labor necessary to comply with the
rules, regulations and ordinances shall be provided by the
vendor. Where the drawings and or specifications indicate
materials or construction in excess of the code requirements, the
drawings and or specifications shall govern. The vendor shall
be responsible for the final execution of the work to meet these
requirements. In the event of a conflict between various codes
and standards, the more stringent shall apply.
40. STATUS OF VENDOR. The successful vendor is an
independent contractor performing services for CNM and neither
he/she nor his/her agents or employees shall, as a result of the
resultant agreement, accrue leave, retirement, insurance, bonding
authority, use of CNM vehicles, or any other benefits,
prerequisites or allowances normally afforded only to employees
of CNM. The successful vendor acknowledges that all sums
received under the resultant agreement are personally reportable
by him/her/her for income, self-employment and other
applicable taxes.
41. SUBCONTRACTORS. Any work subcontracted by the
successful vendor shall require the prior written approval of the
subcontractor by CNM.
42. SUBMITTALS. To submit an offer on the goods or services
specified, provide a type written proposal responding to the
scope of work/services, specifications, and evaluation criteria
contained herein. Vendors are to submit responses as required
for easy and clear evaluation with information presented in the
order it appears herein referencing sections on all attachments.
Each original proposal must be signed in ink by an authorized
representative; all corrections shall be initialed in ink by person
signing the proposal.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Note: If you wish to offer more than one proposal, clearly label
each additional offer as an alternate proposal and submit all
responses in the same envelope/package as the original
proposal.
43. TAXES. CNM is exempt from Federal excise taxes and from
New Mexico gross receipts taxes on materials, except
construction materials used by a contractor. Services are not
exempt from gross receipts taxes. Taxes, if any, on services
must be included as a separate line item and not included in
your base price proposed. Applicable taxes are excluded from
the evaluation of the proposal.
44. TECHNICALITIES. CNM reserves the right to waive any
technical irregularities in the form of the proposal of the highest
evaluated vendor which do not alter price, quality or quantity of
the services, construction or items of tangible personal property
offered.
45. TELEGRAPHIC/FACSIMILE SUBMITTALS. Telegraphic
/ Facsimile proposal submittals will not be considered.
However, proposals may be modified by telegraphic/facsimile
notice, provided that the notice is received by the time and date
specified for the closing.
46. TERMINATION. Termination for cause. If the contractor,
for any cause, fails or omits to carry out the work in an
acceptable manner, CNM may give notice in writing of such
failure or omission and of a reasonable time within which to
cure the deficiency. Contractor shall be required to take
corrective measures within such time. Contractor's failure to
comply with such notice and to cure the deficiency as provided
in the notice shall subject the Agreement to immediate
termination by CNM. In the event of a for-cause termination,
CNM shall terminate the Agreement by delivering to the
Contractor a written notice of termination. The effective date
of termination shall be the date stated in the notice or, if no
date is stated, then the date of delivery of the notice. Upon
delivery of such notice, Contractor shall have the right to
receive payment for services performed prior to termination
date, including reimbursement then due.
Termination for convenience of CNM. On fifteen (15)
business day’s written notice to Contractor, CNM may
terminate the Agreement in whole or in part for its own
convenience in the absence of any default by Contractor. In
the event of a no-cause termination, CNM shall terminate the
Agreement by delivering to Contractor notice of termination
without cause specifying the extent to which performance of
work under the Agreement is terminated and the date upon
which such termination becomes effective. The effective date
of ter5mination shall be the date stated in the notice or, if no
date is stated, then the fifteenth (15) business day after delivery
of the notice. Within ten (10) calendar days of the effective
date of termination, Contractor shall deliver to CNM all
documents and any other materials developed under the
Agreement. Upon delivery of such notice, the Contractor shall
have the right to receive payment for services performed to
termination date, including reimbursement then due.
Page 8 of 83
SECTION B: STANDARD PROPOSAL TERMS AND CONDITIONS
47. VENDOR GUARANTEE. The vendor shall guarantee all
materials, equipment and workmanship furnished and or
installed to be free of defects and shall agree to replace solely at
his/her expense any and all defective equipment, parts, etc.
within a one year period after the date of acceptance of the items
and or installation by CNM, unless otherwise agreed to in
writing at the time of award.
48. VENDOR SCHEDULE REQUIRED. The vendor shall
include a proposed schedule for completion of work under this
Request for Proposals. It should contain an itemized break down
of all items and projects, including testing dates if applicable.
49. WITHDRAWAL OF PROPOSALS. Proposals may be
withdrawn by written notice, telegram or in person by a vendor
or an authorized representative any time prior to the award.
Proposals requiring proposal security may result in forfeiture of
the security if the proposal is withdrawn following the opening.
50. WORKMANSHIP/COOPERATION. All work shall be done
in a neat, workman-like manner using acceptable equipment and
methods. The successful vendor will cooperate with CNM and
other contractors and coordinate his/her work involving other
contractors through CNM's authorized representative.
51. WAGE RATES. Jobs with an estimated cost greater than
$60,000 done under this RFP will be subject to the Public
Works Minimum Wage ACT (13-4-11 through 14-4-17, NMSA
1978) and per exhibit labeled "MINIMUM WAGE RATES".
Minimum wages will be supplied at time of award or may be
obtained from the Labor and Industrial Commission, 1596
Pacheco Street, Santa Fe, NM 87501.
52. PERFORMANCE AND PAYMENT BONDS.
A
performance bond and a payment bond, covering materials and
labor, each in the amount of 100% of the resultant price
agreement cost is required. The bond must be executed by the
bidder with a surety company authorized to do business in New
Mexico or other suitable sureties approved by the State Board of
Finance. The performance and payment bonds must be received
by the buyer issuing the award within 14 days of the award and
must reference this Invitation to Bid Number on the face of the
documents.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 9 of 83
SECTION C: GENERAL TERMS AND CONDITIONS
1. Inspection and Audit. a. CNM may inspect, at any reasonable time, any part of Seller's plant or
place of business which is related to performance of this Purchase Order. Acceptance of delivery shall
not be considered acceptance of the materials, supplies or services furnished. Final inspection of
product and services will be made at the destination. Any testing or inspection procedures required
by the specification are in addition to CNM's rights under this paragraph.
b. The Contractor shall maintain detailed time records which indicate the date, time and nature of
services rendered. Contractor shall maintain detailed records of all materials or supplies delivered to
CNM under this Purchase Order, including serial numbers and other appropriate identifiers. These
records shall be subject to internal and external audit. CNM shall have the right to audit billings both
before and after payment. Payment under the resultant Agreement shall not preclude CNM from
recovering excessive, erroneous or illegal payments previously made to the Contractor.
2 Warranties. Seller warrants the materials, supplies or services furnished to be exactly as specified
in this order, free from defects in Seller's design, labor, materials and manufacture, and to be in
compliance with any drawings or specifications incorporated herein and with any samples furnished
by Seller. All applicable UCC warranties, express and implied, are incorporated herein.
3. Acceptance and Rejection. If prior to final acceptance, any materials, supplies or service are found
to be defective or not as specified, or, if CNM is entitled to revoke acceptance of them, CNM may
reject or revoke acceptance, require Seller to correct without charge within a reasonable time, or
require delivery at an equitable reduction in price at CNM's option. Seller shall reimburse CNM for
all incidental and consequential costs related to unaccepted materials, supplies or service.
Notwithstanding final acceptance and payment, Seller shall be liable for latent defects, fraud, or such
gross mistakes as amount to fraud. Acceptance of performance shall not waive CNM's right to claim
damages for breach.
4. Assignment. This order is assignable by CNM. Except as to any payment due hereunder, this
order is not assignable by Seller without written approval of CNM.
5. Changes. CNM may make changes within the general scope of this order by giving notice to
Seller and subsequently confirming such changes in writing. If such changes affect the cost of, or the
time required for performance of this order, an appropriate equitable adjustment shall be made. No
change by Seller shall be recognized without written approval of CNM. Any claim of Seller for an
adjustment under this paragraph must be made in writing within thirty (30) days from the date of
receipt of Seller of notification of such change, unless CNM waives this condition. Nothing in this
paragraph shall excuse Seller from proceeding with performance of the order as changed hereunder.
6. Termination and Delays. CNM, by written notice stating the extent and effective date may
terminate this order for convenience in whole or in part, at any time. CNM shall pay Seller as full
compensation for performance until such termination: (1) the unit or pro rata order price for the
delivered and accepted portion; and (2) a reasonable amount to be approved by CNM, and not
otherwise recoverable from other sources by Seller, with respect to the undelivered or unaccepted
portion of this order. Provided, however, compensation hereunder shall in no event exceed the total
order price. Such amount will be limited to Seller's actual cost and may not include anticipated
profits.
CNM may terminate this order by written notice in whole or in part for Seller's default if Seller
refuses or fails to comply with the provision of this order, or fails to make progress so as to endanger
performance and does not cure such failure within a reasonable period of time. In such event, CNM
may otherwise secure the materials, supplies or services ordered, and Seller shall be liable for
damages suffered by CNM, including incidental and consequential damages.
If, after notice of termination, CNM determines Seller was not in default, or if Seller's default is due
to failure of CNM, termination shall be deemed for the convenience of CNM.
The rights and remedies of CNM provided in this article shall not be exclusive and are in addition to
any other rights and remedies provided by law or under this order.
As used in this paragraph, the word "Seller" includes Seller and its subsuppliers at any tier.
7. Affirmative Action.
Seller shall not discriminate with regard to hiring, termination or other
incidents of employment on the basis of race, sex, national origin, religion, age or handicap. Seller
agrees to: a) adhere to the principles set forth in Executive Order 11246 and 11375, and to undertake
specifically to maintain employment policies and practices that affirmatively promote equality of
opportunity for handicapped persons, minority group persons and women; b) take affirmative steps to
hire and promote women and minority group persons at all job levels and in all aspects of
employment; c) communicate this policy in both English and Spanish to all persons concerned within
the company, with outside recruiting services and the minority community at large; d) provide CNM
on request a breakdown of labor force by ethnic group, sex, and job category; and e) discuss with
CNM its policies and practices relating to its affirmative action program.
8. Indemnification and Insurance Seller assumes the entire responsibility and liability for losses,
expenses, damages, demands and claims in connection with or arising out of any actual or alleged
personal injury (including death) and/or damage or destruction to property sustained or alleged to
have been sustained in connection with or arising out of the performance of the work by Seller, its
agents, employees, subcontractors or consultants, except to the extent of liability arising out of the
negligent performance of the work by or willful misconduct of CNM. In any event, CNM's liability
shall be subject to the limitations of the New Mexico Tort Claims Act. Seller shall indemnify and
hold harmless CNM, its officers, agents, and employees from any and all liability for such losses,
expenses, damages, demands, and claims and shall defend any suit or action brought against any or all
of them based on any actual or alleged personal injury or damage and shall pay any damage costs and
expenses including attorneys fees, in connection with or resulting from such suit or action.
Seller agrees that it and its subcontractors will maintain public liability and property damage
insurance in reasonable amounts covering the above obligation and will maintain workers'
compensation coverage covering all employees performing this order.
10. Discounts. Any discount time will not begin until the materials, supplies, or services have been
received and accepted and correct invoice received by CNM's Purchasing Department. In the event
testing is required, the discount time shall begin upon the completion of the tests.
11. Penalties. The Procurement Code, Section 13-1-28 et seq., imposes civil and criminal penalties
for its violation. In addition, the New Mexico criminal statutes impose felony penalties for bribes,
gratuities and kickbacks.
12. Title and Delivery.
Title to the materials and supplies passed hereunder shall pass to CNM at
the F.O.B. point specified subject to the right of CNM to reject upon inspection. For any exception to
the delivery date specified, Seller shall give prior notification and obtain approval from CNM's
Purchasing Department. Time is of the essence and the order is subject to termination for failure to
deliver on time.
13. Payment Charges. Late payment charges shall be paid in the amount and under the conditions
stated in Section 13-1-158, NMSA 1978.
14. Other Applicable Laws. Any provision required to be included in a contract of this type by any
applicable and valid Executive order, federal, state or local law, ordinance, rule or regulation shall be
deemed to be incorporated herein.
15. OSHA Regulations. The contractor shall abide by Federal Occupational Safety and Health
Administration (OSHA) regulations and the State of New Mexico Environmental Improvement Board
occupational health and safety regulations that apply to the work performed under this Invitation.
ALL PRODUCTS CONTAINING HAZARDOUS SUBSTANCES MUST BE PROPERLY
LABELED AND ACCOMPANIED BY MATERIAL SAFETY DATA SHEETS. The contractor
shall defend, indemnify and hold CNM free and harmless against any and all claims, loss, liability
and expense resulting from any alleged violations of said regulations including but not limited to
fines, penalties, judgments, court costs and attorney fees.
16. Debarment/Suspension. In performing the services and/or furnishing the goods specified within
this purchase order, the vendor/contractor certifies that it is not suspended, debarred or declared
ineligible from entering into contracts with the Executive Branch of the Federal Government, any
State agency or local public body; nor is in receipt of a notice of proposed debarment or suspension
from the Executive Branch of the federal Government, any State agency or local public body.
17. Applicable Law. Each party acknowledges that the New Mexico Procurement Code, NMSA
1978 13-1-28 through -199, as amended, applies to every CNM purchase or contract agreement of
tangible personal property, services and construction, including participation made pursuant to this
purchase order. Further, each party acknowledges that it will be responsible for claims or damages
arising from personal injury or damage to persons or property to the extent they result from
negligence of its employees or agents and that the liability of CNM shall be subject in all cases to the
immunities and limitation of the New Mexico Tort Claims Act, NMSA 1978 41-4-1 through -2 7, as
amended.
SECTION 2
GOVERNMENT SUBCONTRACT PROVISIONS
If this order is subcontract under a U.S. Government Prime Contract, the applicable
clauses listed below are incorporated into, and form a part of, the terms and conditions of this order.
In the event of any conflict between the terms and condition of Section 2 and any other provisions of
this order the terms and conditions of Section 2 shall prevail. The clauses contained in the following
paragraphs of the Federal Acquisition Regulations are incorporated herein by reference. For purposes
of this Purchase Order, in the following clauses, the term "contract" shall mean "this order", the term
"contractor" shall mean "Seller" and the term "Government" and "Contracting Officer" shall mean
"Albuquerque CNM" and the "Director of Purchasing," respectively.
The following provisions of the Federal Acquisition Regulations (FAR) apply
regardless of the amount of this order:
* Anti-kickback Procedures:
52.203-7
Buy American Act and Balance of Payments Program
52.225-7001
* Contract Work Hours and Safety Standards Act-Overtime Comp. 52.222-4
* Equal Employment Opportunity
52.222-26
Integrity of Unit Prices
52.215-26(a)(b)
Notice to the Government of Labor Disputes
52.222-1
Preference for U.S. Flag Air Carriers (For internal air travel)
52.247-63
Restriction on Subcontractor Sales to the Government
52.203-6
Service Contract Act of 1965 (Reserved)
52.222-41
* Termination for Convenience of Government
(Education and other Nonprofit Institutions)
52.249-5(a)(f)
CNM reserves all administrative, contractual, and legal remedies against Seller in case of any
breaches of the contract.
* On contracts funded by federal grants, only the Special Terms and Conditions clauses identified
by the asterisk (*) are incorporated into this contract.
9. Patent and Copyright Indemnity. Seller shall pay all royalty and license fees relating to
deliverables and other items covered hereby. In the event any third party shall claim that the
reproduction, manufacture, use, or sale of goods or items covered hereby infringes any copyright,
trademark, patent, or other intellectual property rights, Seller shall indemnify and hold CNM harmless
from any cost, expense, damage, or loss resulting therefrom.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 10 of 83
SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA
1.
SCOPE OF REQUEST:
A. Central New Mexico Community College (CNM) is requesting proposals from qualified and experienced
Offerors (Offeror) to provide painting services (Services) as requested from time to time by CNM. These
Services could be for Projects at any of CNM’s campuses located in the Albuquerque area. More than
one Master Agreement may result from responses to this RFP. It is CNM’s intent to award the highest
ranked Offeror(s) a Master Agreement for the services required. The initial term of the resultant Master
Agreement(s) arising from this RFP shall be for a four (4) year term. Per NMSA 13-1-154, no individual
Project awarded under a Master Agreement may exceed $500,000 and the maximum term of the Master
Agreement cannot exceed four (4) years or have an aggregate value of more than $2,000,000 whichever
comes first. Any Master Agreement(s) negotiated shall be contingent upon fiscal funding and Offeror
performance. Any Project awarded that exceeds $60,000 will require a wage rate decision to be applied
to that specific Project.
B. Any Master Agreement resulting from this RFP shall not restrict in any way CNM's right to contract with
others for services and/or commodities similar to those specified in this RFP. Any Master Agreement
awarded hereunder is not an exclusive agreement.
C. The Contractor must provide at no charge all the equipment needed to perform painting services for
CNM, including but not limited to brushes, oil brushes, paint scrapers, paint sprayers, putty knives,
trowels, razor scrapers, drop cloths, step ladders, screw drivers, paint trays, roller handles, handle
extensions, hammers, paint, thinners, sandpaper, roller covers, spackle, joint compound and tapes.
D. The Contractor assumes full responsibility for the equipment it uses to provide all painting services for
CNM, including but not limited to damage and/or breakage, loss or theft of such equipment. CNM shall
assume no liability regarding Contractor’s employees, equipment or supplies.
2.
CNM INSTITUTIONAL INFORMATION:
A. CNM is the largest community college in the State of New Mexico providing year round instruction.
CNM has an enrollment of approximately 30,000 students in both the fall and spring semesters with
approximately 15,000 students enrolled in the summer term. The current Full Time Enrollment (FTE) is
approximately 20,000 students. CNM serves its students at multiple campuses and locations: Main,
Joseph M. Montoya (JMMC), South Valley, Technology Annex, Westside, Workforce Training Center
(WTC), Rio Rancho, and Alameda Technical Center (ATC) as well as through online distance learning
and hybrid instruction. The college offers associate degrees and certificates in a variety of subject areas.
3. SCOPE OF WORK:
PART 1--GENERAL
A. It is the intent of this RFP to establish a Master Agreement with a Contractor or multiple Contractors for
CNM for labor, materials and equipment necessary to provide exterior and interior painting services of
CNM property on an on-call “as needed” basis. CNM owns and manages 1.7 million square feet of
instruction space throughout the district.
B. All work is to be performed according to industry standards, according to the material manufacturers’
recommendations and to the satisfaction of CNM. The Contractor will perform interior and exterior
painting services for buildings owned by CNM and located throughout Bernalillo and Sandoval County as
requested by CNM’s Physical Plant Department. CNM offers no guarantee of any amount of work to be
performed under any Master Agreement.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 11 of 83
SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA
MINIMUM REQUIREMENTS
A. The Contractor must be a full time commercial painting contractor with its primary line of work being
painting. Contractors not meeting this requirement will not be considered. CNM does not consider
general contractors as meeting this requirement.
B. The Contractor shall possess a valid New Mexico State Contractor’s license for painting. Offeror must
provide a copy of its valid New Mexico State Contractor’s license with its response to this RFP.
C. The Contractor shall provide evidence of its existence in the painting business for a minimum of three (3)
years and possess a valid State of New Mexico Taxation and Revenue Registration Certificate.
D. The Contractor shall provide references from at least five (5) commercial facilities and/or municipalities
for which work has been completed in the past 12 months. References should contain at least one for
painting services rendered for an institution similar in size to CNM. When providing references,
Contractor must provide a contact name and that person’s email address. References will be checked by
email only.
E. The repeated failure of any Contractor to provide satisfactory service (in CNM’s sole discretion) when
contacted shall result in that Contractor's Master Agreement being canceled for nonperformance.
F. For exact square footage by building, refer to “Exhibit C: CNM Campus Locations”. Contractor(s) who
are awarded a Master Agreement must be prepared to submit proposals for all of the service areas
designated in Exhibit C, as future Projects will be awarded based on the CNM locations found in Exhibit
C. It is CNM’s intent to award future Projects for entire buildings and not just one or two rooms in a
building. Successful Contractor(s) awarded for a service area will be required to provide their services to
all locations within the geographic service area.
G. The first Project (Project #1) to be awarded as a Release under a resulting Master Agreement will be
the painting of the LSA Building second floor and the Student Resource Center on the CNM Main
Campus (see attached “Exhibit D” floor plans). The highest ranked successful Offeror to this RFP will
be awarded this first Project #1 under a Release to their Master Agreement.
3.1 WORK INCLUDED
A. The Work includes, but is not limited to, furnishing of materials and equipment and completion of
painting and painter’s finishing of all interior and exterior surfaces including:
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
Acoustical Ceilings
Wood Trim
Cabinetry (paint or re-varnish) NOTE: If cabinets are dirty or if there are nails, tape, décor,
or other items that do not permit you to properly paint as required, please bring this to the
attention of Physical Plant Department maintenance staff or the Project Manager. DO NOT
paint over cabinets which apply to the above until the problem can be properly addressed.
Drywall
Plaster
Metal Entry Doors
Wood Entry Doors
Metal Entry Security Screens
Stucco (near entry of unit only)
Patching and Sanding (including all holes)
Metal handrails
Caulking
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 12 of 83
SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA
13. Other areas as requested by CNM’s Project Manager
B. Thoroughly examine specifications, site of work and conditions under which Work will be performed
before submitting a proposal for a Project. Surfaces which cannot be prepared or painted as specified shall
be immediately brought to the attention of the CNM’s Project Manager in writing.
1. Starting of W ork without such notification will be considered acceptance by the
Contractor of surfaces involved.
2. The Contractor shall replace unsatisfactory work caused by improper or defective surfaces
as directed by CNM’s Project Manager at no additional cost.
3. All smooth walls shall be textured to camouflage the appearance of patching and
preparatory work.
4. Preparatory work shall consist of the following: All surfaces to be painted shall be properly
prepared prior to painting. Masonry or drywall gypsum wallboard surfaces with cracks,
holes or imperfections shall be spackled or covered with putty (or appropriate filler) and
finished in a neat matter. Any rough or peeling interior surfaces shall be thoroughly scraped
and edges feathered. Contractor shall remove any wallpaper. Removal of the cove base is
not needed. Contractor shall remove window treatments and reinstall properly when finished
painting.
5. If painting of cabinets is requested, the interior shall be painted and the exterior surface of
the cabinet shall be painted or varnished to match existing finish.
6. Contractor shall move furniture prior to painting and return furniture to same location after
completion of Project. Contractor shall provide a “flat fee” for the moving of furniture.
7. In most cases paint will be one color and will require the application of one coat. Accent
walls will be permitted with approval of CNM’s Project Manager. Two coats shall be
applied only upon CNM’s Project Manager’s request.
8. All windows and doors shall open freely upon completion of Work.
C. PROJECT COORDINATORS
1. The CNM project coordinators for this project are the Project Managers who can be
contacted via telephone numbers which will be provided for each Project to the awarded
Contractor. Any work at any site shall be scheduled through CNM Physical Plant or CNM’s
Project Manager at least forty-eight (48) hours in advance of the Work.
2. The Contractor shall provide a Project Coordinator for all Projects awarded hereunder for the
duration of the term of any awarded Master Agreement. Contact information for
Contractor’s Project Coordinator(s) shall be provided to CNM’s Project Manager(s).
3. The Contractor's Project Coordinator shall have a cellular telephone which number shall be
provided to CNM. The Project Coordinator shall establish a routine for communications
with CNM to provide a prompt and timely response to any concerns or problems that may
arise. Time and frequency of direct meetings may vary as determined by CNM. When the
Contractor or its agents are on the site, CNM’s Project Manager shall contact the vendor at
least daily to review overall performance, provide special instructions regarding the Scope
of Work or other pertinent items regarding the Project and the Contractor's performance.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 13 of 83
SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA
4. Before the Work commences, the Contractor must provide a work schedule that is approved
by CNM. Failure to follow this schedule will result in failure to respond and will allow
CNM to terminate the Project.
D. CONTRACTOR’S PAINTERS
1. Only qualified painters shall be engaged in interior and exterior painting work. Apprentices
may be employed provided they work under the direct supervision of a qualified painter.
2. The Contractor shall ensure that personnel are knowledgeable of all the requirements of
these specifications. The Contractor shall be responsible for instructing its employees in
safety measures considered appropriate. Safety requirements shall be complied with in all
activities under this award.
3. The Contractor agrees to not employ or retain any company or person, other than bona fide
employees working solely for the Contractor, to solicit or secure the Master Agreement.
Breach of the Master Agreement will constitute a failure to perform.
E. PROJECT CONDITIONS
1.
Environmental Requirements:
Contractor must comply with manufacturers’ recommendations as to environmental
conditions under which painting products can be stored and applied.
2.
Contractor will perform Work only when existing and forecasted conditions are within the
limits established by the manufacturers of the materials and products used.
3.
Contractor must comply with the manufacturers’ requirements and recommendations
regarding ventilation.
4.
Since lighting conditions can change the appearance of the Work, Contractor agrees to
perform all Work only when full daylight is available or when artificial lighting of equal
intensity, color and brightness is provided.
5.
If unfavorable weather conditions will be anticipated as a factor, Contractor agrees to work
with CNM’s Project Manager to discuss alternate timelines and measures to complete the
Work within the required timeline.
6.
Contractor will comply with all federal, state and local regulations, including but not
limited to all applicable OSHA requirements and the Americans with Disability Act.
F. WORK SCHEDULE
1.
The Contractor shall perform Work when needed and requested, including day and night
hours as well as weekends and holidays.
2.
The Contractor shall be required to visit the potential job site and submit a written
budgetary quote prior to the authorization of Work at no additional charge to CNM. The
written budgetary quote shall be provided within three (3) business days of the original
request and shall include a detailed summary in accordance with the contract rates. If the
budgetary quote is accepted and the Work performed, the Contractor’s invoice shall not
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 14 of 83
SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA
exceed the budgetary quote. A purchase order for all awarded Projects will be sent to the
Contractor to verify approval from CNM.
3.
Contractor agrees that the Work shall begin within three (3) business days from receiving a
purchase order of the original request and shall include a detailed summary in accordance
with the contract rates.
4.
Contractor will prepare, paint and finish all surfaces specified and agreed upon.
5. Contractor shall assure that the work is completed within the agreed schedule.
6. Contractor will provide paint finishes of even uniform color, free from cloudy or mottled
appearance.
7.
Contractor will properly correct all non-complying work to the satisfaction of the CNM’s
Project Manager.
8.
After the Work performed, the Contractor’s invoice shall not exceed the quoted amount
unless previously authorized by a revised Purchase Order.
9. Whenever CNM has an urgent or emergency request, the Contractor shall make every
attempt to accommodate su c h requests.
10. Parking is limited on campus and Contractor shall register its vehicles with CNM’s Parking
Department. Parking will be limited to Contractor vehicles only. Violation charges and
towing shall be at the Contractor’s expense. A copy of the regulations can be obtained by
calling the CNM Parking Department.
G. PROTECTION AND CLEAN UP
1.
Protection. Contractor agrees to carefully protect areas where work is in progress from
damage.
a. Contractor shall provide and spread clean drop cloths when and where required to
provide the necessary protection.
b. Contractor shall immediately clean up all accidental spatter, spillage, misplaced
painting chemicals and restore the affected surface to its original condition.
c. All cabinets, fixtures, and floors shall be properly protected and covered as
necessary by the Contractor.
2.
Clean-up.
a. At completion of W ork, C o n t r a c t o r s h a l l remove all materials, supplies, debris
and rubbish and leave each area in a clean, acceptable condition.
b. The C ontractor shall leave all glass areas, floors and walks, hardware, and all other
surfaces clean and free of any paint, stain, spattering, smears or smudges which are
the result of its operations.
c. The Contractor will promote waste reduction and recycling and promote CNM policy
to reduce, reuse and recycle.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 15 of 83
SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA
H. SITE CONTROL
1. Any areas being prepared, painted, or finished shall be secured from public access and clearly
marked and barricaded as necessary. At all times Work shall not interfere with ingress or egress
of the building or normal operations by CNM, CNM employees, students or vehicles. All
surrounding surfaces and vegetation shall be protected from contact with any materials used in
any Project.
2. The Contractor is solely responsible for damage to surrounding surfaces, facilities, vegetation,
vehicles, or persons caused by its materials, equipment, workers or agents. The Contractor shall
make every effort to maintain a clean, quiet, and orderly work area throughout the term of any
Project. No materials or equipment shall be left on the site when the Contractor's workers are
not present. The Contractor is responsible for protecting the Work from damage from any
source prior to final acceptance.
I.
QUALITY ASSURANCE
1. Contractor shall include on label of containers:
a.
b.
c.
d.
e.
Manufacturer’s name.
Type of paint.
Manufacturer’s stock number.
Color.
Instructions for reducing, where applicable.
2. Workmanship.
a. Contractor agrees that all Work will be performed by experienced, skilled craftsmen to
assure finished work of first class quality and durability.
b. Contractor agrees that all paints and coatings shall be mixed and applied strictly in
accordance with the manufacturers’ printed instructions.
c. Contractor agrees that all materials shall be applied evenly with proper film thickness and
free of runs, sags, skips and other defects. Enamel shall be sanded lightly between coats
and dusted and cleaned before re-coating.
d. Contractor agrees that all W ork shall be done under favorable weather conditions or
the W ork shall be suitably protected from the weather.
J. DELIVERY, STORAGE, AND HANDLING
1.
Contractor shall deliver all materials and products in unopened factory sealed containers
with labels legible and intact.
2.
Storage of materials.
a. Contractor shall store and handle all materials in strict compliance with the manufacturers’
instructions and recommendations.
b. Contractor shall store only acceptable and necessary Project materials on site.
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SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA
c. Contractor shall store materials in a suitable location and will p rotect materials from all
possible damage.
d. Contractor shall restrict storage to paint materials and related equipment.
e. Contractor shall comply with health and fire regulations and take every possible precaution
to prevent fire. Contractor shall remove flammable materials, solvents and spirits from the
Project site when not in use. Contractor shall remove all flammable waste and soiled rags
from the Project site daily.
f. Contractor shall sequence deliveries to avoid delays, but minimize on-site storage.
g. Contractor shall assume full responsibility for protection and safekeeping of any materials.
CNM assumes no liability for equipment, materials or supplies that have been left at the
Project site.
PART 2--PRODUCTS
3.2
APPROVED MATERIALS
A.
Contractor shall provide the highest quality commercial material or product produced by the
manufacturer for the purpose of any Project. Contractor shall provide materials only in factory-sealed
and labeled containers and will not reuse any containers for any reason.
B.
All paint types and finishes shall be made available by Contractor. Paint type appropriate for the surface
to be painted and color will be specified by CNM prior to commencement of Work for each Project.
C.
All products shall comply with the current applicable provisions and standards of the American National
Standards Institute (ANSI) and American Society for Testing and Materials (ASTM).
D.
A Material Safety Data Sheet and Technical Data Sheet shall be submitted for each product used by
Contractor. Solvents (VOC) used must comply with local air requirements. Contractor shall not use
materials which release volatile compounds in excess of the limits prescribed by the authorities having
jurisdiction.
E.
Buildings designated as LEED buildings shall be painted in accordance with the Leadership in Energy
and Environmental Design standards to ensure the rating is upheld and must include a printed statement
of VOC content and chemical components.
F.
Lead restrictions must comply with laws, codes, and requirements of the authorities having jurisdiction
related to lead content. Contractor must provide only paints and coatings that are free of lead hazard and
that have less than 0.06 percent lead content.
G.
Per CNM specifications, approved paint manufacturers include:
 Benjamin Moore
 Color Wheel Paints and Coatings
 Diamond Vogel Paints
 Dunn-Edwards Corporation
 Envirocoat Technologies Inc.
 ICI Paints
 Kwal-Howell Paint
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
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SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA



3.3
Sherwin Williams Company
Frazee Paint
PPG Architectural Finishes.
H.
Any paint not listed must be approved by CNM prior to purchase. All sealers, fillers, caulk and
spackling compounds shall be the premium retail line of the manufacturer. For all sealers, fillers, caulk
and spackling compound, CNM requires one (1) part Polyurethane with a maximum 13 % shrinkage
factor.
I.
Contractor shall provide descriptive literature for all products and services offered. Product
literature shall provide information sufficient to determine compliance with the specifications.
MIXING AND TINTING
A. Contractor shall deliver paints ready mixed to job site.
B. Contractor shall accomplish job mixing and job tinting only when acceptable to CNM’s Project
Manager.
C. Contractor shall mix only in mixing pails placed in suitably sized non-ferrous or oxide resistant metal
pans.
D. Contractor shall use tinting colors recommended by manufacturer for specific type of finish.
PART 3--EXECUTION
3.4
3.5
INSPECTION
A.
Contractor shall examine surfaces scheduled to receive paint and finishes for conditions that will
adversely affect execution, permanence or quality of work and which cannot be put into acceptable
condition through preparatory work. Contractor shall notify CNM’s Project Manager in writing of
any defects or conditions which will prevent a satisfactory installation.
B.
Contractor shall not continue with surface preparation of coating application until conditions are
suitable.
C.
Commencement of installation by Contractor will serve as acceptance of surfaces by Contractor.
PREPARATION OF SURFACE
A. Contractor shall assure that all surfaces to be painted shall be properly prepared prior to painting.
Contractor agrees to handle and apply all products according to the instructions of manufacturer. If any
specifications below are at variance with those given by manufacturer, manufacturers’ recommendation
will be followed, unless authorized otherwise by CNM after consultation with Contractor. If no specific
preparation is recommended by manufacturer, the following specifications will be observed: All surfaces
including but not limited to drywall, wood, various metals, masonry surfaces, previously painted
surfaces, concrete floors, exterior wood, wood and metal doors must be cured, clean, sound, dry and free
from all dirt, dust, efflorescence, wax, grease, chalk, crayon marks and any other contamination that
would interfere with the new coating adhesion. If any surface can’t be properly prepared, the surface will
be stripped and completely refinished, at the discretion of CNM. Surfaces may be tested for lead,
asbestos, and other hazardous materials.
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SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA
B. Contractor shall fill cracks, nail holes or any imperfections with joint compound. Contractor will allow
application to dry, sand smooth and remove dust and spot-prime patches prior to finishing.
C. Contractor shall prime all walls after repair to minimize contamination of substrates and apply primer, as
needed, and apply a minimum of two (2) coats of paint to doors and frames in hallways, walls, handrails,
and ceilings where applicable (all existing painted surfaces are to be painted).
D. Contractor shall prime substrates as needed to obtain the highest quality finished surfaces. Contractor shall
not finish over dirt, rust, grease, moisture, mildew or other conditions detrimental to the formation of a
durable finish. Contractor shall clean mildew areas with ten (10) percent bleach-to-water solution and
prime with Alkyd Primer.
E. Contractor shall assure that all window and door frames are caulked prior to paint application. Contractor
shall assure that all necessary glazing and caulking are performed prior to the application of the primer
coat around window glass. Caulking shall include between windows and brickwork and between coping
and brickwork.
F. In most cases, paint will be one color and will require the application of one coat. Two coats shall be
applied only upon the CNM’s request.
G. All windows and doors shall open freely upon completion of work.
H. The Contractor shall leave all glass areas, floors and walks, hardware, and all other surfaces clean and
free of any paint, stain, spattering, smears or smudges which are the result of its operations.
I.
During work, Contractor shall protect all un-painted surfaces as necessary. Floors will need to be
covered and protected in all cases.
J. Contractor shall tape all baseboards throughout the Project site, including carpeted areas.
K. Contractor shall clean all surfaces affected by misapplied or spilled paint by the painting crew.
L. Before painting, Contractor shall remove hardware accessories, plates, lighting fixtures, screens, room
numbers, louvers and all items that would be at risk during the painting process. Contractor shall mask and
protect any area not being painted.
M. On completion of each space, Contractor shall replace the items. Contractor shall install all items in a
skilled, workmanlike fashion. If a sign or door number was painted on the original wall, after the wall is
painted, the room number or sign shall be replaced as previously existing, unless otherwise instructed by
CNM’s Project Manager.
N. Before commencing Work, Contractor shall make certain that the surface being covered is in proper
condition to receive the paint. The surface must be clean, dry, smooth and at the correct temperature. Any
surface upon discovery that is not ready for application (deteriorated, rotten, chemically stained, mildew,
etc.) must be reported in writing to CNM’s Project Manager. Only after the surface is made acceptable
will the Contractor paint the area.
O. Contractor shall make sure that extra caution is taken to avoid paint splatter or injury to adjacent surfaces
or areas.
P. Contractor shall assure that drop cloths will be used to protect furniture, flooring and surfaces. Any
damage done to any surface, lawn, shrubs, trees, flowers, cacti, sprinkler systems or landscaping will be
restored by Contractor at no cost to CNM.
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SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA
Q. For property protected by intrusion devices, Contractor will arrange with Project Manager for off-hour
work to avoid false alarms. Any cost of unnecessary false alarms will be the responsibility of Contractor.
3.6 APPLICATION
A. Contractor will strictly comply with the manufacturers’ instructions and recommendations, except where
more restrictive requirements are specified in this RFP.
B. Contractor shall assure that no paint, varnish or stain shall be reduced or applied in any way except as
recommended by the manufacturer or in this RFP.
C. Contractor will mix and prepare the materials in strict compliance with the manufacturers’
recommendations and will keep foreign substances out of the finishing materials.
D. Contractor will provide additional coats, if needed, to comply with the manufacturers’ instructions and
recommendations to eliminate all show-through and bleed-through areas and to create uniform finishes.
E. Contractor shall assure that paint is applied by the method best required by job, i.e. spray, brush or roller
unless a specific application method has been requested by CNM’s Project Manager.
F. Contractor agrees to finish all surfaces visible in the finished Work, except surfaces specified not to be
painted or finished.
G. Contractor must provide uniform final finishes free of runs, sags, wrinkles, streaks, shiners, splatters or
any other defect. Each coat shall be applied with the proper consistency and be free from brush marks,
sags, runs, peeling, with no evidence of poor workmanship. Paint shall not overlap on windows,
hardware, or adjacent surfaces. No blemishes shall be permitted. All walls shall be clear of any visible
imperfections. Paint shall not seal a window. Windows and doors shall operate in a free fashion.
H. Any glass scratched or damaged by Contractor shall be replaced with the same quality and design at no
additional cost to CNM. Contractor will provide and hang “wet paint” signs in all areas where paint crews
are operating, sufficient in number and size as to be seen from all approaches. Vandalism after contractor
has left the worksite will be the responsibility of CNM, unless the vandals used materials left unsecured by
Contractor.
I.
Contractor shall assure that interior and exterior sides of doors and windows shall receive a painter’s best
finish. Unless otherwise specified, the jamb and head of doorframes shall be painted the same as the door.
3.7 WARRANTY
A. Contractor will, at its own expense, repair and replace all defective work which is found to be defective
during the term of the initial twelve (12) month warranty from the date of acceptance of Work by CNM.
Should Contractor fail to repair or replace the defective material or work within ten (10) days after written
notice from CNM, CNM may do the Work necessary and Contractor agrees to reimburse CNM for actual
costs.
B. The warranty for any Work repaired or replaced shall be extended for a period of twelve (12) months from
the date of such repair or replacement. Contractor shall provide a Warranty Certificate which shall assist
CNM in maintenance tracking.
C. This warranty shall not apply to normal wear and tear or damage by acts beyond the control of either Party.
D. Any touch-up work necessary to prepare a Project for final acceptance shall be done at no additional cost
to CNM.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
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SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA
3.8 EVALUATION CRITERIA:
A. STEP 1:
Written proposals shall be reviewed and evaluated in accordance with the evaluation criteria established
below per 4., A, Section I through 4., E, Section V. CNM reserves the right to reject all offers and issue a
new RFP if necessary. An evaluation committee shall evaluate written proposals based on the weighted
evaluation criteria. Rankings will be based upon an average tabulation of all individual committee
member scores. If interviews are not conducted, then the score based ranking shall be the basis for
awarding the top scored Offeror(s).
B. STEP 2 (optional):
If interviews are to be conducted, then the score based rankings of the written offers shall be used as the
basis to create a short list of those top ranked firms. Interviews shall be scored in accordance with the
evaluation criteria taking into account the information provided in the written response and any additional
questions related to the SOW of the RFP. Additional questions related to the SOW of this RFP may be
submitted to the shortlist in advance or during interviews.
Information and/or factors gathered during interviews, negotiations, and any reference checks, in addition
to the evaluation criteria rankings, may be utilized in the final award decisions. References may or may
not be reviewed at the discretion of CNM. CNM reserves the right to contact references other than, or in
addition to, those furnished by an Offeror.
Final rankings will be based upon an average tabulation of all individual committee member scores after
interviews and will not be averaged with STEP 1 scores.
4. CRITERIA:
A. SECTION I. BACKGROUND AND EXPERIENCE: EVIDENCE THAT THE CONTRACTOR HAS
BEEN IN THE INTERIOR/EXTERIOR PAINTING BUSINESS FOR A MINIMUM OF FIVE (5)
YEARS AND HAS HAD SIMILAR CONTRACTS IN SIZE AND SCOPE TO THAT OF CNM----25 POINTS POSSIBLE
1. Provide a brief narrative describing the history of your firm. Identify the number of employees
in your firm, the ownership and if the company has ever filed bankruptcy, been in loan default,
or if there are any pending liens, claims or lawsuits against the firm.
2. Provide a copy of your firm’s valid New Mexico State Contractor’s license with your response
to this RFP.
3. Provide demonstrated experience that supports your firm’s ability to perform the services
identified in the goals and intent of this RFP. State any other experience that indicates the
qualifications of your firm for the performance of the services as requested in this RFP.
4. Describe the proposed project staffing/organization and internal controls to be used during the
course of the services rendered under this RFP.
5. State the name, title or position, telephone number and email address of the individual(s) who
would have primary responsibility for the potential services resulting from this RFP.
6. Identify names, responsibilities and qualifications of staff who may be assigned to any future
Project that may be awarded under the Master Agreement that may result from this RFP.
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SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA
7. Provide an organizational chart of your firm indicating lines of authority for personnel
involved in performance of any future Projects that may be awarded under a resulting Master
Agreement and relationships of this staff to other programs or functions of your firm. This
chart must also show lines of authority to the next senior level management.
8. Describe if your firm has had a contract terminated for default in the last five (5) years.
Termination for default is defined as notice to stop performance due to the Offeror's nonperformance or poor performance or if the issue of performance was either (a) not litigated due
to inaction on the part of the Offeror, or (b) litigated and such litigation determined that the
Offeror was in default. Submit full details of their terms for default including the other
parties’ name, address, and telephone number. Present the Offeror’s position on the matter.
CNM will evaluate the facts and may, at its sole discretion, reject the proposal on the grounds
of the past experience. Indicate if no such termination for default has been experienced by the
Offeror in the past five (5) years.
B.
SECTION II. CAPACITY AND CAPABILITY: EVIDENCE OF EMPLOYING PERSONNEL
AND POSSESSING EQUIPMENT CONSIDERED NECESSARY BY CNM TO COMPLETE
WORK IN A SCHEDULED TIME FRAME AND PRODUCE THE DESIRED QUALITY OF
PAINTING SERVICES------25 POINTS POSSIBLE
1. Explain in narrative form how your firm will perform the proposed services identified in this
RFP.
2. Discuss any information and/or support that would be required from CNM.
3. Identify any subcontractors which may be used during any future Project that may be
awarded under the Master Agreement that may result from this RFP and describe their
role(s).
C.
D.
E.
SECTION III. ECONOMY AND PRICE: GENERAL COST PROPOSAL OFFERED TO CNM----20 POINTS POSSIBLE
3.
Provide a detailed Rate Schedule that outlines the various titles/positions that may be involved
in providing services for Projects that may be awarded hereunder. Include the hourly rates for
all positions. Also provide proposed annual hourly rate increases (if any) to the Rate Schedule
over the four (4) year term of any resulting Master Agreement.
4.
Provide a “flat fee” for the moving of furniture.
SECTION IV. ECONOMY AND PRICE:
POINTS POSSIBLE
PROJECT #1 PROPOSAL AND PRICING-----20
1.
Provide a detailed proposal that outlines your approach to completing the requirements for
Project #1, the painting of the LSA Building second floor and the Student Resource Center on
CNM’s Main Campus (see attached “Exhibit D” floor plans).
2.
Provide a detailed cost for the successful completion of the work called for in Project #1,
including a detailed timeline.
SECTION V. REFERENCES-----10 POINTS POSSIBLE
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 22 of 83
SECTION D: SCOPE OF SERVICES AND EVALUATION CRITERIA
1.
List a minimum of five (5) references your firm may have had with institutes of higher
education, commercial facilities, municipalities, non-profit and/or community organizations
and/or financial institutions during the last twelve (12) months that relate to the Offeror’s
ability to perform the service(s) as requested in this RFP. References should contain at least
one for painting services rendered for an institution similar in size to CNM. List references by
company, address, contract period of performance, contact person’s name and email address.
By submitting a proposal, the Offeror grants permission to CNM to contact the references.
CNM will contact references via email, therefore it is mandatory to include the email address
for each reference. NOTE: Do not include CNM as a reference.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 23 of 83
SECTION E: SIGNATURE OF FIRM’S AUTHORIZED REPRESENTATIVE
By signing below, Offeror acknowledges that it is a competent firm capable of providing the items and/or services
requested, is properly licensed for providing the items or services specified, has read this Request for Proposals,
understands it, and agrees to be bound by its terms and conditions. Offeror hereby agrees to furnish items and/or
services, at the prices quoted, pursuant to all requirements and specifications contained in this document, upon
receipt of an authorized purchase order from the purchasing department, and further agree that the language of this
document shall govern in the event of a conflict with its response. The undersigned, being duly authorized to sign
documents and act on behalf of the Offeror in an official capacity, certifies that the items and/or services offered on
this Request for Proposals meets or exceeds all specifications, terms and conditions as described in this Request for
Proposals without exceptions. I understand that items and/or services not meeting all specifications, terms and
conditions will be rejected and all costs shall be borne by the Offeror.
Please fill in all spaces below:
Legal Company Name
Address
City, State, Zip
Phone Number
FAX Number
Email
Contact Person for Clarification of RFP Response
NM Tax ID
Federal Tax ID
Applicable NM License Numbers
ALL NEW MEXICO LICENSE NUMBERS LISTED HEREIN OR PURPORTED BY THE VENDOR MUST BE
ISSUED IN THE OFFERING FIRM’S LEGAL COMPANY NAME. LICENSE NUMBERS LISTED UNDER A
NAME OTHER THAN THE LEGAL COMPANY NAME MAY RENDER THE OFFER AS BEING NONRESPONSIVE. NON-RESPONSIVE OFFERS WILL NOT BE CONSIDERED FOR AWARD.
OFFERORS WISHING TO RECEIVE THE RESIDENTIAL PREFERENCE AS APPLICABLE PER NMSA 131-21 MUST SUBMIT A VALID RESIDENTIAL PREFERENCE CERTIFICATE WITH THEIR SEALED
RESPONSE.
OFFERORS WISHING TO RECEIVE THE VETERAN RESIDENT BUSINESS PREFERENCE AS
APPLICABLE PER NMSA 13-1-22 MUST SUBMIT A VALID RESIDENT VETERAN’S PREFERENCE
CERTIFICATE WITH THEIR SEALED RESPONSE.
Acknowledgment of Amendment/Addendum
Specify Number(s) and Date(s)
#
date
#
date
#
date
#
date
#
date
Signature of Member Authorized to Sign for Firm
Printed/Typed Name and Title of Individual Signing
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 24 of 83
SECTION F: DEBARMENT/SUSPENSION STATUS & NON-COLLUSION AFFIDAVIT FORM
DEBARMENT/SUSPENSION STATUS
1. The vendor/contractor certifies that it is not suspended, debarred or ineligible from entering into
contracts with the Executive Branch of the Federal Government, or in receipt of a notice of proposed
debarment from any State agency or local public body.
2. The vendor/contractor agrees to provide immediate notice to CNM's Purchasing Department in the
event of being suspended, debarred or declared ineligible by any State or Federal department or
agency, or upon receipt of a notice of proposed debarment that is received after the submission of this
response but prior to the award of the purchase order/contract.
NON-COLLUSION AFFIDAVIT
The undersigned, duly authorized to represent the persons, firm and/or corporation joining and
participating in the submission of the foregoing response (such persons, firm and/or corporation
hereinafter being referred to as the vendor/contractor), being duly sworn, on his/her oath, states that to the
best of his/her belief and knowledge no person, firm, or corporation, nor any person duly representing the
same joining and participating in the submission or the foregoing response/proposal, has directly or
indirectly entered into any agreement or arrangement with any other vendor/contractors, or with any
employee of CNM, or any person, firm or corporation under contract with CNM whereby the contractor,
in order to induce the acceptance of the foregoing response by CNM has paid or is to pay any other
vendor/contractor or to the aforementioned persons anything of value whatsoever, and that the
vendor/contractor has not directly or indirectly entered into any agreement or arrangement with any other
vendor/contractor which tends to or does lessen or destroy free competition in the letting of the contract
sought for by the foregoing response.
CERTIFICATION
The undersigned hereby certifies that he/she has read the above Non-Collusion Affidavit and
Debarment/Suspension Disclosure Statement and that he/she understands and will comply with these
requirements. The undersigned further certifies that he/she have the authority to certify compliance for the
vendor/contractor named below.
Signature
Printed/Typed Name
Title
Date
Legal Company Name
Address
City/State/Zip
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 25 of 83
SECTION G: RESIDENT VETERANS PREFERENCE CERTIFICATION
__________________________________________ (NAME OF CONTRACTOR) hereby certifies the following in
regard to application of the resident veterans' preference to this procurement:
PLEASE CHECK ONLY ONE BOX FROM THE FOUR (4) CHECK BOXES LISTED BELOW:
 I declare that my firm is ineligible to receive New Mexico Resident Veterans Preference.
The following three (3) checkboxes are applicable to ONLY those vendors eligible to receive New Mexico
Resident Veterans Preference AND who have included a valid New Mexico Resident Veterans Preference
certificate with their sealed response. No preference will be extended unless a valid certificate is included in
your sealed response. Submitted certificates shall be validated by CNM with New Mexico Tax & Revenue.
 I declare under penalty of perjury that my business prior year revenue starting January 1 ending December 31 is
less than $1M allowing me the 10% preference discount on this solicitation. I understand that knowingly giving false
or misleading information about this fact constitutes a crime.
 I declare under penalty of perjury that my business prior year revenue starting January 1 ending December 31 is
more than $1M but less than $5M allowing me the 8% preference discount on this bid or proposal. I understand that
knowingly giving false or misleading information about this fact constitutes a crime.
 I declare under penalty of perjury that my business prior year revenue starting January 1 ending December 31 is
more than $5M allowing me the 7% preference discount on this bid or proposal. I understand that knowingly giving
false or misleading information about this fact constitutes a crime.
"I agree to submit a report, or reports, to the State Purchasing Division of the General Services Department
declaring under penalty of perjury that during the last calendar year starting January 1 and ending on December 31,
the following to be true and accurate:
"In conjunction with this procurement and the requirements of this business' application for a Resident
Veteran Business Preference/Resident Veteran Contractor Preference under Sections 13-1-21 or 13-1-22 NMSA
1978, when awarded a contract which was on the basis of having such veterans preference, I agree to report to the
State Purchasing Division of the General Services Department the awarded amount involved. I will indicate in the
report the award amount as a purchase from a public body or as a public works contract from a public body as the
case may be.
"I understand that knowingly giving false or misleading information on this report constitutes a crime."
I declare under penalty of perjury that this statement is true to the best of my knowledge. I understand that giving false
or misleading statements about material fact regarding this matter constitutes a crime.
______________________________________________________________________________
(Signature of Business Representative)*
(Date)
*Must be an authorized signatory for the Business.
The representations made in checking the boxes constitutes a material representation by the business that is
subject to protest and may result in denial of an award or unaward of the procurement involved if the
statements are proven to be incorrect.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 26 of 83
EXHIBIT A: INSURANCE REQUIREMENTS
CERTIFICATES OF INSURANCE
The AWARDED Contractor(s) shall furnish UPON REQUEST, one copy each of Certificates of Insurance herein required for each copy of
the resultant Master Agreement, showing the coverage, limits of liability, covered operation, effective dates of expiration of policies of
Insurance carried by the Contractor. The Contractor shall furnish to CNM copies of limits. The Certificates of Insurance shall be in the form
of AIA Document G-705 or similar format acceptable to CNM. Such certificates shall be filed with CNM and shall also contain the
following statements:
1.
The Governing Board of Central New Mexico Community College, Central New Mexico Community College, its agents,
servants and employees are held as additional insured.
2.
The insurance coverage certified herein shall not be canceled or materially changed except after forty five (45) days
written notice has been provided to CNM.
COMPENSATION INSURANCE:
The Contractor shall procure and shall maintain during the life of any resultant Master Agreement Worker's Compensation insurance as
required by applicable State law for all of the Contractor's employees to be engaged at the site referred to in this solicitation in case of any
such work sublet, the Contractor's Worker's Compensation insurance. In case any class of employee engaged in work on the project under
this contract is not protected under a Worker's Compensation Statute, the Contractor shall provide and shall cause each subcontractor or subsubcontractor to provide Employer's Insurance in an amount of not less than five hundred thousand dollars ($500,000).
CONTRACTOR'S PUBLIC LIABILITY INSURANCE:
The Contractor shall maintain insurance coverage "equal to the maximum liability amounts set forth in the New Mexico Tort Claims Act
Section 41-4-1 et. seq. NMSA 1978". The insurance must remain in force for the life of the contract including all contract extension or
renewals. The limits effective July 1, 1992 are:
Four hundred thousand dollars ($400,000) per person/seven hundred fifty thousand dollars ($750,000) per occurrence plus three hundred
thousand dollars ($300,000) for medical and one hundred thousand dollars ($100,000) for property damage for a total maximum liability
of one million one hundred fifty thousand dollars ($1,150,000) per occurrence.
CONTRACTOR'S VEHICLE LIABILITY INSURANCE:
The Contractor shall procure and shall maintain during the life of this contract Vehicle Liability Insurance coverage "equal to the maximum
liability amounts set forth in the New Mexico Tort Claims Act Section 41-1-1 et. seq. NMSA 1978". The insurance must remain in force for
the life of the contract including all contract extensions or renewals. The limits effective July 1, 1992 are:
Bodily Injury:
Property Damage:
Seven hundred fifty thousand dollars ($750,000) Each Occurrence
One hundred thousand dollars ($100,000) Each Occurrence
SUBCONTRACTOR'S AND SUB-SUBCONTRACTOR'S PUBLIC AND VEHICLE LIABILITY INSURANCE:
The Contractor shall either:
(1)
Require each subcontractor or sub-subcontractor to procure and maintain during the life of the subcontract or sub- subcontract
Public Liability Insurance of the types and amounts specified above or,
(2)
Insure the activities of the subcontractors or sub-subcontractors in the Contractor's policy as required under this Article.
GENERAL:
All insurance policies are to be issued by companies authorized to do business under the laws of the state in which the work is to be done and
acceptable to CNM.
The Contractor shall not violate, or permit to be violated, any conditions of any said policies, and shall at all times satisfy the requirements of
the insurance companies writing said policies.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 27 of 83
EXHIBIT B: CAMPAIGN CONTRIBUTION DISCLOSURE FORM
Pursuant to the Procurement Code, Sections 13-1-28, et seq., NMSA 1978 and NMSA 1978, § 13-1-191.1 (2006),
as amended by Laws of 2007, Chapter 234, any prospective contractor seeking to enter into a contract with any
state agency or local public body for professional services, a design and build project delivery system, or the
design and installation of measures the primary purpose of which is to conserve natural resources must file
this form with that state agency or local public body. This form must be filed even if the contract qualifies as a small
purchase or a sole source contract. The prospective contractor must disclose whether they, a family member or a
representative of the prospective contractor has made a campaign contribution to an applicable public official of the
state or a local public body during the two years prior to the date on which the contractor submits a proposal or, in
the case of a sole source or small purchase contract, the two years prior to the date the contractor signs the
contract, if the aggregate total of contributions given by the prospective contractor, a family member or a
representative of the prospective contractor to the public official exceeds two hundred and fifty dollars ($250) over
the two year period.
Furthermore, the state agency or local public body may cancel a solicitation or proposed award for a proposed
contract pursuant to Section 13-1-181 NMSA 1978 or a contract that is executed may be ratified or terminated
pursuant to Section 13-1-182 NMSA 1978 of the Procurement Code if: 1) a prospective contractor, a family member
of the prospective contractor, or a representative of the prospective contractor gives a campaign contribution or
other thing of value to an applicable public official or the applicable public official’s employees during the pendency
of the procurement process or 2) a prospective contractor fails to submit a fully completed disclosure statement
pursuant to the law.
The state agency or local public body that procures the services or items of tangible personal property shall indicate
on the form the name or names of every applicable public official, if any, for which disclosure is required by a
prospective contractor.
THIS FORM MUST BE INCLUDED IN THE REQUEST FOR PROPOSALS AND MUST BE FILED BY ANY
PROSPECTIVE CONTRACTOR WHETHER OR NOT THEY, THEIR FAMILY MEMBER, OR THEIR
REPRESENTATIVE HAS MADE ANY CONTRIBUTIONS SUBJECT TO DISCLOSURE.
The following definitions apply:
“Applicable public official” means a person elected to an office or a person appointed to complete a term of an
elected office, who has the authority to award or influence the award of the contract for which the prospective
contractor is submitting a competitive sealed proposal or who has the authority to negotiate a sole source or small
purchase contract that may be awarded without submission of a sealed competitive proposal.
“Campaign Contribution” means a gift, subscription, loan, advance or deposit of money or other thing of value,
including the estimated value of an in-kind contribution, that is made to or received by an applicable public official or
any person authorized to raise, collect or expend contributions on that official’s behalf for the purpose of electing the
official to either statewide or local office. “Campaign Contribution” includes the payment of a debt incurred in an
election campaign, but does not include the value of services provided without compensation or unreimbursed travel
or other personal expenses of individuals who volunteer a portion or all of their time on behalf of a candidate or
political committee, nor does it include the administrative or solicitation expenses of a political committee that are
paid by an organization that sponsors the committee.
“Family member” means spouse, father, mother, child, father-in-law, mother-in-law, daughter-in-law or son-in-law.
“Pendency of the procurement process” means the time period commencing with the public notice of the request
for proposals and ending with the award of the contract or the cancellation of the request for proposals.
“Person” means any corporation, partnership, individual, joint venture, association or any other private legal entity.
RFP # P-332, Advertised August 21, 2013
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EXHIBIT B: CAMPAIGN CONTRIBUTION DISCLOSURE FORM
“Prospective contractor” means a person who is subject to the competitive sealed proposal process set forth in the
Procurement Code or is not required to submit a competitive sealed proposal because that person qualifies for a
sole source or a small purchase contract.
“Representative of a prospective contractor” means an officer or director of a corporation, a member or manager
of a limited liability corporation, a partner of a partnership or a trustee of a trust of the prospective contractor.
Name(s) of Applicable Public Official(s) if any:
CNM's Governing Board including, District 1 Ms. Pauline J. Garcia, District 2 Mr. Robert P. Matteucci Jr.,
District 3 Ms. Deborah Moore, District 4 Mr. Mark Armijo, District 5 Mr. Blair L. Kaufman, District 6 Ms.
Penelope S. Holbrook, and District 7 Mr. Michael DeWitte.
DISCLOSURE OF CONTRIBUTIONS BY PROSPECTIVE CONTRACTOR:
Contribution Made By:
______________________________________________________
Relation to Prospective Contractor:
______________________________________________________
Date Contribution(s) Made:
______________________________________________________
Amount(s) of Contribution(s)
______________________________________________________
Nature of Contribution(s)
______________________________________________________
Purpose of Contribution(s)
______________________________________________________
____________________________
Signature
_______________________
Date
____________________________
Title (position)
--OR—
NO CONTRIBUTIONS IN THE AGGREGATE TOTAL OVER TWO HUNDRED FIFTY DOLLARS ($250) WERE
MADE to an applicable public official by me, a family member or representative.
______________________________
Signature
_______________________
Date
______________________________
Title (Position)
(Attach extra pages if necessary)
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
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EXHIBIT C: CNM CAMPUS LOCATIONS
SERVICE AREA LOCATIONS
Service /Area Offices:
Square footage:
CNM Main Campus
525 Buena Vista SE
Albuquerque NM 87106
884,748
Joseph M. Montoya Campus (JMMC)
4700 Morris NE
Albuquerque NM 87111
235,072
South Valley Campus
5816 Isleta Blvd
Albuquerque NM 87105
54,245
Westside Campus
10549 Universe Blvd.
Albuquerque NM
206,244
Rio Rancho Campus
2601 Campus Blvd. NE
Rio Rancho 87144
63,373
Advanced Technology Center
4700 Alameda Blvd. NE
Albuquerque NM 87113
92,805
Work Force Training Center
5600 Eagle Rock Ave. NE
Albuquerque 87113
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
.
66,664
Page 30 of 83
EXHIBIT D: FLOOR PLANS FOR PROJECT #1, LSA 2ND FLOOR & STUDENT
RESOURCE CENTER
RFP # P-332, Advertised August 21, 2013
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.
Page 31 of 83
EXHIBIT D: FLOOR PLANS FOR PROJECT #1, LSA 2ND FLOOR & STUDENT
RESOURCE CENTER
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
.
Page 32 of 83
EXHIBIT D: FLOOR PLANS FOR PROJECT #1, LSA 2ND FLOOR & STUDENT
RESOURCE CENTER
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
.
Page 33 of 83
EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
GENERAL CONDITIONS FOR CONSTRUCTION-DRAFT
SECTION 00300
AIA DOCUMENT A201-2007
(AS AMENDED AND MODIFIED BY CNM AS OF OCTOBER 2005).
SUPPLEMENTARY CONDITIONS TO AIA DOCUMENT A201-1997
NOTE: RED LINE COPY OF AIA A201-2007 IS AVAILABLE FOR
INSPECTION AT CNM’S PURCHASING DEPARTMENT.
PART 1 - GENERAL
The Contract award shall be based upon the GENERAL CONDITIONS OF THE CONTRACT FOR
CONSTRUCTION, 2007 EDITION, AIA document A201 as amended and modified by Central New
Mexico Community College (CNM).
THE STANDARD FORM OF AGREEMENT BETWEEN
OWNER AND CONTRACTOR, AIA form A101 shall be used in the execution of the Contract. A
document showing the changes made to the 2007 AIA A201 is available for review at the CNM
Purchasing Department upon request. These SUPPLEMENTARY CONDITIONS amend and modify
the provisions of A201; the AIA documents and these Supplementary Conditions together, however,
do not constitute an exhaustive statement of the Contract provisions, nor do they limit the definition
of Contract Documents in the Instructions to Bidders.
NOTWITHSTANDING
CONTRACT
ANYTHING
ELSE
CONTAINED
IN
THE
between Owner and Contractor (the "Contract"), whether or not in GENERAL
CONDITIONS OF THE CONTRACT FOR CONSTRUCTION, 2007 EDITION, AIA document A201,
THE STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR, AIA form
A101, these SUPPLEMENTARY CONDITIONS TO AIA DOCUMENT A201-2007, the Project
manual for the Contractor's Bid, or any other document or matter included or incorporated in the
Contract by reference or implication, the following provisions of Sections A, B, C, D, E, F, G, H, I and
J shall control:
Prompt Payment Act
N.M.S.A. 57-28-1 (2007)
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
A.
Improperly Completed Invoices/Notice.
If Owner receives an improperly completed
invoice, Owner shall notify Contractor within seven (7) days of receipt in what way the invoice is
improperly completed. Contractor is hereby notified and acknowledges (i) that any invoice is
improperly completed if it (a) contains arithmetic errors, (b) is not signed by Contractor, (c) is not
certified by Architect as correct as to work completed and materials actually supplied, compliance
with the Contract, and calculations, (d) fails to show Owner's applicable Purchase Order (PO)
number correctly, or (e) invoices for work completed or materials supplied pursuant to a Change
Order that has not been approved in writing by the Owner, (f) does not include properly executed
lien and bond claim releases from the contractor, subcontractor, and major suppliers.
(ii) that
Contractor has received timely notice by this Contract of improper completion of any and all
improperly completed invoices described in the foregoing subparagraph (i) and is not entitled to
payment upon or consideration of such invoices until they are resubmitted as complete regardless of
the giving or timing of giving of any additional notice of improper completion, and (iii) that the
foregoing subparagraph (i) is not an exhaustive list of ways in which an invoice may be improperly
completed.
B.
Unless grant money is a source of funding for this Contract, amounts due shall be paid within
twenty-one (21) days after Owner receives a properly completed undisputed request for payment.
IF GRANT MONEY IS A SOURCE OF FUNDING FOR THIS CONTRACT, AMOUNTS DUE
SHALL BE PAID WITHIN FORTY-FIVE (45) DAYS AFTER OWNER RECEIVES A PROPERLY
COMPLETED UNDISPUTED REQUEST FOR PAYMENT.
If grant money is a source of funding for this Contract, Owner shall have included the
following legend on each page of the plans, including bid plans and construction plans:
NOTICE OF EXTENDED PAYMENT PROVISION: This Contract
allows the Owner to make payment within forty-five (45) days
after submission of an undisputed request for payment.
Contractor and subcontractors shall make prompt payment to their subcontractors and
suppliers for amounts owed for work performed on the construction project within seven (7) days
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
after receipt of payment from the Owner, Contractor, or subcontractor, as may be applicable.
Contractor shall, by appropriate agreement with each subcontractor, require each subcontractor to
make payments to sub-subcontractors in a similar manner.
Subparagraph 13.6.1 of the General Conditions of the Contract for Construction, 2007 Edition, AIA
document A201, as otherwise amended by these Supplemental Conditions below, is hereby deleted
in its entirety.
Contractor hereby indemnifies and holds harmless Owner for all claims by subcontractors or
suppliers against Owner or its property arising under or related to the New Mexico Prompt Payment
Act, including, but not limited to, all costs and expenses of defense of such claims including
reasonable attorneys' fees.
F.
Subcontracts. Contractor is responsible to make all subcontractors aware of the foregoing
provisions of this Contract and to include all necessary and appropriate parallel provisions in each
subcontract. Contractor is responsible to have made all proposed subcontractors listed in the Bid
Response Form aware of the foregoing provisions of this Contract prior to submission of their bids.
Contractor is entirely and solely responsible, as between and among Contractor and subcontractors,
for compliance with the New Mexico Prompt Payment Act.
G.
Modification of Pay Application.
CNM reserves the right to modify pay applications to
correct mathematical errors without returning the pay application to the contractor for correction and
resubmission.
H.
Requests for Additional Time.
Contractor bears the burden to demonstrate that additional
contract time is warranted due to changes, including Owner requested changes, weather, or any
other reason. Contractor bears the burden of demonstrating that any such changes, modifications,
or delays impact the critical path for the project.
I.
Dispute Resolution. If at any time during the course of the project a dispute arises between
the Contractor and the Owner, including a dispute between the Contractor and the Engineer, the
procedure shall be mediation, or litigation as described in the amended AIA A201-1997 in this
Project Manual.
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
For the following PROJECT: ____________________________________
(Name and location or address):
Central New Mexico Community College (CNM)
CNM ______ Campus, ______________________________
THE OWNER:
(Name and address):
Governing Board for the Central New Mexico Community College (CNM)
525 Buena Vista SE
Albuquerque, New Mexico 87106
THE ARCHITECT:
(Name and address):
__________________
__________________
__________________
Attn: ______________
Email: _______________________
TABLE OF ARTICLES
1
GENERAL PROVISIONS
2
OWNER
3
CONTRACTOR
4
ADMINISTRATION OF THE CONTRACT
5
SUBCONTRACTORS
6
CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
7
CHANGES IN THE WORK
8
TIME
9
PAYMENTS AND COMPLETION
10
PROTECTION OF PERSONS AND PROPERTY
11
INSURANCE AND BONDS
12
UNCOVERING AND CORRECTION OF WORK
13
MISCELLANEOUS PROVISIONS
14
TERMINATION OR SUSPENSION OF THE CONTRACT
RFP # P-332, Advertised August 21, 2013
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
INDEX
(Numbers and Topics in Bold are Section Headings)
Acceptance of Nonconforming Work
9.6.6, 9.9.3, 12.3
Acceptance of Work
9.6.6, 9.8.2, 9.9.3, 9.10.1, 9.10.3, 12.3
Access to Work
3.16, 6.2.1, 12.1
Accident Prevention
4.2.3, 10
Acts and Omissions
3.2, 3.3.2, 3.12.8, 3.18, 4.2.3, 4.3.8, 4.4.1, 8.3.1, 9.5.1, 10.2.5, 13.4.2, 13.7, 14.1
Addenda
1.1.1, 3.11
Additional Costs, Claims for
4.3.4, 4.3.5, 4.3.6, 6.1.1, 10.3
Additional Inspections and Testing
9.8.3, 12.2.1, 13.5
Additional Time, Claims for
4.3.4, 4.3.7, 8.3.2
ADMINISTRATION OF THE CONTRACT
3.1.3, 4, 9.4, 9.5
Advertisement or Invitation to Bid
1.1.1
Aesthetic Effect
4.2.13, 4.5.1
Allowances
3.8
All-risk Insurance
11.4.1.1
Applications for Payment
4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1, 9.8.5, 9.10, 11.1.3, 14.2.4, 14.4.3
Approvals
2.4, 3.1.3, 3.5, 3.10.2, 3.12, 4.2.7, 9.3.2, 13.4.2, 13.5
Arbitration
4.3.3, 4.4, 4.5.1, 4.5.2, 4.6, 8.3.1, 9.7.1, 11.4.9, 11.4.10
Architect
4.1
Architect, Definition of
4.1.1
Architect, Extent of Authority
2.4, 3.12.7, 4.2, 4.3.6, 4.4, 5.2, 6.3, 7.1.2, 7.3.6, 7.4, 9.2, 9.3.1, 9.4, 9.5, 9.8.3, 9.10.1, 9.10.3, 12.1, 12.2.1, 13.5.1, 13.5.2, 14.2.2,
14.2.4
Architect, Limitations of Authority and Responsibility
2.1.1, 3.3.3, 3.12.4, 3.12.8, 3.12.10, 4.1.2, 4.2.1, 4.2.2, 4.2.3, 4.2.6, 4.2.7, 4.2.10, 4.2.12, 4.2.13, 4.4, 5.2.1, 7.4, 9.4 .2, 9.6.4, 9.6.6
Architect's Additional Services and Expenses
2.4, 11.4.1.1, 12.2.1, 13.5.2, 13.5.3, 14.2.4
Architect's Administration of the Contract
3.1.3, 4.2, 4.3.4, 4.4, 9.4, 9.5
Architect's Approvals
2.4, 3.1.3, 3.5.1, 3.10.2, 4.2.7
Architect's Authority to Reject Work
3.5.1, 4.2.6, 12.1.2, 12.2.1
Architect's Copyright
1.6
Architect's Decisions
4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1, 4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8. 4, 9.9.1, 13.5.2,
14.2.2, 14.2.4
Architect's Inspections
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 13.5
Architect's Instructions
3.2.3, 3.3.1, 4.2.6, 4.2.7, 4.2.8, 7.4.1, 12.1, 13.5.2
Architect's Interpretations
4.2.11, 4.2.12, 4.3.6
Architect's Project Representative
4.2.10
Architect's Relationship with Contractor
1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2, 4.1.3, 4.2, 4.3.4, 4 .4.1, 4.4.7, 5.2, 6.2.2,
7, 8.3.1, 9.2, 9.3, 9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12, 13.4.2, 13.5
Architect's Relationship with Subcontractors
1.1.2, 4.2.3, 4.2.4, 4.2.6, 9.6.3, 9.6.4, 11.4.7
Architect's Representations
9.4.2, 9.5.1, 9.10.1
Architect's Site Visits
4.2.2, 4.2.5, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2, 9.10.1, 13.5
Asbestos
10.3.1
Attorneys' Fees
3.18.1, 9.10.2, 10.3.3
Award of Separate Contracts
6.1.1, 6.1.2
Award of Subcontracts and Other Contracts for Portions of the Work
5.2
Basic Definitions
1.1
Bidding Requirements
1.1.1, 1.1.7, 5.2.1, 11.5.1
Boiler and Machinery Insurance
11.4.2
Bonds, Lien
9.10.2
Bonds, Performance, and Payment
7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5
Building Permit
3.7.1
Capitalization
1.3
Certificate of Substantial Completion
9.8.3, 9.8.4, 9.8.5
Certificates for Payment
4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7.1, 9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4
Certificates of Inspection, Testing or Approval
13.5.4
Certificates of Insurance
9.10.2, 11.1.3
Change Orders
1.1.1, 2.4.1, 3.4.2, 3.8.2.3, 3.11.1, 3.12.8, 4.2.8, 4.3.4, 4.3.9, 5.2.3, 7.1, 7.2, 7.3, 8.3.1, 9.3.1.1, 9.10.3, 11.4.1.2, 11.4.4, 11.4.9, 12.1.2
Change Orders, Definition of
7.2.1
CHANGES IN THE WORK
3.11, 4.2.8, 7, 8.3.1, 9.3.1.1, 11.4.9
Claim, Definition of
4.3.1
Claims and Disputes
3.2.3, 4.3, 4.4, 4.5, 4.6, 6.1.1, 6.3, 7.3.8, 9.3.3, 9.10.4, 10.3.3
Claims and Timely Assertion of Claims
4.6.5
Claims for Additional Cost
3.2.3, 4.3.4, 4.3.5, 4.3.6, 6.1.1, 7.3.8, 10.3.2
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
Claims for Additional Time
3.2.3, 4.3.4, 4.3.7, 6.1.1, 8.3.2, 10.3.2
Claims for Concealed or Unknown Conditions
4.3.4
Claims for Damages
3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3, 11.1.1, 11.4.5, 11.4.7, 14.1.3, 14.2.4
Claims Subject to Arbitration
4.4.1, 4.5.1, 4.6.1
Cleaning Up
3.15, 6.3
Commencement of Statutory Limitation Period
13.7
Commencement of the Work, Conditions Relating to
2.2.1, 3.2.1, 3.4.1, 3.7.1, 3.10.1, 3.12.6, 4.3.5, 5.2.1, 5.2.3, 6.2.2, 8.1.2, 8.2.2, 8.3.1, 11.1, 11.4.1, 11.4.6, 11.5.1
Commencement of the Work, Definition of
8.1.2
Communications Facilitating Contract Administration
3.9.1, 4.2.4
Completion, Conditions Relating to
1.6.1, 3.4.1, 3.11, 3.15, 4.2.2, 4.2.9, 8.2, 9.4.2, 9.8, 9.9.1, 9.10, 12.2, 13.7, 14.1.2
COMPLETION, PAYMENTS AND
9
Completion, Substantial
4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3, 9.10.4.2, 12.2, 13.7
Compliance with Laws
1.6.1, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6.4, 4.6.6, 9.6.4, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14.1.1, 14.2.1.3
Concealed or Unknown Conditions
4.3.4, 8.3.1, 10.3
Conditions of the Contract
1.1.1, 1.1.7, 6.1.1, 6.1.4
Consent, Written
1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.1, 13.2, 13.4.2
CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
1.1.4, 6
Construction Change Directive, Definition of
7.3.1
Construction Change Directives
1.1.1, 3.12.8, 4.2.8, 4.3.9, 7.1, 7.3, 9.3.1.1
Construction Schedules, Contractor's
1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3
Contingent Assignment of Subcontracts
5.4, 14.2.2.2
Continuing Contract Performance
4.3.3
Contract, Definition of
1.1.2
CONTRACT, TERMINATION OR SUSPENSION OF THE
5.4.1.1, 11.4.9, 14
Contract Administration
3.1.3, 4, 9.4, 9.5
Contract Award and Execution, Conditions Relating to
3.7.1, 3.10, 5.2, 6.1, 11.1.3, 11.4.6, 11.5.1
Contract Documents, The
1.1, 1.2
Contract Documents, Copies Furnished and Use of
1.6, 2.2.5, 5.3
Contract Documents, Definition of
1.1.1
Contract Sum
3.8, 4.3.4, 4.3.5, 4.4.5, 5.2.3, 7.2, 7.3, 7.4, 9.1, 9.4.2, 9.5.1.4, 9.6.7, 9.7, 10.3.2, 11.4.1, 14.2.4, 14.3.2
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
Contract Sum, Definition of
9.1
Contract Time
4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1.3, 7.3, 7.4, 8.1.1, 8.2, 8.3.1, 9.5.1, 9.7, 10.3.2, 12.1.1, 14.3.2
Contract Time, Definition of
8.1.1
CONTRACTOR
3
Contractor, Definition of
3.1, 6.1.2
Contractor's Construction Schedules
1.4.1.2, 3.10, 3.12.1, 3.12.2, 4.3.7.2, 6.1.3
Contractor's Employees
3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 10.3, 11.1.1, 11.4.7, 14.1, 14.2.1.1,
Contractor's Liability Insurance
11.1
Contractor's Relationship with Separate Contractors and Owner's Forces
3.12.5, 3.14.2, 4.2.4, 6, 11.4.7, 12.1.2, 12.2.4
Contractor's Relationship with Subcontractors
1.2.2, 3.3.2, 3.18.1, 3.18.2, 5, 9.6.2, 9.6.7, 9.10.2, 11.4.1.2, 11.4.7, 11.4.8
Contractor's Relationship with the Architect
1.1.2, 1.6, 3.1.3, 3.2.1, 3.2.2, 3.2.3, 3.3.1, 3.4.2, 3.5.1, 3.7.3, 3.10, 3.11, 3.12, 3.16, 3.18, 4.1.2, 4.1.3, 4.2, 4.3.4, 4.4.1, 4.4.7, 5.2, 6.2.2,
7, 8.3.1, 9.2, 9.3, 9.4, 9.5, 9.7, 9.8, 9.9, 10.2.6, 10.3, 11.3, 11.4.7, 12, 13.4.2, 13.5
Contractor's Representations
1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.8.2
Contractor's Responsibility for Those Performing the Work
3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2, 6.3, 9.5.1, 10
Contractor's Review of Contract Documents
1.5.2, 3.2, 3.7.3
Contractor's Right to Stop the Work
9.7
Contractor's Right to Terminate the Contract
4.3.10, 14.1
Contractor's Submittals
3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, 9.8.2, 9.8.3, 9.9.1, 9.10.2, 9.10.3, 11.1.3, 11.5.2
Contractor's Superintendent
3.9, 10.2.6
Contractor's Supervision and Construction Procedures
1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3, 6.2.4, 7.1.3, 7.3.4, 7.3.6, 8.2, 10, 12, 14
Contractual Liability Insurance
11.1.1.8, 11.2, 11.3
Coordination and Correlation
1.2, 1.5.2, 3.3.1, 3.10, 3.12.6, 6.1.3, 6.2.1
Copies Furnished of Drawings and Specifications
1.6, 2.2.5, 3.11
Copyrights
1.6, 3.17
Correction of Work
2.3, 2.4, 3.7.4, 4.2.1, 9.4.2, 9.8.2, 9.8.3, 9.9.1, 12.1.2, 12.2, 13.7.1.3
Correlation and Intent of the Contract Documents
1.2
Cost, Definition of
7.3.6
Costs
2.4, 3.2.3, 3.7.4, 3.8.2, 3.15.2, 4.3, 5.4.2, 6.1.1, 6.2.3, 7.3.3.3, 7.3.6, 7.3.7, 7.3.8, 9.10.2, 10.3.2, 10.5, 11.3, 11.4, 12.1, 12.2.1, 12.2.4,
13.5, 14
Cutting and Patching
6.2.5, 3.14
Damage to Construction of Owner or Separate Contractors
3.14.2, 6.2.4, 9.2.1.5, 10.2.1.2, 10.2.5, 10.6, 11.1, 11.4, 12.2.4
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
Damage to the Work
3.14.2, 9.9.1, 10.2.1.2, 10.2.5, 10.6, 11.4, 12.2.4
Damages, Claims for
3.2.3, 3.18, 4.3.10, 6.1.1, 8.3.3, 9.5.1, 9.6.7, 10.3.3, 11.1.1, 11.4.5, 11.4.7, 14.1.3, 14.2.4
Damages for Delay
6.1.1, 8.3.3, 9.5.1.6, 9.7, 10.3.2
Date of Commencement of the Work, Definition of
8.1.2
Date of Substantial Completion, Definition of
8.1.3
Day, Definition of
8.1.4
Decisions of the Architect
4.2.6, 4.2.7, 4.2.11, 4.2.12, 4.2.13, 4.3.4, 4.4.1, 4.4.5, 4.4.6, 4.5, 6.3, 7.3.6, 7.3.8, 8.1.3, 8.3.1, 9.2, 9.4, 9.5.1, 9.8.4, 9.9.1, 13.5.2,
14.2.2, 14.2.4
Decisions to Withhold Certification
9.4.1, 9.5, 9.7, 14.1.1.3
Defective or Nonconforming Work, Acceptance, Rejection and Correction of
2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.5.2, 9.6.6, 9.8.2, 9.9.3, 9.10.4, 12.2.1, 13.7.1.3
Defective Work, Definition of
3.5.1
Definitions
1.1, 2.1.1, 3.1, 3.5.1, 3.12.1, 3.12.2, 3.12.3, 4.1.1, 4.3.1, 5.1, 6.1.2, 7.2.1, 7.3.1, 7.3.6, 8.1, 9.1, 9.8.1
Delays and Extensions of Time
3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1, 7.4.1, 8.3, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2
Disputes
4.1.4, 4.3, 4.4, 4.5, 4.6, 6.3, 7.3.8
Documents and Samples at the Site
3.11
Drawings, Definition of
1.1.5
Drawings and Specifications, Use and Ownership of
1.1.1, 1.3, 2.2.5, 3.11, 5.3
Effective Date of Insurance
8.2.2, 11.1.2
Emergencies
4.3.5, 10.6, 14.1.1.2
Employees, Contractor's
3.3.2, 3.4.3, 3.8.1, 3.9, 3.18.2, 4.2.3, 4.2.6, 10.2, 10.3, 11.1.1, 11.4.7, 14.1, 14.2.1.1
Equipment, Labor, Materials and
1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2 , 10.2.1, 10.2.4,
14.2.1.2
Execution and Progress of the Work
1.1.3, 1.2.1, 1.2.2, 2.2.3, 2.2.5, 3.1, 3.3, 3.4, 3.5, 3.7, 3.10, 3.12, 3.14, 4.2.2, 4.2.3, 4.3.3, 6.2.2, 7.1.3, 7.3.4, 8.2, 9.5, 9.9.1, 10.2, 10.3,
12.2, 14.2, 14.3
Extensions of Time
3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3, 7.4.1, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2
Failure of Payment
4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6
Faulty Work
(See Defective or Nonconforming Work)
Final Completion and Final Payment
4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1, 11.4.5, 12.3.1, 13.7, 14.2.4, 14.4.3
Financial Arrangements, Owner's
2.2.1, 13.2.2, 14.1.1.5
Fire and Extended Coverage Insurance
11.4
GENERAL PROVISIONS
1
Governing Law
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
13.1
Guarantees (See Warranty)
Hazardous Materials
10.2.4, 10.3, 10.5
Identification of Contract Documents
1.5.1
Identification of Subcontractors and Suppliers
5.2.1
Indemnification
3.17, 3.18, 9.10.2, 10.3.3, 10.5, 11.4.1.2, 11.4.7
Information and Services Required of the Owner
2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3, 6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2, 9.10.3, 10.3.3, 11.2, 11.4, 13.5 .1, 13.5.2,
14.1.1.4, 14.1.4
Injury or Damage to Person or Property
4.3.8, 10.2, 10.6
Inspections
3.1.3, 3.3.3, 3.7.1, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.2, 9.8.3, 9.9.2, 9.10.1, 12.2.1, 13.5
Instructions to Bidders
1.1.1
Instructions to the Contractor
3.2.3, 3.3.1, 3.8.1, 4.2.8, 5.2.1, 7, 12, 8.2.2, 13.5.2
Insurance
3.18.1, 6.1.1, 7.3.6, 8.2.1, 9.3.2, 9.8.4, 9.9.1, 9.10.2, 9.10.5, 11
Insurance, Boiler and Machinery
11.4.2
Insurance, Contractor's Liability
11.1
Insurance, Effective Date of
8.2.2, 11.1.2
Insurance, Loss of Use
11.4.3
Insurance, Owner's Liability
11.2
Insurance, Project Management Protective Liability
11.3
Insurance, Property
10.2.5, 11.4
Insurance, Stored Materials
9.3.2, 11.4.1.4
INSURANCE AND BONDS
11
Insurance Companies, Consent to Partial Occupancy
9.9.1, 11.4.1.5
Insurance Companies, Settlement with
11.4.10
Intent of the Contract Documents
1.2.1, 4.2.7, 4.2.12, 4.2.13, 7.4
Interest
13.6
Interpretation
1.2.3, 1.4, 4.1.1, 4.3.1, 5.1, 6.1.2, 8.1.4
Interpretations, Written
4.2.11, 4.2.12, 4.3.6
Joinder and Consolidation of Claims Required
4.6.4
Judgment on Final Award
4.6.6
Labor and Materials, Equipment
1.1.3, 1.1.6, 3.4, 3.5.1, 3.8.2, 3.8.3, 3.12, 3.13, 3.15.1, 42.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1, 10.2.4,
14.2.1.2
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
Labor Disputes
8.3.1
Laws and Regulations
1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 9.6.4, 9.9.1, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14
Liens
2.1.2, 4.4.8, 8.2.2, 9.3.3, 9.10
Limitation on Consolidation or Joinder
4.6.4
Limitations, Statutes of
4.6.3, 12.2.6, 13.7
Limitations of Liability
2.3, 3.2.1, 3.5.1, 3.7.3, 3.12.8, 3.12.10, 3.17, 3.18, 4.2.6, 4.2.7, 4.2.12, 6.2.2, 9.4.2, 9.6.4, 9.6.7, 9.10.4, 10.3.3, 10. 2.5, 11.1.2, 11.2.1,
11.4.7, 12.2.5, 13.4.2
Limitations of Time
2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1, 4.2.7, 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9 .2, 9.3.1, 9.3.3, 9.4.1,
9.5, 9.6, 9.7, 9.8, 9.9, 9.10, 11.1.3, 11.4.1.5, 11.4.6, 11.4.10, 12.2, 13.5, 13.7, 14
Loss of Use Insurance
11.4.3
Material Suppliers
1.6, 3.12.1, 4.2.4, 4.2.6, 5.2.1, 9.3, 9.4.2, 9.6, 9.10.5
Materials, Hazardous
10.2.4, 10.3, 10.5
Materials, Labor, Equipment and
1.1.3, 1.1.6, 1.6.1, 3.4, 3.5.1, 3.8.2, 3.8.23, 3.12, 3.13, 3.15.1, 4.2.6, 4.2.7, 5.2.1, 6.2.1, 7.3.6, 9.3.2, 9.3.3, 9.5.1.3, 9.10.2, 10.2.1,
10.2.4, 14.2.1.2
Means, Methods, Techniques, Sequences and Procedures of Construction
3.3.1, 3.12.10, 4.2.2, 4.2.7, 9.4.2
Mechanic's Lien
4.4.8
Mediation
4.4.1, 4.4.5, 4.4.6, 4.4.8, 4.5, 4.6.1, 4.6.2, 8.3.1, 10.5
Minor Changes in the Work
1.1.1, 3.12.8, 4.2.8, 4.3.6, 7.1, 7.4
MISCELLANEOUS PROVISIONS
13
Modifications, Definition of
1.1.1
Modifications to the Contract
1.1.1, 1.1.2, 3.7.3, 3.11, 4.1.2, 4.2.1, 5.2.3, 7, 8.3.1, 9.7, 10.3.2, 11.4.1
Mutual Responsibility
6.2
Nonconforming Work, Acceptance of
9.6.6, 9.9.3, 12.3
Nonconforming Work, Rejection and Correction of
2.3, 2.4, 3.5.1, 4.2.6, 6.2.5, 9.5.1, 9.8.2, 9.9.3, 9.10.4, 12.2.1, 13.7.1.3
Notice
2.2.1, 2.3, 2.4, 3.2.3, 3.3.1, 3.7.2, 3.7.4, 3.12.9, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 11.1.3, 11.4.6, 12.2.2, 12.2.4, 13.3,
13.5.1, 13.5.2, 14.1, 14.2
Notice, Written
2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3, 11.4.6, 12.2.2, 12. 2.4, 13.3, 14
Notice of Testing and Inspections
13.5.1, 13.5.2
Notice to Proceed
8.2.2
Notices, Permits, Fees and
2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2
Observations, Contractor's
1.5.2, 3.2, 3.7.3, 4.3.4
Occupancy
2.2.2, 9.6.6, 9.8, 11.4.1.5
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
Orders, Written
1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1, 12.2, 13.5.2, 14.3.1
OWNER
2
Owner, Definition of
2.1
Owner, Information and Services Required of the
2.1.2, 2.2, 3.2.1, 3.12.4, 3.12.10, 4.2.7, 4.3.3, 6.1.3, 6.1.4, 6.2.5, 9.3.2, 9.6.1, 9.6.4, 9.9.2, 9.10.3, 10.3.3, 11.2, 11.4, 13.5.1, 13.5.2,
14.1.1.4, 14.1.4
Owner's Authority
1.6, 2.1.1, 2.3, 2.4, 3.4.2, 3.8.1, 3.12.10, 3.14.2, 4.1.2, 4.1.3, 4.2.4, 4.2.9, 4.3.6, 4.4.7, 5.2.1, 5.2.4, 5.4.1, 6.1, 6.3, 7.2.1, 7.3.1, 8.2.2,
8.3.1, 9.3.1, 9.3.2, 9.5.1, 9.9.1, 9.10.2, 10.3.2, 11.1.3, 11.3.1, 11.4.3, 11.4.10, 12.2.2, 12.3.1, 13.2.2, 14.3, 14.4
Owner's Financial Capability
2.2.1, 13.2.2, 14.1.1.5
Owner's Liability Insurance
11.2
Owner's Loss of Use Insurance
11.4.3
Owner's Relationship with Subcontractors
1.1.2, 5.2, 5.3, 5.4, 9.6.4, 9.10.2, 14.2.2
Owner's Right to Carry Out the Work
2.4, 12.2.4. 14.2.2.2
Owner's Right to Clean Up
6.3
Owner's Right to Perform Construction and to Award Separate Contracts
6.1
Owner's Right to Stop the Work
2.3
Owner's Right to Suspend the Work
14.3
Owner's Right to Terminate the Contract
14.2
Ownership and Use of Drawings, Specifications and Other Instruments of Service
1.1.1, 1.6, 2.2.5, 3.2.1, 3.11.1, 3.17.1, 4.2.12, 5.3
Partial Occupancy or Use
9.6.6, 9.9, 11.4.1.5
Patching, Cutting and
3.14, 6.2.5
Patents
3.17
Payment, Applications for
4.2.5, 7.3.8, 9.2, 9.3, 9.4, 9.5.1, 9.6.3, 9.7.1, 9.8.5, 9.10.1, 9.10.3, 9.10.5, 11.1.3, 14.2.4, 14.4.3
Payment, Certificates for
4.2.5, 4.2.9, 9.3.3, 9.4, 9.5, 9.6.1, 9.6.6, 9.7.1, 9.10.1, 9.10.3, 13.7, 14.1.1.3, 14.2.4
Payment, Failure of
4.3.6, 9.5.1.3, 9.7, 9.10.2, 14.1.1.3, 14.2.1.2, 13.6
Payment, Final
4.2.1, 4.2.9, 4.3.2, 9.8.2, 9.10, 11.1.2, 11.1.3, 11.4.1, 11.4.5, 12.3.1, 13.7, 14.2.4, 14.4.3
Payment Bond, Performance Bond and
7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5
Payments, Progress
4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3
PAYMENTS AND COMPLETION
9
Payments to Subcontractors
5.4.2, 9.5.1.3, 9.6.2, 9.6.3, 9.6.4, 9.6.7, 11.4.8, 14.2.1.2
PCB
10.3.1
Performance Bond and Payment Bond
7.3.6.4, 9.6.7, 9.10.3, 11.4.9, 11.5
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
Permits, Fees and Notices
2.2.2, 3.7, 3.13, 7.3.6.4, 10.2.2
PERSONS AND PROPERTY, PROTECTION OF
10
Polychlorinated Biphenyl
10.3.1
Product Data, Definition of
3.12.2
Product Data and Samples, Shop Drawings
3.11, 3.12, 4.2.7
Progress and Completion
4.2.2, 4.3.3, 8.2, 9.8, 9.9.1, 14.1.4
Progress Payments
4.3.3, 9.3, 9.6, 9.8.5, 9.10.3, 13.6, 14.2.3
Project, Definition of the
1.1.4
Project Management Protective Liability Insurance
11.3
Project Manual, Definition of the
1.1.7
Project Manuals
2.2.5
Project Representatives
4.2.10
Property Insurance
10.2.5, 11.4
PROTECTION OF PERSONS AND PROPERTY
10
Regulations and Laws
1.6, 3.2.2, 3.6, 3.7, 3.12.10, 3.13, 4.1.1, 4.4.8, 4.6, 9.6.4, 9.9.1, 10.2.2, 11.1, 11.4, 13.1, 13.4, 13.5.1, 13.5.2, 13.6, 14
Rejection of Work
3.5.1, 4.2.6, 12.2.1
Releases and Waivers of Liens
9.10.2
Representations
1.5.2, 3.5.1, 3.12.6, 6.2.2, 8.2.1, 9.3.3, 9.4.2, 9.5.1, 9.8.2, 9.10.1
Representatives
2.1.1, 3.1.1, 3.9, 4.1.1, 4.2.1, 4.2.10, 5.1.1, 5.1.2, 13.2.1
Resolution of Claims and Disputes
4.4, 4.5, 4.6
Responsibility for Those Performing the Work
3.3.2, 3.18, 4.2.3, 4.3.8, 5.3.1, 6.1.3, 6.2, 6.3, 9.5.1, 10
Retainage
9.3.1, 9.6.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3
Review of Contract Documents and Field Conditions by Contractor
1.5.2, 3.2, 3.7.3, 3.12.7, 6.1.3
Review of Contractor's Submittals by Owner and Architect
3.10.1, 3.10.2, 3.11, 3.12, 4.2, 5.2, 6.1.3, 9.2, 9.8.2
Review of Shop Drawings, Product Data and Samples by Contractor
3.12
Rights and Remedies
1.1.2, 2.3, 2.4, 3.5.1, 3.15.2, 4.2.6, 4.3.4, 4.5, 4.6, 5.3, 5.4, 6.1, 6.3, 7.3.1, 8.3, 9.5.1, 9.7, 10.2.5, 10.3, 12.2.2, 12 .2.4, 13.4, 14
Royalties, Patents and Copyrights
3.17
Rules and Notices for Arbitration
4.6.2
Safety of Persons and Property
10.2, 10.6
Safety Precautions and Programs
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
3.3.1, 4.2.2, 4.2.7, 5.3.1, 10.1, 10.2, 10.6
Samples, Definition of
3.12.3
Samples, Shop Drawings, Product Data and
3.11, 3.12, 4.2.7
Samples at the Site, Documents and
3.11
Schedule of Values
9.2, 9.3.1
Schedules,
1.4.1.2, 3.10, 3.Construction12.1, 3.12.2, 4.3.7.2, 6.1.3
Separate Contracts and Contractors
1.1.4, 3.12.5, 3.14.2, 4.2.4, 4.2.7, 4.6.4, 6, 8.3.1, 11.4.7, 12.1.2, 12.2.5
Shop Drawings, Definition of
3.12.1
Shop Drawings, Product Data and Samples
3.11, 3.12, 4.2.7
Site, Use of
3.13, 6.1.1, 6.2.1
Site Inspections
1.2.2, 3.2.1, 3.3.3, 3.7.1, 4.2, 4.3.4, 9.4.2, 9.10.1, 13.5
Site Visits, Architect's
4.2.2, 4.2.9, 4.3.4, 9.4.2, 9.5.1, 9.9.2, 9.10.1, 13.5
Special Inspections and Testing
4.2.6, 12.2.1, 13.5
Specifications, Definition of the
1.1.6
Specifications, The
1.1.1, 1.1.6, 1.1.7, 1.2.2, 1.6, 3.11, 3.12.10, 3.17
Statute of Limitations
4.6.3, 12.2.6, 13.7
Stopping the Work
2.3, 4.3.6, 9.7, 10.3, 14.1
Stored Materials
6.2.1, 9.3.2, 10.2.1.2, 10.2.4, 11.4.1.4
Subcontractor, Definition of
5.1.1
SUBCONTRACTORS
5
Subcontractors, Work by
1.2.2, 3.3.2, 3.12.1, 4.2.3, 5.2.3, 5.3, 5.4, 9.3.1.2, 9.6.7
Subcontractual Relations
5.3, 5.4, 9.3.1.2, 9.6, 9.10 10.2.1, 11.4.7, 11.4.8, 14.1, 14.2.1, 14.3.2
Submittals
1.6, 3.10, 3.11, 3.12, 4.2.7, 5.2.1, 5.2.3, 7.3.6, 9.2, 9.3, 9.8, 9.9.1, 9.10.2, 9.10.3, 11.1.3
Subrogation, Waivers of
6.1.1, 11.4.5, 11.4.7
Substantial Completion
4.2.9, 8.1.1, 8.1.3, 8.2.3, 9.4.2, 9.8, 9.9.1, 9.10.3, 9.10.4.2, 12.2, 13.7
Substantial Completion, Definition of
9.8.1
Substitution of Subcontractors
5.2.3, 5.2.4
Substitution of Architect
4.1.3
Substitutions of Materials
3.4.2, 3.5.1, 7.3.7
Sub-subcontractor, Definition of
5.1.2
Subsurface Conditions
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4.3.4
Successors and Assigns
13.2
Superintendent
3.9, 10.2.6
Supervision and Construction Procedures
1.2.2, 3.3, 3.4, 3.12.10, 4.2.2, 4.2.7, 4.3.3, 6.1.3, 6.2.4, 7.1.3, 7.3.6, 8.2, 8.3.1, 9.4.2, 10, 12, 14
Surety
4.4.7, 5.4.1.2, 9.8.5, 9.10.2, 9.10.3, 14.2.2
Surety, Consent of
9.10.2, 9.10.3
Surveys
2.2.3
Suspension by the Owner for Convenience
14.4
Suspension of the Work
5.4.2, 14.3
Suspension or Termination of the Contract
4.3.6, 5.4.1.1, 11.4.9, 14
Taxes
3.6, 3.8.2.1, 7.3.6.4
Termination by the Contractor
4.3.10, 14.1
Termination by the Owner for Cause
4.3.10, 5.4.1.1, 14.2
Termination of the Architect
4.1.3
Termination of the Contractor
14.2.2
TERMINATION OR SUSPENSION OF THE CONTRACT
14
Tests and Inspections
3.1.3, 3.3.3, 4.2.2, 4.2.6, 4.2.9, 9.4.2, 9.8.3, 9.9.2, 9.10.1, 10.3.2, 11.4.1.1, 12.2.1,13.5
TIME
8
Time, Delays and Extensions of
3.2.3, 4.3.1, 4.3.4, 4.3.7, 4.4.5, 5.2.3, 7.2.1, 7.3.1, 7.4.1, 8.3, 9.5.1, 9.7.1, 10.3.2, 10.6.1, 14.3.2
Time Limits
2.1.2, 2.2, 2.4, 3.2.1, 3.7.3, 3.10, 3.11, 3.12.5, 3.15.1, 4.2, 4.3, 4.4, 4.5, 4.6, 5.2, 5.3, 5.4, 6.2.4, 7.3, 7.4, 8.2, 9.2 , 9.3.1, 9.3.3, 9.4.1,
9.5, 9.6, 9.7, 9.8, 9.9, 9.10, 11.1.3, 11.4.1.5, 11.4.6, 11.4.10, 12.2, 13.5, 13.7, 14
Time Limits on Claims
4.3.2, 4.3.4, 4.3.8, 4.4, 4.5, 4.6
Title to Work
9.3.2, 9.3.3
UNCOVERING AND CORRECTION OF WORK
12
Uncovering of Work
12.1
Unforeseen Conditions
4.3.4, 8.3.1, 10.3
Unit Prices
4.3.9, 7.3.3.2
Use of Documents
1.1.1, 1.6, 2.2.5, 3.12.6, 5.3
Use of Site
3.13, 6.1.1, 6.2.1
Values, Schedule of
9.2, 9.3.1
Waiver of Claims by the Architect
13.4.2
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Waiver of Claims by the Contractor
4.3.10, 9.10.5, 11.4.7, 13.4.2
Waiver of Claims by the Owner
4.3.10, 9.9.3, 9.10.3, 9.10.4, 11.4.3, 11.4.5, 11.4.7, 12.2.2.1, 13.4.2, 14.2.4
Waiver of Consequential Damages
4.3.10, 14.2.4
Waiver of Liens
9.10.2, 9.10.4
Waivers of Subrogation
6.1.1, 11.4.5, 11.4.7
Warranty
3.5, 4.2.9, 4.3.5.3, 9.3.3, 9.8.4, 9.9.1, 9.10.4, 12.2.2, 13.7.1.3
Weather Delays
4.3.7.2
Work, Definition of
1.1.3
Written Consent
1.6, 3.4.2, 3.12.8, 3.14.2, 4.1.2, 4.3.4, 4.6.4, 9.3.2, 9.8.5, 9.9.1, 9.10.2, 9.10.3, 11.4.1, 13.2, 13.4.2
Written Interpretations
4.2.11, 4.2.12, 4.3.6
Written Notice
2.3, 2.4, 3.3.1, 3.9, 3.12.9, 3.12.10, 4.3, 4.4.8, 4.6.5, 5.2.1, 8.2.2, 9.7, 9.10, 10.2.2, 10.3, 11.1.3, 11.4.6, 12.2.2, 12.2.4, 13.3, 14
Written Orders
1.1.1, 2.3, 3.9, 4.3.6, 7, 8.2.2, 11.4.9, 12.1, 12.2, 13.5.2, 14.3.1
ARTICLE 1 GENERAL PROVISIONS
§ 1.1 BASIC DEFINITIONS
§ 1.1.1 THE CONTRACT DOCUMENTS
The Contract Documents consist of the Agreement between Owner and Contractor (hereinafter the Agreement), Conditions of the
Contract (General, Supplementary and other Conditions), Drawings, Specifications, Addenda issued prior to execution of the Contract,
other documents listed in the Agreement and Modifications issued after execution of the Contract. A Modification is (1) a written
amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a
minor change in the Work issued by the Architect. The Contract Documents shall also include Instructions to Bidders, Invitation to
Bid, sample forms, the Bid Response form, and Contractor’s Bid.
§ 1.1.2 THE CONTRACT
The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the
parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended
or modified only by a Modification. The Contract Documents shall not be construed to create a contractual relationship of any kind (1)
between the Architect and Contractor, (2) between the Owner and a Subcontractor or Sub-subcontractor, (3) between the Owner and
Architect or (4) between any persons or entities other than the Owner and Contractor. The Architect shall, however, be entitled to
performance and enforcement of obligations under the Contract intended to facilitate performance of the Architect's duties.
§ 1.1.3 THE WORK
The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed,
and includes all other labor, materials, equipment and services provided or to be provided by the Contractor to fulfill the Contractor's
obligations. The Work may constitute the whole or a part of the Project.
§ 1.1.4 THE PROJECT
The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and
which may include construction by the Owner or by separate contractors.
§ 1.1.5 THE DRAWINGS
The Drawings are the graphic and pictorial portions of the Contract Documents showing the design, location and dimensions of the
Work, generally including plans, elevations, sections, details, schedules and diagrams.
§ 1.1.6 THE SPECIFICATIONS
The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment,
systems, standards and workmanship for the Work, and performance of related services. The Specifications are of the abbreviated or
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"streamlined" type and include incomplete sentences. Omissions of words or phrases such as "the Contractor shall," "in conformity
therewith," "shall be," "as noted," or "as indicated" or "as noted and/or indicated on the Drawings," "according to the Plans," "A,"
"an," the," and "all" are intentional. Omitted words or phrases shall be supplied by inference in the same manner as they are when a
"Note" occurs on the Drawings. Where "as directed," "as required," "as permitted," "as approved," "as accepted," or words of similar
import are used, it shall be understood that the directions, requirements, permission, approval, and acceptance of the Architect is
intended unless otherwise stated.
§ 1.1.7 THE PROJECT MANUAL
The Project Manual is a volume or volumes assembled for the Work which may include the bidding requirements, sample forms,
Conditions of the Contract and Specifications."
§ 1.1.8 THE ARCHITECT
The Architect for this Project is _______________ and its authorized representatives.
§ 1.1.9 RECORD DRAWINGS
Record Drawings are drawings maintained by the Contractor during the period of construction of the Project. The Record Drawings
shall depict, on the appropriate drawings, all deviations to the Contract Drawings. Permitted set by CID would be the Record
Drawings and shall be delivered to the Owner with the Application for Final Payment.
§ 1.1.10 REQUEST FOR INFORMATION
Contractor may ask questions and make inquiries with respect to the Contract documents. Such inquiries and questions shall be made
in writing in the form of a request for information to the Architect. The Architect shall respond to requests for information in a
reasonable time.
§ 1.1.11 MODIFICATION CHANGE REQUEST
A Modification Change Request (“MCR”) is a form which initiates the change order process. The MCR is form which is provided to
the Contractor by the Owner. The MCR shall be completed and signed by the Owner, Architect, and Contractor prior to the
Contractor starting work on any proposed change order. The MCR is utilized for the purpose of authorizing work prior to the
execution of a fully completed change order.
§ 1.1.12 SECTIONS AND SUBPARAGRAPHS
As used in these Owner modified General Conditions of the Contract for Construction, the terms “Section(s)” and “Subparagraph(s)”
refer to the Sections and Subparagraphs contained in these General Conditions unless otherwise noted.
§ 1.2 CORRELATION AND INTENT OF THE CONTRACT DOCUMENTS
§ 1.2.1 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by
the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all;
performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable
from them as being necessary to produce the indicated results. In the event of conflicts or discrepancies within the Contract
Documents such as between referenced codes, standards, drawings, specifications or Project Manual or any combination thereof, the
most stringent requirements or provisions shall govern. The codes and standards specified in the Contract Documents shall be the
"Edition" including supplements and revisions in effect at time of bid.
§ 1.2.2 Organization of the Specifications into divisions, sections and articles, and arrangement of Drawings shall not control the
Contractor in dividing the Work among Subcontractors or in establishing the extent of Work to be performed by any trade.
§ 1.2.3 Unless otherwise stated in the Contract Documents, words which have well-known technical or construction industry meanings
are used in the Contract Documents in accordance with such recognized meanings.
§ 1.2.4 Each Section of Specifications shall be deemed to have as its leading Article the following, which shall become part of each
section as if written out in full:
SCOPE OF WORK: Contractor performing this Work shall furnish all labor, equipment, tools, appurtenances, and materials, except
those specified to be furnished by others, and pay for all special taxes or permits necessary to complete all Work as hereinafter
required, or as shown or called for on Drawings, in the best accepted workmanlike manner.
The PART 2 PRODUCTS portion of each work section of the Specifications shall be deemed to have as its last Article the following,
which shall become part of each section as if written out in full:
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OTHER MATERIALS: All other materials, products, etc., not specifically described but required for a complete and proper
installation of the Work of this Section or the Project, shall be new, first quality of their respective kinds, submitted to the Architect
for approval, and furnished and installed at Contractor's expense."
§ 1.2.5 In the event of conflicts or discrepancies among the Contract Documents, interpretations will be based on the following
priorities:
.1 Addenda/Amendments, with those of later date having precedence over those of earlier date.
.2 Specifications.
.3 Drawings.
.4 The Supplementary Conditions.
.5 The Agreement, AIA A101, current edition.
.6 The General Conditions of the Contract for Construction, A1A, A201, 2007 Edition, as amended.
.7 The Instructions to Bidders.
.8 Bid Terms and Conditions.
In the case of an inconsistency between Drawings and Specifications or within either Document not clarified by addendum, the better
quality or greater quantity of Work shall be provided in accordance with the Owner's Interpretation.
§ 1.3 CAPITALIZATION
§ 1.3.1 Terms capitalized in these General Conditions include those which are (1) specifically defined, (2) the titles of numbered
articles or (3) the titles of other documents published by the American Institute of Architects.
§ 1.4 INTERPRETATION
§ 1.4.1 In the interest of brevity the Contract Documents frequently omit modifying words such as "all" and "any" and articles such as
"the" and "an," but the fact that a modifier or an article is absent from one statement and appears in another is not intended to affect
the interpretation of either statement.
§ 1.5 EXECUTION OF CONTRACT DOCUMENTS
§ 1.5.1 The Contract Documents shall be signed in not less than quintuplicate by the Owner and Contractor. No contract shall be
binding on the Owner until it has been fully executed and approved pursuant to applicable CNM rules, procedures, regulations, and
statutes, which will be made available to Contractor upon request.
§ 1.5.2 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become generally
familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the
Contract Documents.
§ 1.5.3 The Contractor shall familiarize himself with the work required by each subcontractor or material supplier. Where it is
specified that certain work is excluded from a work section of the Technical Provisions of the Specifications, the Contractor shall
either specifically assign such excluded work to the proper subcontractor, or shall assume such responsibility as his own to furnish,
install or complete.
§ 1.6 OWNERSHIP AND USE OF DRAWINGS, SPECIFICATIONS AND OTHER INSTRUMENTS OF SERVICE
§ 1.6.1 All original drawings and specifications, Instruments of Service and other documents furnished by the Architect become the
property of this Owner and are not to be used by the Contractor or any Subcontractor, Sub-subcontractor, or material or equipment
supplier on other projects or for additions to this Project outside the scope of Work without the specific written consent of the Owner.
The Contractor, Subcontractors, Sub-subcontractors and material or equipment suppliers are authorized to use and reproduce
applicable portions of the Drawings, Specifications and other documents prepared by the Architect and the Architect’s consultants
appropriate to and for use in the execution of their Work under the Contract Documents."
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ARTICLE 2 OWNER
§ 2.1 GENERAL
§ 2.1.1 The Owner is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents as
if singular in number. The Owner shall designate in writing a representative who shall have express authority to bind the Owner with
respect to all matters requiring the Owner's approval or authorization. Except as otherwise provided in Section 4.2.1, the Architect
does not have such authority. The term "Owner" means the Owner or the Owner's authorized representative.
§ 2.1.2 Owner's Representatives: The Owner's Purchasing Director and Vice President for Finance and Operations shall be the
Owner's Representatives, authorized to act on the Owner's behalf with respect to oversight and approval of the Construction Contract
and Change Orders. The Owner's Facilities Construction Project Manager shall be the Owner's Representative with respect to
oversight of the project and work to be completed. The Purchasing Director further designates authority to the Owner’s Facilities
Construction Project Manager to recommend and approve change orders that do not exceed $10,000.00.
§ 2.2 INFORMATION AND SERVICES REQUIRED OF THE OWNER
§ 2.2.1 INTENTIONALLY OMITTED
§ 2.2.2 Except for permits and fees, including those required under Section 3.7.1, which are the responsibility of the Contractor under
the Contract Documents, the Owner shall secure and pay for necessary approvals, easements, assessments and charges required for
construction, use or occupancy of permanent structures or for permanent changes in existing facilities.
§ 2.2.3 The Owner shall furnish surveys describing physical characteristics, legal limitations and utility locations for the site of the
Project, and a legal description of the site. The Contractor shall be entitled to rely on the accuracy of information furnished by the
Owner but shall exercise proper precautions relating to the safe performance of the Work.
§ 2.2.4 Information or services required of the Owner by the Contract Documents shall be furnished by the Owner with reasonable
promptness. Any other information or services relevant to the Contractor's performance of the Work under the Owner's control shall
be furnished by the Owner after receipt from the Contractor of a written request for such information or services.
§ 2.2.5 The Contractor will be furnished free of charge a minimum of fifteen (15) copies of the Drawings and Project Manuals. If
additional sets are available from the bid process, Owner may, at no charge, distribute such additional sets to Contractor, at Owner’s
sole discretion. Additional sets will be furnished to the Contractor at the cost of reproduction, postage and handling.
§ 2.3 OWNER'S RIGHT TO STOP THE WORK
§ 2.3.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents as required
by Section 12.2 or persistently fails to carry out Work in accordance with the Contract Documents, the Owner may issue a written
order to the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, the right
of the Owner to stop the Work shall not give rise to a duty on the part of the Owner to exercise this right for the benefit of the
Contractor or any other person or entity, except to the extent required by Section 6.1.3.
§ 2.4 OWNER'S RIGHT TO CARRY OUT THE WORK
§ 2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a
seven-day period after receipt of written notice from the Owner to commence and continue correction of such default or neglect with
diligence and promptness, the Owner may after such seven-day period give the Contractor a second written notice to correct such
deficiencies within a three-day period. If the Contractor within such three-day period after receipt of such second notice fails to
commence and continue to correct any deficiencies, the Owner may, without prejudice to other remedies the Owner may have, correct
such deficiencies. In such case an appropriate Change Order and/or Construction Directive shall be issued deducting from payments
then or thereafter due the Contractor the reasonable cost of correcting such deficiencies, including Owner's expenses and
compensation for the Architect's additional services made necessary by such default, neglect or failure. Such action by the Owner and
amounts charged to the Contractor are both subject to prior approval of the Architect. If payments then or thereafter due the Contractor
are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner.
§2.5 OWNER’S RIGHT TO VISIT THE JOB SITE AND REQUEST CHANGES IN WORK
§2.5.1 The Owner shall at all times have access to the Work whenever it is in preparation and progress. The Owner, as outlined in the
Contract Documents, shall request change orders through the Architect. The final acceptance of the Project shall be made by
representatives of the Architect and the Owner.
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ARTICLE 3 CONTRACTOR
§ 3.1 GENERAL
§ 3.1.1 The Contractor is the person or entity identified as such in the Agreement and is referred to throughout the Contract Documents
as if singular in number. The term "Contractor" means the Contractor or the Contractor's authorized representative.
§ 3.1.2 The Contractor shall perform the Work in accordance with the Contract Documents.
§ 3.1.3 The Contractor shall not be relieved of obligations to perform the Work in accordance with the Contract Documents either by
activities or duties of the Architect in the Architect's administration of the Contract, or by tests, inspections or approvals required or
performed by persons other than the Contractor.
§ 3.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR
§ 3.2.1 Before each portion of the Work the Contractor shall carefully study and compare the various drawings and other Contract
Documents relative to that portion of the Work, as well as the information furnished by the Owner pursuant to Subparagraph 2.2.3 and
shall report promptly to the Architect errors, inconsistencies or omissions discovered. If the Contractor performs any construction
activity knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to the
Architect, the Contractor shall assume responsibility for such performance and shall bear all the costs for correction.
§ 3.2.2 Any design errors or omissions noted by the Contractor during this review shall be reported promptly to the Architect, but it is
recognized that the Contractor's review is made in the Contractor's capacity as a contractor and not as a licensed design professional
unless otherwise specifically provided in the Contract Documents. The Contractor is not required to ascertain that the Contract
Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations, but any
nonconformity discovered by or made known to the Contractor shall be reported promptly to the Architect.
§ 3.2.3 If the Contractor believes that additional cost or time is involved because of clarifications or instructions issued by the Architect
in response to the Contractor’s notices or requests for information pursuant to Subparagraphs 3.2.1, 3.2.2 and 3.2.4, the Contractor
shall make Claims as provided in Subparagraphs 4.3.6 and 4.3.7. If the Contractor fails to perform the obligations of Subparagraphs
3.2.1, 3.2.2 and 3.2.4, the Contractor shall pay such costs and damages to the Owner as would have been avoided if the Contractor had
performed such obligations. The Contractor shall not be liable to the Owner or Architect for damage resulting from errors,
inconsistencies or omissions in the Contract Documents unless the Contractor should have recognized such error, inconsistency or
omission and failed to report it to the Architect.
§ 3.2.4 The Contractor shall take field measurements and verify field conditions and shall carefully compare such field measurements
and conditions and other information known to the Contractor with the Contract Documents before commencing activities. Errors,
inconsistencies or omissions shall be reported to the Architect at once.
§ 3.3 SUPERVISION AND CONSTRUCTION PROCEDURES
§ 3.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be
solely responsible for and have control over construction means, methods, techniques, sequences and procedures and for coordinating
all portions of the Work under the Contract, unless the Contract Documents give other specific instructions concerning these matters.
If the Contract Documents give specific instructions concerning construction means, methods, techniques, sequences or procedures,
the Contractor shall evaluate the jobsite safety thereof and, except as stated below, shall be fully and solely responsible for the jobsite
safety of such means, methods, techniques, sequences or procedures. If the Contractor determines that such means, methods,
techniques, sequences or procedures may not be safe, the Contractor shall give timely written notice to the Owner and Architect and
shall not proceed with that portion of the Work without further written instructions from the Architect.
§ 3.3.2 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors and
their agents and employees, and other persons or entities performing portions of the Work for or on behalf of the Contractor or any of
its Subcontractors.
§ 3.3.3 The Contractor shall be responsible for inspection of portions of Work already performed to determine that such portions are in
proper condition to receive subsequent Work.
§ 3.3.4 The Contractor shall lay out Work, be responsible for measurements, exercise proper precaution to verify all dimensions,
grades, lines, utility connections and levels, before layout of Work, and will be held responsible for any errors therein that otherwise
might have been avoided. The Architect shall be promptly informed of any errors or discrepancies discovered in the Drawings and
Project Manual, in order that the proper correction may be made. The Work must be executed systematically and so managed at all
times to insure the Contractor maintains the Project Schedule.
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§ 3.3.5 The Contractor shall at the completion of the Work, and prior to receipt of the final payment for construction, furnish to the
Architect, at the Contractor's expense, "Record" Drawings. The Contractor shall maintain during the period of construction a record
of all deviations to the Contract Drawings to facilitate the completion of the "Record" drawings." Record drawings shall be delivered
to the Owner with the application for final payment.
§ 3.4 LABOR AND MATERIALS
§ 3.4.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for labor, materials, equipment,
tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper
execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the
Work.
§ 3.4.2 The Contractor may make substitutions only with the consent of the Owner, after evaluation by the Architect and in accordance
with a Change Order.
§ 3.4.3 By making requests for substitutions based on Subparagraph 3.4.2 above, the Contractor:
1. represents that the Contractor has personally investigated the proposed substitute product and determined that it is equal
or superior in all respect to that specified;
2. represents that the Contractor will provide the same warranty for the substitution that the Contractor would for that
specified;
3. certifies that the cost data presented is complete and includes all related costs under this Contract except the Architect's
redesign costs, and waives all claims for additional costs related to the substitution which subsequently become apparent; and
4. will coordinate the installation of the accepted substitute, making such changes as may be required for the Work to be
completed in all respects.
§ 3.4.4 The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out
the Contract. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them.
§ 3.4.5 The Contractor and all Subcontractors and Sub subcontractors on the Project shall use, whenever the species of lumber
necessary for such construction or repair work is available in the State of New Mexico, such species of lumber produced from the
timber grown in the State of New Mexico in accordance with NMSA 1978 § 13 4 7 as amended.
§ 3.4.6 The Contractor shall make contributions to approved apprentice and training programs in New Mexico in which the Contractor
is a participant or to the public works apprentice and training fund administered by the Public Works Bureau of the Labor and
Industrial Division of the New Mexico Labor Department, all as required pursuant to the New Mexico Public Works Apprentice and
Training Act, NMSA 1978 § 13 4D 1 et seq. as amended.
§ 3.5 WARRANTY
§ 3.5.1 The Contractor warrants to the Owner and Architect that materials and equipment furnished under the Contract will be of good
quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not
inherent in the quality required or permitted, and that the Work will conform to the requirements of the Contract Documents. Work
not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective.
The Contractor's warranty excludes remedy for damage or defect caused by abuse, modifications not executed by the Contractor,
improper or insufficient maintenance, improper operation, or normal wear and tear and normal usage. If required by the Architect, the
Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.
§ 3.5.2 The Contractor shall and hereby does warrant to Owner all workmanship, labor, and materials performed and supplied by him
or his subcontractors, for a period of one (1) year from the date of completion as evidenced by date of fully executed Certificate of
Substantial Completion identified in Section 9.8. This also includes all labor required for replacing materials or equipment found to
be defective within the one (1) year period. All warranties for a longer period of time required by the Contract Documents shall be
secured by the Contractor from subcontractors and delivered to the Architect and are hereby warranted by the Contractor as much as if
countersigned by him.
§ 3.6 TAXES
§ 3.6.1 The Contractor shall pay sales, consumer, use and similar taxes for the Work provided by the Contractor which are legally
enacted when bids are received or negotiations concluded, whether or not yet effective or merely scheduled to go into effect.
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§ 3.6.2 All Contractors on the Project shall comply with provisions of the New Mexico Gross Receipts (NMGRT) and Compensating
Tax Act, NMSA 1978 § 7-9-1 et seq. as amended, and all amendments to same and require all of their subcontractors to do likewise.
§ 3.7 PERMITS, FEES AND NOTICES
§ 3.7.1 Unless otherwise provided in the Contract Documents, the Contractor shall secure and pay for the building permit and other
permits and governmental fees, licenses and inspections necessary for proper execution and completion of the Work which are
customarily secured after execution of the Contract and which are legally required when bids are received or negotiations concluded.
§ 3.7.2 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations and lawful orders of public
authorities applicable to performance of the Work.
§ 3.7.3 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws,
statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract
Documents are at variance therewith, the Contractor shall promptly notify the Architect and Owner in writing, and necessary changes
shall be accomplished by appropriate Modification.
§ 3.7.4 If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and rules and
regulations without such notice to the Architect and Owner, the Contractor shall assume appropriate responsibility for such Work and
shall bear the costs attributable to correction.
§ 3.7.5 The Contractor shall procure and pay for all building fees and permits. Building permits shall be obtained from the applicable
Code Administration Department or agency having jurisdiction over the Project, Albuquerque, New Mexico, or other regulatory
agency; in addition, the Contractor shall obtain all additional fees and permits not necessarily aforementioned but required for the
Work and pay all additional required fees to same. The Owner shall pay fees for water meters and impact fees.
§ 3.8 ALLOWANCES
§ 3.8.1 INTENTIONALLY OMITTED
§ 3.8.2 INTENTIONALLY OMITTED
§ 3.8.3 INTENTIONALLY OMITTED
§ 3.9 SUPERINTENDENT
§ 3.9.1 The Contractor shall employ a competent superintendent and necessary assistants who shall be in attendance at the Project site
during performance of the Work. The superintendent shall represent the Contractor, and communications given to the superintendent
shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall
be similarly confirmed on written request in each case.
§ 3.10 CONTRACTOR'S CONSTRUCTION SCHEDULES
§ 3.10.1 The Contractor, promptly after being awarded the Contract, shall prepare and submit for the Owner's and Architect's
information a Contractor's construction schedule for the Work. The schedule shall not exceed time limits current under the Contract
Documents, shall be revised at appropriate intervals as required by the conditions of the Work and Project, shall be related to the entire
Project to the extent required by the Contract Documents, and shall provide for expeditious and practicable execution of the Work.
The Contractor's proposed schedule shall be submitted for the Owner's and Architect’s review and information only and does not
constitute approval by the Owner or the Architect.
§ 3.10.2 The Contractor shall prepare and keep current, for the Architect's approval, a schedule of submittals which is coordinated with
the Contractor's construction schedule and allows the Architect reasonable time to review submittals.
§ 3.10.3 The Contractor shall perform the Work in general accordance with the most recent schedules submitted to the Owner and
Architect.
§ 3.10.4 Within ten (10) calendar days after receipt of "Notice to Proceed," the Contractor shall submit a Progress Schedule to the
Architect. It shall be revised by Contractor from time to time but at least monthly to reflect all changes in contract work and
adjustments in time, money, or both that are approved by the Architect after consultation with the Owner. Schedule shall show date of
commencement of work on each pertinent phase or item of construction, percentage of scheduled completion at end of each ten (10)
days, and date of completion of each phase or item of Work. Progress schedule shall indicate labor, materials and equipment actually
incorporated into the Work (construction in place). No payment will be made without the Owner having reviewed the progress
schedule submittal.
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§ 3.11 DOCUMENTS AND SAMPLES AT THE SITE
§ 3.11.1 The Contractor shall maintain at the site for the Owner one record copy of the Drawings, Specifications, Addenda, Change
Orders and other Modifications, in good order and marked currently to record field changes and selections made during construction,
and one record copy of approved Shop Drawings, Product Data, Samples and similar required submittals. These shall be available to
the Architect and shall be delivered to the Architect for submittal to the Owner upon completion of the Work.
§ 3.12 SHOP DRAWINGS, PRODUCT DATA AND SAMPLES
§ 3.12.1 Shop Drawings are drawings, diagrams, schedules and other data specially prepared for the Work by the Contractor or a
Subcontractor, Sub-subcontractor, manufacturer, supplier or distributor to illustrate some portion of the Work.
§ 3.12.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information
furnished by the Contractor to illustrate materials or equipment for some portion of the Work.
§ 3.12.3 Samples are physical examples which illustrate materials, equipment or workmanship and establish standards by which the
Work will be judged.
§ 3.12.4 Shop Drawings, Product Data, Samples and similar submittals are not Contract Documents. The purpose of their submittal is
to demonstrate for those portions of the Work for which submittals are required by the Contract Documents the way by which the
Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the
Architect is subject to the limitations of Section 4.2.7. Informational submittals upon which the Architect is not expected to take
responsive action may be so identified in the Contract Documents. Submittals which are not required by the Contract Documents may
be returned by the Architect without action.
§ 3.12.5 The Contractor shall review for compliance with the Contract Documents, approve and submit to the Architect Shop
Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such
sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Submittals which are not
marked as reviewed for compliance with the Contract Documents and approved by the Contractor may be returned by the Architect
without action.
§ 3.12.6 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the
Contractor has determined and verified materials, field measurements and field construction criteria related thereto, or will do so, and
has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract
Documents.
§ 3.12.7 The Contractor shall perform no portion of the Work for which the Contract Documents require submittal and review of Shop
Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect.
§ 3.12.8 The Work shall be in accordance with approved submittals except that the Contractor shall not be relieved of responsibility for
deviations from requirements of the Contract Documents by the Architect's approval of Shop Drawings, Product Data, Samples or
similar submittals unless the Contractor has specifically informed the Architect in writing of such deviation at the time of submittal
and (1) the Architect has given written approval to the specific deviation as a minor change in the Work, or (2) a Change Order or
Construction Change Directive or an MCR has been issued authorizing the deviation. The Contractor shall not be relieved of
responsibility for errors or omissions in Shop Drawings, Product Data, Samples or similar submittals by the Architect's approval
thereof.
§ 3.12.9 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar
submittals, to revisions other than those requested by the Architect on previous submittals. In the absence of such written notice the
Architect's approval of a resubmission shall not apply to such revisions.
§ 3.12.10 The Contractor shall not be required to provide professional services which constitute the practice of Architecting or
Architecting unless such services are specifically required by the Contract Documents for a portion of the Work or unless the
Contractor needs to provide such services in order to carry out the Contractor's responsibilities for construction means, methods,
techniques, sequences and procedures. The Contractor shall not be required to provide professional services in violation of applicable
law. If professional design services or certifications by a design professional related to systems, materials or equipment are
specifically required of the Contractor by the Contract Documents, the Owner and the Architect will specify all performance and
design criteria that such services must satisfy. The Contractor shall cause such services or certifications to be provided by a properly
licensed design professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop
Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or
certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to the Architect.
The Owner and the Architect shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or
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approvals performed by such design professionals, provided the Owner and Architect have specified to the Contractor all performance
and design criteria that such services must satisfy. Pursuant to this Section 3.12.10, the Architect will review, approve or take other
appropriate action on submittals only for the limited purpose of checking for conformance with information given and the design
concept expressed in the Contract Documents. The Contractor shall not be responsible for the adequacy of the performance or design
criteria required by the Contract Documents.
§ 3.13 USE OF SITE
§ 3.13.1 The Contractor shall confine operations at the site to areas permitted by law, ordinances, permits and the Contract Documents
and shall not unreasonably encumber the site with materials or equipment.
§ 3.13.2 The Contractor’s scheduled outage/tie-in plan, time, and date is subject to approval by the Owner. Failure of Contractor to
secure Owner’s approval shall cause the Contractor to waive any right to an adjustment of the Contract Sum or Contract Time for any
postponement, rescheduling or other delays ordered by Owner in connection with such Work. Owner’s approval shall not be
unreasonably withheld.
The Contractor shall coordinate all Work so there shall be no prolonged interruption of existing utilities, systems and equipment of
Owner. Any existing plumbing, heating, ventilating, air conditioning, or electrical disconnection necessary, which affect portions of
this construction or building or any other building, must be scheduled with the Owner to avoid any disruption of operation within the
building under construction or other buildings or utilities. In no case shall utilities be left disconnected at the end of a workday or over
a weekend. Any interruption of utilities, either intentionally or accidentally, shall not relieve the Contractor from repairing and
restoring the utility to normal service. Repairs and restoration shall be made before the workers responsible for the repair and
restoration leave the job.
The Contractor shall be responsible for repair of damage to property caused by the Contractor on or off the project occurring during
construction of the project, and all such repairs shall be make to meet code requirements or to the satisfaction of the Owner if code is
not applicable, if possible, given the availability of parts, equipment and services necessary to effect the repair/restoration. Cost of
expediting repair/restoration shall be the Contractor’s provided the cause of the accidental interruption is the Contractor’s.
§ 3.13.3 The Contractor shall limit operations and storage of material to the area within the Work limit lines shown on Drawings,
except as necessary to connect to existing utilities, shall not encroach on neighboring property, and shall exercise caution to prevent
damage to existing structures.
The Contractor shall ensure that the Work is at all times performed in a manner that affords reasonable access, both vehicular and
pedestrian, to the site of the Work and all adjacent areas. The Work shall be performed in such a manner that public areas adjacent to
the site of the Work shall be free from all debris, building materials and equipment likely to cause hazardous conditions. Without
limitations of any other provision of the Contract Documents, Contractor shall not interfere with the occupancy or beneficial use of (1)
any areas and buildings adjacent to the site of the Work or (2) the work in the event of partial occupancy. Owner may agree, in
writing, to disruption of adjacent buildings, if necessary to properly perform the Work. Contractor shall assume full responsibility for
any damage to the property comprising the work or to the owner or occupant of any adjacent land or areas resulting from the
performance of the Work.
The Contractor shall not permit any workers to use existing facilities at the Work site, including, without limitation, lavatories, toilets,
entrances and parking areas other than those designated by Owner. The Contractor, Subcontractor of any tier, suppliers and
employees shall comply with instructions or regulations of the Owner’s governing access to, operation of, and conduct while in or on
the premises and shall perform all Work required under the contract Documents in such a manner as not to unreasonably interrupt or
interfere with the conduct of Owner’s operations. Any request for Work, a suspension of Work or any other request or directive
received by the Contractor from occupants of existing buildings shall be referred to the Owner for determination.
The Contractor shall keep the Work site and surrounding areas free from accumulation of waste materials, rubbish, debris, and dirt
resulting from the Work and shall clean the Work site and surrounding areas as requested by the Owner. The Contractor shall be
responsible for clean up and removal of debris from premises. The building and premises shall be kept clean, safe, in workmanlike
manner, in compliance with OSHA standards at all times. At completion of the Work, the Contractor shall remove from and about the
Work site tools, construction equipment, machinery, fencing, and surplus materials. Further, at the completion of the work, all dirt,
stains, and smudges shall be removed from every part of the building, all glass in doors and windows shall be washed, and entire
Work shall be left broom clean in a finished state ready for occupancy. If the Contractor fails to comply with the provisions of this
paragraph, the Owner may do so, upon proper notice, and the cost shall be charged to the Contractor.
§ 3.14 CUTTING AND PATCHING
§ 3.14.1 The Contractor shall be responsible for cutting, fitting or patching required to complete the Work or to make its parts fit
together properly.
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§ 3.14.2 The Contractor shall not damage or endanger a portion of the Work or fully or partially completed construction of the Owner
or separate contractors by cutting, patching or otherwise altering such construction, or by excavation. The Contractor shall not cut or
otherwise alter such construction by the Owner or a separate contractor except with written consent of the Owner and of such separate
contractor; such consent shall not be unreasonably withheld. The Contractor shall not unreasonably withhold from the Owner or a
separate contractor the Contractor's consent to cutting or otherwise altering the Work.
§ 3.15 CLEANING UP
§ 3.15.1 The Contractor shall keep the premises and surrounding area free from accumulation of waste materials or rubbish caused by
operations under the Contract. At completion of the Work, the Contractor shall remove from and about the Project waste materials,
rubbish, the Contractor's tools, construction equipment, machinery and surplus materials.
§ 3.15.2 If the Contractor fails to clean up as provided in the Contract Documents, the Owner may do so and the cost thereof shall be
charged to the Contractor.
§ 3.16 ACCESS TO WORK
§ 3.16.1 The Contractor shall provide the Owner and Architect access to the Work in preparation and progress wherever located.
§ 3.17 ROYALTIES, PATENTS AND COPYRIGHTS
§ 3.17.1 The Contractor shall pay all royalties and license fees. The Contractor shall defend suits or claims for infringement of
copyrights and patent rights and shall hold the Owner and Architect harmless from loss on account thereof, but shall not be
responsible for such defense or loss when a particular design, process or product of a particular manufacturer or manufacturers is
required by the Contract Documents or where the copyright violations are contained in Drawings, Specifications or other documents
prepared by the Owner or Architect. However, if the Contractor has reason to believe that the required design, process or product is an
infringement of a copyright or a patent, the Contractor shall be responsible for such loss unless such information is promptly furnished
to the Architect.
§ 3.18 INDEMNIFICATION
§ 3.18.1 To the fullest extent permitted by law, the Contractor shall indemnity and hold harmless the Owner, Architect,
Architect’s consultants, and agents, officers, and employees of any of them, against liability, claims, damages, losses, and
expenses, including but not limited to attorneys’ fees, arising out of or resulting from performance of the Work , provided that
such claim, damage, loss, or expenses is attributable to bodily injury, sickness, disease, or death, or to physical injury to real or
personal property, including the loss of use resulting therefrom, but only to the extent that the liability, damages, losses, or costs
are caused by, or arise out of, the acts or omissions of the Contractor or its officers, employees, or agents. Both parties to this
Contract represent and agree that this indemnity provision is valid and enforceable and meets the requirements of N.M. Stat.
Ann. § 56-7-1 (1978 as amended).
Architect
§ 3.18.2 In claims against any person or entity indemnified under this Section 3.18 by an employee of the Contractor, a Subcontractor,
anyone directly or indirectly employed by them or anyone for whose acts they may be liable, the indemnification obligation under
Section 3.18.1 shall not be limited by a limitation on amount or type of damages, compensation or benefits payable by or for the
Contractor or a Subcontractor under workers' compensation acts, disability benefit acts or other employee benefit acts.
ARTICLE 4 ADMINISTRATION OF THE CONTRACT
§ 4.1 ARCHITECT
§ 4.1.1 The Architect is the person lawfully licensed to practice Architecting or an entity lawfully practicing Architecting identified as
such in the Agreement and is referred to throughout the Contract Documents as if singular in number. The term "Architect" means the
Architect or the Architect's authorized representative.
§ 4.1.2 Duties, responsibilities and limitations of authority of the Architect as set forth in the Contract Documents shall not be
restricted, modified or extended without written consent of the Owner, Contractor and Architect. Consent shall not be unreasonably
withheld.
§ 4.1.3 If the employment of the Architect is terminated, the Owner shall employ a new Architect against whom the Contractor has no
reasonable objection and whose status under the Contract Documents shall be that of the former Architect.
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§ 4.2 ARCHITECT'S ADMINISTRATION OF THE CONTRACT
§ 4.2.1 The Architect will provide administration of the Contract as described in the Contract Documents, (1) during construction, (2)
until final payment is due and (3) with the Owner's concurrence, from time to time during the one-year period for correction of Work
described in Section 12.2. The Architect will have authority to act on behalf of the Owner only to the extent provided in the Contract
Documents, unless otherwise modified in writing in accordance with other provisions of the Contract.
§ 4.2.2 The Architect will visit the site at intervals appropriate to the stage of construction to become generally familiar with the
progress and quality of the completed Work and to determine in general if the Work is being performed in a manner indicating that the
Work, when completed, will be in accordance with the Contract Documents. However, the Architect will not be required to make
exhaustive or continuous on-site inspections to check quality or quantity of the Work. On the basis of on-site observations as an
Architect, the Architect will keep the Owner informed of progress of the Work, and will endeavor to guard the Owner against defects
and deficiencies in the Work.
§ 4.2.2.1 The Architect will, from time to time, make inspections of Work. Contractor shall be responsible for Work being performed
in strict accordance with the Drawings and Specifications, and shall call any deviation to attention of Architect or his representative
immediately upon discovery. The inspection of the Work by the Architect does not relieve the Contractor of any of his responsibility
under the Contract that pertains to matters performed at the site. Contractor shall be responsible for detailed supervision of Work.
Owner and Architect have full authority to demand of the Contractor or his representative that the Contractor comply with all terms of
the Contract and perform Work in strict accordance with Contract Drawings and Specifications. All demands upon the Contractor
shall be made in writing, but where necessary to make demands orally, oral instructions will be confirmed in writing later. Minor
matters that are adjustable amicably need not be in writing, at discretion of party making demand.
§ 4.2.3 The Architect will not be responsible for the Contractor's failure to perform the Work in accordance with the requirements of
the Contract Documents. The Architect will not have control over or charge of and will not be responsible for acts or omissions of the
Contractor, Subcontractors, or their agents or employees, or any other persons or entities performing portions of the Work.
§ 4.2.4 Communications Facilitating Contract Administration. Except as otherwise provided in the Contract Documents or when direct
communications have been specially authorized, the Owner and Contractor shall endeavor to communicate with each other through
the Architect about matters arising out of or relating to the Contract. Communications by and with the Architect's consultants shall be
through the Architect. Communications by and with Subcontractors and material suppliers shall be through the Contractor.
Communications by and with separate contractors shall be through the Owner.
§ 4.2.5 Based on the Architect's evaluations of the Contractor's Applications for Payment, the Architect will review and certify the
amounts due the Contractor and will issue Certificates for Payment in such amounts.
§ 4.2.6 The Architect will have authority to reject Work that does not conform to the Contract Documents. Whenever the Architect
considers it necessary or advisable, the Architect will have authority to require inspection or testing of the Work in accordance with
Sections 13.5.2 and 13.5.3, whether or not such Work is fabricated, installed or completed. However, neither this authority of the
Architect nor a decision made in good faith either to exercise or not to exercise such authority shall give rise to a duty or responsibility
of the Architect to the Contractor, Subcontractors, material and equipment suppliers, their agents or employees, or other persons or
entities performing portions of the Work.
§ 4.2.7 The Architect will review and approve or take other appropriate action upon the Contractor's submittals such as Shop
Drawings, Product Data and Samples, but only for the limited purpose of checking for conformance with information given and the
design concept expressed in the Contract Documents. The Architect's action will be taken with such reasonable promptness as to cause
no delay in the Work or in the activities of the Owner, Contractor or separate contractors, while allowing sufficient time in the
Architect's professional judgment to permit adequate review. Review of such submittals is not conducted for the purpose of
determining the accuracy and completeness of other details such as dimensions and quantities, or for substantiating instructions for
installation or performance of equipment or systems, all of which remain the responsibility of the Contractor as required by the
Contract Documents. The Architect's review of the Contractor's submittals shall not relieve the Contractor of the obligations under
Sections 3.3, 3.5 and 3.12. The Architect's review shall not constitute approval of safety precautions or, unless otherwise specifically
stated by the Architect, of any construction means, methods, techniques, sequences or procedures. The Architect's approval of a
specific item shall not indicate approval of an assembly of which the item is a component.
§ 4.2.8 The Architect will prepare Change Orders and Construction Change Directives as may be authorized and directed by the Owner
as provided in Subparagraph 7.4. Owner will provide forms for changes in the Work.
§ 4.2.9 The Architect will conduct inspections to determine the date or dates of Substantial Completion and the date of final
completion, will receive and forward to the Owner, for the Owner's review and records, written warranties and related documents
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required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon compliance with the
requirements of the Contract Documents.
§ 4.2.10 If the Owner and Architect agree, the Architect will provide one or more project representatives to assist in carrying out the
Architect's responsibilities at the site. The duties, responsibilities and limitations of authority of such project representatives shall be as
set forth in an exhibit to be incorporated in the Contract Documents.
§ 4.2.11 The Architect will interpret and decide matters concerning performance under, and requirements of, the Contract Documents
on written request of the Owner.
§ 4.2.11(a) The Contractor may submit questions or requests for information to the Architect in writing. Responses to such requests for information
shall be in writing and signed by the Architect.
§ 4.2.12 Interpretations and decisions of the Architect will be consistent with the intent of and reasonably inferable from the Contract
Documents and will be in writing or in the form of drawings.
§ 4.2.13 If consistent with the intent expressed in the Contract Documents and with Owner’s Consent, the Architect’s decisions on
matters relating to aesthetic effect will be final.
§ 4.3 CLAIMS AND DISPUTES
§ 4.3.1 Definition. A Claim is a demand or assertion by one of the parties seeking, as a matter of right, adjustment or interpretation of
Contract terms, payment of money, extension of time or other relief with respect to the terms of the Contract. The term "Claim" also
includes other disputes and matters in question between the Owner and Contractor arising out of or relating to the Contract. Claims
must be initiated by written notice. The responsibility to substantiate Claims shall rest with the party making the Claim.
§ 4.3.2 Time Limits on Claims. Claims by either party must be initiated within ten (10) days after occurrence of the event giving rise
to such Claim or within ten (10) days after the claimant first recognizes the condition giving rise to the Claim, whichever is later.
Claims must be initiated by written notice to the Architect and the other party.
§ 4.3.3 Continuing Contract Performance. Pending final resolution of a Claim except as otherwise agreed in writing or as provided in
Section 9.7.1 and Article 14, the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to
make payments in accordance with the Contract Documents.
§ 4.3.4 Claims for Concealed or Unknown Conditions. If conditions are encountered at the site which are (1) subsurface or otherwise
concealed physical conditions which differ materially from those indicated in the Contract Documents or (2) unknown physical
conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in
construction activities of the character provided for in the Contract Documents, then notice by the observing party shall be given to the
other party promptly before conditions are disturbed and in no event later than 5 days after first observance of the conditions. The
Architect will promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor's
cost of, or time required for, performance of any part of the Work, will recommend an equitable adjustment in the Contract Sum or
Contract Time, or both. If the Architect determines that the conditions at the site are not materially different from those indicated in
the Contract Documents and that no change in the terms of the Contract is justified, the Architect shall so notify the Owner and
Contractor in writing, stating the reasons. Claims by either party in opposition to such determination must be made within 21 days
after the Architect has given notice of the decision. Notwithstanding the foregoing, no adjustment in the Contract Sum or Contract
Time or both shall occur except through the change order process in accordance with Article 7.
§ 4.3.5 Claims for Additional Cost. If the Contractor wishes to make Claim for an increase in the Contract Sum, written notice as
provided herein shall be given and written authorization obtained from Accountant and Owner before proceeding to execute the Work.
Prior notice is not required for Claims relating to an emergency endangering life or property arising under Section 10.6.
§ 4.3.6 If the Contractor believes additional cost is involved for reasons including but not limited to (1) a written interpretation from
the Architect, (2) an order by the Owner to stop the Work where the Contractor was not at fault, (3) a written order for a minor change
in the Work issued by the Architect, (4) failure of payment by the Owner, (5) termination of the Contract by the Owner, (6) Owner's
suspension or (7) other reasonable grounds, Claim shall be filed in accordance with this Section 4.3.
§ 4.3.7 Claims for Additional Time
§ 4.3.7.1 If the Contractor wishes to make Claim for an increase in the Contract Time, written notice as provided herein shall be given.
The Contractor's Claim shall include an estimate of cost and of probable effect of delay on progress of the Work. In the case of a
continuing delay only one Claim is necessary.
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§ 4.3.7.2 If adverse weather conditions are the basis for a Claim for additional time, such Claim shall be documented by data
substantiating that weather conditions were abnormal for the period of time, could not have been reasonably anticipated and had an
adverse effect on the scheduled construction.
§ 4.3.8 Injury or Damage to Person or Property. If either party to the Contract suffers injury or damage to person or property because
of an act or omission of the other party, or of others for whose acts such party is legally responsible, written notice of such injury or
damage, whether or not insured, shall be given to the other party within a reasonable time not exceeding 21 days after discovery. The
notice shall provide sufficient detail to enable the other party to investigate the matter.
§ 4.3.9 INTENTIONALLY OMITTED
§ 4.3.10 Claims for Consequential Damages. The Contractor waives all claims against the Owner for all consequential damages
arising out of or relating to this Contract. This waiver includes damages incurred by the Contractor for principal office expenses
including the compensation of personnel stationed there, for losses of financing, business and reputation, and for loss of profit other
than anticipated profits arising directly from the Work. This waiver is applicable, without limitation, to all consequential damages due
to Owner’s termination in accordance with Article 14.
§ 4.4 RESOLUTION OF CLAIMS AND DISPUTES
§ 4.4.1 Decision of Architect. Claims, including those alleging an error or omission by the Architect but excluding those arising under
Paragraph 10.3 through 10.4, shall be referred initially to the Architect for decision. An initial decision by the Architect shall be
required as a condition precedent to mediation and litigation of all Claims between the Contractor and Owner arising prior to the date
final payment is due, unless thirty (30) days have passed after the Claim has been referred to the Architect with no decision having
been rendered by the Architect. The Architect will not decide disputes between the Contractor and persons or entities other than the
Owner.
§ 4.4.2 The Architect will review Claims and within ten days of the receipt of the Claim take one or more of the following actions: (1)
request additional supporting data from the claimant or a response with supporting data from the other party, (2) reject the Claim in
whole or in part, (3) approve the Claim, (4) suggest a compromise, or (5) advise the parties that the Architect is unable to resolve the
Claim if the Architect lacks sufficient information to evaluate the merits of the Claim or if the Architect concludes that, in the
Architect's sole discretion, it would be inappropriate for the Architect to resolve the Claim.
§ 4.4.3 In evaluating claims, the Architect may, but shall not be obligated to, consult with or seek information from either party, or
from persons with special knowledge or expertise who may assist the Architect in rendering a decision.
§ 4.4.4 If the Architect requests a party to provide a response to a Claim or to furnish additional supporting data, such party shall
respond, within ten days after receipt of such request, and shall either provide a response on the requested supporting data, advise the
Architect when the response or supporting data will be furnished or advise the Architect that no supporting data will be furnished.
Upon receipt of the response or supporting data, if any, the Architect will either reject or approve the Claim in whole or in part.
§ 4.4.5 The Architect will approve or reject Claims by written decision, which shall state the reasons therefor and which shall notify
the parties of any change in the Contract Sum or Contract Time or both. The approval or rejection of a Claim by the Architect shall be
final and binding on the parties but subject to mediation and litigation.
§ 4.4.6 INTENTIONALLY OMITTED
§ 4.4.7 Upon receipt of a Claim against the Contractor or at any time thereafter, the Architect or the Owner may, but is not obligated
to, notify the surety, if any, of the nature and amount of the Claim. If the Claim relates to a possibility of a Contractor's default, the
Architect or the Owner may, but is not obligated to, notify the surety and request the surety's assistance in resolving the controversy.
§ 4.4.8 In the event that any dispute is not resolved under the procedures set forth in Paragraphs 4.4.1 through 4.4.7 hereinabove, the
matter shall be submitted to mediation in accordance with Paragraph 4.5.1.
§ 4.4.9 In the event that any dispute is not resolved under the procedures identified in Subparagraphs 4.4.1 through 4.4.8 hereinabove,
either of Contractor or Owner may seek judicial relief in a court of law, which shall be a trial de novo. The parties agree that venue
and jurisdiction for any such action shall properly lie with the Second Judicial District Court, County of Bernalillo, State of New
Mexico. In any such court action, the prevailing party shall be entitled to an award against the non-prevailing party of the prevailing
party’s reasonable attorneys’ fees and court costs in addition to any other awards by the court.
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§ 4.5 MEDIATION
§ 4.5.1 Notwithstanding any provision of any Contract Document to the contrary, any claim, dispute or other matter in question
between the Contractor and the Owner, except those relating to artistic effect as provided in Subparagraph 4.2.13, and except to those
which have been waived by the making or acceptance of final payment as provided in Subparagraph 9.10.4 shall be subject to
mediation pursuant to and under the provisions of the New Mexico Public Works Mediation Act, NMSA 1978 § 13 4C 1 et seq. as
amended. A party seeking to resolve a dispute under this Agreement or any of the Contract Documents shall proceed under the
procedures and provisions of the Public Works Mediation Act subject to the following conditions. No demand for mediation may be
made until the earlier of (1) the date on which the Architect has rendered a written decision, if presented to the Architect, or (2) the
tenth day after the parties have presented their evidence to the Architect or have been given a reasonable opportunity to do so, if the
Architect has not rendered his written decision by that date. When the written decision of the Architect states (1) that the decision is
final and subject to appeal, and (2) that any demand for mediation must be made within thirty (30) days after the date on which the
party making the demand receives the Architect's written decision, failure to demand mediation within the thirty (30) day period will
result in the Architect's decision becoming final and binding on the Owner and Contractor. If the Architect renders a decision after
mediation proceedings have been initiated, such decision may be entered as evidence but will not supersede any mediation
proceedings unless the decision is acceptable to all parties concerned.
§ 4.5.2 INTENTIONALLY OMITTED
§ 4.5.3 INTENTIONALLY OMITTED
§ 4.6 INTENTIONALLY OMITTED
§ 4.6.1 INTENTIONALLY OMITTED
§ 4.6.2 INTENTIONALLY OMITTED
§ 4.6.3 INTENTIONALLY OMITTED
§ 4.6.4 INTENTIONALLY OMITTED
§ 4.6.5 INTENTIONALLY OMITTED
§ 4.6.6 INTENTIONALLY OMITTED
ARTICLE 5 SUBCONTRACTORS
§ 5.1 DEFINITIONS
§ 5.1.1 A Subcontractor is a person or entity who has a direct contract with the Contractor to perform a portion of the Work at the site.
The term "Subcontractor" is referred to throughout the Contract Documents as if singular in number and means a Subcontractor or an
authorized representative of the Subcontractor. The term "Subcontractor" does not include a separate contractor or subcontractors of a
separate contractor.
§ 5.1.2 A Sub-subcontractor is a person or entity who has a direct or indirect contract with a Subcontractor to perform a portion of the
Work at the site. The term "Sub-subcontractor" is referred to throughout the Contract Documents as if singular in number and means a
Sub-subcontractor or an authorized representative of the Sub-subcontractor.
§ 5.2 AWARD OF SUBCONTRACTORS
§ 5.2.1 All awards of subcontracts shall be in accordance with the New Mexico Subcontractors Fair Practices Act.
§ 5.2.2 The Contractor shall not contract with a proposed person or entity to whom the Owner or Architect has made reasonable and
timely objection. The Contractor shall not be required to contract with anyone to whom the Contractor has made reasonable objection.
§ 5.2.3 INTENTIONALLY OMITTED
§ 5.2.4 INTENTIONALLY OMITTED
§ 5.3 SUBCONTRACTUAL RELATIONS
§ 5.3.1 By appropriate agreement, written where legally required for validity, the Contractor shall require each Subcontractor, to the
extent of the Work to be performed by the Subcontractor, to be bound to the Contractor by terms of the Contract Documents, and to
assume toward the Contractor all the obligations and responsibilities, including the responsibility for safety of the Subcontractor's
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Work, which the Contractor, by these Documents, assumes toward the Owner and Architect. Each subcontract agreement shall
preserve and protect the rights of the Owner and Architect under the Contract Documents with respect to the Work to be performed by
the Subcontractor so that subcontracting thereof will not prejudice such rights, and shall allow to the Subcontractor, unless specifically
provided otherwise in the subcontract agreement, the benefit of all rights, remedies and redress against the Contractor that the
Contractor, by the Contract Documents, has against the Owner. Where appropriate, the Contractor shall require each Subcontractor to
enter into similar agreements with Sub-subcontractors. The Contractor shall make available to each proposed Subcontractor, prior to
the execution of the subcontract agreement, copies of the Contract Documents to which the Subcontractor will be bound, and, upon
written request of the Subcontractor, identify to the Subcontractor terms and conditions of the proposed subcontract agreement which
may be at variance with the Contract Documents. Subcontractors will similarly make copies of applicable portions of such documents
available to their respective proposed Sub-subcontractors.
§ 5.4 CONTINGENT ASSIGNMENT OF SUBCONTRACTS
§ 5.4.1 Each subcontract agreement for a portion of the Work is assigned by the Contractor to the Owner provided that:
.1
assignment is effective only after termination of the Contract by the Owner for cause pursuant to Section 14.2 and only
for those subcontract agreements which the Owner accepts by notifying the Subcontractor and Contractor in writing;
and
.2
assignment is subject to the prior rights of the surety, if any, obligated under bond relating to the Contract.
§ 5.4.2 Upon such assignment, if the Work has been suspended for more than 30 days, the Subcontractor's compensation shall be
equitably adjusted for increases in cost resulting from the suspension.
ARTICLE 6 CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS
§ 6.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION AND TO AWARD SEPARATE CONTRACTS
§ 6.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to
award separate contracts in connection with other portions of the Project or other construction or operations on the site under
Conditions of the Contract identical or substantially similar to these including those portions related to insurance and waiver of
subrogation. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor
shall make such Claim as provided in Section 4.3.
§ 6.1.2 When separate contracts are awarded for different portions of the Project or other construction or operations on the site, the
term "Contractor" in the Contract Documents in each case shall mean the Contractor who executes each separate Owner-Contractor
Agreement.
§ 6.1.3 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the
Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the
Owner in reviewing their construction schedules when directed to do so. The Contractor shall make any revisions to the construction
schedule deemed necessary after a joint review and mutual agreement. The construction schedules shall then constitute the schedules
to be used by the Contractor, separate contractors and the Owner until subsequently revised.
§ 6.1.4 Unless otherwise provided in the Contract Documents, when the Owner performs construction or operations related to the
Project with the Owner's own forces, the Owner shall be deemed to be subject to the same obligations and to have the same rights
which apply to the Contractor under the Conditions of the Contract, including, without excluding others, those stated in Article 3, this
Article 6 and Articles 10, 11 and 12.
§ 6.1.5 The Owner reserves the right to place and install as much equipment and machinery during progress of Work as is possible
before completion of various parts of the Work and Contractor and Owner further agree that such placings and installations of
equipment does not in any way evidence the completion of the Work or any portion of it, nor signify the Owner's acceptance of the
Work or any portion of it.
§ 6.2 MUTUAL RESPONSIBILITY
§ 6.2.1 The Contractor shall afford the Owner and separate contractors reasonable opportunity for introduction and storage of their
materials and equipment and performance of their activities, and shall connect and coordinate the Contractor's construction and
operations with theirs as required by the Contract Documents.
§ 6.2.2 If part of the Contractor's Work depends for proper execution or results upon construction or operations by the Owner or a
separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect apparent
discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the
Contractor so to report shall constitute an acknowledgment that the Owner's or separate contractor's completed or partially completed
construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable.
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§ 6.2.3 The Owner shall be reimbursed by the Contractor for costs incurred by the Owner which are payable to a separate contractor
because of delays, improperly timed activities or defective construction of the Contractor. The Owner shall be responsible to the
Contractor for costs not reasonably avoidable incurred by the Contractor because of delays, improperly timed activities, damage to the
Work or defective construction of a separate contractor.
§ 6.2.4 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed
construction or to property of the Owner or separate contractors as provided in Section 10.2.5.
§ 6.2.5 The Owner and each separate contractor shall have the same responsibilities for cutting and patching as are described for the
Contractor in Section 3.14.
§ 6.3 OWNER'S RIGHT TO CLEAN UP
§ 6.3.1 If a dispute arises among the Contractor, separate contractors and the Owner as to the responsibility under their respective
contracts for maintaining the premises and surrounding area free from waste materials and rubbish, the Owner may clean up and the
Architect will allocate the cost among those responsible.
ARTICLE 7 CHANGES IN THE WORK
§ 7.1 GENERAL
§ 7.1.1 Changes in the Work may be accomplished after execution of the Contract, and without invalidating the Contract, by Change
Order, Construction Change Directive, or an Order for a minor change in the Work as issued by the Architect, subject to the
limitations stated in this Article 7 and elsewhere in the Contract Documents.
§ 7.1.2 A Change Order shall be based upon agreement among the Owner, Contractor and Architect; a Construction Change Directive
requires agreement by the Owner and Architect and may or may not be agreed to by the Contractor; an order for a minor change in the
Work may be issued by the Architect alone.
§ 7.1.3 Changes in the Work shall be performed under applicable provisions of the Contract Documents, and the Contractor shall
proceed promptly, unless otherwise provided in the Change Order, Construction Change Directive or order for a minor change in the
Work issued by the Architect.
§ 7.2 CHANGE ORDERS
§ 7.2.1 A Change Order is a written instrument prepared by the Architect and signed by the Owner, Contractor and Architect, stating
their agreement upon all of the following:
.1
change in the Work;
.2
the amount of the adjustment, if any, in the Contract Sum; and
.3
the extent of the adjustment, if any, in the Contract Time.
§ 7.2.1.2 Every Change Order shall be initiated by an agreement by Owner, Architect, and Contractor to a Modification Change Request (MCR) on
the form provided by the Owner. An MCR is a form which initiates the Change Order process. The MCR is a form which is provided to
the Contractor by the Owner. The MCR shall be completed and signed by the Owner, Architect, and Contractor prior to Contractor
starting work on any proposed Change Order. The MCR is a written document utilized for the purposes of authorizing work prior to
the execution of a fully completed Change Order Document.
§ 7.2.2 Methods used in determining adjustments to the Contract Sum may include:
.1 cost plus proposal; or
.2 unit price proposal as defined in the following provisions.
§ 7.2.2.1 Cost Plus Change Order Proposals Architect
.1 The Contractor will submit a properly itemized Cost Plus Change Order Proposal covering the additional work or work to
be deleted. This proposal will be itemized for the various components of Work and segregated by labor, material, and equipment
using the attached Change Order Forms. The Owner will require itemized change orders and contractor pricing certifications on all
Change Order proposals over $10,000.00 from the Contractor, subcontractors, sub subcontractors regardless of tier, and major
material suppliers. Details to be submitted will include a material and labor quantity take off and related pricing information and
extensions (by drawing if applicable). Upon final approval of the MCR, the Contractor shall perform such authorized extra Work at
actual cost for direct labor (working foremen, journeymen, apprentices, helpers, etc.), actual cost of labor burden, actual cost of
material used to perform the extra Work, and actual cost of rental of major equipment (without any charge for administration, clerical
expense, general supervision or superintendence of any nature whatsoever, including general foremen, or the cost or rental of small
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tools, minor equipment, or plant) plus the approved Markup Percentage Fee. Owner and Contractor shall agree in advance in writing
on a maximum price for this Work and Owner shall not be liable for any charge in excess of the maximum.
.2 Labor: Estimated labor costs to be included for self-performed Work shall be based on the actual cost per hour paid by
the Contractor for those workers or crews of workers whom the Contractor reasonably anticipates will perform the Change Order
Work. Estimated labor hours shall include hours only for those workmen and working foremen directly involved in performing the
Change Order Work. Supervision above the level of working foremen (such as general foremen, superintendent, project manager,
etc.) is considered to be included in the agreed upon Markup Percentage Fee.
.3 Labor Burden: Labor burden allowable in Change Orders shall be defined as employer's net actual cost of payroll taxes
(FICA, Medicare, SUTA, FUTA), net actual cost for employer's cost of union benefits, and net actual cost to employer for worker's
compensation insurance taking into consideration adjustments for experience modifiers, premium discounts, dividends, rebates,
expense constants, assigned risk pool costs and assigned risk rebates. Contractor shall reduce their standard payroll tax percentages to
properly reflect the effective cost reduction due to the estimated impact of the annual maximum wages subject to payroll taxes. Labor
burden shall not be considered to include costs of small tools, comprehensive general liability insurance, auto insurance, or umbrella
insurance all of which shall be considered covered by the Markup Percentage Fee.
.4 Material: Estimated material Change Order prices shall reflect the Contractor's reasonably anticipated net actual cost for
the purchase of the material needed for the Change Order Work. Estimated material prices shall reflect the Contractor's reasonably
anticipated cost reductions due to available trade discounts and/or volume rebates.
.5 Equipment: Allowable Change Order estimated costs may include appropriate amounts for rental of major equipment
specifically needed to perform the Change Order Work (defined as tools and equipment with an individual purchase cost of more than
$750). However, the aggregate rentals chargeable for any one piece of equipment shall be limited to 75% of its fair market value at
the time the Change Order is priced.
.6 Markup Percentage Fee: With respect to Cost Plus Change Order Proposals, the Markup Percentage Fee to be paid to any
Contractor (regardless of tier) on self performed work shall be a single markup percentage not to exceed 15% of the net amount of (1)
direct labor and allowable labor burden costs applicable to the Change Order or extra Work; (2) material and equipment incorporated
into the change or extra Work, and (3) rental cost of major equipment necessary to complete the change in the Work.
.7 The Markup Percentage Fee to be paid to any Contractor (regardless of tier) on any Subcontractor Work shall be a single
percentage not to exceed 5% of the total allowable cost of sublet Work.
.8 Sales and use tax (if applicable) shall not be subject to any Markup Percentage Fee. Any sales or use tax properly
payable by the Contractor shall be added after computing the Change Order amount before tax.
.9 As a further clarification, the agreed upon Markup Percentage Fee is intended to cover the Contractor's profit and all
indirect costs associated with the Change Order Work. Items intended to be covered by the Markup Percentage Fee include, but are
not limited to: home office expenses, branch office and field office overhead expense of any kind; project management;
superintendents, general foremen; Architecting; coordination; expediting; purchasing; detailing; legal, accounting, data processing or
other administrative expenses; shop drawings; permits; general liability and excess umbrella insurance; pickup truck costs. The cost
for the use of small tools is also to be considered covered by the Markup Percentage Fee. Small tools shall be defined as tools and
equipment (power or non-power) with an individual purchase cost of less than $750).
.10 The application of the markup percentages referenced in the preceding Subparagraphs 7.2.2.1.7 and 7.2.2.1.8 will apply
to additive Change Orders. In those instances where changes involved both additive and deductive work, the additions and deductions
will be netted and the markup percentage will be applied to the net additive amount.
.11 In no event will any amounts for "contingency" be allowed to be added as a separate line item in change order estimates.
Variables attributable to labor hours will be accounted for when estimating labor hours anticipated to do the work.
.12 The Contractor's proposals and proposed MCR for changes in the Contract Sum or Contract Time shall be submitted
within seven (7) calendar days of the Owner's request, unless the Owner extends such period of time due to the circumstances
involved. If such proposals are not received in a timely manner, if the proposals are not acceptable to Owner, or if the changed Work
should be started immediately to avoid damage to the Project or costly delay, the Owner may direct the Contractor to proceed with the
changes without waiting for the Contractor's proposal or for the formal Change Order or Modification Change Request to be issued.
Such directions to the Contractor by the Owner shall be confirmed in writing by a "Construction Change Directive" letter. The cost,
credit, and time extensions, if any, will be determined by negotiations as soon as practicable thereafter and incorporated in a Change
Order to the Contract.
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.13 Contractor agrees that it is responsible for submitting accurate cost and pricing data to support its Cost Plus Change
Order Proposals or other contract price adjustments under the Contract containing the information identified on the attached Change
Order or Modification Change Request Forms. Contractor further agrees that it will certify that to the best of his knowledge and
belief, the cost and pricing data submitted was accurate, complete, current and in accordance with the terms of the Contract with
respect to pricing of Change Orders. Contractor will also further represent that he has made reasonable good faith inquiries to
appropriate individuals within his organization to confirm that the data submitted was accurate, complete and current. It is agreed that
such certifications will be required for all contract price adjustments. The Contractor shall provide backup documentation or
Contractor will not be paid for the changed work. The Contractor shall not bill or invoice for changed work until the formal Change
Order is agreed to and executed by the Architect, Contractor, and Owner.
.14 Contractor also understands that the Owner has the right to audit the Contractor's records to verify the accuracy and
appropriateness of the pricing data used to price Change Order Proposals. Even after a Change Order Proposal has been approved,
Contractor agrees that if it is later determined by audit or otherwise that the cost and pricing data submitted was inaccurate,
incomplete, not current or not in compliance with the terms of the Contract regarding pricing of Change Orders; then an appropriate
Contract Sum revision will be made.
.15 Contractor also agrees that it will incorporate the provisions of this Subparagraph 7.2.2.1 into all agreements with
subcontractors and major material suppliers. It is understood that the Change Order, pricing terms outlined in this Subparagraph
7.2.2.1 will apply to Contractor, all Subcontractors, all sub subcontractors and all major material suppliers, unless specific
modifications are approved in advance by Owner and documented in a written amendment to this Contract.
.16 Contractor agrees to provide and require all subcontractors to provide labor and labor burden cost and pricing
information as outlined in the Change Order and MCR Forms. This information will be used to evaluate the potential cost of labor
and labor burden related to Change Order Work. It is intended that this information represent the Contractor's best estimate of its
actual costs at the time the estimate is presented. It is anticipated that this information or similar cost and pricing data may be used
from time to time for the pricing of Change Orders. This information is not intended to establish fixed billing or Change Order pricing
labor rates. At the time Change Order or MCR are priced, the Owner and Contractor may agree to use the submitted data to price
Change Order Work. It is intended for all such pricing data to be subject to audit and adjustment at a later date if the information was
not accurate and in accordance with the Contract terms.
§ 7.2.2.2 Unit Price Change Order Proposals
1. As an alternative to Cost Plus Change Order Proposals, the Owner may choose the option to use Contract Unit Prices, if
unit prices are stated in the Contract Documents. The Contractor will submit within seven (7) calendar days after receipt of the
Owner's written request for a Unit Price Proposal, a written Unit Price Proposal itemizing the quantities of each item of Work for
which there is an applicable Contract Unit Price on the attached Change Order Forms. The quantities must be itemized in relation to
each specific contract drawing. Contract Unit Prices will be applied to net differences of quantities of the same item. Such Contract
Unit Prices will be considered to cover all direct and indirect costs of furnishing and installing the item including the Contractor's
Markup Percentage Fee.
§ 7.3 CONSTRUCTION CHANGE DIRECTIVES
§ 7.3.1 A Construction Change Directive is a written order prepared by the Architect and signed by the Owner and Architect, directing
a change in the Work prior to agreement on adjustment , if any, in the Contract Sum or Contract Time, or both. The Owner may by
Construction Change Directive, without invalidating the Contract, order changes in the Work within the general scope of the Contract
consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly.
A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order. If the
Construction Change Directive provides for an adjustment to the Contract Sum the adjustment shall be based as prescribed in Section
7.2.2 as amended. Upon receipt of a Construction Directive, the Contractor shall promptly proceed with the change in work involved.
§ 7.3.2 A Construction Change Directive shall be used in the absence of total agreement on the terms of a Change Order.
§ 7.3.3 If the Construction Change Directive provides for an adjustment to the Contract Sum, the adjustment shall be based on one of
the following methods:
.1
mutual acceptance of a lump sum properly itemized and supported by sufficient substantiating data to permit
evaluation;
.2
unit prices stated in the Contract Documents or subsequently agreed upon;
.3
cost to be determined in a manner agreed upon by the parties and a mutually acceptable fixed or percentage fee; or
.4
as provided in Section 7.3.6.
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§ 7.3.4 Upon receipt of a Construction Change Directive, the Contractor shall promptly proceed with the change in the Work involved
and advise the Architect of the Contractor's agreement or disagreement with the method, if any, provided in the Construction Change
Directive for determining the proposed adjustment in the Contract Sum or Contract Time.
§ 7.3.5 A Construction Change Directive signed by the Contractor indicates the agreement of the Contractor therewith, including
adjustment in Contract Sum and Contract Time or the method for determining them. Such agreement shall be effective immediately
and shall be recorded as a Change Order.
§ 7.3.6 If the Contractor does not respond promptly or disagrees with the method for adjustment in the Contract Sum, the method and
the adjustment shall be determined by the Architect on the basis of reasonable expenditures and savings of those performing the Work
attributable to the change, including, in case of an increase in the Contract Sum, a reasonable allowance for overhead and profit. In
such case, and also under Section 7.3.3.3, the Contractor shall keep and present, in such form as the Architect may prescribe, an
itemized accounting together with appropriate supporting data. Unless otherwise provided in the Contract Documents, costs for the
purposes of this Section 7.3.6 shall be limited to the following:
.1
costs of labor, including social security, old age and unemployment insurance, fringe benefits required by agreement or
custom, and workers' compensation insurance;
.2
costs of materials, supplies and equipment, including cost of transportation, whether incorporated or consumed;
.3
rental costs of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others;
.4
costs of premiums for all bonds and insurance, permit fees, and sales, use or similar taxes related to the Work; and
.5
additional costs of supervision and field office personnel directly attributable to the change.
§ 7.3.7 The amount of credit to be allowed by the Contractor to the Owner for a deletion or change which results in a net decrease in
the Contract Sum shall be actual net cost as confirmed by the Architect. When both additions and credits covering related Work or
substitutions are involved in a change, the allowance for overhead and profit shall be figured on the basis of net increase, if any, with
respect to that change.
§ 7.3.8 Pending final determination of the total cost of a Construction Change Directive to the Owner, amounts not in dispute for such
changes in the Work shall be included in Applications for Payment accompanied by a Change Order indicating the parties' agreement
with part or all of such costs. For any portion of such cost that remains in dispute, the Architect will make an interim determination for
purposes of monthly certification for payment for those costs. That determination of cost shall adjust the Contract Sum on the same
basis as a Change Order, subject to the right of either party to disagree and assert a claim in accordance with Article 4.
§ 7.3.9 When the Owner and Contractor agree with the determination made by the Architect concerning the adjustments in the
Contract Sum and Contract Time, or otherwise reach agreement upon the adjustments, such agreement shall be effective immediately
and shall be recorded by preparation and execution of an appropriate Change Order.
§ 7.4 MINOR CHANGES IN THE WORK
§ 7.4.1 The Architect will have authority to order minor changes in the Work not involving adjustment in the Contract Sum or
extension of the Contract Time and not inconsistent with the intent of the Contract Documents as directed by the Owner. Such changes
shall be effected by written order and shall be binding on the Owner and Contractor. The Contractor shall carry out such written orders
promptly.
ARTICLE 8 TIME
§ 8.1 DEFINITIONS
§ 8.1.1 Unless otherwise provided, Contract Time is the period of time, including authorized adjustments, allotted in the Contract
Documents for Substantial Completion of the Work.
§ 8.1.2 The date of commencement of the Work is the date established in the Agreement. The date shall not be postponed by the
failure to act of the Contractor or persons or entities for which the Contractor is responsible.
§ 8.1.3 The date of Substantial Completion is the date certified by the Architect in accordance with Section 9.8.
§ 8.1.4 The term "day" as used in the Contract Documents shall mean calendar day unless otherwise specifically defined.
§ 8.1.5 Work required to be performed after regular working hours shall be done without additional cost to the Owner. The Contractor
shall include the cost of all overtime work necessary to complete the Contract in his original Bid. After substantial completion, the
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Contractor and his Subcontractors shall employ all of the measures prescribed for safeguarding the continuous and satisfactory
operation of the building, as interruption of such service will be considered a breach of contract.
§ 8.1.6 The Owner has established the Completion Date based on the Owner's previous experience with similar projects using average
time, not one particular Contractor's experience or ability. Any Contractor who estimates the actual construction in less time than
given in the Contract shall do so at his own risk and may not pass on any additional costs due to under estimating the actual
construction time. The Contractor's proposed schedule shall be submitted for the Owner's review and information only and does not
constitute approval by the Owner or Architect. Contractor shall not be entitled to any delay damages for any reason if Contractor
achieves substantial completion within the time allowed in the Contract Documents.
§ 8.2 PROGRESS AND COMPLETION
§ 8.2.1 Time limits stated in the Contract Documents are of the essence of the Contract. By executing the Agreement the Contractor
confirms that the Contract Time is a reasonable period for performing the Work.
§ 8.2.2 The Contractor shall not knowingly, except by agreement or instruction of the Owner in writing, prematurely commence
operations on the site or elsewhere prior to the effective date of insurance required by Article 11 to be furnished by the Contractor.
The date of commencement of the Work shall not be changed by the effective date of such insurance. Unless the date of
commencement is established by a notice to proceed given by the Owner, the Contractor shall notify the Owner in writing not less
than five (5) days or other agreed period before commencing the Work to permit the timely filing of mortgages, mechanics liens and
other security interests.
§ 8.2.3 The Contractor shall proceed expeditiously with adequate forces and shall achieve Substantial Completion within the Contract
Time.
§ 8.2.4 It is hereby understood and mutually agreed that the date for beginning, rate of progress, and time for completion for Work to
be done hereunder are ESSENTIAL CONDITIONS of this Contract. Contractor agrees that said work shall be prosecuted regularly,
diligently, and uninterruptedly at such rate of progress as will insure full completion thereof within time specified. It is expressly
understood and agreed that the time provided in the Contract Documents for completion of the Work was calculated taking into
consideration average climatic range and usual industrial conditions prevailing in this locality, and is a reasonable amount of time in
which to complete the Work.
§ 8.2.5 If Contractor shall neglect, fail or refuse to complete the Work within time herein specified, then Contractor does hereby agree,
as part consideration for awarding of this contract, to pay to the Owner the amount specified in the Contract, not as a penalty but as
liquidated damages for such breach of contract as hereinafter set forth for each and every calendar day that the Contractor shall be in
default after time stipulated in the Contract for completing Work. Provided, that Contractor shall not be charged with liquidated
damages or any excess when delay in completion of the Work is due:
.1 To any performance, priority or allocation order duly issued by the government;
.2 To unforeseeable cause beyond Contractor's control and without fault or negligence of Contractor including but not
limited to acts of God or public enemy, acts of Owner, acts of another contractor in performance of a different contract with Owner,
fires, floods, epidemics, quarantine restrictions, strikes, freight embargoes, and unusually severe weather; and
.3 To any delays of Subcontractors and/or material suppliers occasioned by any of the causes specified in subsections 1 and
2 of this Subparagraph 8.2.5.
§ 8.2.6 Provided, further, that Contractor shall within three (3) days from beginning of such delay notify Architect, in writing, of the
causes of delay, the facts underlying the delay and extent of delay
§ 8.3 INTENTIONALLY OMITTED
§ 8.3.1 INTENTIONALLY OMITTED
§ 8.3.2 INTENTIONALLY OMITTED
§ 8.3.3 INTENTIONALLY OMITTED
ARTICLE 9 PAYMENTS AND COMPLETION
§ 9.1 CONTRACT SUM
§ 9.1.1 The Contract Sum is stated in the Agreement and, including authorized adjustments, is the total amount payable by the Owner
to the Contractor for performance of the Work under the Contract Documents.
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§ 9.2 SCHEDULE OF VALUES
§ 9.2.1 Before the first Application for Payment, the Contractor shall submit to the Architect a schedule of values allocated to various
portions of the Work, prepared in such form and supported by such data to substantiate its accuracy as the Architect may require. This
schedule, unless objected to by the Architect, shall be used as a basis for reviewing the Contractor's Applications for Payment.
§ 9.2.2 The schedule provided by Contractor under Subparagraph 9.2.1 shall not be effective unless also submitted to the Owner and
not objected to within a reasonable time.
§ 9.3 APPLICATIONS FOR PAYMENT
§ 9.3.1 At least ten (10) days before the date established for each progress payment, the Contractor shall submit to the Architect an
itemized Application for Payment for operations completed in accordance with the schedule of values. Such application shall be
notarized, if required, and supported by such data substantiating the Contractor's right to payment as the Owner or Architect may
require, such as copies of requisitions from Subcontractors and material suppliers, and reflecting retainage if provided for in the
Contract Documents.
§ 9.3.1.1 Such applications may include requests for payment on account of changes in the Work which have been properly authorized
for payment in accordance with Paragraph 7.2 of the Contract.
§ 9.3.1.2 Such applications may not include requests for payment of amounts the Contractor does not intend to pay to a Subcontractor
or material supplier because of a dispute or other reason.
§ 9.3.2 Unless otherwise provided in the Contract Documents, payments shall be made on account of materials and equipment
delivered and suitably stored at the site for subsequent incorporation in the Work. Payment for materials and equipment stored on site
shall be conditioned upon compliance by the Contractor with procedures satisfactory to the Owner to establish the Owner's title to
such materials and equipment or otherwise protect the Owner's interest.
§ 9.3.3 The Contractor warrants that title to all Work covered by an Application for Payment will pass to the Owner no later than the
time of payment. The Contractor further warrants that upon submittal of an Application for Payment all Work for which Certificates
for Payment have been previously issued and payments received from the Owner shall, to the best of the Contractor's knowledge,
information and belief, be free and clear of liens, claims, security interests or encumbrances in favor of the Contractor, Subcontractors,
material suppliers, or other persons or entities making a claim by reason of having provided labor, materials and equipment relating to
the Work.
§ 9.3.4 Each waiver of application for Payment shall be certified as correct by Contractor and shall be accompanied by waivers of liens
and payment and performance bond claims and other documentation from Subcontractors and Sub subcontractors as reasonably may
be required by the Owner. In addition, such Application for Payment shall contain a certification by the Contractor that there are no
written claims of mechanics' or materialmen's liens submitted to the Contractor at the date of such Application for Payment, that the
Contractor has no knowledge of any filed mechanics' or materialmen's liens on the Work, and that waivers from all Subcontractors
constitute an effective waiver of payments that have been made or are to be made concurrently with payment pursuant to such
Application for Payment. A copy of all Applications for Payment shall be submitted by Contractor directly to Owner. The Architect
shall not certify any payment for a period of at least five (5) days after receipt of an Application for Payment or if objected to by either
the Architect or the Owner.
§ 9.3.5 The Contractor shall indemnify and hold harmless the Owner against any assertion of claims for mechanics' or materialmen's
liens by Subcontractors, Sub subcontractors or material suppliers and against any assertion of security interests by suppliers of goods
or materials, to include court costs and attorneys' fees incurred by the Owner in connection therewith.
§ 9.4 CERTIFICATES FOR PAYMENT
§ 9.4.1 The Architect will, within seven days after receipt of the Contractor's Application for Payment, either issue to the Owner a
Certificate for Payment, with a copy to the Contractor, for such amount as the Architect determines is properly due, or notify the
Contractor and Owner in writing of the Architect's reasons for withholding certification in whole or in part as provided in Section
9.5.1.
§ 9.4.2 The issuance of a Certificate for Payment will constitute a representation by the Architect to the Owner, based on the
Architect's evaluation of the Work and the data comprising the Application for Payment, that the Work has progressed to the point
indicated and that, to the best of the Architect's knowledge, information and belief, the quality of the Work is in accordance with the
Contract Documents. The foregoing representations are subject to an evaluation of the Work for conformance with the Contract
Documents upon Substantial Completion, to results of subsequent tests and inspections, to correction of minor deviations from the
Contract Documents prior to completion and to specific qualifications expressed by the Architect. The issuance of a Certificate for
Payment will further constitute a representation that the Contractor is entitled to payment in the amount certified. However, the
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issuance of a Certificate for Payment will not be a representation that the Architect has (1) made exhaustive or continuous on-site
inspections to check the quality or quantity of the Work, (2) reviewed construction means, methods, techniques, sequences or
procedures, (3) reviewed copies of requisitions received from Subcontractors and material suppliers and other data requested by the
Owner to substantiate the Contractor's right to payment, or (4) made examination to ascertain how or for what purpose the Contractor
has used money previously paid on account of the Contract Sum.
§ 9.5 DECISIONS TO WITHHOLD CERTIFICATION
§ 9.5.1 The Architect may withhold a Certificate for Payment in whole or in part, to the extent reasonably necessary to protect the
Owner, if in the Architect's opinion the representations to the Owner required by Section 9.4.2 cannot be made. If the Architect is
unable to certify payment in the amount of the Application, the Architect will notify the Contractor and Owner as provided in Section
9.4.1. If the Contractor and Architect cannot agree on a revised amount, the Architect will promptly issue a Certificate for Payment for
the amount for which the Architect is able to make such representations to the Owner. The Architect may also withhold a Certificate
for Payment or, because of subsequently discovered evidence, may nullify the whole or a part of a Certificate for Payment previously
issued, to such extent as may be necessary in the Architect's opinion to protect the Owner from loss for which the Contractor is
responsible, including loss resulting from acts and omissions described in Section 3.3.2, because of:
.1
defective Work not remedied;
.2
third party claims filed or reasonable evidence indicating probable filing of such claims unless security acceptable to
the Owner is provided by the Contractor;
.3
failure of the Contractor to make payments properly to Subcontractors or for labor, materials or equipment;
.4
reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Sum;
.5
damage to the Owner or another contractor;
.6
reasonable evidence that the Work will not be completed within the Contract Time, and that the unpaid balance would
not be adequate to cover actual or liquidated damages for the anticipated delay; or
.7
persistent failure to carry out the Work in accordance with the Contract Documents.
§ 9.5.2 When the above reasons for withholding certification, including those listed in Subparagraph 9.3.4 are removed or satisfied,
certification will be made for amounts previously withheld.
§ 9.6 PROGRESS PAYMENTS
§ 9.6.1 After the Architect has issued a Certificate for Payment, the Owner shall make payment in the manner and within the time
provided in the Contract Documents, and shall so notify the Architect.
§ 9.6.1.1 A retainage of 5% of the value of the Work in place, and of materials adequately stored may be withheld from each payment
to the Contractor, pursuant to N.M. Stat. Ann. § 57-1-28, et. seq. as amended. Owner has determined to establish retainage as
prescribed/outlined within Supplementary Conditions to AIA document A201-1997.
§ 9.6.2 The Contractor shall promptly pay each Subcontractor, upon receipt of payment from the Owner, out of the amount paid to the
Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting
percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor
shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Sub-subcontractors in a
similar manner.
§ 9.6.3 The Architect will, on request, furnish to a Subcontractor, if practicable, information regarding percentages of completion or
amounts applied for by the Contractor and action taken thereon by the Architect and Owner on account of portions of the Work done
by such Subcontractor.
§ 9.6.4 Neither the Owner nor Architect shall have an obligation to pay nor to see to the payment of money to a Subcontractor except
as may otherwise be required by law.
§ 9.6.5 Payment to material suppliers shall be treated in a manner similar to that provided in Sections 9.6.2, 9.6.3 and 9.6.4.
§ 9.6.6 A Certificate for Payment, a progress payment, or partial or entire use or occupancy of the Project by the Owner shall not
constitute acceptance of Work not in accordance with the Contract Documents.
§ 9.6.7 Payments received by the Contractor for Work properly performed by Subcontractors and suppliers shall be held by the
Contractor for those Subcontractors or suppliers who perform Work or furnish materials, or both, under contract with the Contractor
for which payment was made by the Owner.
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§ 9.7 FAILURE OF PAYMENT
§ 9.7.1 If the Architect does not issue a Certificate for Payment, through no fault of the Contractor, within the time allowed by law and
provided in the Contract Documents after receipt of the Contractor’s Application for Payment, or if the Owner does not pay the
Contractor within seven (7) days after the date established in the Contract Documents the amount certified by the Architect or awarded
by a final judgment of a court of competent jurisdiction, then the Contractor may, upon seven (7) additional days written notice to the
Owner and Architect, stop the Work until payment for the amount owing has been received. The Contract Time shall be extended
appropriately and the Contract Sum shall be increased by the amount of the Contractor’s reasonable cost of shutdown, delay and start
up.
§ 9.8 SUBSTANTIAL COMPLETION
§ 9.8.1 The date of Substantial Completion of the work or designated portion thereof shall be determined by the Owner's
Representatives signing the AIA Document #G704 Certificate of Substantial Completion. This date shall commence on or before a
date to be specified in a written "Notice to Proceed" of the Owner; and the construction is to be sufficiently complete, in accordance
with the Contract Documents, so the Owner can occupy or utilize the area or designated portion thereof for the use for which it is
intended. For new construction, the Certificate of Substantial Completion shall not issue before the final Certificate of Occupancy is
issued by the appropriate code authority.
§ 9.8.2 When the Contractor considers that the Work, or a portion thereof which the Owner agrees to accept separately, is substantially
complete, the Contractor shall prepare and submit to the Architect a comprehensive list of items to be completed or corrected prior to
final payment. Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in
accordance with the Contract Documents.
§ 9.8.3 Upon receipt of the Contractor's list, the Architect will make an inspection to determine whether the Work or designated
portion thereof is substantially complete. If the Architect's inspection discloses any item, whether or not included on the Contractor's
list, which is not sufficiently complete in accordance with the Contract Documents so that the Owner can occupy or utilize the Work
or designated portion thereof for its intended use, the Contractor shall, before issuance of the Certificate of Substantial Completion,
complete or correct such item upon notification by the Architect. In such case, the Contractor shall then submit a request for another
inspection by the Architect to determine Substantial Completion.
§ 9.8.4 When the Work or designated portion thereof is substantially complete, the Architect will prepare a Certificate of Substantial
Completion which shall establish the date of Substantial Completion, shall establish responsibilities of the Owner and Contractor for
security, maintenance, heat, utilities, damage to the Work and insurance, and shall fix the time within which the Contractor shall finish
all items on the list accompanying the Certificate. Warranties required by the Contract Documents shall commence on the date of
Substantial Completion of the Work or designated portion thereof unless otherwise provided in the Certificate of Substantial
Completion.
§ 9.8.5 The Certificate of Substantial Completion shall be submitted to the Owner and Contractor for their written acceptance of
responsibilities assigned to them in such Certificate. No adjustment in retainage will be made unless approved by the Owner.
§ 9.8.6 Copies of all submissions by the Contractor to the Architect under Subparagraph 9.8.2 shall also be delivered promptly to the
Owner. All decisions by the Architect as to Substantial Completion shall be made in consultation with the Owner.
§ 9.9 PARTIAL OCCUPANCY OR USE
§ 9.9.1 The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is
designated by separate agreement with the Contractor, provided such occupancy or use is consented to by the insurer as required under
Section 11.4.1.5 and authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence
whether or not the portion is substantially complete, provided the Owner and Contractor have accepted in writing the responsibilities
assigned to each of them for payments, retainage, if any, security, maintenance, heat, utilities, damage to the Work and insurance, and
have agreed in writing concerning the period for correction of the Work and commencement of warranties required by the Contract
Documents. When the Contractor considers a portion substantially complete, the Contractor shall prepare and submit a list to the
Architect as provided under Section 9.8.2. Consent of the Contractor to partial occupancy or use shall not be unreasonably withheld.
The stage of the progress of the Work shall be determined by written agreement between the Owner and Contractor or, if no
agreement is reached, by decision of the Architect.
§ 9.9.2 Immediately prior to such partial occupancy or use, the Owner, Contractor and Architect shall jointly inspect the area to be
occupied or portion of the Work to be used in order to determine and record the condition of the Work.
§ 9.9.3 Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of
Work not complying with the requirements of the Contract Documents.
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§ 9.10 FINAL COMPLETION AND FINAL PAYMENT
§ 9.10.1 Upon receipt of written notice that the Work is ready for final inspection and acceptance and upon receipt of a final
Application for Payment, the Architect will promptly make such inspection and, when the Architect finds the Work acceptable under
the Contract Documents and the Contract fully performed, the Architect will promptly issue a final Certificate for Payment stating that
to the best of the Architect's knowledge, information and belief, and on the basis of the Architect's on-site visits and inspections, the
Work has been completed in accordance with terms and conditions of the Contract Documents and that the entire balance found to be
due the Contractor and noted in the final Certificate is due and payable. The Architect's final Certificate for Payment will constitute a
further representation that conditions listed in Section 9.10.2 as precedent to the Contractor's being entitled to final payment have been
fulfilled.
§ 9.10.1.1 The Contractor shall notify the Owner in writing, with a copy to the Architect, at least ten (10) days prior to the date on
which the Work will be ready for final inspection. Final inspection will not be performed until all Work under the Contract is
completed. The Owner will make a final inspection on date requested, but any delay in making final inspection shall not relieve the
Contractor of responsibility for the Work, nor shall the Owner be held responsible for damages or claims for compensation on account
of continuing overhead, maintenance, etc., occasioned by such delay. If the Owner making final inspection with the Architect finds
the Work so far from completion as to make a later visit necessary, or that undue delay in making final inspection is incurred,
Contractor shall, if determined by Owner, be liable for expense to Owner incurred by reason of such delay or re-inspection.
§ 9.10.1.2 The Owner will participate in the final inspection of the Project. Neither the final acceptance nor the remaining retained
percentage of the Contract shall become due until the Contractor submits to the Architect the following documents:
.1 AIA Form G706, Contractor's Affidavit of Payment of Debts and Claims (2 copies).
.2 AIA Form G706A, Contractor's Affidavit of Release of Liens (2 copies).
.3 AIA Form G707, Consent of Surety Company to Final Payment (2 copies).
.4 All bonds and guarantees (4 copies), especially for roof and HVAC.
.5 Maintenance and Operations Manual – Three (3) sets.
.6 Construction Record Drawings and Specifications – Two (2) sets.
.7 Lien waivers from all suppliers, Subcontractors and Sub subcontractors.
§ 9.10.2 Neither final payment nor any remaining retained percentage shall become due until the Contractor submits to the Architect
(1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner
or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise satisfied,
(2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in
effect and will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner, (3) a
written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period
required by the Contract Documents, (4) consent of surety, if any, to final payment and (5), if required by the Owner, other data
establishing payment or satisfaction of obligations, such as receipts, releases and waivers of liens, claims, security interests or
encumbrances arising out of the Contract, to the extent and in such form as may be designated by the Owner. If a Subcontractor
refuses to furnish a release or waiver required by the Owner, the Contractor may furnish a bond satisfactory to the Owner to indemnify
the Owner against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all
money that the Owner may be compelled to pay in discharging such lien, including all costs and reasonable attorneys' fees.
§ 9.10.3 If, after Substantial Completion of the Work, final completion thereof is materially delayed through no fault of the Contractor
or by issuance of Change Orders affecting final completion, and the Architect so confirms, the Owner shall, upon application by the
Contractor and certification by the Architect, and without terminating the Contract, make payment of the balance due for that portion
of the Work fully completed and accepted. If the remaining balance for Work not fully completed or corrected is less than retainage
stipulated in the Contract Documents, and if bonds have been furnished, the written consent of surety to payment of the balance due
for that portion of the Work fully completed and accepted shall be submitted by the Contractor to the Architect prior to certification of
such payment. Such payment shall be made under terms and conditions governing final payment, except that it shall not constitute a
waiver of claims.
§ 9.10.4 The making of final payment shall constitute a waiver of Claims by the Owner except those arising from:
.1
liens, Claims, security interests or encumbrances arising out of the Contract and unsettled;
.2
failure of the Work to comply with the requirements of the Contract Documents; or
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.3
terms of special warranties required by the Contract Documents.
§ 9.10.5 Acceptance of final payment by the Contractor, a Subcontractor or material supplier shall constitute a waiver of claims by that
payee except those previously made in writing and identified by that payee as unsettled at the time of final Application for Payment.
ARTICLE 10 PROTECTION OF PERSONS AND PROPERTY
§ 10.1 SAFETY PRECAUTIONS AND PROGRAMS
§ 10.1.1 The Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs in
connection with the performance of the Contract.
§ 10.2 SAFETY OF PERSONS AND PROPERTY
§ 10.2.1 The Contractor shall be responsible for taking reasonable precautions for safety of, and shall provide reasonable protection to
prevent damage, injury or loss to:
.1
employees on the Work and other persons who may be affected thereby;
.2
the Work and materials and equipment to be incorporated therein, whether in storage on or off the site, under care,
custody or control of the Contractor or the Contractor's Subcontractors or Sub-subcontractors; and
.3
other property at the site or adjacent thereto, such as trees, shrubs, lawns, walks, pavements, roadways, structures and
utilities not designated for removal, relocation or replacement in the course of construction and the Contractor shall be
responsible for paying for the repair or replacement of any such lost, or stolen, or damaged Work, materials, equipment
or property.
§ 10.2.1.2 The Work and materials and equipment to be incorporated therein, stored on site, under care, custody or control of the
Contractor or Contractor's Subcontractors or Sub subcontractors; and
§ 10.2.2 The Contractor shall give notices and comply with applicable laws, ordinances, rules, regulations and lawful orders of public
authorities bearing on safety of persons or property or their protection from damage, injury or loss.
§ 10.2.3 The Contractor shall erect and maintain, as required by existing conditions and performance of the Contract, reasonable
safeguards for safety and protection, including posting danger signs and other warnings against hazards, promulgating safety
regulations and notifying owners and users of adjacent sites and utilities.
§ 10.2.4 When use or storage of explosives or other hazardous materials or equipment or unusual methods are necessary for execution
of the Work, the Contractor shall exercise utmost care and carry on such activities under supervision of properly qualified personnel.
§ 10.2.5 The Contractor shall promptly remedy damage and loss (other than damage or loss insured under property insurance required
by the Contract Documents) to property referred to in Sections 10.2.1.2 and 10.2.1.3 caused in whole or in part by the Contractor, a
Subcontractor, a Sub-subcontractor, or anyone directly or indirectly employed by any of them, or by anyone for whose acts they may
be liable and for which the Contractor is responsible under Sections 10.2.1.2 and 10.2.1.3, except damage or loss attributable to acts or
omissions of the Owner or Architect or anyone directly or indirectly employed by either of them, or by anyone for whose acts either of
them may be liable, and not attributable to the fault or negligence of the Contractor. The foregoing obligations of the Contractor are in
addition to the Contractor's obligations under Section 3.18.
§ 10.2.6 The Contractor shall designate a responsible member of the Contractor's organization at the site whose duty shall be the
prevention of accidents. This person shall be the Contractor's superintendent unless otherwise designated by the Contractor in writing
to the Owner and Architect.
§ 10.2.7 The Contractor shall not load or permit any part of the construction or site to be loaded so as to endanger its safety.
§ 10.3 HAZARDOUS MATERIALS
§ 10.3.1 If reasonable precautions will be inadequate to prevent foreseeable bodily injury or death to persons resulting from a material
or substance, including but not limited to asbestos or polychlorinated biphenyl (PCB), encountered on the site by the Contractor, the
Contractor shall, upon recognizing the condition, immediately stop Work in the affected area and report the condition to the Owner
and Architect in writing.
§ 10.3.2 INTENTIONALLY OMITTED
§ 10.3.3 INTENTIONALLY OMITTED
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§ 10.4 The Owner shall not be responsible under Paragraph 10.3 for materials or substances brought to the site by the Contractor.
§ 10.5 INTENTIONALLY OMITTED
§ 10.6 EMERGENCIES
§ 10.6.1 In an emergency affecting safety of persons or property, the Contractor shall act, at the Contractor's discretion, to prevent
threatened damage, injury or loss. Additional compensation or extension of time claimed by the Contractor on account of an
emergency shall be determined as provided in Section 4.3 and Article 7.
ARTICLE 11 INSURANCE AND BONDS
§ 11.1 CONTRACTOR'S LIABILITY INSURANCE
§ 11.1.1 The Contractor shall purchase from and maintain in a company or companies lawfully authorized to do business in the
jurisdiction in which the Project is located such insurance as will protect the Contractor from claims set forth below which may arise
out of or result from the Contractor's operations under the Contract and for which the Contractor may be legally liable, whether such
operations be by the Contractor or by a 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
claims under workers' compensation, disability benefit and other similar employee benefit acts which are applicable to
the Work to be performed;
.2
claims for damages because of bodily injury, occupational sickness or disease, or death of the Contractor's employees;
.3
claims for damages because of bodily injury, sickness or disease, or death of any person other than the Contractor's
employees;
.4
claims for damages insured by usual personal injury liability coverage;
.5
claims for damages, other than to the Work itself, because of injury to or destruction of tangible property, including loss
of use resulting therefrom;
.6
claims for damages because of bodily injury, death of a person or property damage arising out of ownership,
maintenance or use of a motor vehicle;
.7
claims for bodily injury or property damage arising out of completed operations; and
.8
claims involving contractual liability insurance applicable to the Contractor's obligations under Section 3.18.
§ 11.1.2 The insurance required by Section 11.1.1 shall be written for not less than limits of liability specified in the Contract
Documents or required by law, whichever coverage is greater. Coverages, whether written on an occurrence or claims-made basis,
shall be maintained without interruption from date of commencement of the Work until date of final payment and termination of any
coverage required to be maintained after final payment.
§ 11.1.3 Certificates of insurance acceptable to the Owner shall be filed with the Owner prior to commencement of the Work. These
certificates and the insurance policies required by this Section 11.1 shall contain a provision that coverages afforded under the policies
will not be canceled or allowed to expire until at least 30 days' prior written notice has been given to the Owner. If any of the
foregoing insurance coverages are required to remain in force after final payment and are reasonably available, an additional
certificate evidencing continuation of such coverage shall be submitted with the final Application for Payment as required by Section
9.10.2. Information concerning reduction of coverage on account of revised limits or claims paid under the General Aggregate, or
both, shall be furnished by the Contractor with reasonable promptness in accordance with the Contractor's information and belief.
§ 11.1.4 Contractor's Insurance Requirements:
§ 11.1.4.1 General Requirements: Contractor shall not commence nor continue to perform any Work unless he, at his own expense,
has in full force and effect all insurance required by the Contract Documents. The Contractor shall not permit any Sub contractor to
perform Work on the Project unless the Worker's Compensation Insurance requirement have been complied with by such
Subcontractor. The types of insurance the Contractor shall obtain and maintain are set forth herein.
Worker's Compensation Insurance and Liability Insurance shall be maintained in full force and effect for the full warranty period
provided for in the Contract Documents. [See Subparagraph 12.2.2 of the General Conditions].
Insurers must be authorized to do business (and have an agent for service of process) in New Mexico and either (1) have an "A"
policyholder's rating and a financial rating of at least Class XI in accordance with the most current Best's Rating; or (2) be acceptable
to Owner as evidenced by Owner's written approval of such Insurer. If by the terms of any insurance to be provided herein, any
mandatory deductibles are required, or if Contractor should so elect, with the written concurrence of Owner, to increase the mandatory
deductible amounts or purchase insurance with voluntary deductible amounts, the Contractor shall be responsible (without entitlement
to any reimbursement from Owner) for payment of the amount of the deductible in the event of a paid claim.
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Certificates of insurance (and endorsements) must be on forms acceptable to Owner delivered to Owner prior to commencement of the
Work. The Contractor shall furnish a Certificate of Insurance under either AIA Document G705 or ACORD 25 S (11/85) Form. The
Certificate shall include a 30 day cancellation clause. The Certificate must include the provision the insurance company will mail 30
day written notice to Owner. The wording “will endeavor” is not acceptable. Contractor surety shall provide Owner with a
transmittal letter stating that all insurance documents have been reviewed and have met or exceeded the contract document
requirements.
In addition, Contractor, if requested by Owner, shall deliver to Owner (within 10 days of Owner's request) a certified copy of any
policies called for herein. Contractor shall also immediately furnish Owner with copies of any endorsements, addenda, or
amendments to such policies. If Owner is damaged by Contractor's failure to obtain and maintain the insurance called for herein, then
Contractor shall be liable to Owner for all costs, expenses, and damages resulting therefrom. All insurance policies to be furnished by
Contractor under the Contract Documents shall be subject to approval by Owner. All policies shall be on an occurrence (as opposed
to claims made) basis.
§ 11.1.4.2 Worker's Compensation and Employer's Liability Insurance: Contractor shall comply with all applicable provisions of the
New Mexico Worker's Compensation Act, the New Mexico Subsequent Injury Act, and the New Mexico Occupational Disease
Disablement Law. Contractor shall procure and maintain during the life of the Contract Documents complete Worker's and
Employer's liability Insurance in accordance with New Mexico laws and regulations.
Contractor shall require each Subcontractor similarly to provide such coverage (or qualify as a self-insured) for all the latter's
employees to be engaged in such Work. The Owner, the Architect, any consultants of Owner or Architect and its consultants, and
each of their directors, officers, board members, representatives, agents and employees, will not be responsible for any claims or
actions occasioned by the failure of the Contractor to comply with this obligation of Contractor. Worker's Compensation coverage
shall be carried in the amounts of the statutory limits. Contractor shall provide and shall cause each Subcontractor to provide
Employer's Liability coverage of not less than $100,000 each person.
At the time of Contractor's execution of the Contract Documents, Contractor shall deliver to Owner a certificate(s) of insurance
certifying that he has obtained full Worker's Compensation and Employer's Liability Insurance coverage for all persons whom he
employs or may employ in carrying out the Work under the Agreement. Contractor shall maintain such coverage for the period of the
Agreement (and the warranty period). At the same time, the Contractor shall deliver to Owner any required insurance endorsement(s)
on forms approved by Owner. This insurance shall be in strict accordance with the requirement of the most current and applicable
Worker's Compensation Insurance laws and regulations in the State where the Project is located.
§ 11.1.4.3 Liability Insurance: The Contractor shall procure and maintain, during the life of the Contract Documents, an Owner's
Protective Liability Insurance Policy. The policy will be written with the Owner, its officers, agents and employees as named
insured. The policy shall provide limits as follows:
$1,000,000 Bodily Injury and Property Damage per occurrence.
$1,000,000 Bodily Injury and Property Damage Aggregate.
The Contractor shall procure and maintain, during the life of the Agreement, Commercial General Liability Insurance. The policy will
be written with the Owner, its officers, agents and employees as named insured. The policy shall provide limits as follows, if under
the ISO 11/85 policy.
$1,000,000 General Aggregate
$1,000,000 Products/Completed Operations Aggregate
$1,000,000 Personal Injury & Advertising Injury
$1,000,000 Each Occurrence
$50,000 Fine Damage (any one fire)
$5,000 Medical Expense (any one person)
If coverage is provided under Comprehensive General Liability (prior to 11/85 ISO policy) limits shall be:
$1,000,000 Bodily Injury and Property Damage combined per occurrence
$1,000,000 Bodily Injury and Property Damage combined Aggregate
The policy must include:
Premises/Operations (including X, C, and U coverage’s as applicable)
Independent Contractors' Protective
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Products and Completed Operations
Contractual Liability Covering the Agreement
Board Form Property Damage including Completed Operations
Personal Injury Liability with Employment Exclusion deleted
Underground coverage………Endorsement showing Owner as an additional insured under the Contractor’s liability policy
The Contractor shall procure and maintain, during the life of the Contract Documents Automobile Liability Insurance. The limits
shall be:
$1,000,000 Combined Single Limit Bodily Injury or Property Damage per occurrence.
Coverage must be on an "Any Auto" basis or include Owned, Hired, and non-Owned Automobile Coverage.
Excess Insurance or Umbrella Liability Insurance will be acceptable in attaining above limits. Without limiting the foregoing, the
liability limits shall be sufficient to meet the Owner's obligation under the New Mexico Tort Claims Act, as it may be amended from
time to time.
If the General Liability coverages are provided by a Commercial General Liability Policy on a claims made basis, the policy date or
Retroactive Date shall predate the Contract; the termination date of the policy or applicable extended reporting period shall be no
earlier than the termination date of coverages required to be maintained after final payment certified in accordance with Subparagraph
9.10.2.
§ 11.1.4.4 Builder's Risk Insurance: The Owner shall purchase and maintain property insurance upon the entire Work at the site to the
full insurable value thereof. This insurance shall include the interests of the Owner, the Contractor, Subcontractors and Sub
subcontractors in the Work and shall insure against the perils of fire and extended coverage and shall include "all risk" insurance for
physical loss or damage including, without duplication of coverage, theft, vandalism and malicious mischief. In the event the Owner
agrees to make payments for materials suitably stored offsite, the Contractor shall effect and maintain similar property insurance
coverage on portions of the Work stored off the site or in transit when such portions of the Work are to be included in an Application
for Payment. Such insurance shall include the Owner as an additional insured.
The Owner's Builder's Risk Insurance will include a $15,000 deductible. The Contractor will be liable for the deductible amount and
may wish to secure his own insurance to cover the deductible amount.
§ 11.1.4.5 Adjustment: Any loss insured under Paragraphs 11.1, 11.2, and 11.3 shall be adjusted with the Owner and made payable to
Owner. Owner shall reimburse Contractor (or his Subcontractors) for insured losses incurred (for which they hadn't received
payment) upon receipt of the insurance proceeds (less any deductible charged to the Owner).
To the extent Contractor (or any Subcontractor) is reimbursed by Owner for any loss covered by the insurance provided in Paragraphs
11.1, 11.2, and 11.4, then Contractor/Subcontractor shall waive any claim they have for such losses to the extent covered by the
insurance called for in Paragraphs 11.1, 11.2, and 11.4.
§ 11.1.4.6 Contractor's Liability Not Limited by Insurance: Nothing contained in these insurance requirements is to be construed to
limit the liability of the Contractor or the Contractor's Surety.
§ 11.2 OWNER'S LIABILITY INSURANCE
§ 11.2.1 The Owner shall be responsible for purchasing and maintaining the Owner's usual liability insurance.
§ 11.3 PROJECT MANAGEMENT PROTECTIVE LIABILITY INSURANCE
§ 11.3.1 Optionally, the Owner may require the Contractor to purchase and maintain Project Management Protective Liability
insurance from the Contractor’s usual sources as primary coverage for the Owner’s, Contractor’s, Sub-subcontractor’s, and Architect’s
vicarious liability for construction operations under the Contract. Unless otherwise required by the Contract Documents, the Owner
shall reimburse the Contractor by increasing the Contract Sum to pay the cost of purchasing and maintaining such optional insurance
coverage and the Contractor shall not be responsible for purchasing any other liability insurance on behalf of the Owner. The
minimum limits of liability purchased with such coverage shall be equal to the aggregate limits required for Contractor’s Liability
Insurance under Paragraph 11.1.
§ 11.3.2 To the extent damages are covered by Project Management Protective Liability insurance, the Owner, Contractor and
Architect waive all rights against each other for damages, except such rights as they may have to the proceeds of such insurance. The
policy shall provide for such waivers of subrogation by endorsement or otherwise.
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§ 11.3.3 The Owner shall require the Contractor to include the Owner, Architect or other persons or entities as additional insured on
the Contractor’s Liability Insurance coverage under Paragraph 11.1.
§ 11.4 PROPERTY INSURANCE
§ 11.4.1 The Owner shall purchase and maintain property insurance upon the entire Work at the site to the full insurable completed
value thereof. This insurance shall include the interests of the Owner, the Contractor, Subcontractors and Sub subcontractors in the
Work and shall insure against the perils of fire and extended coverage and shall include "all risk" insurance for physical loss or
damage including, without duplication of coverage, theft, vandalism and malicious mischief. The Owner shall purchase such
insurance for the full insurable value of the entire Work. The Owner shall affect insurance which will protect the interests of the
Owner, the Contractor, his Subcontractors and the Sub subcontractors in the Work. If not covered under the all risk insurance or
otherwise provided in the Contract Documents, the Contractor shall effect and maintain similar property insurance on portions of the
Work stored off the site or in transit when such portions of the Work are to be included in an Application for Payment under
Subparagraph 9.3.2.
§ 11.4.1.1 Property insurance shall be on an "all-risk" or equivalent policy form and shall include, without limitation, insurance against
the perils of fire (with extended coverage) and physical loss or damage including, without duplication of coverage, theft, vandalism,
malicious mischief, collapse, earthquake, flood, windstorm, false work, testing and startup, temporary buildings and debris removal
including demolition occasioned by enforcement of any applicable legal requirements, and shall cover reasonable compensation for
Architect's and Contractor's services and expenses required as a result of such insured loss.
§ 11.4.1.2 If the Owner does not intend to purchase such property insurance required by the Contract and with all of the coverages in
the amount described above, the Owner shall so inform the Contractor in writing prior to commencement of the Work. The Contractor
may then affect insurance which will protect the interests of the Contractor, Subcontractors and Sub-subcontractors in the Work, and
by appropriate Change Order the cost thereof shall be charged to the Owner. If the Contractor is damaged by the failure or neglect of
the Owner to purchase or maintain insurance as described above, without so notifying the Contractor in writing, then the Owner shall
bear all reasonable costs properly attributable thereto.
§ 11.4.1.3 If the property insurance requires minimum deductibles and such deductibles are identified in the Contract Documents, the
Contractor shall pay costs not covered because of such deductibles. If the Owner or insurer increases the required minimum
deductibles above the amounts so identified, or if the Owner elects to purchase this insurance with voluntary deductible amounts, the
Owner shall be responsible for payment of the additional costs not covered because of such increase or voluntary deductible. If the
deductibles are not identified in the Contract Documents, the Owner shall pay costs not covered because of the deductibles.
§ 11.4.1.4 INTENTIONALLY OMITTED
§ 11.4.1.5 Partial occupancy or use in accordance with Section 9.9 shall not commence until the insurance company or companies
providing property insurance have consented to such partial occupancy or use by endorsement or otherwise. The Owner and the
Contractor shall take reasonable steps to obtain consent of the insurance company or companies and shall, without mutual written
consent, take no action with respect to partial occupancy or use that would cause cancellation, lapse or reduction of insurance.
§ 11.4.2 Boiler and Machinery Insurance. The Owner shall purchase and maintain boiler and machinery insurance required by the
Contract Documents or by law, which shall specifically cover such insured objects during installation and until final acceptance by the
Owner; this insurance shall include interests of the Owner, Contractor, Subcontractors and Sub-subcontractors in the Work, and the
Owner and Contractor shall be named insureds.
§ 11.4.3 Loss of Use Insurance. The Owner, at the Owner's option, may purchase and maintain such insurance as will insure the Owner
against loss of use of the Owner's property due to fire or other hazards, however caused. The Owner waives all rights of action against
the Contractor for loss of use of the Owner's property, including consequential losses due to fire or other hazards however caused.
§ 11.4.4 The Contractor shall file a copy of all policies with the Owner before an exposure to loss may occur.
§ 11.4.5 If the Contractor desires insurance for risks other than those described in Subparagraphs 11.3.1 and 11.3.2 or other special
hazards he shall include those in the property insurance policy, but the costs for such insurance shall be paid by the Contractor.
§ 11.4.6 INTENTIONALLY OMITTED
§ 11.4.7 Waivers of Subrogation. The Owner and Contractor waive all rights against (1) each other and any of their subcontractors,
sub-subcontractors, agents and employees, each of the other, and (2) the Architect, Architect's consultants, separate contractors
described in Article 6, if any, and any of their subcontractors, sub-subcontractors, agents and employees, for damages caused by fire
or other causes of loss to the extent covered by property insurance obtained pursuant to this Section 11.4 or other property insurance
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applicable to the Work, except such rights as they have to proceeds of such insurance held by the Owner as fiduciary. The Owner or
Contractor, as appropriate, shall require of the Architect, Architect's consultants, separate contractors described in Article 6, if any,
and the subcontractors, sub-subcontractors, agents and employees of any of them, by appropriate agreements, written where legally
required for validity, similar waivers each in favor of other parties enumerated herein. The policies shall provide such waivers of
subrogation by endorsement or otherwise. A waiver of subrogation shall be effective as to a person or entity even though that person
or entity would otherwise have a duty of indemnification, contractual or otherwise, did not pay the insurance premium directly or
indirectly, and whether or not the person or entity had an insurable interest in the property damaged.
§ 11.4.8 A loss insured under Owner's property insurance shall be adjusted by the Owner as fiduciary and made payable to the Owner
as fiduciary for the insureds, as their interests may appear, subject to requirements of any applicable mortgagee clause and of Section
11.4.10. The Contractor shall pay Subcontractors their just shares of insurance proceeds received by the Contractor, and by
appropriate agreements, written where legally required for validity, shall require Subcontractors to make payments to their Subsubcontractors in similar manner.
§ 11.4.9 If required in writing by a party in interest, the Owner as fiduciary shall, upon occurrence of an insured loss, give bond for
proper performance of the Owner's duties. The cost of required bonds shall be charged against proceeds received as fiduciary. The
Owner shall deposit in a separate account proceeds so received, which the Owner shall distribute in accordance with such agreement
as the parties in interest may reach, or in accordance with an arbitration award in which case the procedure shall be as provided in
Section 4.6. If after such loss no other special agreement is made and unless the Owner terminates the Contract for convenience,
replacement of damaged property shall be performed by the Contractor after notification of a Change in the Work in accordance with
Article 7.
§ 11.4.10 The Owner as fiduciary shall have power to adjust and settle with insurers unless one of the parties in interest shall object in
writing within five days after occurrence of loss to the Owner’s exercise of this power; if such objection is made, the dispute shall be
resolved as provided in Paragraphs 4.4 and 4.5.
§ 11.5 PERFORMANCE BOND AND PAYMENT BOND
§ 11.5.1 The Contractor to whom the Contract is awarded shall furnish and pay for reputable and approved Performance and Labor and
Material Payment Bonds, each for full amount of Contract Sum including all Addenda/Amendments and applicable taxes. Bonds shall
be executed on Standard AIA form A311. Bonds shall be obtained from a Bonding Company that is approved by the U.S. Treasury
Department for bonding in the amount required for this project, has at least an "A" Best's key rating, and is licensed in the jurisdiction
in which the Work is located. The cost of such bonds shall be included in the Contract Sum.
§ 11.5.1.1 The Contractor shall deliver the required bonds to the Owner not later than the date of execution of the Contract, or if the
Work is commenced prior thereto in response to a letter of Notice to Proceed, the Contractor will submit evidence satisfactory to the
Owner that such bonds will be furnished.
§ 11.5.1.2 The Contractor shall require the attorney in fact who executes the required bonds on behalf of the surety to affix thereto a
certified and current copy of the power of attorney.
§ 11.5.1.3 Pursuant to N.M. Stat. Ann § 13-1-1, et seq., and applicable New Mexico law, Contractor shall require all subcontractors
whose contracts are written for $125,000 or more, to provide payment and performance bonds per the provisions of §11.5.1. Such
subcontractor payment and performance bonds shall be delivered to CNM prior to the execution of this Agreement.
§ 11.5.2 Upon the request of any person or entity appearing to be a potential beneficiary of bonds covering payment of obligations
arising under the Contract, the Contractor shall promptly furnish a copy of the bonds or shall permit a copy to be made.
ARTICLE 12 UNCOVERING AND CORRECTION OF WORK
§ 12.1 UNCOVERING OF WORK
§ 12.1.1 If a portion of the Work is covered contrary to the Architect's request or to requirements specifically expressed in the Contract
Documents, it must, if required in writing by the Architect, be uncovered for the Architect's examination and be replaced at the
Contractor's expense without change in the Contract Time.
§ 12.1.2 If a portion of the Work has been covered which the Architect has not specifically requested to examine prior to its being
covered, the Architect may request to see such Work and it shall be uncovered by the Contractor. If such Work is in accordance with
the Contract Documents, costs of uncovering and replacement shall, by appropriate Change Order, be at the Owner's expense. If such
Work is not in accordance with the Contract Documents, correction shall be at the Contractor's expense unless the condition was
caused by the Owner or a separate contractor in which event the Owner shall be responsible for payment of such costs.
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§ 12.2 CORRECTION OF WORK
§ 12.2.1 BEFORE OR AFTER SUBSTANTIAL COMPLETION
§ 12.2.1.1 The Contractor shall promptly correct Work rejected by the Architect or failing to conform to the requirements of the
Contract Documents, whether discovered before or after Substantial Completion and whether or not fabricated, installed or completed.
Costs of correcting such rejected Work, including additional testing and inspections and compensation for the Architect's services and
expenses made necessary thereby, shall be at the Contractor's expense.
§ 12.2.2 AFTER SUBSTANTIAL COMPLETION
§ 12.2.2.1 In addition to the Contractor’s obligation under Paragraph 3.5, if within one (1) year after the date of acceptance and
approval of the Final Application for Payment of the work, or after the date for commencement of warranties established under
Subparagraph 9.9.1, or by terms of an applicable special warranty required by the Contract Documents, any of the Work is found to be
not in accordance with the requirements of the Contract Documents, the Contractor shall correct it promptly after receipt of written
notice from the Owner to do so, unless the Owner has previously given the Contractor a written acceptance of such condition.
§ 12.2.2.2 The one-year period for correction of Work shall be extended with respect to portions of Work first performed after
Substantial Completion by the period of time between Substantial Completion and the actual performance of the Work. This
obligation under this Subparagraph 12.2.2 shall survive acceptance of the Work under the Contract and termination of the Work under
the Contract and termination of the contract.
§ 12.2.2.3 INTENTIONALLY OMITTED
§ 12.2.3 The Contractor shall remove from the site portions of the Work which are not in accordance with the requirements of the
Contract Documents and are neither corrected by the Contractor nor accepted by the Owner.
§ 12.2.4 The Contractor shall bear the cost of correcting destroyed or damaged construction, whether completed or partially completed,
of the Owner or separate contractors caused by the Contractor's correction or removal of Work which is not in accordance with the
requirements of the Contract Documents.
§ 12.2.5 Nothing contained in this Section 12.2 shall be construed to establish a period of limitation with respect to other obligations
which the Contractor might have under the Contract Documents. Establishment of the one-year period for correction of Work as
described in Section 12.2.2 relates only to the specific obligation of the Contractor to correct the Work, and has no relationship to the
time within which the obligation to comply with the Contract Documents may be sought to be enforced, nor to the time within which
proceedings may be commenced to establish the Contractor's liability with respect to the Contractor's obligations other than
specifically to correct the Work.
§ 12.2.6 If the Contractor fails to initiate the correction of non-conforming Work within seven (7) days of being notified of such nonconforming work, and fails to complete the correction of such non-conforming work within a reasonable amount of time as established
by the Owner, the Owner may correct it in accordance with Paragraph 2.4. If the Contractor does not proceed with correction of such
non-conforming Work within a reasonable time fixed by written notice from the Architect, the Owner may remove it and store the
salvable materials or equipment at the Contractor’s expense. If the Contractor does not pay costs of such removal and storage within
ten (10) days after written notice, the Owner may upon ten (10) additional days written notice sell such materials and equipment at
auction or at private sale and shall account for the proceeds thereof, after deducting costs and damages that should have been borne by
the Contractor, including compensation for the Architect’s services and expenses made necessary thereby. If such proceeds of sale do
not cover costs which the Contractor should have borne, the Contract Sum shall be reduced by the deficiency. If payments then, or
thereafter due the Contractor are not sufficient to cover such amount, the Contractor shall pay the difference to the Owner.
§ 12.3 ACCEPTANCE OF NONCONFORMING WORK
§ 12.3.1 If the Owner prefers to accept Work which is not in accordance with the requirements of the Contract Documents, the Owner
may do so instead of requiring its removal and correction, in which case the Contract Sum will be reduced as appropriate and
equitable. Such adjustment shall be effected whether or not final payment has been made.
ARTICLE 13 MISCELLANEOUS PROVISIONS
§ 13.1 GOVERNING LAW
§ 13.1.1 The Contract shall be governed by the law of the place where the Project is located.
§ 13.2 SUCCESSORS AND ASSIGNS
§ 13.2.1 The Owner and Contractor respectively bind themselves, their partners, successors, assigns and legal representatives to the
other party hereto and to partners, successors, assigns and legal representatives of such other party in respect to covenants, agreements
and obligations contained in the Contract Documents. Except as provided in Section 13.2.2, neither party to the Contract shall assign
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the Contract as a whole without written consent of the other. If either party attempts to make such an assignment without such consent,
that party shall nevertheless remain legally responsible for all obligations under the Contract.
§ 13.2.2 The Owner may, without consent of the Contractor, assign the Contract to an institutional lender providing construction
financing for the Project. In such event, the lender shall assume the Owner's rights and obligations under the Contract Documents. The
Contractor shall execute all consents reasonably required to facilitate such assignment.
§ 13.3 WRITTEN NOTICE
§ 13.3.1 Written notice shall be deemed to have been duly served if delivered in person to the individual or a member of the firm or
entity or to an officer of the corporation for which it was intended, or if delivered at or sent by registered or certified mail to the last
business address known to the party giving notice.
§ 13.4 RIGHTS AND REMEDIES
§ 13.4.1 Duties and obligations imposed by the Contract Documents and rights and remedies available thereunder shall be in addition
to and not a limitation of duties, obligations, rights and remedies otherwise imposed or available by law.
§ 13.4.2 No action or failure to act by the Owner, Architect or Contractor shall constitute a waiver of a right or duty afforded them
under the Contract, nor shall such action or failure to act constitute approval of or acquiescence in a breach thereunder, except as may
be specifically agreed in writing.
§ 13.5 TESTS AND INSPECTIONS
§ 13.5.1 Tests, inspections and approvals of portions of the Work required by the Contract Documents or by laws, ordinances, rules,
regulations or orders of public authorities having jurisdiction shall be made at an appropriate time. Unless otherwise provided, the
Contractor shall make arrangements for such tests, inspections and approvals with an independent testing laboratory or entity
acceptable to the Owner, or with the appropriate public authority, and shall bear all related costs of tests, inspections and approvals.
The Contractor shall give the Architect timely notice of when and where tests and inspections are to be made so that the Architect may
be present for such procedures. The Owner shall bear costs of tests, inspections or approvals which do not become requirements until
after bids are received or negotiations concluded.
§ 13.5.1.1 Tests specifically called for by Specifications shall be made by professional testing laboratory acceptable to the Architect.
The Contractor shall employ same and pay all charges in connection therewith. Records of tests shall be delivered to Architect in
duplicate on acceptable forms. The Owner shall receive one (1) copy of all tests or certificates of inspection.
§ 13.5.1.2 The Contractor shall notify the Architect 48 hours in advance before covering up any concealed work, pouring of any
concrete or conducting any tests by any trade on the Work.
§ 13.5.2 If the Architect, Owner or public authorities having jurisdiction determine that portions of the Work require additional testing,
inspection or approval not included under Section 13.5.1, the Architect will, upon written authorization from the Owner, instruct the
Contractor to make arrangements for such additional testing, inspection or approval by an entity acceptable to the Owner, and the
Contractor shall give timely notice to the Architect of when and where tests and inspections are to be made so that the Architect may
be present for such procedures. Such costs, except as provided in Section 13.5.3, shall be at the Owner's expense.
§ 13.5.3 If such procedures for testing, inspection or approval under Sections 13.5.1 and 13.5.2 reveal failure of the portions of the
Work to comply with requirements established by the Contract Documents, all costs made necessary by such failure including those of
repeated procedures and compensation for the Architect's services and expenses shall be at the Contractor's expense.
§ 13.5.4 Required certificates of testing, inspection or approval shall, unless otherwise required by the Contract Documents, be secured
by the Contractor and promptly delivered to the Architect.
§ 13.5.5 If the Architect is to observe tests, inspections or approvals required by the Contract Documents, the Architect will do so
promptly and, where practicable, at the normal place of testing.
§ 13.5.6 Tests or inspections conducted pursuant to the Contract Documents shall be made promptly to avoid unreasonable delay in the
Work.
§ 13.6 INTEREST
§ 13.6.1 Payments due and unpaid under the Contract Documents shall bear interest in accordance with N.M. Stat. Ann. § 57-28-1, et.
seq., as amended (the Retainage Act).
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§ 13.7 COMMENCEMENT OF STATUTORY LIMITATION PERIOD
§ 13.7.1 As between the Owner and Contractor:
.1
Before Substantial Completion. As to acts or failures to act occurring prior to the relevant date of Substantial
Completion, any applicable statute of limitations shall commence to run and any alleged cause of action shall be
deemed to have accrued in any and all events not later than such date of Substantial Completion;
.2
Between Substantial Completion and Final Certificate for Payment. As to acts or failures to act occurring subsequent
to the relevant date of Substantial Completion and prior to issuance of the final Certificate for Payment, any applicable
statute of limitations shall commence to run and any alleged cause of action shall be deemed to have accrued in any and
all events not later than the date of issuance of the final Certificate for Payment; and
.3
After Final Certificate for Payment. As to acts or failures to act occurring after the relevant date of issuance of the final
Certificate for Payment, any applicable statute of limitations shall commence to run and any alleged cause of action
shall be deemed to have accrued in any and all events not later than the date of any act or failure to act by the
Contractor pursuant to any Warranty provided under Section 3.5, the date of any correction of the Work or failure to
correct the Work by the Contractor under Section 12.2, or the date of actual commission of any other act or failure to
perform any duty or obligation by the Contractor or Owner, whichever occurs last.
Architect
§ 13.8 MINIMUM WAGES Minimum wages determined by the Office of Labor Commissioner, Santa Fe, New Mexico, follow
hereinafter. The minimum wages to be paid on the Project will be as determined by the New Mexico State Labor Commissioner.
§ 13.9 PAYMENT OF EMPLOYEES AND WEEKLY PAYROLLS Attention of Contractor is called to the fact that minimum wage
rates to be paid various classes of laborers and mechanics, if based upon wages determined by the State Labor Commission, will be in
accordance with NMSA 1978 § 13 4 11, as amended. The Contractor and each of his subcontractors shall deliver or mail copies of the
certified weekly payrolls prepared in accordance with available New Mexico labor regulations to the Office of the Labor
Commissioner no more than five (5) working days following the close of the payroll period, and such payrolls shall depict the decision
number for this Project and the county in which the Work is being performed. The scale of wages to be paid shall be posted by the
Contractor in a prominent and easily accessible place at the job site.
§ 13.10 TIME FOR COMPLETION AND LIQUIDATED DAMAGES: The Contractor agrees that said Work shall be prosecuted
regularly, diligently and uninterruptedly at such rate of progress as will insure full completion thereof as specified in Paragraph 1.10 of
SECTION 00100 of Instructions to Bidders. It is expressly understood and agreed, by and between the Contractor and the Owner, that
the time for the completion of the Work described herein is a reasonable time for the completion of the same, taking into consideration
the average climate range and usual industrial conditions prevailing in this locality. If the said Contractor shall neglect, fail or refuse
to complete the Work within the time herein specified, or any proper extension thereof granted by the Owner, then the Contractor does
hereby agree, as part consideration for the awarding of this Contract, not as a penalty but as liquidated damages for such breach of
contract as hereinafter set forth to pay the sum specified in Paragraph 1.10 of SECTION 00100 of Instructions to Bidders for each and
every calendar day that the Work remains uncompleted after the time stipulated in the Contract for completing the Work. Any
Contractor who estimates the actual construction in less time than given in the Contract shall do so at his own risk and may not pass
on any additional costs due to under estimating the actual construction time. The Contractor's proposed schedule shall be submitted
for the Owner's review and information only and does not constitute approval by the Owner or Architect. Liquidated damages may be
withheld from progress payments, final payment and retainage, followed by a Change Order or a Construction Change Directive.
§ 13.11 MULTIPLE LOCATIONS: If multiple locations are involved in the Work, then separate Applications for Payment shall be
submitted for each location.
§ 13.12 REFERENCES TO ARBITRATION. All references to arbitration of disputes between the Owner and the Contractor
contained in the Contract Documents are hereby deleted, and references to the manner of resolution of claims and disputes as
contained in Paragraphs 4.4 and 4.5 are hereby substituted in their place in each instance.
§ 13.13 INSPECTION AND AUDIT. The Owner may inspect, at any reasonable time, any part of Contractor's operations and place of
business which is related to performance of the Contract Documents. All records of the Contractor in connection with the Project
shall be subject to audit by the Owner, whether conducted as an internal or external audit. Payment under this Contract shall not
preclude the Owner from recovering excessive, erroneous or illegal payments previously made to the Contractor.
§ 13.14 AFFIRMATIVE ACTION. The Contractor shall not discriminate with regard to hiring, termination or other incidents of
employment on the basis of race, sex, national origin, religion, age or handicap. The Contractor agrees to: (a) adhere to the principles
set forth in Executive Order 11246 and 11375, and to undertake specifically to maintain employment policies and practices that
affirmatively promote equality of opportunity for handicapped persons, minority group persons and women; (b) take affirmative steps
to hire and promote women and minority group persons at all job levels and in all aspects of employment; (c) communicate this policy
in both English and Spanish to all persons concerned within the company, with outside recruiting services and the minority
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community at large; (d) provide the Owner on request a breakdown of labor force by ethnic group, sex, and job category; and (e)
discuss with the Owner its policies and practices relating to its affirmative action program.
ARTICLE 14 TERMINATION OR SUSPENSION OF THE CONTRACT
§ 14.1 TERMINATION BY THE CONTRACTOR
§ 14.1.1 The Contractor may terminate the Contract if the Work is stopped for a period of 30 consecutive days through no act or fault
of the Contractor or a Subcontractor, Sub-subcontractor or their agents or employees or any other persons or entities performing
portions of the Work under direct or indirect contract with the Contractor, for any of the following reasons:
.1
issuance of an order of a court or other public authority having jurisdiction which requires all Work to be stopped;
.2
an act of government, such as a declaration of national emergency which requires all Work to be stopped;
.3
because the Architect has not issued a Certificate for Payment and has not notified the Contractor of the reason for
withholding certification as provided in Section 9.4.1, or because the Owner has not made payment on a Certificate for
Payment within the time stated in the Contract Documents; or
.4
the Owner has failed to furnish to the Contractor promptly, upon the Contractor's request, reasonable evidence as
required by Section 2.2.1.
§ 14.1.2 The Contractor may terminate the Contract if, through no act or fault of the Contractor or a Subcontractor, Sub-subcontractor
or their agents or employees or any other persons or entities performing portions of the Work under direct or indirect contract with the
Contractor, repeated suspensions, delays or interruptions of the entire Work by the Owner as described in Section 14.3 constitute in
the aggregate more than 100 percent of the total number of days scheduled for completion, or 120 days in any 365-day period,
whichever is less.
§ 14.1.3 If one of the reasons described in Section 14.1.1 or 14.1.2 exists, the Contractor may, upon seven (7) days' written notice to
the Owner and Architect, terminate the Contract and recover from the Owner payment for Work executed and for proven loss with
respect to materials, equipment, tools, and construction equipment and machinery, including reasonable overhead, profit and damages.
§ 14.1.4 If the Work is stopped for a period of 60 consecutive days through no act or fault of the Contractor or a Subcontractor or their
agents or employees or any other persons performing portions of the Work under contract with the Contractor because the Owner has
persistently failed to fulfill the Owner's obligations under the Contract Documents with respect to matters important to the progress of
the Work, the Contractor may, upon seven additional days' written notice to the Owner and the Architect, terminate the Contract and
recover from the Owner as provided in Section 14.1.3.
§ 14.2 TERMINATION BY THE OWNER FOR CAUSE
§ 14.2.1 The Owner may terminate the Contract if the Contractor:
.1
persistently or repeatedly refuses or fails to supply enough properly skilled workers or proper materials;
.2
fails to make payment to Subcontractors for materials or labor in accordance with the respective agreements between
the Contractor and the Subcontractors;
.3
persistently disregards laws, ordinances, or rules, regulations or orders of a public authority having jurisdiction; or
.4
otherwise is guilty of substantial breach of a provision of the Contract Documents.
§ 14.2.2 When any of the above reasons exist, the Owner, upon certification by the Architect that sufficient cause exists to justify such
action, may without prejudice to any other rights or remedies of the Owner and after giving the Contractor and the Contractor's surety,
if any, seven days' written notice, terminate employment of the Contractor and may, subject to any prior rights of the surety:
.1
take possession of the site and of all materials, equipment, tools, and construction equipment and machinery thereon
owned by the Contractor;
.2
accept assignment of subcontracts pursuant to Section 5.4; and
.3
finish the Work by whatever reasonable method the Owner may deem expedient. Upon request of the Contractor, the
Owner shall furnish to the Contractor a detailed accounting of the costs incurred by the Owner in finishing the Work.
§ 14.2.3 When the Owner terminates the Contract for one of the reasons stated in Section 14.2.1, the Contractor shall not be entitled to
receive further payment until the Work is finished.
§ 14.2.4 If the unpaid balance of the Contract Sum exceeds costs of finishing the Work, including compensation for the Architect's
services and expenses made necessary thereby, and other damages incurred by the Owner and not expressly waived, such excess shall
be paid to the Contractor. If such costs and damages exceed the unpaid balance, the Contractor shall pay the difference to the Owner.
The amount to be paid to the Contractor or Owner, as the case may be, shall be certified by the Architect, upon application, and this
obligation for payment shall survive termination of the Contract.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
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EXHIBIT E: SAMPLE MASTER CONSTRUCTION AGREEMENT
§ 14.3 SUSPENSION BY THE OWNER FOR CONVENIENCE
§ 14.3.1 The Owner may, without cause, order the Contractor in writing to suspend, delay or interrupt the Work in whole or in part for
such period of time as the Owner may determine.
§ 14.3.2 The Contract Sum and the Contract Time shall be adjusted for increases in the cost and time caused by suspension, delay or,
interruption as described in Subparagraph 14.3.1, excluding profit. No adjustment shall be made to the extent:
.1
that performance is, was or would have been so suspended, delayed or interrupted by another cause for which the
Contractor is responsible; or
.2
that an equitable adjustment is made or denied under another provision of the Contract.
§ 14.4 TERMINATION BY THE OWNER FOR CONVENIENCE
§ 14.4.1 The Owner may, at any time, terminate the Contract for the Owner's convenience and without cause.
§ 14.4.2 Upon receipt of written notice from the Owner of such termination for the Owner's convenience, the Contractor shall:
.1
cease operations as directed by the Owner in the notice;
.2
take actions necessary, or that the Owner may direct, for the protection and preservation of the Work; and
.3
except for Work directed to be performed prior to the effective date of termination stated in the notice, terminate all
existing subcontracts and purchase orders and enter into no further subcontracts and purchase orders.
§ 14.4.3 In case of such termination for the Owner's convenience, the Contractor shall be entitled to receive payment for Work
executed.
RFP # P-332, Advertised August 21, 2013
Copyright CNM 2013. All rights reserved.
Page 83 of 83