Attachment H
Contract No.
Purchase Order No.
Requisition No.
ENGINEERING, PROCUREMENT AND CONSTRUCTION SERVICES CONTRACT
THIS ENGINEERING, PROCUREMENT AND CONSTRUCTION SERVICES
CONTRACT (the "Contract" or “Agreement”) dated as of
, 20__, by and between
HAWAIIAN ELECTRIC COMPANY, INC. (hereinafter "Company"), a Hawaii corporation,
and ____________________ (hereinafter "Contractor"), a
corporation, whose
principal place of business is
and whose mailing address is
, doing business in Hawaii, each a “party” and collectively the “parties” to this Agreement.
WITNESSETH:
WHEREAS, Company is in the business of generation, transmission, and
distribution of electrical power on the Island of Oahu, State of Hawaii; and
WHEREAS, Company requires certain engineering, procurement, and construction
work to be accomplished in order to maintain reliable electrical power for its customers;
and
WHEREAS, Contractor is in the business of performing engineering, procurement
and construction work such as that needed by Company; and
WHEREAS, Contractor represents that it is equipped and has the expertise
necessary to perform the particular engineering, procurement and construction work
required under the terms and conditions of this Contract.
NOW, THEREFORE, in consideration of these premises and of the mutual
promises contained herein, Company and Contractor hereby agree that Contractor will
perform engineering, procurement and construction work for Company under the
following terms and conditions:
I. SCOPE OF WORK
1.1
Project Description - Contractor agrees to furnish all work and services (the
“Work”) required or appropriate in connection with the design, engineering, procurement,
construction, commissioning, start-up, demonstration, testing and completion of Oahu
Energy Storage Projects on Oahu (the “Project”) as well as the provision of all materials,
Equipment, machinery, tools, labor, supervision, transportation, administration, training
and other services and items required to complete and deliver to Company, and allow
Company to commence operation of, the Project, fully tested, integrated and operational,
designed and constructed to comply with prudent utility standards and to have a useful
1
(June 2013)
economic life of not less than 15 years, and complying fully with all applicable laws,
permits, codes and standards, in accordance with the following:









Standard General Terms and Conditions, attached hereto as Appendix A
(“General Terms and Conditions”);
Project Specifications attached hereto as Appendix B (“Project Specifications”);
Company Drawings, attached hereto as part of Appendix B (“Company
Drawings”);
Substantial Completion, Final Acceptance and Performance Guarantees, attached
hereto as Appendix C;
Approved Supplier List, attached hereto as Appendix D;
Schedule of Permits and Governmental Approvals, attached hereto as Appendix
E;
Witness Point Schedule, attached hereto as Appendix F;
Notes of Meetings as finally approved by Company which result from the pre-bid
meeting and/or Worksite inspections, pre-award meeting, and the pre-construction
meeting (“Notes of Meetings”); and
the Addenda, if any, and all amendments and attachments thereto (“Addenda”)
all of which are incorporated by reference herein and made a part hereof (collectively, the
“Contract Documents”). Any conflict between the Contract Documents shall be resolved
as set forth in Section 1.03.D of the General Terms and Conditions.
1.2
Definitions - Unless otherwise provided, the Definitions set forth in the
General Terms and Conditions shall be incorporated by reference herein.
1.3
Schedule of Work - The Work shall start no later than
______________, and the Project shall be constructed, tested, completed and ready for
Company’s inspection no later than [date] (the “Substantial Completion Date”). Time is of
the essence on this Contract.
1.4
Other Contracts - Company reserves the right at all times to let other
contractors on the Worksite to perform other work for Company.
2
(June 2013)
II. COMPENSATION
2.1
Contract Price - Compensation for Work performed under this Contract
shall be for the fixed lump sum price of
($
) (inclusive of all costs, expenses and taxes), subject to adjustments as
provided for in the Contract Documents (the “Contract Price”).
III. MISCELLANEOUS
3.1
Entire Contract - The Contract Documents shall constitute the entire
understanding between the parties, superseding any and all previous understandings,
oral or written, pertaining to the Work. The parties have entered into this Contract and the
Contract Documents in reliance upon the representations and mutual undertakings
contained herein and not in reliance upon any oral or written representations or
information provided to one party by any representative of the other party.
3.2
Regulatory Approvals - This Contract shall be contingent upon any and all
required governmental and regulatory consents, approvals and authorizations, including
those of the Public Utilities Commission.
3.3
Notices - Any notice required or permitted to be given in writing under this
Contract shall be (a) mailed by certified mail, postage prepaid, return receipt requested,
(b) sent by overnight air courier service, (c) personally delivered to a representative of
the receiving party, (d) sent by facsimile (provided an identical notice is also sent
simultaneously by mail, overnight courier, or personal delivery as otherwise provided in
this Section 3.3), or (e) sent by email (provided receipt thereof is confirmed via email or
in writing by the recipient) and any such notice shall be deemed given (i) when received
if personally delivered or sent by overnight air courier service, (ii) on the date of
transmission if sent by facsimile transmission, (iii) three business days after being
deposited in the U.S. mail, certified, postage prepaid and return receipt requested, or
(iv) when received if sent in an email, the receipt of which has been confirmed by the
recipient. All such communications shall be mailed, sent or delivered, addressed to the
party for whom it is intended, using the contact information provided below or such other
contact information as the parties may designate from time to time:
If to Company:
[_____________________]
[PO Box ______]
_________, Hawaii 96___
Attention:
Telephone:
Facsimile
Email:
With a copy to:
3
(June 2013)
Hawaiian Electric Company, Inc.
PO Box 2750
Honolulu, Hawaii 96840
Attention: Vice President & General Counsel, Susan Li
Facsimile: 808- 543-7302
Email: susan.li@heco.com
If to Contractor:
[ADDRESS]
Attention:
Facsimile:
Email:
3.4
Counterparts - The parties agree that this Contract may be executed in
counterparts, each of which shall be deemed an original, and all of which shall together
constitute one and the same instrument binding all parties notwithstanding that all of the
parties are not signatories to the same counterparts. For all purposes, duplicate
unexecuted and unacknowledged pages of the counterparts may be discarded and the
remaining pages assembled as one document. This Contract may also be executed by
exchange of executed copies via facsimile or other electronic means, such as PDF, in
which case, but not as a condition to the validity of the Contract, each party shall
subsequently send the other party by mail the original executed copy. A party's
signature transmitted by facsimile or similar electronic means shall be considered an
"original" signature for purposes of this Contract.
3.5
Survival - The provisions of Article 3 (Miscellaneous) and the following
provisions of Appendix A (General Terms and Conditions) shall survive the expiration or
earlier termination of this Contract: Section 1.03.D (Discrepancies between Contract
Documents); Section 1.29 (Warranty); Section 1.34 (Liquidated Damages); Section 1.36
(Indemnities); Section 1.55.A (Unpaid Accounts-Liens); Section 1.56 (Surety Bond);
Section 1.61 (Publicity); Section 1.65 (Rights, Claims, Disputes); Section 1.68
(Confidentiality), Section 1.70 (Severability) and Section 1.71 (Applicable Law).
********************
4
(June 2013)
IN WITNESS WHEREOF, the parties hereto have caused this Contract to be signed by
appropriate representatives of each as of the date indicated.
HAWAIIAN ELECTRIC COMPANY, INC.
(“Company”)
By ______________________________
Name: ___________________________
Date: ____________________
Title: _____________________________
By ______________________________
Name: ___________________________
Date: ____________________
Title: ______________________________
[_________________________________]
“Contractor”
By ______________________________
Name: ___________________________
Date: ____________________
Title: ______________________________
HAWAII CONTRACTOR’S LICENSE NO. _______________
5
(June 2013)
APPENDIX A
STANDARD GENERAL TERMS AND CONDITIONS
TABLE OF CONTENTS
SECTION
TITLE
PAGE NO.
1
GENERAL CONDITIONS TABLE OF CONTENTS ............................A-i
1.01
DEFINITIONS ................................................................................... A-1
CONTRACT DOCUMENTS
1.02
1.03
INSPECTION OF CONTRACT DOCUMENTS AND WORKSITE;
VERIFICATIONS OF DIMENSIONS ON DRAWINGS
AND MEASUREMENTS ................................................................... A-3
CONTRACT DOCUMENTS .............................................................. A-4
PAYMENT; FINAL INSPECTION AND ACCEPTANCE
1.04
PAYMENT; INVOICING .................................................................... A-6
1.05
SUBSTANTIAL COMPLETION, FINAL INSPECTION AND
ACCEPTANCE ................................................................................. A-8
1.06
FINAL PAYMENT AND RELEASE OF CLAIMS ............................... A-9
STATUS OF THE PARTIES
1.07
INDEPENDENT CONTRACTOR ...................................................... A-9
1.08
CONTRACTOR REPRESENTATIVE ............................................. A-10
1.09
SUBCONTRACTS AND ASSIGNMENT ......................................... A-10
RESPONSIBILITY FOR THE WORK
1.10
CONTRACTOR RESPONSIBLE FOR WORK
UNTIL ACCEPTED .…….………………………………………………A-11
1.11
CONSTRUCTION INSPECTOR’S DUTIES .................................... A-12
A-i
(June 2013)
SECTION
TITLE
PAGE NO.
1.12
TITLE TO MATERIALS FOUND ON THE WORK .......................... A-13
1.13
SCHEDULE, REPORTS AND MEETINGS ..................................... A-13
1.14
WORK OF OTHER CONTRACTORS............................................. A-14
1.15
DISPUTES ...................................................................................... A-15
1.16
COMPANY’S USE AND OCCUPANCY .......................................... A-15
1.17
TESTS AND INSPECTION ............................................................ A-16
1.18
WORK WEEK/OVERTIME ............................................................. A-17
CHANGES IN THE WORK; CHANGES TO THE CONTRACT
1.19
CHANGES AND INCREASE OR DECREASE OF WORK ............. A-18
1.20
ADDITIONAL COMPENSATION .................................................... A-22
1.21
SUBSTITUTIONS ........................................................................... A-22
1.22
PROGRESS ................................................................................... A-23
DRAWINGS, PROJECT SPECIFICATIONS AND DOCUMENTATION
1.23
COMPANY DRAWINGS ................................................................. A-24
1.24
CONTRACTOR FURNISHED DRAWINGS .................................... A-25
1.25
PROJECT RECORD DRAWINGS; PHOTOGRAPHS OF
PROGRESS ................................................................................... A-26
1.26
DEFECTIVE, DEFICIENT DRAWINGS, PROJECT SPECIFICATIONS
OR WORK ...................................................................................... A-27
1.27
REPRODUCTION OF DRAWINGS, PROJECT SPECIFICATIONS OR
MONTHLY PICTURES ................................................................... A-28
1.28
ACCESS TO RECORDS ................................................................ A-28
A-ii
(June 2013)
SECTION
TITLE
PAGE NO.
PERFORMANCE STANDARDS AND WARRANTIES
1.29
WARRANTY ................................................................................... A-29
1.30
COMPATIBILITY ............................................................................ A-32
PERMITS/LAWS
1.31
RULES, CODES, PERMITS, LICENSES, AND NOTICES;
COMPLIANCE WITH APPLICABLE LAW ...................................... A-33
1.32
COMPANY FURNISHED PERMITS ............................................... A-35
DELAYS; EXTENSIONS OF TIME; LIQUIDATED DAMAGES
1.33
DELAYS AND EXTENSION OF TIME ............................................ A-35
1.34
LIQUIDATED DAMAGES ............................................................... A-35
INSURANCE AND INDEMNIFICATION
1.35
INSURANCE ................................................................................... A-37
1.36
INDEMNIFICATION ........................................................................ A-41
1.37
WAIVER OF IMPLEADER .............................................................. A-44
SAFETY PROGRAM AND SECURITY
1.38
SAFETY AND ACCIDENT REPORTS ............................................ A-44
1.39
NOTICE OF INJURY AND USE OF FIRST AID FACILITIES ......... A-45
1.40
FIRE PROTECTION ....................................................................... A-45
1.41
SECURITY...................................................................................... A-45
A-iii
(June 2013)
SECTION
TITLE
PAGE NO.
CONDUCT OF THE WORK
1.42
BARRIERS ..................................................................................... A-46
1.43
EQUIPMENT .................................................................................. A-46
1.44
LINES AND GRADES ..................................................................... A-46
1.45
SLEEVES AND SUPPORTS .......................................................... A-47
1.46
SHORING AND BRACING ............................................................. A-47
1.47
TEMPORARY ATTACHMENTS ..................................................... A-47
1.48
SAMPLES ....................................................................................... A-48
1.49
SPARE PARTS AND TOOLS FOR EQUIPMENT .......................... A-48
1.50
CUTTING AND PATCHING ............................................................ A-48
1.51
BLASTING ...................................................................................... A-48
1.52
AIR AND WATER POLLUTION ...................................................... A-48
1.53
REMOVAL OF REFUSE ................................................................. A-49
1.54
EQUIPMENT PROVIDED BY COMPANY FOR USE
BY CONTRACTOR ……………………………………………………..A-49
LIENS; PERFORMANCE BONDS
1.55
UNPAID ACCOUNTS - LIENS........................................................ A-50
1.56
SURETY BONDS (Payment and Performance) .............................. A-51
SUSPENSION; TERMINATION; FORCE MAJEURE
1.57
SUSPENSION ................................................................................ A-51
1.58
TERMINATION FOR DEFAULT ..................................................... A-53
1.59
TERMINATION FOR CONVENIENCE ........................................... A-55
A-iv
(June 2013)
SECTION
1.60
TITLE
PAGE NO.
FORCE MAJEURE ......................................................................... A-56
MISCELLANEOUS
1.61
PUBLICITY ..................................................................................... A-57
1.62
TAXES AND EMPLOYEE BENEFITS ............................................ A-57
1.63
LABOR REQUIREMENTS .............................................................. A-58
1.64
NO WAIVER ................................................................................... A-59
1.65
RIGHTS, CLAIMS AND DISPUTES................................................ A-60
1.66
GENDER AND NUMBER ............................................................... A-60
1.67
ATTORNEYS’ FEES AND COSTS ................................................. A-60
1.68
CONFIDENTIALITY ........................................................................ A-61
1.69
AMENDMENTS… ………………………………………………………A-61
1.70
SEVERABILITY OF PROVISIONS……………………………………A-61
1.71
APPLICABLE LAW……………………………………………………...A-61
Exhibit A FORM OF FINAL RELEASE AND WAIVER BY SUBCONTRACTOR
Exhibit B FORM OF CONTRATOR’S REQUEST FOR FINAL PAYMENT AND
RELEASE OF CLAIMS
Exhibit C FORM OF PERFORMANCE AND PAYMENT BOND
Exhibit D FORM OF CONSTRUCTION PROGRESS AND INVOICE ACCOUNTS
REPORT
Exhibit E CONTRACT LABOR STANDARDS
A-v
(June 2013)
1.01
DEFINITIONS
Any capitalized terms used in this Appendix A and not otherwise defined
shall have the meaning set forth in the Contract or the Contract
Documents. All section references in this Section 1.01 (Definitions) are to
sections of this Appendix A, unless otherwise noted.
“Acceptance” – has the meaning set forth in Section 1.05.C.
“Addenda” – means a supplemental document provided in connection with
the General Terms and Conditions, Company Drawings, or Project
Specifications.
“CERCLA” – has the meaning set forth in Section 1.31.B(2).
“Change Order” – means an amendment to the Contract signed by the
Company and Contractor that authorizes a change in the Work, an
adjustment in the Contract Price, or an adjustment in the Contract
Schedule.
“Company Drawings” – the graphic and pictorial documents attached as
Appendix B (Company Drawings) showing the design, location and
dimensions of the Project, generally including plans, elevations, sections,
details, schedules and diagrams, which have been prepared by Company
or for proposal or construction of the Project.
“Construction Inspector” – person/company named by Company who will
provide standby/inspection services at the Worksite, as more fully
described in Section 1.11.
“Construction Schedule” – has the meaning set forth in Section 1.13.C.
“Contract” – the Engineering, Procurement and Construction Services
Contract between Contractor and Company, covering the performance of
the Work for the Project and the furnishing of labor and materials and
Equipment in the construction thereof, which shall include any and all
Contract Documents and any written amendments thereto.
“Contract Price” is defined in Section 2.1 of the Contract
“Contractor Representative” – has the meaning set forth in Section 1.08.A.
“Engineers” – Company’s in-house project engineers working under the
authority of the Company.
“Environmental Law” – has the meaning set forth in Section 1.31.B(2).
“Equipment” – means any hoist, rigging, blocking, scaffolding, crane,
ladders, elevator, engine, vehicle, machine, tools, apparatus, staging,
A-1
(June 2013)
flooring, runways, or other device, including any component or part thereof
used in relation to the Work or incorporated into the Project.
“FIFRA” – has the meaning set forth in Section 1.31.B(2).
“Hazardous Materials Laws” – has the meaning set forth in Section
1.31.B(3).
“Indemnified Parties” – the Company, Hawaiian Electric Industries, Inc.,
and each of their respective officers, directors, partners, shareholders,
agents and employees (and each of their heirs, successors and assigns).
“Monthly Invoice” – has the meaning set forth in Section 1.04.A.
“Monthly Pictures” – has the meaning set forth in Section 1.25.F.
“Monthly Report” – has the meaning set forth in Section 1.25.E.
“Notice” – shall be deemed duly made if in writing and, in the case of
Contractor or a Subcontractor, it is given directly to a person serving in a
supervisory capacity or to an office of such Contractor or Subcontractor, or
is sent by mail to the last known address of the Contractor or
Subcontractor; and in the case of the Company, to the attention of the
Project Manager, Hawaiian Electric Company, Inc., P. O. Box 2750,
Honolulu, Hawaii 96840-0001.
“PCB’s” – has the meaning set forth in Section 1.31.B(2).
“Project Manager” – person named by Company to be representative of
the Company with the authority to act on the Company’s behalf in those
matters relating to the project schedule, scope and costs.
“Project Record Copy Documents” – also known as “As Built” documents,
has the meaning set forth in Section 1.23.F.
“Project Specifications” – means the specifications for the Project
determined by Contractor and Company as set forth in Appendix B.
“RCRA” – has the meaning set forth in Section 1.31.B(2).
“Records” has the meaning set forth in Section 1.28.A.
“Retained Amounts” – has the meaning set forth in Section 1.04.E.
“Subcontractors” – those third party contractors deriving their authority to
perform the Work under the Contract from the Contractor, or from any
other approved Subcontractor, after approval by the Company. It includes
third party contractors who furnish materials worked to a special design
according to the Project Specifications, but does not include third party
contractors that furnish solely supplies and materials.
A-2
(June 2013)
“Substantial Completion” – means that all Work has been completed by
Contractor such that the Project satisfies all Substantial Completion
Criteria set forth in Appendix C, except for identified items that do not
impede the ability of Company to safely operate the Project in accordance
with industry standards (“punch list items”) and all applicable testing in
accordance has been successfully completed.
“Substantial Completion Date” – has the meaning set forth in Section 1.3
of the Contract.
“Taxes and Benefits” – has the meaning set forth in Section 1.62.A.
“Worksite” – means the location designated by the Company where the
Work is performed by the Contractor.
CONTRACT DOCUMENTS
1.02
INSPECTION OF CONTRACT DOCUMENTS AND WORKSITE;
VERIFICATIONS OF DIMENSIONS ON DRAWINGS AND
MEASUREMENTS
1.02.A
Review of Contract Documents – The Contractor will be held to have
carefully examined the Contract (including all Contract Documents) and to
be fully informed as to all existing conditions and limitations, including all
laws, ordinances, and regulations affecting the Contract or the Work and
to have included all items implied or required therein to attain the
completed conditions contemplated by the Contract. Failure to conform to
this requirement shall not relieve the Contractor of any of the obligations of
the Contract.
1.02.B
Inspection of Worksite – Contractor shall make a thorough field check of
the Worksite for the purpose of verifying existing conditions that may affect
the Work including but not limited to possible errors in work previously
done by others, difficulties that might be encountered in the execution of
the Work for any other reason, dimensions, interconnection of the Work
with the work of others, existing construction, working space, storage
space, access facilities, the character, quality, and quantity of surface and
subsurface water and material conditions to be encountered on the
Worksite, transportation, facilities, the kinds of facilities required before
and during construction of the project, labor conditions, the ecological and
environmental criteria to be followed, prevailing weather conditions at
various times during the year, and all other conditions pertaining to the
Worksite relative to the conduct of its operations. No claim for additional
compensation will be allowed which is based upon lack of knowledge of
such conditions. Any soils report, or other report evaluating surface or
subsurface conditions associated with the Work provided to Contractor is
for Contractor’s convenience only, and no warranty is made as to any
condition described therein.
A-3
(June 2013)
1.02.C
Accuracy of Dimensions – Contractor shall satisfy itself as to the accuracy
of the dimensions of existing conditions or as such dimensions relate to
the dimensions given on any Drawings issued by the Engineers or others,
it being understood that the Company does not guarantee the exactness
of such dimensions or any existing conditions.
1.02.D
Variations of Dimensions – Should Contractor discover any variation in the
dimensions of existing conditions and the dimensions given on any
Company Drawings, Contractor shall give immediate notice thereof to the
Company and Contractor shall not proceed with the Work until such
variation is resolved. In the event that Contractor fails to so notify
Company of such variation or in the event that Contractor notifies
Company of such variation at a time subsequent to the time Contractor
should have discovered such variation, Contractor shall be fully
responsible for all extra material, labor, and other expenses arising out of
Contractor’s failure to notify the Company in a timely manner.
1.03
CONTRACT DOCUMENTS
1.03.A
Documents to be Read Together – Any Company Drawings, both general
and detail, referred to in the Project Specifications shall be deemed to be
a part thereof, and the Project Specifications, Company Drawings, and the
other Contract Documents shall be considered together, so that any part
of the Work shown or described on the Company Drawings though not
specifically referred to in the Project Specifications, or elsewhere in the
Contract, or vice versa, shall be executed by the Contractor as a part of
the Contract, as well as any Work which, in the opinion of Company, may
be fairly inferred from, or reasonably required by, the Project
Specifications, Company Drawings, or other Contract Documents.
1.03.B
Prior Examination; Detailed Drawings; Subsequent Drawings and Project
Specifications – Execution and delivery of the Contract by the Contractor
shall be conclusive evidence of the prior examination by the Contractor of
all Contract Documents and the same are sufficient for their intended
purpose. Any detailed Company Drawings shall govern and be controlling
over general Company Drawings for the same part of the Work. Project
Specifications and detailed Company Drawings which may be prepared by
the Engineers after the execution and delivery of the Contract are, so far
as that portion of the Work called for may be fairly inferred from the
original Project Specifications and Company Drawings, to be deemed a
part of such Project Specifications and the Company Drawings referred to
therein, and that portion of the Work shown thereby shall be performed
without any change in the Contract Price.
1.03.D
Discrepancies between Contract Documents – (1) In the event of any
conflicts or ambiguities among the Contract Documents, they shall govern
in the following order of priority:
A-4
(June 2013)
(a)
Any conditions placed on the Work by any governmental
authority with jurisdiction over the Work or the Worksite.
(b)
Sections of the Project Specifications applicable to the
portion of the Work in question, as modified by applicable
Addenda (if any) with the most recent Addenda having
priority over earlier Addenda.
(c)
Handwritten notices, notes, schedules and dimensions made
by the Engineer on the Company Drawings.
(d)
The Company Drawings, with detail and large-scale
drawings and figured dimensions having priority over general
and small-scale drawings.
(e)
Engineering, Procurement and Construction Services
Contract.
(f)
Contractor’s Proposal regarding Contractor’s compensation
and scope of work.
Provided, however, in the case of conflicts or ambiguities, Sections of the
relevant Project Specifications (as modified by the relevant Addenda (if
any)) shall govern as to materials, workmanship, performance and
installation procedures, and the Company Drawings shall govern as to
location, arrangement, shape and details of construction; provided, further,
that in the event of any conflicts or ambiguities, Change Orders issued
after execution of this Agreement shall, with respect to the respective
subject matters thereof, govern the Contract Documents enumerated
herein with the most recent Change Orders governing earlier Change
Orders.
(2)
Any discrepancy, contradiction or ambiguity that cannot be resolved
by recourse to the Contract Documents in the foregoing order shall be
immediately referred to Company. Company shall determine which shall
control and its decision shall be final. In all cases, figures will take
precedence over scale measurements on Company Drawings, but where
obvious discrepancies exist, Contractor shall consult Company and shall
abide by Company’s decision. On all matters under this Contract, in the
event of conflicting determinations by Company or Contractor, Company’s
determination shall control and shall be final. Contractor will be held to
have carefully examined all the Contract (including the Contract
Documents), and any discrepancy, contradiction or ambiguity in any of
them or between them and any decision of Company resolving any such
discrepancy, contradiction or ambiguity shall not be grounds for a claim for
additional compensation or additional time by Contractor.
1.03.E
Most Stringent Requirements take Precedence – If there is a conflict
between the requirements of quality or workmanship covered in the
Contract (including the Contract Documents), or industry standard codes
A-5
(June 2013)
or any other applicable requirements, that requirement which is most
stringent shall take precedence.
1.03.F
No Oral Modifications – The Company will not be responsible for any oral
instructions. No oral proposals or modifications will be considered.
PAYMENT; FINAL INSPECTION AND ACCEPTANCE
1.04
PAYMENT; INVOICING
1.04.A
Monthly Invoicing – Upon completion of each monthly invoicing period,
Contractor will submit three (3) copies of the Monthly Invoice, as set forth
in Exhibit D (“Construction Progress and Invoice Accounts Report”) (the
“Monthly Invoice”) together with the Monthly Report (as described in
Section 1.25.E) and the Monthly Pictures (as described in Section 1.25.F),
to Project Manager for review, along with such other data as required by
Company to verify figures shown. The Monthly Invoice shall also contain
any additional information required by Company as part of the Work
hereunder.
The elements of all amounts invoiced shall be shown separately, and shall
be classified or further broken down as Company may require for
accounting and payment purposes.
1.04.B
Monthly Invoicing Period – The period covered by each Monthly Invoice
shall be from the 1st through 30th/31st of the previous month.
1.04.C
Monthly Invoice for Services Rendered – The amounts set forth on the
Monthly Invoice shall be limited to fees for those services actually
rendered to Company during the applicable invoicing period. Contractor
shall furnish a detailed breakdown of all services rendered and invoiced
on each Monthly Invoice.
1.04.D
Invoicing for Materials On-Worksite but not yet Installed – In the
preparation of the Monthly Invoices, material costs shall be limited to
those materials actually delivered to the Worksite during such invoicing
period. Contractor shall furnish a detailed breakdown of all materials
delivered to Worksite.
1.04.E
Payments –Payment to Contractor shall be made as follows:
(1) Electronic Payments – For Consultants participating in Company’s
electronic payment program, Company will pay properly submitted
Monthly Invoices within fifteen (15) days after receipt and approval.
(2) Manual Payments – For Contractors not participating in Company’s
electronic payment program, Company will pay properly submitted
Monthly Invoices within forty-five (45) days after receipt and approval.
A-6
(June 2013)
(3) Payment will be in the amount invoiced, less a ten-percent (10%)
retention amount of all Work invoiced (the “Retained Amounts”). The
Company may require as a condition of payment that the Contractor
submit (1) evidence satisfactory to the Company that any and all
claims of Subcontractors, suppliers or other third parties that have
performed services or provided supplies in connection with the Work
included in any Monthly Invoice have been paid or satisfactorily
secured prior to making any partial payment, including but not limited
to lien waivers (as set forth in Exhibit A (Final Release and Waiver by
Subcontractor) and Exhibit B (Form of Request for Final Payment and
Release of Claim)) from Contractor and all Subcontractors for whose
work payment is sought waiving any lien rights for the amount
requested in the Monthly Invoice, and (2) an acceptable Monthly
Construction Progress Report as described in Section 1.25.E (Monthly
Reports).
1.04.F
1.04.G
Amounts Withheld – In addition to any other remedy available to
Company, any amounts otherwise payable under the Contract may be
withheld in whole or in part if:
(1)
Any claims or back-charges filed against Contractor by Company or
third parties remain unpaid; or
(2)
Contractor has been notified in writing by the Company that it is in
default of any Contract condition; or
(3)
Defective or deficient Work is not remedied; or
(4)
Contractor fails to make payments properly due to Subcontractors
or suppliers for labor, materials, or equipment; or
(5)
Monthly Invoice is found to be in material error or any material
portion of the required documentation is found to be missing; or
(6)
Company has reasonable concerns that Contractor will not be able
to fully perform its obligations under this Contract within the time
specified in the Construction Schedule or for the Contract Price; or
(7)
Contractor’s Project Record Copy Documents fail to meet
requirements specified in Section 1.25.B.
Payment of Amounts Withheld – Company shall remit to Contractor such
withheld amounts, if any, if Contractor:
(1)
Pays, satisfies, or discharges any claim of Company, or third party
against Contractor arising out of or in any way connected with the
Contract; or
(2)
Cures all defaults in the performance of the Contract.
A-7
(June 2013)
Payment of the withheld amounts or portion thereof approved by
Company shall be paid with the next regular monthly payment after
satisfaction or cure.
1.04.H
Deduction of Unpaid Claims – If claims filed against Contractor connected
with performance under this Contract are not promptly removed by
Contractor after receipt of written notice from the Company to do so,
Company may remove such claims and deduct all costs in connection with
such removal from withheld payments or other monies due, or which may
become due, to Contractor. If the amount of such withheld Payment or
other monies due Contractor under the Contract is insufficient to meet
such costs, Contractor shall promptly pay Company the balance of those
costs.
1.05
SUBSTANTIAL COMPLETION, FINAL INSPECTION AND
ACCEPTANCE
1.05.A
Notice of Substantial Completion – Contractor shall notify Company in
writing when it believes Substantial Completion has occurred. Within ten
(10) days, Company shall thereafter conduct an inspection and issue its
acknowledgement of Substantial Completion or a report to Contractor that
identifies any deficient or noncompliant Work. Contractor promptly shall
take such action, including the performance of additional Work to achieve
Substantial Completion and shall issue to Company another request for
Company acknowledgement of Substantial Completion. Such procedure
shall be repeated as necessary until Substantial Completion has been
achieved.
1.05B
Notice of Final Inspection and Acceptance - Contractor shall notify
Company in writing when it deems all punch list items have been
completed and all of its obligations under the Contract are fulfilled.
Company and Contractor shall thereupon inspect together all of the Work
which has been performed by Contractor and its Subcontractors. If
Company determines that all of the Work, together with all other work
necessary or required by the terms of the Contract, has been satisfactorily
performed, Project Manager will provide to the Contractor a written “Notice
of Final Inspection and Acceptance of the Work”.
1.05.C
Acceptance – For purposes of the Contract, “Acceptance” shall be
considered to occur upon completion of all of the Work including services,
the furnishing of all materials and Equipment and assignment of
associated warranties, satisfactory completion of all required tests,
conveyance of all permits and other approvals required for operation of
the Project, satisfactory completion of all punch list items or previously
unaccepted Work, the submittal of documentation and as-built drawings
for the Project, and any other requirements as required by the Contract
Documents, and when the Work covered by the Contract shall have been
A-8
(June 2013)
approved in writing by the Company for final payment. Final payment
shall not itself be deemed to constitute Acceptance.
Acceptance of the Work and final payment by Company shall not waive
any rights and remedies which Company has or may have under the
“Warranty” and other applicable provisions of this Contract or under the
law or in equity.
1.06
FINAL PAYMENT AND RELEASE OF CLAIMS
1.06.A
Upon receipt by Contractor of the written notice of Final Inspection and
Acceptance of the Work under this Contract, Contractor shall: (1) prepare
and submit its final invoice for final payment, (2) file a Notice of
Completion pursuant to Hawaii Revised Statutes § 507-43(f), if directed to
do so by Company, and (3) submit its Request for Final Payment and
Release of Claims (as set forth in Exhibit B (Form of Request for Final
Payment and Release of Claim)), executed to the satisfaction of the
Company, releasing all claims against the Company arising out of this
Contract, and setting forth the extent to which final payment or settlement
has been made of all bills and claims arising out of this Contract, including
full details as to any such bills and claims remaining unpaid or unsettled.
After receipt and approval of the Contractor’s final invoice, the Request for
Final Payment and Release of Claims, and the receipt of the Project
Record Copy Documents, and the expiration of 60 plus 2 business days
after the date of completion of the Work as defined in Hawaii Revised
Statutes § 507-43(f), the Company shall pay to the Contractor any
amounts properly due and owing under this Contract.
STATUS OF THE PARTIES
1.07
INDEPENDENT CONTRACTOR
1.07.A
Contractor’s Qualifications – Contractor represents and warrants that it
and the Subcontractors are fully experienced and properly qualified to
perform the class of work provided for herein, or the portion of the Work
covered by the respective Subcontractors, and that they are each properly
licensed, equipped, organized, financed and insured to perform such
work.
1.07.B
Independent Contractor – Contractor shall act as an Independent
Contractor and not as the agent of Company in performing its obligations
under the Contract, maintaining complete control over and responsibility
for its own employees and operations and those of its Subcontractors.
1.07.C
No Contract with Subcontractors – No provisions of this Contract or any
subcontract awarded by Contractor shall be construed to create any
contractual relationship between any such Subcontractor and Company
A-9
(June 2013)
to pay or be responsible for the payment of any monies to any
Subcontractor.
1.08
CONTRACTOR REPRESENTATIVE
1.08.A
Contractor Representative – Prior to the start of the Work, the Contractor
shall designate a competent and experienced person, acceptable to the
Company, as its authorized representative on the Work (the “Contractor
Representative”). The Contractor shall submit to the Company, for its
prior approval, the name, address, and experience record of the proposed
candidate together with a clear definition of the scope of his authority to
represent and act for the Contractor, and shall specify any limitations of
such authority. The Contractor Representative shall be fully in charge of
the Contractor’s Work and all instructions given to him shall be binding
upon Contractor.
1.08.B
Construction Supervision – The Contractor shall provide and maintain on
the Worksite at all times during the performance of the Work, adequate
and competent superintendents of all operations.
1.08.C
No Change without Approval – Contractor shall not remove the Contractor
Representative without prior written approval of the Company.
1.09
SUBCONTRACTS AND ASSIGNMENT
1.09.A
The Contractor shall not sell, assign, transfer, or subcontract the Contract
or any part thereof or interest therein, or any proceeds therefrom, either by
power of attorney or otherwise, without the prior written consent of the
Company, and any such sale, assignment, transfer or subcontracting,
without such consent of the Company, shall be voidable at the option of
the Company. Each proposed Subcontractor not identified in Contractor’s
Proposal shall be submitted by the Contractor to the Company for prior
approval, which approval may be granted or withheld in Company’s sole
discretion.
1.09.B
Notwithstanding Company’s consent to a proposed subcontract,
Contractor shall remain responsible for all subcontracted Work, and
Contractor shall be as fully responsible to Company for the acts and
omissions of its subcontractors, their agents, representatives and persons
directly or indirectly employed by them as it is for the acts and omissions
of Contractor’s own employees.
1.09.C
Contractor shall include in each of its subcontracts a provision embodying
the substance of this article.
A-10
(June 2013)
RESPONSIBILITY FOR THE WORK
1.10
CONTRACTOR RESPONSIBLE FOR WORK UNTIL ACCEPTED
1.10.A
Contractor Responsible Until Work Accepted – The Contractor shall carry
on the Work at its own risk until the same is fully completed and
Acceptance by the Company has occurred and shall, in the event of any
accident, destruction, or injury to the Work, including any materials or
Equipment provided heretofore, before such completion and Acceptance,
repair or replace forthwith the Work, and any related materials or
Equipment, so injured, damaged, or destroyed, at its own expense and to
the satisfaction of the Company, unless the loss or damage results solely
from the negligence of Company. Company is not responsible for any loss
or damage to the Work, or to materials and Equipment of Contractor
resulting from action of any other contractor. Contractor shall look to such
other contractor for any right or relief in these cases.
1.10.B
Precautions Against Damage – Contractor shall be responsible for taking
all precautions necessary to prevent damage or injury to the Work of
Contractor, Company, or its contractors, and to the property of Contractor,
Company, other contractors, or any of their employees, and members of
the general public. These measures shall include, but not be limited to,
laying drop cloths, constructing shields and guard fences, and any other
precautionary measures which may be warranted.
1.10.C
Equipment Protection – All Equipment shall be adequately protected
against storm, lightning, wind, water, fire and vandal damage. The
Worksite shall be fully surrounded by fence with gates locked whenever
Contractor personnel are not on the property.
1.10.D
Protection of Property – (1) During the construction, the Contractor shall
use extreme care to protect all adjacent buildings, driveways, trees,
shrubbery, walls, utility lines, etc., and any damage caused by the
Contractor shall be immediately remedied and paid for by Contractor.
(2)
After the construction, the Contractor shall restore the premises
used for Contractor’s operations to the original condition.
1.10.E
Company’s Property – The Contractor shall repair, restore, remediate and
replace any real or personal property, including Equipment, belonging to
the Company which the Contractor or his Subcontractors or suppliers, or
their respective employees or invitees, may damage, destroy or
contaminate while on the Company’s premises or remove from the
Company’s premises including Worksite and environs. Contractor shall
only use Company’s property with Company’s permission, and then only
for Work activities under this Contract and for no other purpose.
1.10.F
Contractor Responsible for Materials and Equipment – When materials or
Equipment are furnished by others for installation or erection by the
Contractor, the Contractor shall receive it, transport, unload, store, and
A-11
(June 2013)
handle the same at the Worksite and become responsible herefore as
though such items were being furnished by the Contractor under the
Contract.
1.10.G
Company May Receive Materials, Equipment – Once Company gives the
notice to proceed to Contractor, if any materials or Equipment to be used
by the Contractor to perform the Work are delivered to the Worksite while
the Contractor is not present, Company may receive, unload, and store
such materials or Equipment at the Contractor’s expense and risk. The
Contractor shall reimburse Company for such costs (including applicable
overheads) associated with the receiving, unloading, and storing of any
such materials or Equipment.
1.10.H
Contractor’s Facilities – Contractor shall furnish his own electrical,
telephone, water and adequate sanitary facilities as required under the
Contract.
1.10.I
Safety and Security – Contractor shall be required to adhere to
Contractor’s safety and security procedures/policies as more fully detailed
in Section 1.38 below, and shall provide Company with a copy of such
safety and security procedures/policies as set forth in the Project
Specifications.
1.11
CONSTRUCTION INSPECTOR’S DUTIES
1.11.A
Construction Inspector – The Construction Inspector is authorized by
Company to oversee general matters relating to construction activities.
Construction Inspector shall monitor Contractor’s performance of the
Work. In the event of any conflict in instructions between Company and
the Construction Inspector or Contractor, the Company shall make the
final determination. The Construction Inspector shall:
(1)
Assure that the Work is installed according to the Company
Drawings, Project Specifications, and other applicable work
standards and codes.
(2)
Coordinate holdoffs, limited holdoffs, and electrical work clearances
for work on or interconnection to existing electrical equipment.
Refer to Project Specifications for procedures.
(3)
Schedule coordination between Contractor and Company activities,
including the following:
- Coordinate additional inspection of Work by other Company
representatives.
(4)
When the Work is within the confines of an existing energized
substation, Construction Inspector and/or Company’s standby man
will be present on the Worksite at all times when Contractor is on
the Worksite. In any circumstance that the Company’s standby
A-12
(June 2013)
man or other authorized Company’s representative is not present at
the Worksite, the Contractor shall immediately remove Contractor’s
personnel from the Worksite.
(5)
Assure that the Contractor documents all changes made to the
design via the Project Record Copy Documents.
(6)
Monitor all extra work.
1.11.B
Only Authorized Personnel on Worksite – During the progress of the Work
the Contractor shall admit to the Worksite only such persons as may be
authorized by the Company, the Construction Inspector, or the Contractor.
All such persons admitted to the Worksite shall be subject to any Worksite
rules or regulations established by Company or the Contractor.
1.11.C
Contractor Responsible for Employee and Subcontractor Conduct – The
Contractor shall be responsible for enforcement, among its employees
and Subcontractors, of the instructions, rules or regulations for the
conduct of the Work and the exercise of any duty by the Company, or
failure to do so, shall not lessen or relieve the Contractor from any
responsibility under the Contract.
1.12
TITLE TO MATERIALS FOUND ON THE WORK
1.12.A
The title and the right to use of all stone, sand, gravel, minerals, timber,
and all other materials developed or obtained in the Work, and the right to
dispose of the same are hereby expressly reserved by the Company.
Neither the Contractor or Subcontractors, nor their employees shall have
the rights, title or interest in or to any part thereof. The Contractor will be
permitted to use in the Work, with proper allowance, any such materials
which meet the requirements of the Contract Documents, subject to prior
approval by Company in writing.
1.13
SCHEDULE, REPORTS AND MEETINGS
1.13.A
Maintain Construction Schedule – The Contractor shall schedule its Work
and expedite delivery of materials to comply with all reasonable requests
and suggestions of the Company in order to maintain the Construction
Schedule.
1.13.B
Time Is of the Essence - Time is of the essence of this Contract, and
Contractor shall be fully responsible for meeting, and effecting all required
deliveries pursuant to the Construction Schedule. Company need not
accept delivery, of any Work more than thirty (30) days prior to any
scheduled delivery as set forth in the Construction Schedule
1.13.C
Preparation of the Construction Schedule - Within seven (7) days after
this Contract has been awarded, Contractor shall submit to Company
A-13
(June 2013)
detailed schedules showing dates for starting and completing any and all
of the following as may be applicable to the Work: Contractor furnished
drawings, data, procurement of materials and supplies, manufacturing
activities and operations, testing, inspection points, shipments and
installation. Such schedule shall also include dates for submitting
technical data, manuals, instructions and other data/documentation
requirements set forth elsewhere herein. Company shall review such
schedules, and if they are acceptable to it, Company shall approve said
schedules and it shall become the construction schedule (the
“Construction Schedule”). If a schedule is not acceptable, Contractor shall
modify it and resubmit it to Company for review as many times as
necessary until it becomes acceptable to Company. No change may be
made to the Construction Schedule without Company’s further approval.
All draft schedules and draft reports are to be provided in the format
required by the Company.
1.13.D
Monthly Progress Reports – Contractor shall monitor the Construction
Schedule, and unless otherwise agreed, it shall submit written progress
reports to Company on a monthly basis, or more frequently, if and when
requested by Company. Such reports are more fully addressed in Section
1.25.E below. If and to the extent the Work is behind schedule, Contractor
shall indicate the reason for the delay and the corrective action taken or to
be taken by it to recover lost time.
1.13.E
Attendance at Meetings –The Contractor Representative and such other
Contractor personnel as requested by Company are required to attend
meetings called by Company. The Contractor Representative shall have
the authority to commit to decisions that shall be binding upon the
Contractor. The Contractor Representative or designee shall have the
authority vested in him as outlined in Section 1.08.A (Contractor’s
Representative).
1.13.F
Status Meetings – The Contractor Representative shall conduct status
meetings with its employees and Subcontractors to review the status of
the Work, and shall provide timely reports as required in the Project
Specifications. The Contractor Representative shall provide reasonable
advance notice to Company of such meetings to enable Company to
attend, at its option.
1.14
WORK OF OTHER CONTRACTORS
1.14.A
Other Contractors – The Company reserves the right at all times to allow
other contractors of Company to enter the Worksite in connection with
performance of other work for Company.
1.14.B
Cooperation with Other Contractors – The Work will be carried on under
the usual conditions affecting construction of the type involved, and in
conjunction with the numerous other operations at the Worksite.
Contractor shall cooperate with the Company, and other contractors, and
shall coordinate its Work with the other contractors, as necessary, and
A-14
(June 2013)
shall proceed in such a manner as not to delay or hinder in any way the
progress of the Work or other work as a whole.
1.14.C
Connection with Work of Other Contractors – The Contractor, if required
by Project Specifications and Company Drawings, shall connect to
materials or Equipment furnished, set, and/or installed by other
contractors. No work connecting to such materials or Equipment provided
by other contractors shall be done without giving such contractors a
reasonable length of time to complete their work or until permission to
proceed has been obtained from the Company.
1.14.D
Disputes between Contractors – In case of disagreement or disputes
regarding the scheduling of the Work by Contractor and Company’s other
contractors or unnecessary interference to the Work caused by lack of
cooperation between the Contractor and Company’s other contractors, the
Project Manager shall be consulted and the Project Manager’s decisions
as to the proper methods for coordinating the Work shall be final.
Decision by Project Manager or failure to resolve such disputes shall not
be grounds for a claim by Contractor for additional compensation or
additional time.
1.15
DISPUTES
1.15.A
Notwithstanding the existence of a dispute between the parties, the
Contractor shall proceed with the Work as directed by the Company.
1.16
COMPANY’S USE AND OCCUPANCY
1.16.A
Company’s Access to the Worksite – Company reserves the right of
access to the Worksite and all existing Company facilities at the Worksite
at any time of the day or night. The Contractor further agrees that the
Company has the right, at all times, to occupy and use portions of the
Work, or premises where the Work is being performed and as the Work
progresses, including the right to place and install as much and other
materials as possible before completion of the various parts. The
Contractor further agrees that such occupancy, use or installation of and
materials, does not in any way evidence the completion or final
Acceptance of the Work or any portion of it and shall not release the
Contractor or its sureties from any obligations under the Contract
Documents or bonds.
1.16.B
Electrical Equipment – Existing electrical equipment or conductors
whether electrically energized or not shall remain in place at all times
during construction. Unless part of the Work, handling and moving of
existing electrical equipment or conductors, when required by the
Engineer, shall be done by the Company. Work by the Contractor in
areas containing or in close proximity to energized equipment or
conductors shall be performed with extreme caution to prevent accidents
A-15
(June 2013)
and to avoid disturbing or damaging the equipment or conductors or any
temporary supports or protective guards that are constructed. All Work by
the Contractor in areas containing or in close proximity to energized
equipment or conductors including any work in existing energized
substations shall be performed in the presence of a Company
representative. The Contractor shall have the sole responsibility for
maintaining safe and efficient working conditions and procedures in these
areas.
1.16.C.
Damage by Contractor – Any existing or new Company facilities including
equipment or conductors damaged by the Contractor during construction
shall be replaced by Company at the Contractor’s expense.
1.17
TESTS AND INSPECTION
1.17.A
Tests – Company shall not be deemed to have accepted the Work or any
portion thereof to be so tested prior to the satisfactory completion of tests
proving that the Work or such portion thereof is in all respects as
represented or as required by this Contract. Both Contractor and
Company have the right to be represented at tests and to have copies of
any data resulting therefrom as provided in Appendix B and Appendix F.
Reasonable notice of the time and place of each proposed test shall be
given by either party to the other in order to permit both to be present or
represented thereat. If such tests show the Work not to be as represented
or as required by this Contract, Company may refuse to accept the Work
without risk or liability to it, and Contractor shall promptly modify the Work
as necessary and re-perform the tests at its own expense, until
Acceptance of such Work by Company occurs.
1.17.B
Inspection by Contractor – All materials and Equipment furnished and
Work performed shall be properly inspected by the Contractor. Contractor
shall conduct the Work in a systematic manner and if required by the
Company shall establish a quality assurance program and control
procedures which will provide a systematic independent check and
confirmation of data collected and analyses made therefrom and the
recording of the quality control efforts.
1.17.C
Inspection by Company – (1) All Work shall at all times be subject to
inspection and testing by the Company or inspectors or representative
appointed by Company, but such inspections, if made, shall not in any
way relieve Contractor from its obligations and duties under this Contract.
(2)
If Company elects to make any inspection, it shall notify Contractor
in advance to permit it to make appropriate arrangements. Contractor
shall give the Company, and any inspectors or representatives appointed
by Company free access to the Work during normal working hours either
at the Worksite or at Contractor’s shops, factories, or places of business of
the Contractor and its Subcontractors and suppliers for properly inspecting
A-16
(June 2013)
materials, Equipment, and work and shall furnish them with full information
as to the progress of the Work in its various parts.
1.17.D
Access to Work – Contractor shall provide, and cause its Subcontractors
to provide, all reasonable facilities and assistance for the safety and
convenience of Company or its representatives in the performance of their
duties.
If any of the Work should be covered up without approval or consent of the
Company or without the necessary testing and inspection, it shall, if
required by the Company or by public authorities, be uncovered for
examination and testing, and recovered, at the Contractor’s expense.
1.17.E
Defective Materials or Work – Neither the failure to make any inspection or
test nor to discover defective workmanship, materials, or Equipment, nor
acceptance of or payment to Contractor shall relieve the Contractor from
its obligation to do and complete the Work in accordance with the Project
Specifications, Company Drawings, and conditions of this Contract. If at
any time before final completion and Acceptance of the Work, the
Company shall certify that any part of the Work is defective or deficient or
in any way fails to conform to the Project Specifications, Company
Drawings, or terms and conditions of this Contract or that any materials or
Equipment which the Contractor has used or proposes to use in the Work
are unsound or improper or otherwise fail to conform to the Project
Specifications, then the Company is hereby expressly authorized and
empowered to reject such defective or deficient work or unsound or
nonconforming materials or Equipment and to require the Contractor to
redo and make good all such defective or deficient work and to replace all
rejected materials or Equipment with proper materials and Equipment.
Until the Contractor shall have complied fully with any such requirement of
the Company, the Company may retain out of any monies due or to
become due to the Contractor such sum or sums as may be sufficient, in
the opinion of the Company, to meet the expense of making good such
defective or deficient work or of replacing such rejected materials or
Equipment with proper materials and Equipment. Where the Contractor
declines to redo and make good all such defective or deficient work and to
replace all rejected materials or Equipment with proper materials and
Equipment, the Contractor shall accept the costs (including applicable
overheads of the Engineers and/or Company) for correcting such
defective or deficient work performed by others, provided that prior to
doing any such work the Company has notified the Contractor (either
written notice or verbal notice followed by written notice). The Contractor
will have the opportunity of sending an inspector to check the corrective
work being performed by others if he so desires.
1.18
WORK WEEK/OVERTIME
1.18.A
Required Overtime – It is understood that the Contract Price is based on
the Contractor completing the Work on schedule and within the Contract
A-17
(June 2013)
Price. As such, where deemed necessary to complete the Work by
Contractor, or if required by state or local government agencies, and if
approved by the Worksite landowner, Contractor may schedule work to be
done at night. Contractor, however, shall bear the expense of all costs
and expenses that may be incurred in procuring and/or maintaining the
necessary labor force to perform all Work as required by the Construction
Schedule and permit requirements including, but not limited to, such items
as overtime, bonus and premium time, transportation, living expenses and
traffic controller if such costs and expenses exceed the Contract Price.
CHANGES IN THE WORK; CHANGES TO THE CONTRACT
1.19
CHANGES AND INCREASE OR DECREASE OF WORK
1.19.A
Changes – The Company shall have the right, at any time during the term
of the Contract, to increase or decrease the amount of, or make
alterations in, the Work to be performed and the materials or Equipment to
be furnished under the Contract without invalidating the Contract by giving
to the Contractor notice of Company’s intention to make such change or
alteration and the execution of a Change Order.
(1)
Company will use commercially reasonable efforts to provide
reasonable prior notice of an intended change(s) to enable
Contractor to promptly commence implementation.
(2)
If Company’s change increases or decreases the scope of the
Work, the Contract Price and other affected terms and conditions
shall be adjusted as mutually agreed upon by the parties and
evidenced by a written Change Order issued by the Project
Manager. Failure to agree upon the price of a change shall not
entitle Contractor to delay proceeding with the Work as changed.
(3)
The Contractor shall formally advise the Project Manager of any
Company action, inaction, or directed change of work scope which
may have cost and/or schedule implications. Such notification shall
be submitted in writing within seven (7) calendar days of the
event(s) and include, as a minimum, the following information: (a)
description of the situation, including date and time; (b) a
preliminary assessment of potential cost and/or schedule impact.
IN THE EVENT THE CONTRACTOR FAILS TO PROVIDE THIS
TIMELY WRITTEN NOTIFICATION, THE CONTRACTOR SHALL
WAIVE THE RIGHT FOR ANY SUBSEQUENT CLAIM AGAINST
COMPANY.
(4)
If Contractor proposes to change the Work as set forth in the
Contract Documents, at its sole cost and risk, it shall prepare and
furnish to Company a proposal describing the change; its effect on
the Work, the Construction Schedule and Company’s costs and
benefits; and the Subcontractor (if any) who is to perform the
A-18
(June 2013)
change, together with the Company Drawings and Project
Specifications for such change. No such change shall be
implemented without a Change Order executed by the Company.
1.19.B
Basis of Price Changes – All changes to the Work directed by the
Company pursuant to the above shall be made by the Contractor upon
one or more of the following bases at the election of the Company:
(1)
Fixed Price Basis – “Lump Sum”
Where appropriate and as may be directed by the Company,
changes to the Work may be made on a fixed price basis. Within
five (5) days after receipt of the notice of the Company’s intention to
make a change request to the scope of Work, the Contractor shall
furnish to the Company a detailed fixed price proposal detailing any
increase or decrease in the Contract Price and the time required for
completion of the Work which is the subject of such change
request. The Company shall have the right to accept or reject such
proposal. Any accepted proposal shall be documented pursuant to
a Change Order and executed by the Company or Construction
Manager.
(2)
Unit Price Basis
Where appropriate and as may be directed by the Company,
change request to the scope of Work shall be made in accordance
with the applicable unit prices established under the Contract or as
negotiated by the parties at time of the change request, if not
already established. Any agreed upon change request to the scope
of Work and the applicable unit prices related thereto shall be
documented pursuant to a Change Order and executed by the
Project Manager.
(3)
Time and Expense Basis
(a)
Where a change to the scope of Work is requested by the
Company which Company determines is not covered by the
established unit prices or Company determines that the
established unit prices are not applicable, or in the event the
Company and the Contractor have failed to reach agreement
on a “Lump Sum Price” for such Work, the Company may
issue a written Change Order directing the Contractor to
perform such Work on a time and expense basis.
A-19
(June 2013)
(b)
In submitting an invoice for Work done on a time and
expense basis, the Contractor shall give the following
detailed breakdown:
(i)
Direct Labor Cost per Company-approved time cards
using field fabrication rates as established in the
Change Order.
(ii)
Material Costs per Company-approved invoices
showing supplier’s unit prices as well as totals for all
materials required.
(iii)
Freight and Handling Charges per Companyapproved invoices.
(iv)
Cost of Equipment Rental from Others per Companyapproved invoices using rates as established in the
Change Order.
(v)
Show the total of items (ii) through (iv).
(vi)
Show 15 percent (15%) of item (v) as the maximum
allowance for overhead and profit.
(vii)
Show the total of items (i), (v) and (vi).
(viii)
Show 10 percent (10%) of Item (i) as the maximum
allowance for profit.
(ix)
Charge for Rental of Contractor’s Equipment at rental
rates as established in the Change Order.
(x)
Show total of items (vii), (viii) and (ix).
(xi)
Based on Item (x), show the Contractor’s State
General Excise Tax which is in effect at the time.
(xii)
Total time and expense price to be invoiced is the
total of items (x) and (xi).
(c)
As noted above, with the breakdown for fixed price basis
quotations, this breakdown assumes for purposes of
illustration that all labor will be performed by the Contractor
and any material required will be furnished by the
Contractor.
(d)
Where only Subcontractor labor and/or material is involved,
the Subcontractor shall submit the above detailed
breakdown to the Contractor. The Contractor shall, in turn,
submit this breakdown with his price to the Company.
A-20
(June 2013)
Contractor’s invoiced price will be this amount plus the State
Gross Income Tax Rate on the Subcontractor’s quote in
effect at the time.
1.19.C
(e)
In the event that Company elects to have Contractor perform
changes in the Work on a time and expense basis, as set
forth in the Change Order, the Contractor shall furnish to the
Company a report that includes daily time sheets and
material receipts, retaining two (2) copies of each and
securing the Company’s signature thereon. The original
signed time sheets and material receipts shall accompany all
bills and vouchers which the Contractor shall present for
payment.
(f)
The Contractor shall, if requested by the Company, make
daily reports in writing of all additional Work performed under
such Change Order. Contractor agrees that all
correspondence, records, vouchers, and books of account,
insofar as they pertain to the changes to the Work done
under such Change Order, will be open at all reasonable
times for inspection and audit by the Company or its
designee.
(g)
If the Company elects to accomplish the change on a time
and expense basis, the Contractor shall furnish such
additional labor and materials, Equipment and supervision
required to perform such Work, Company will pay the
Contractor for such Work on the basis of time and expense
information attached to the Change Order, and in
accordance with the terms and conditions of the Contract.
(h)
Notwithstanding the foregoing, in the event that a General
Services Agreement is in effect between Company and
Contractor, Company may elect to use the billing format
established in the General Services Agreement in lieu of the
foregoing.
Only Written Changes Valid – No alteration or amendment of the Contract
shall be valid unless the same is made by an instrument in writing signed
by the Company and by the Contractor; and no such alteration or
amendment shall be construed to alter or amend any other provision of
the Contract unless expressly so stated in such written instrument. Upon
agreement between the Company and the Contractor as to (1) any
change in the Construction Schedule which shall be caused by any such
requested change to the scope of Work or (2) any increase or decrease in
the Contract Price, the Company shall submit to the Contractor a Change
Order signed by the Company, directing that the change to the scope of
Work be made and specifying any increase or decrease in the Contract
Price and the time required for completion of the Work on account thereof
as agreed upon with the Contractor, and thereupon the Contractor shall
A-21
(June 2013)
forthwith execute and return to the Company one (1) Acceptance Copy of
said Change Order and shall diligently proceed to comply with the same
and to make the changes to the scope of Work required thereby on the
basis therein specified.
1.19.D
Company to be Notified When Work Performed Pursuant to a Change
Order – It shall be the responsibility of the Contractor to keep the
Company informed of the start and progress of all Work performed
pursuant to a Change Order, the number of employees being used to
accomplish such Work, and to notify the Company immediately upon
completion of such Work. All materials used and all Work done shall at all
times be subject to the same inspection, tests, approval and Acceptance
by the Company and his authorized representatives as other Work of
similar nature called for in the Project Specifications.
1.20
ADDITIONAL COMPENSATION
1.20.A
Additional Compensation – Upon the occurrence of any event during the
course of the Work which is solely beyond the Contractor’s control and is
the result of (1) changes in the scope of the Work not specifically
requested by Company in accordance with Section 1.19 (Changes and
Increase or Decrease of Work), (2) changes in applicable laws and
regulations, or (3) unreasonable delays solely caused by an act or failure
to act by Company and for which the Contractor intends to submit a claim
for extra compensation in addition to the Contract Price, the Contractor
shall, as a condition precedent to the Company’s consideration of such
claim, give the Company written notice of such intent within seven (7)
calendar days after the occurrence of such event. Contractor shall be
deemed to have waived any claim it fails to submit to Company in
accordance with the requirements of this Section 1.20.A. Such notice
shall in no way constitute Acceptance by the Company of the validity of
such claim.
1.20.B
No Other Claims Accepted – Except as set forth in Section 1.20.A,
Contractor shall have no right to submit to Company, and Company shall
not consider, any claims for additional compensation from Contractor.
1.21
SUBSTITUTIONS
1.21.A
Written Approval for Substitutions – The Project Specifications for the
various portions of the Work describe certain specific materials,
processes, and products of manufacturers which will be required unless
equivalent construction is specifically approved in writing by the Company.
Should the Contractor propose to furnish other equivalent materials,
processes, or products, either in substitution for, or as an alternate to, the
Project Specifications, it shall submit full details thereof to Company and
obtain the Company’s prior written approval. The Company’s decision as
to the suitability of any materials, processes, and products to those
A-22
(June 2013)
specified shall be final, but the approval of the Company shall not relieve
the Contractor from its responsibility concerning the Work or affect the
guarantee covering all parts of the Work.
1.21.B
Approval of Deviations – If the Contractor has encountered a condition
deviating from the requirements of the Project Specifications or from
Contractor’s Drawings and documents reviewed by the Engineers, it shall
promptly submit a request for prior approval of a deviation to the
Engineers. Approval from the Engineers shall be necessary prior to the
shipment of such nonconforming Equipment or material or performance of
any such nonconforming Work.
1.22
PROGRESS
1.22.A
Time is of the Essence – Time is of the essence of this Contract. If at any
time during the progress of the Work the Contractor’s actual progress, in
the opinion of the Company, is inadequate to meet the dates set forth in
the Construction Schedule, the Company may issue a written notice of
noncompliance to the Contractor who shall thereupon take such steps as
may be necessary to improve its progress. If within a reasonable period
as determined by the Company the Contractor does not improve
performance to meet the Construction Schedule, the Company may direct
the Contractor to accelerate the Work through an increase in the
Contractor’s labor force, the number of shifts, overtime operations,
expedited delivery of materials, additional days of work per week and/or
an increase in the amount of construction plant; all without additional cost
to the Company, or Company may reduce Contractor’s scope of Work by
executing a Change Order. Neither such notice by the Company nor the
Company’s failure to issue such notice shall relieve the Contractor of its
obligation to achieve the quality of work and rate of progress required by
the Contract.
1.22.B
Unsatisfactory Progress – Failure of the Contractor to commit the
resources necessary to complete the Work by the Substantial Completion
Date, or to comply with the instructions of the Company may be grounds
for determination by the Company that the Contractor is not prosecuting
the Work with such diligence as will assure completion within the times
specified in the Construction Schedule. Upon such determination, the
Company may suspend or terminate the Contractor’s right to proceed with
the performance of the Contract, or any separable part thereof, in
accordance with Section 1.57 (Suspension), or Section 1.58 (Termination
for Default), of the Contract.
A-23
(June 2013)
DRAWINGS, PROJECT SPECIFICATIONS AND DOCUMENTATION
1.23
COMPANY DRAWINGS
1.23.A
General – The Company Drawings in general are to scale, but figured
dimensions shall always be followed and Company Drawings shall not be
scaled. In case of error or discrepancies, the Engineers shall be
consulted for the adjustment of all complications arising therefrom and the
Engineers’ decision shall be final.
1.23.B
Intent of the Company Drawings and Project Specifications – (1) The
Company’s Project Specifications and Drawings furnished for bid, contract
and construction purposes are intended to fully delineate the intent and, to
the extent necessary and practical, the detail of the Work to be done, and
shall be so accepted by the Contractor who shall, therefore, without delay
or claims for extra work except as herein provided, perform the Work,
including all the new supplementary facilities as shown and the
interconnections with existing facilities as indicated; in full compliance with
the intent of the Drawings and Project Specifications regardless of
omissions, errors or inconsistencies therein. Contractor agrees that
Company Drawings and Project Specifications are sufficiently complete to
establish the Contract Price and the completion date set forth in the
Construction Schedule, and no request or claim shall be made for
additional compensation or additional time based on a claim that the
Company Drawings and/or Project Specifications were incomplete.
(2) The Company Drawings and the Project Specification showing or
describing the Work intended to be done and furnished shall all be
accepted and considered as mutually cooperative in the sense that Work
shown or called for on one, but not on the other, shall be carried out as
though called for on both.
1.23.C
Prior to Work Beginning – Contractor shall not begin any part of the Work
which requires Contractor to perform in accordance with Company
Drawings, Project Specifications or other documentation which are
“approved for construction” by the Engineers or reviewed by Engineers
until such documents are approved or reviewed and in the possession of
the Contractor Representative.
1.23.D
Avoiding Interferences – Where the Work is shown diagrammatically on
the Company Drawings, Contractor shall be responsible for the proper
locations of its Work so as not to interfere with the work of other
contractors. In case of disagreement or dispute regarding the most
suitable methods of avoiding interferences, the Engineers shall be
consulted and the Engineers’ decision shall be final for the proper
coordination of the different portions of the Work or work.
1.23.E
Assistance to Contractor – The Engineers shall keep on file in their office
a complete set of Drawings and Project Specifications which have been
issued by Company. The Engineers will give the Contractor all
A-24
(June 2013)
reasonable assistance in interpreting the Company Drawings and Project
Specifications, but such assistance shall not relieve the Contractor from
complete responsibility for performance of the Work.
1.23.F
Ownership of Documents – The Engineers will furnish to the Contractor,
free of charge, prints of all Company Drawings and Project Specifications
reasonably necessary for the execution of the Work. All Drawings
(whether furnished by Company or by Contractor), Project Specifications,
and prints thereof are the property of the Company. Contractor shall not
use such Company or Contractor Furnished Drawings or Project
Specification for any purpose other than to perform the Work under this
Contract. Upon completion of the Work, Contractor shall return all
Company Drawings, Project Specifications and other documentation to
Company, after having indicated on them any changes from them in the
“as built” condition of the Work, as required by Section 1.25.B (collectively,
the “Project Record Copy Documents”). Upon request, Contractor shall
turn over to Company all documents or materials, in whatever form, in
possession of Contractor that are related to the Work, including such
documents as may have been prepared or used by Contractor in support
of the Work. The parties acknowledge and agree that all such documents
shall become the sole property of Company and not be subject to any
proprietary claims of Contractor.
1.24
CONTRACTOR FURNISHED DRAWINGS
1.24.A
Limitation of Engineer’s/Company’s Review – All drawings required to be
submitted by Contractor to the Engineers for review are set forth in the
Project Specifications, and shall be submitted in a timely manner in
accordance with the Construction Schedule. If such drawings are not
covered by such schedule, such drawings shall be submitted by the
Contractor without unreasonable delay, and no Work affected thereby
shall be started until the Contractor is notified that the Engineers have no
objection to Contractor proceeding with the Work. Review by the
Engineers of the Contractor’s drawings shall not relieve the Contractor of
any responsibility for the correctness of design, details or dimensions, or
for the completion of the Work in accordance with the Contract
Documents. Any fabrication, erection, setting, or other work done prior to
the Engineer’s review of the Contractor’s drawings shall be done entirely
at the Contractor’s risk.
1.24.B
Discrepancy between Contractor’s Drawings and Project Specifications
and Company’s Drawings and Project Specifications – Any Project
Specifications or drawings heretofore or hereafter prepared by the
Contractor in connection with the Work shall be deemed to be
supplementary to the Company’s Project Specifications and Drawings,
and in case of discrepancy between the two, the Company’s Project
Specifications and Drawings shall govern and be controlling, unless and to
the extent that the Company or the Engineers shall otherwise in writing
specifically direct.
A-25
(June 2013)
1.25
PROJECT RECORD COPY DOCUMENTS; PHOTOGRAPHS OF
PROGRESS
1.25.A
Contractor to Maintain Project Record Copy Documents – In addition to
any drawings that are required by the Contractor on the Worksite to
perform the Work, the Contractor shall maintain, at the Worksite, one (1)
complete set of all Company and Contractor Furnished Drawings, Project
Specifications, and Addenda that are part of the Contract as awarded.
Each of these documents shall be clearly marked “Project Record Copy
Documents” maintained in a clean and neat condition available at all times
for inspection by the Company and shall not be used for any other
purposes during the performance of the Work.
1.25.B
Change reflected in Project Record Copy Documents – In general, during
the term of the Contract, the Contractor shall continuously update and
amend the Project Record Copy Documents to ensure that they contain
sufficient detail and dimensions for Company to accurately locate and
dimension the changes to any of the drawings and Project Specifications
resulting from changes to the Work. The detailed description of changes
reflected on the Project Record Copy Documents shall include the
following information where applicable:






Changes in dimensions indicated in feet and inch units relative to
reference objects shown on plan.
Changes in angles, or azimuths, where the alignment or orientation
of an item has been changed.
Changes in elevation shall be described relative to the original
intended construction or relative to the project benchmark
elevations, to allow profiles and elevations to be corrected.
Changes in materials used shall be indicated.
Newly discovered interferences or obstructions that also be
identified and located.
Changes in curve radius or other alignment shall be indicated and
dimensioned. The station positions of the start and end of the
changes shall be indicated.
For the avoidance of doubt, sketches that indicate the general nature of
the changes, without dimensions and other detailed information are not
acceptable.
1.25.C
Record Changes as Work Progresses – As the Work progresses, the
Contractor shall record on the Project Record Copy Documents all
changes in the Work which may be authorized by the Company via a
Change Order, or which may be required to adapt approved types of
Equipment, fixtures, or materials to the Work, or which may be required by
local or other authorities to conform to their rules and regulations.
A-26
(June 2013)
1.25.D
Copy of Project Record Drawings to Company – After the Contractor
receives the “Notice of Final Inspection and Acceptance of the Work” from
the Company and before it may submit its invoice for final payment, the
Contractor shall deliver three (3) copies of the Project Record Copy
Documents to the Company and such copies shall then become property
of the Company. Contractor shall also provide an electronic version of the
Project Record Copy Documents as set forth in the Project Specifications.
1.25.E
Monthly Reports – The Contractor shall submit on a monthly basis a
progress report (the “Monthly Report”). The Monthly Report, in letter form,
shall address the requirements for such reports set forth in the Project
Specifications, including a summary of the preceding month’s work and
operations accomplished by the Contractor, the percentage of the Work
actually completed during the month, the estimated value thereof, and the
estimated value of materials actually delivered to the Worksite for which
payment is sought pursuant to Section 1.04.D, problem areas, and such
other data as Contractor deems necessary to convey project progress
information and problem areas to the Project Manager. The report shall
be typed, and three (3) copies shall be submitted to the Project Manager,
along with the Monthly Invoice.
1.25.F
Monthly Pictures – At the same time that the Monthly Report and Monthly
Invoice are submitted to the Company, the Contractor shall also submit a
sufficient number of properly identified progress pictures to give the
Company a good visual indication of the major work accomplished during
the month’s reporting period (the “Monthly Pictures”). The Monthly
Pictures shall be dated and shall be taken on a daily, weekly, or other
periodic basis as indicated by Company. Contractor shall provide
Company one (1) set of Monthly Pictures each month. Monthly Pictures
shall be colored type; black and white will not be acceptable to Company.
Monthly Pictures shall be physically incorporated in the Monthly Reports.
Company may, at its election, take pictures of the Work.
1.26
DEFECTIVE, DEFICIENT DRAWINGS, PROJECT SPECIFICATIONS OR
WORK
1.26.A
The Contractor shall use, and shall cause its Subcontractors to use, due
care at all times in performing the Work. Whenever, in Contractor’s
opinion, Company Drawings or Project Specifications for any part of the
Work are defective or deficient or at variance with each other or with any
rules, regulations, or ordinances applicable to the Work, or are such as
will, if followed, result in unsafe, defective or deficient construction or
construction infringing any rules, regulations, or ordinances applicable
thereto, or will cause the Work either during or after its construction to be
insecure or to deteriorate (other than as a result of normal wear and tear)
in any respect so as to result in any pecuniary loss to the Company or in
any damage or loss whatsoever to any person or property, the Contractor
will immediately stop work on the part of the Work affected thereby and
notify the Company in writing of such opinion and in what respect said
A-27
(June 2013)
Company Drawings or Project Specifications are considered to be
insufficient or improper, and will not proceed with the part of the Work so
affected until it has received a written order from the Company directing
what action, if any, is to be taken and when to proceed.
1.27
REPRODUCTION OF DRAWINGS, PROJECT SPECIFICATIONS OR
MONTHLY PICTURES
1.27.A
Company reserves the right to reproduce any and all drawings, Project
Specifications, Monthly Pictures or other documents considered
necessary for construction and/or Company purposes received from the
Contractor pursuant to this Contract despite any notice prohibiting the
same appearing on any such drawing, Project Specifications, Monthly
Pictures or other documents.
1.28
ACCESS TO RECORDS
1.28.A
Maintenance of Records – The Contractor shall maintain records, books,
files, correspondence, documents, receipts, vouchers, invoices,
memoranda, and similar data relating to the cost of the Work performed
under this Contract (hereinafter collectively called the “Records”) in a
proper business-like fashion and in such detail as will properly and
accurately reflect the cost and expenses of the Work performed under this
Contract.
1.28.B
Company to Receive Copies of Contractor’s Purchase Orders – Promptly
upon placing purchase orders or contracts for materials and Equipment to
be incorporated in the Work, the Contractor and Subcontractors shall
furnish the Company with two (2) copies of each such order so that
Company may be assured that needed items are on order and may know
of the vendor selected, quality requirements established, prices including
taxes, freight, delivery dates scheduled and other relevant matters.
1.28.C
Company’s Right to Inspect and Audit – Company shall have the right,
after reasonable notice, at all reasonable times, to examine and make
copies of all Records, to the extent required to verify any Monthly Invoices
submitted by the Contractor. If, as a result of such inspection, Company
determines that Contractor has overcharged Company, Company shall
notify Contractor of the amount of such overcharge and Contractor shall
promptly pay to Company the amount of the overcharge. In addition to
Company’s rights set forth in this Section, in the event any such audit
reveals an overcharge to Company of five percent or more of a particular
fee category, Contractor shall reimburse Company for the cost of such
audit.
1.28.D
Retention of Records – The Contractor shall preserve and make available
to the Company in Honolulu, Hawaii all Records during the prosecution of
the Work under this Contract and for a period of three (3) years from the
A-28
(June 2013)
date of final payment, termination, settlement, or until the conclusion of
any claim, litigation or appeal, whichever is longer; or for such longer
period, if any, required by applicable law or regulation.
1.28.E
Applicable to Subcontractors – The Contractor shall insert a similar clause
containing all the provisions of this Section 1.28 (Access to Records) in all
subcontracts entered into pursuant to this Contract.
PERFORMANCE STANDARDS AND WARRANTIES
1.29
WARRANTY
1.29.A
Work
(1)
Performance Standards - In selecting employees or subcontractors
to undertake the Work under this Contract, Contractor shall select
only those persons who are qualified by the necessary education,
training and experience to provide high quality performance of the
particular Work for which each such employee or subcontractor is
responsible. Contractor shall accomplish all Work in a professional
manner and to the reasonable satisfaction of Company.
Contractor’s personnel and/or subcontractor shall exercise that
degree of skill and care required by the highest level of accepted
professional standards in their respective fields, and Contractor
shall indemnify and hold Company harmless from any loss,
including but not limited to reasonable attorneys’ fees and costs,
incurred by Company as a result of the professional acts, errors or
omissions of Contractor or any of Contractor’s personnel or
subcontractor.
(2)
Technological Developments and Remedies – Contractor shall
promptly advise Company of all reasonably available technological
advances and remedies which are known or become known to
Contractor over the course of performance of its obligations under
this Contract that will likely result in the Work having added value
(i.e. better performance, design, material, longer useful life, etc.) to
Company. Should Company elect to incorporate such advances, it
shall do so pursuant to a Change Order mutually agreeable to the
parties.
(3)
Warranty - Correction of Defective or Substandard Work –
Contractor acknowledges its absolute responsibility for insuring that
the procedures used in the performance of this Contract are
sufficient to satisfactorily accomplish the Work, and that review and
approval by Company of any drawings, specifications or other
documents prepared by Contractor in the performance of the Work
shall not relieve Contractor or any of its subcontractors or vendors
of its professional responsibility for the Work. Contractor warrants
that it shall promptly correct without expense to Company all Work
A-29
(June 2013)
which is not completed to the reasonable satisfaction of Company
or which does not meet the performance standards established
herein. Contractor shall make such corrections of defective Work
upon written notice thereof anytime such defects appear within one
year of Company's final Acceptance of the Work performed
hereunder (“Warranty Period”).
1.29.B
Materials and Equipment Assigned to Company – Contractor shall procure
all materials and Equipment necessary to perform the Work and construct
the Project. Upon Substantial Completion, Contractor shall assign to
Company, and Company shall have the benefit of any and all
manufacturer’s or suppliers’ warranties, representations, service
agreements and indemnities with respect to the materials and Equipment
to the extent assignable by Contractor, and to the extent such warranties,
representations, service agreements and indemnities are not assignable
by Contractor, Contractor agrees that Company may assert or enforce any
right Contractor may have to enforce such warranties, representations,
service agreements and indemnities, or if such can only be enforced by
Contractor and in its own name, upon written request of Company and at
Contractor’s expense, Contractor shall take all reasonable action
requested by Company to enforce such warranties, representations,
service agreements and indemnities. Contractor warrants that it shall not,
without Company’s consent, make use of or modify the materials or
Equipment in a way which would void the manufacturer’s or supplier’s
warranties, representations, service agreements or indemnities. If such
use or modification, done without Company consent, results in such a
voiding of any of said warranties, representations, service agreements, or
indemnities, Contractor shall either alter its use or re-modify the materials
or Equipment to restore said warranties, representations, service
agreements or indemnities, or shall assume the same.
1.29.C
Materials and Equipment Not Assigned to Company. For all materials and
Equipment incorporated into the Work and/or the Project that are not
covered by Section 1.29.B above, Contractor represents, warrants and
guarantees that all materials and Equipment incorporated into any of the
Work covered by the Contract shall be new and, where not specified, of
the most suitable grade of their respective kinds for their intended use and
all workmanship shall be in accordance with highest construction
standards. In those instances wherein no definite specifications are given
for materials or Equipment, the current ASTM International standards or
American International Standards Institute standards for the material shall
be applicable. The Contractor represents, warrants and guarantees all
materials and Equipment furnished under the Contract shall be free from
all defects in design, materials, and workmanship (unless furnished by
Company) and shall give proper and continuous service under all
conditions of service required by, specified in, or which may be reasonably
inferred from the Specification for a period of twelve (12) months from and
after Notice of Final Inspection and Acceptance of the Work (as defined in
Section 1.05 (Final Inspection and Acceptance)) by Company, (or such
longer period if required by the Project Specifications and stipulated
A-30
(June 2013)
therein). Contractor shall repair, remove, replace, redesign, or otherwise
make good, without cost to the Company (1) all material, Equipment and
labor, or any part thereof, which under normal and proper use, proves
defective within the Warranty Period and (2) any damages, defects, or
faults resulting from defective design, materials, Equipment, or
workmanship which develop during the warranty period.
1.29.D
Contractor Responsible for Quantities – Material summary lists are for
identification and description only. The Contractor shall be responsible for
determining the actual quantities required to achieve completion of the
Work and shall make no claim for additional time or additional
compensation based on any error in material summaries.
1.29.E
Completion of Applicable Testing – (1) Company shall not be deemed to
have accepted any Equipment prior to satisfactory completion of tests
establishing that the Equipment is in all respects as represented and
contracted for. Such tests may be made at the factory before shipment or
in the field after erection.
(2) The program of tests to be made shall be as provided in the Project
Specifications and the conditions of such tests shall be mutually agreed
upon by the Contractor and the Company, or, in case of dispute, shall be
fixed by Company. Both the Contractor and the Company reserve the
right to be represented at such tests and to have copies of any data
resulting therefrom; and reasonable notice of the time and place of each
proposed test shall be given by either party to the other in order to permit
both to be present or represented thereat. If inspection and/or tests show
the Equipment not to be as represented and contracted for, the Company
may refuse to accept the same.
1.29.F
Redesign, Repair or Replacement. Any redesign, repair, replacements or
other Work done under this warranty shall comply with the requirements of
the Contract and shall be verified by the performance of such by testing as
Company may require. All costs incidental to such redesign, repair,
replacement, and testing, including the removal, replacement, and
reinstallation of Equipment and materials necessary to gain access, and
any fees of design professionals and consultants, shall be borne by the
Contractor. The Contractor warrants such redesigned, repaired or
replaced Work against defective design, materials, and workmanship for a
period of twelve (12) months from and after the date of acceptance thereof
as defined by Section 1.05 (Final Inspection and Acceptance) of the
Contract. Should the Contractor fail to promptly make the necessary
redesign, repair, replacement, and tests, Company may perform or cause
to be performed the same at the Contractors’ expense. If Company
employs an outside Contractor to do corrective work, the billing will include
all of the Company’s costs and expenses plus a surcharge of 15 percent
(15%) of the total costs and expenses to cover overhead costs. If the
Company employs its own forces to do corrective work, the billing will be
based on Company’s standard accounting practices, utilizing the computer
cost detail sheet to determine the charges for that portion of the Work.
A-31
(June 2013)
This factor shall be subject to revision based on any changes due to
applicable laws and the Company’s labor contract. The Contractor shall
be liable for the satisfaction and full performance of the warranties as set
forth herein.
1.29.G
Right to Reject – Due to the critical nature of Company’s operations,
Contractor agrees that if Company, in its sole discretion and after
reasonable consultation with Contractor, determines that any Contractor
employee (including the Contractor Representative) or material or
Equipment provided under this Contract shall be unsuitable for the
performance of the Work, or that the continued presence of such
employee, material or Equipment at the Worksite is not consistent with the
best interests of Company, then Company may request that Contractor
remove such employee, material or Equipment and Contractor shall
forthwith comply with this request. Contractor will then immediately, at no
cost to Company, replace such employee, material or Equipment with an
employee, material or Equipment which fully meets the standards under
this Contract and is approved by Company.
1.29.H
Nonexclusive Remedy – The rights and remedies provided to the
Company herein are not exclusive but shall be cumulative and in addition
to other rights and remedies existing under this Contract, at law, or in
equity.
1.30
COMPATIBILITY
1.30.A
Reassembly at Worksite – If applicable, the reassembly of any
mechanical, piping, and/or electrical component parts supplied by the
Contractor for the completed installation of the Equipment furnished under
this Contract will be performed and/or arranged for by the Contractor at
the Worksite. The Contractor shall acquaint himself and be familiar with
the labor practices, conditions, and procedures established and accepted
in the building and construction trades industry prevailing in the area and
applicable at the Worksite for the installation of similar types of work.
1.30.B
Compliance with Local Trade Provisions, Accepted Manner of
Performance – The Contractor hereby agrees that any shop fabricated
mechanical piping and/or electrical component parts supplied under this
Contract are compatible with these locally established trade provisions
and that the installation or erection of these parts will not be in conflict with
the accepted manner of performance.
A-32
(June 2013)
PERMITS/LAWS
1.31
RULES, CODES, PERMITS, LICENSES, AND NOTICES; COMPLIANCE
WITH APPLICABLE LAW
1.31.A
Supplied by Contractor – The Contractor shall obtain all permits and
licenses and pay all fees necessary as required by law for the proper
execution and completion of the Work of this Contract, including the
permits and licenses set forth in the Schedule of Permits and
Governmental Approvals attached hereto as Appendix E (except any
permits or licenses required to be obtained by the Company, as stated in
Section 1.32 (Company Furnished Permits)). A copy of each permit or
license shall be furnished to the Company.
1.31.B
Compliance with Applicable Law – (1) The Contractor shall give all notices
and comply with all laws, ordinances, rules, regulations, codes, and orders
of any governmental authority bearing on the Work, including but not
limited to (a) Environmental Laws and Hazardous Materials Laws and (b)
Contract Labor Standards requirements set forth on Exhibit E (if
applicable), and with all rules and regulations of any insurance company
which shall have issued a policy or policies upon any part of the Work or in
connection therewith. If the Contractor performs any portion of the Work
contrary to such laws, ordinances, rules, regulations, codes or orders the
Contractor shall assume full responsibility herefore and shall bear all costs
and expenses attributable thereto.
(2)
For purposes of this section, “Environmental Laws” shall mean any
law relating to protection of human health or the environment, including,
without limitation, relating to releases, discharges or emissions to air,
water, land or groundwater, to the withdrawal or use of groundwater, to
the use and handling of poly-chlorinated biphenyls (“PCB’s”), to the
disposal, treatment, storage or management of solid or hazardous wastes
or to exposure to toxic or hazardous materials, to the handling,
transportation, discharge or release of gaseous or liquid substance
(including petroleum) and any regulation, order, notice or demand issued
pursuant to such statute or ordinance, including without limitation the
following: the Clean Air Act, the Federal Water Pollution Control Act, the
Comprehensive Environmental Response Compensation and Liability Act
of 1986 (“CERCLA”), the Resource Conservation and Recovery Act, as
amended by the Solid and Hazardous Waste Amendments of 1984
(“RCRA”), the Federal Insecticide, Fungicide and Rodenticide Act, as
amended (“FIFRA”), the Occupational Safety and Health Act, the
Emergency Planning and Community Right-to-Know Act of 1978, the Solid
Waste Disposal Act, the Clean Water Act (including but not limited to any
permit or notice required under Hawaii Administrative Rules Chapter 55),
any state statutes or rules addressing similar matters, and any state
statute or rule providing for financial responsibility for cleanup or other
actions with respect to the release or the threatened release of hazardous
substances and any state nuisance statute.
A-33
(June 2013)
(3)
For purposes of this section, “Hazardous Materials Laws” means
any federal, state or local laws, ordinances or regulations, now or
hereafter in effect, relating to environmental conditions, industrial hygiene
or Hazardous Materials on, under or about the Work or the Worksite,
including, without limitation, CERCLA, RCRA, FIFRA, the Hazardous
Materials Transportation Act, as the same may be amended from time to
time, any similar Hawaii state and local laws and ordinances, including
Hawaii Revised Statutes Chapter 128D, and regulations now or hereafter
adopted, accomplished, and promulgated pursuant thereto applying to the
Work or the Worksite or any portion thereof.
1.31.C
Industry Requirements – All Work shall comply with those industry codes
and standards applicable thereto, and also with all codes and standards
mentioned elsewhere in these Project Specifications unless the drawings
or this Specification establish detailed requirements more stringent or
otherwise at variance with the normal minimum requirements of the
industry codes and standards, which the Company reserves the right to
do, provided such variances do not abridge established legal
requirements.
1.31.D.
Equal Opportunity for Disabled Veterans, Recently Separated Veterans,
Other Protected Veterans, and Armed Forces Service Medal
Veterans. (Applicable to (a) contract of $25,000 or more entered into
before December 31, 2003 (41 CFR 60-250.4) or (b) each federal
government contract of $100,000 or more, entered into or modified on or
after December 31, 2003 (41 CFR 60-300.4) for the purchase, sale or use
of personal property or nonpersonal services (including construction).) If
applicable, Contractor agrees that it is, and shall remain, in compliance
with the rules and regulations promulgated under The Vietnam Era
Veterans Readjustment Assistance Act of 1974, as amended by the Jobs
for Veterans Act of 2002, including the requirements of 41 CFR 60250.5(a) (for orders/contracts entered into before December 31, 2003) and
41 CFR 60-300.5(a) (for orders/contracts entered into or modified on or
after December 31, 2003) which are incorporated into this Contract by
reference.
1.31.E.
Notice of Employee’s Rights under the National Labor Relations Act.
(Applicable to (a) all prime contracts of $100,000 or more and (b)
subcontracts of $10,000 or more, resulting from solicitations issued on or
after June 21, 2010). If applicable, Contractor agrees that it shall comply
with Executive Order 13496 (Notification of Employee Rights under
Federal Labor Laws) and 29 C.F.R. Part 471 regarding employees’ rights
under the National Labor Relations Act to form, join and assist a union and
to bargain collectively with their employers.
1.31.F.
Equal Employment Opportunity – (Applicable to all contracts of $10,000 or
more in the whole or aggregate. 41 CFR 60-1.4 and 41 CFR 60-741.5(a).)
Contractor is aware of and is fully informed of Contractor responsibilities
under Executive Order 11246 (reference to which include amendments
and orders superseding in whole or in part) and shall be bound by and
A-34
(June 2013)
agrees to the provisions as contained in Section 202 of said Executive
Order and the Equal Opportunity Clause as set forth in 41 CFR 60-1.4 and
41 CFR 60-741.5(a), which clauses are hereby incorporated by reference.
1.32
COMPANY FURNISHED PERMITS
1.32.A
The Company will obtain the permits and licenses listed in Appendix E.
All other permits, licenses, or certificates of approval required for the Work
shall be secured and paid for by the Contractor. The Contractor shall pay
all fees required by and shall conform to local, state and federal laws,
rules and regulations applicable to and affecting the Work.
DELAYS; EXTENSIONS OF TIME; LIQUIDATED DAMAGES
1.33
DELAYS AND EXTENSION OF TIME
1.33.A
Delays Beyond Control of Contractor. Except as set forth in Section 1.60
(Force Majeure), if the Contractor is prevented or delayed at any time in
the progress of the Work solely by (1) an act or neglect of the Company,
or of another contractor employed by Company that directly impacts
Contractor’s ability to meet the Construction Schedule, (2) changes
ordered by Company in the Work via a Change Order, or (3) any other
causes which Company determines, in its sole discretion, justifies a delay
in the Construction Schedule, then the time for performance solely for
items of Work directly impacted by such delays shall be extended for such
reasonable time as Company may determine, in its sole discretion.
1.33.B
Extension Limited to Items of Work Affected – In determining whether any
such extension shall be granted in accordance with Section 1.33.A and in
determining the length of such extension, the Company may take into
consideration (1) any omissions or alterations in the Work or materials,
Equipment required by the Project Specifications or Company Drawings,
whereby, in the Company’s opinion the time necessary for completion has
been reduced and (2) the extent to which the delay directly affected the
Construction Schedule. Any extension of time granted shall apply solely
to dates set forth in the Construction Schedule for the items of the Work
directly impacted by such delays. Scheduled dates for other portions of
the Work not so delayed will remain unchanged. The Contractor’s sole
remedy for delays under this Section 1.33 (Delays and Extensions of
Time) or Section 1.60 (Force Majeure) shall be an extension of time as
provided herein. The Contractor shall not be entitled to any additional
compensation or payment for extra costs or damages incurred by the
Contractor due to hindrances of or delays to the progress of the Work from
such causes, unless expressly authorized in writing by Company.
A-35
(June 2013)
1.34
LIQUIDATED DAMAGES
1.34.A
Liquidated Damages (General) – Contractor recognizes that time is of the
essence in the Contract and that Company will suffer financial loss if the
Work is not completed by the Substantial Completion Date plus any
extension thereof allowed in accordance with Section 1.33 (Delays and
Extensions of Time) or Section 1.60 (Force Majeure). The parties also
recognize the delays, expense, and difficulties involved in proving in a
legal or arbitration proceeding the actual loss suffered by Company if the
Work is not completed on time or the Performance Guarantees set forth in
Appendix C are not met. Accordingly, instead of requiring any such proof,
Company and Contractor agree that as liquidated damages for any delay
in the Work (beyond those granted by Company pursuant to Section 1.33
or Section 1.60) or failure to meet Performance Guarantees, but not as a
penalty, Contractor shall pay Company Liquidated Damages representing
a reasonable estimate of fair compensation for the losses that may
reasonably be anticipated from such failures.
1.34.B
Liquidated Damages for Delay in Substantial Completion Date – If
Contractor fails to achieve Substantial Completion prior to the Substantial
Completion Date, then commencing on the first calendar day following the
Substantial Completion Date, Contractor shall pay Company liquidated
damages, for each calendar day until Contractor achieves Substantial
Completion, in an amount equal to [enter amount] DOLLARS ($[enter
amount]) per day.
INSURANCE AND INDEMNIFICATION
1.35
INSURANCE
1.35.A
Workers Compensation – Contractor shall at its own expense procure and
maintain in full force at all times during the term of this Contract Workers
Compensation, Temporary Disability, and other similar insurance required
by state or federal laws. Permissible self-insurance will be acceptable
subject to submission of a copy of appropriate governmental authorization
and qualification by Contractor. If exposure exists, coverage required by
the Longshore and Harbor Worker's Compensation Act (33 U.S.C. §688)
shall be included. Employers' Liability coverage limits shall be no less
than:
Bodily Injury by Accident - $1,000,000 each Accident
Bodily Injury by Disease - $1,000,000 each Employee
Bodily Injury by Disease - $1,000,000 policy limit
1.35.B Commercial General Liability Insurance – Contractor shall, at its own
expense procure and maintain in full force at all times during the term of
this Contract Commercial General Liability insurance or the reasonable
equivalent thereof, covering all operations by or on behalf of Contractor.
Such coverage shall provide insurance for bodily injury and property
A-36
(June 2013)
damage liability for the limits of liability indicated below and shall include
coverage for:
(ii)
(a)
Premises, operations, and mobile equipment,
(b)
Products and completed operations,
(c)
Claims resulting from alleged damage to the environment and
damage or injury caused by hazardous conditions or hazardous
materials to the extent such coverage is available at a commercially
reasonable cost.
(d)
Blanket contractual liability,
(e)
Broad form property damage (including completed operations),
(f)
Explosion, collapse and underground hazard,
(g)
Personal injury liability, and
(h)
Failure to supply liability.
Limits of liability for such coverage, which may be provided with umbrella
and/or excess insurance coverage, shall be:
Bodily Injury & Property Damage: $10,000,000 combined single limit per
occurrence and $20,000,000 aggregate annually.
If coverage is written on a claims-made basis, Contractor warrants that
any retroactive date applicable to coverage under the policy precedes the
date of this Contract; and that continuous coverage will be maintained or
an extended discovery period will be exercised for a period of three (3)
years beginning from the end of term of this Contract.
1.35.C
Automobile Liability Insurance – Contractor shall at its own expense
procure and maintain in full effect at all times during the term of this
Contract Automobile Liability insurance. This insurance shall include
coverage for owned, leased and non-owned automobiles. The limits of
liability shall be a combined single limit for bodily injury and property
damage of TWO MILLION DOLLARS ($2,000,000) for each occurrence
and in the aggregate annually.
1.35.D
Marine and Ocean Cargo Insurance – If Contractor charters a marine
vessel for performance of this Contract, Contractor shall first provide to the
Company proof of Charterers Legal Liability Insurance to be in effect
during the term of the charter and insuring liabilities arising out of charter
agreements on form CL 345 N/E or equivalent, with limits of liability of at
least FIVE MILLION DOLLARS ($5,000,000). Contractor shall also take
reasonable action to ensure that the risk of loss or damage to any material
items of Equipment which are subject to ocean transit are adequately
protected against by the terms of delivery from contractors or suppliers of
such Equipment or Contractor’s own insurance coverage.
A-37
(June 2013)
1.35.E
Aircraft Insurance – If Contractor uses its own, hires or subcontracts
aircraft for performance of this Contract, Contractor shall first provide to
the Company proof of Aircraft Hull Insurance and Aircraft Liability
Insurance to be in effect during the term of the Work and in accordance
with the following:
(1)
Aircraft Hull Insurance – At no cost to the Company, Contractor
shall ensure that Aircraft Hull Insurance is procured and maintained at all
times during the term of this Contract on all Contractor or subcontracted
Aircraft used in the performance of Work under this Contract in an amount
not less than the full market value of each such aircraft.
(2)
Aircraft Liability Insurance – At no cost to the Company, Contractor
shall ensure that at all times during the term of this Contract, Aircraft
Liability Insurance with bodily injury and property damage combined single
limits of at least TEN MILLION DOLLARS ($10,000,000) for any one
occurrence is maintained. Insurance at said limits will include coverage
for liability arising out of the operation of the aircraft and premises and
include completed operations and contractual liability coverage. Cargo
legal liability is to be included with limits of not less than TWENTY
THOUSAND DOLLARS ($20,000).
1.35.F
Asbestos Abatement Liability Insurance and/or Lead Abatement Liability
Insurance – In the event that Company so specifies or as Contractor may
determine based upon Contractor’s assessment of the Work, if the Work
involves Asbestos Abatement and/or Lead Abatement, the Contractor
shall provide proof of insurance coverage as applicable with a combined
single limit of at least ONE MILLION DOLLARS ($1,000,000) per
occurrence.
1.35.G
Builders Risk Insurance – Contractor shall at its own expense procure and
maintain in full effect at all times during the term of this Contract Builders
Risk insurance. This insurance shall include coverage for earthquake and
flood perils including transit (excluding ocean transit), testing, incidental
storage, structures, buildings, improvements and temporary structures
used in construction, or part of the permanent facility from the start of
construction until Acceptance of the Work by the Company. The amount
of coverage shall be purchased on a full replacement cost basis, and the
sublimits for earthquake and flood perils shall be 40% of replacement
costs at such time up to TWENTY MILLION DOLLARS ($20,000,000), if
such insurance amounts are available on commercially reasonable terms.
The coverage shall be written on an "All Risks" completed value form and
may allow for reasonable other sublimits including, but not limited to, ONE
MILLION DOLLARS ($1,000,000) for transit and FIVE MILLION
DOLLARS ($5,000,000) for incidental offsite storage. Coverage shall be
extended to include testing. Such policies shall be endorsed to require
that the coverage afforded shall not be canceled (except for nonpayment
of premiums) or reduced without at least sixty (60) days' prior written
notice to Contractor and Company; provided, however, that such
A-38
(June 2013)
endorsement shall provide (i) that the insurer may not cancel the coverage
for non-payment of premium without giving Contractor and Company ten
(10) days' notice that Contractor has failed to make timely payment
thereof, and (ii) that Contractor or Company shall thereupon have the right
to pay such premium directly to the insurer.
1.35.H
Project Liability Errors and Omissions – Contractor shall obtain adequate
protection against project liability errors and omissions on account of
negligent actions or inactions of architects, engineers, contractors and
subcontractors involved in the construction of the Project. This protection
may be provided through any one or more of the following mechanisms:
(i) construction contract(s) with the above parties who have sufficient
financial creditworthiness to cover project liability errors and omissions;
(ii) other agreement(s) with the above parties; or (iii) reserve account(s)
which may be used to correct material deficiencies associated with the
Project as a result of negligent actions or inactions of the above parties.
1.35.I
Waiver of Subrogation – Contractor hereby waives and will cause its
insurers to waive all rights of subrogation which Contractor or its insurers
may have against Company, Company’s agents, or Company’s
employees.
1.35.J
Company as Additional Insured – Insurance policies (except Workers
Compensation, Project Liability Errors and Omissions and Aircraft Hull)
providing the insurance coverage required in this Article will name
Company, Hawaiian Electric Industries, Inc., Company’s agents, and
Company’s employees as additional insured. Coverage must be primary
in respect to the additional insured. Any other insurance carried by the
Company will be excess only and shall not contribute to this insurance.
1.35.K
Certificates of Insurance – Concurrent with the execution of this Contract,
Contractor shall provide Company with a certificate of insurance (“COI”)
certifying that each of the foregoing insurance coverages is in force. If the
COI is not affixed to this Contract, then Contractor shall provide a copy of
the COI (and any subsequent updates) to Company’s Legal Department
(at: PO Box 2750, Honolulu HI 96840-001). The COI MUST reference this
Contract’s Contract Number and the date of this Contract and it shall
reference Contractor by name. Contractor will immediately provide written
notice to the Company should any of the insurance policies required
herein be cancelled, limited in scope, or not renewed upon
expiration. Receipt of any certificate showing less coverage than
requested is not a waiver of Contractor’s obligation to fulfill the
requirements.
1.36
INDEMNIFICATION
1.36.A
In Connection with Performance of Work – In connection with the
performance of this Contract, or in any way incident thereto, Contractor
shall indemnify, defend and hold harmless the Indemnified Parties from
and against any and all liabilities, claims, losses, damages, or expenses,
A-39
(June 2013)
including reasonable counsel fees (including counsel fees in seeking
indemnification), whether arising before or after completion of the Work
hereunder, which may be incurred or sustained by the Indemnified Parties,
by reason of any act, omission, misconduct, negligence, or default of
Contractor or any of its Subcontractors or any of their respective
employees, including but not limited to delays on the part of the
Contractor, any of its Subcontractor, or any of their respective employees,
or anyone acting under Contractor’s direction or control or on its behalf;
and such rights to indemnification shall apply regardless of whether any
act, omission, misconduct, negligence, or default of the Indemnified
Parties either contributed or may be alleged to have contributed in any
way thereto; provided, however, that the Contractor shall not be liable
under the provisions of this paragraph for any liability arising solely by
reason of the negligence of the Indemnified Parties.
1.36.B
For Use of Any Equipment – Pursuant to Section 1.54 (Equipment
Provided By Company for use by Contractor) of the Contract, in the event
that any Equipment, while under the operation or control of the
Indemnified Parties, shall be made available to or utilized in any manner
by the Contractor, any of its Subcontractors, or any employees or invitees
of either, whether alone or in conjunction with others, whether in
connection with the execution of the Work provided for in the Contract, or
otherwise, and whether or not any charge is made by the Indemnified
Parties for such service, the Contractor shall, in consideration of the
services thus provided, indemnify, defend and hold harmless the
Indemnified Parties from and against any and all liabilities, claims, losses,
damages, costs or expenses, including reasonable counsel fees (including
counsel fees in seeking indemnification), which may be incurred or
sustained by the Indemnified Parties, by reason of the assertion of any
liability or claim for injury, loss, or damage of any kind or nature
whatsoever, direct or indirect, to Contractor’s own or any of its
Subcontractor’s employees, invitees, or real or personal property arising
out of or resulting from any such use, misuse, or failure of any such
Equipment.
A-40
(June 2013)
1.36.C
Intellectual Property Infringement –
(1)
Patents and Copyrights – Contractor agrees that in performing
Work under this Contract, it will not use any process, program,
design, device, material or Equipment (collectively “Item(s)”) which
infringes on any United States patent or copyright or any trade
secret agreement. Contractor agrees to indemnify, defend and
hold harmless Company from and against all losses, damages,
claims, fees and costs, including but not limited to reasonable
attorneys' fees and costs, arising from or incidental to any suit or
proceeding brought against Company for patent, copyright or trade
secret infringement arising out of Contractor’s Work. Company
shall promptly notify Contractor of any such suit or proceeding and
shall assist Contractor in defending the action by providing any
necessary information.
(2)
If such Item(s) are in any suit or proceeding found, or are
reasonably likely to be found to infringe or contributorily infringe
upon the proprietary rights of any third party, Contractor, within a
reasonable time, shall: (i) secure for Company (at Contractor’s sole
expense) the right to continue using said Item(s) by suspension of
the injunction, by procuring for the Company a valid license, or
otherwise, or (ii) modify the Item(s) so that it or they no longer
infringe upon the proprietary rights whatsoever (provided, however,
that any such modified Item(s) will, in Company’s sole
determination, remain functionally equivalent to the unmodified
version(s)), or (iii) replace such Item(s) with a non-infringing
functional equivalent(s); provided, however, that any such
replacement or modification will not, in Company’s sole
determination, cause any damage or injury to any other property of
the Company or any component of this Project.
1.36.D
Collective Bargaining Agreements, Employment Contracts – The
Contractor agrees to defend, indemnify and hold harmless the Indemnified
Parties from all liabilities, claims, liens, losses, obligations, liabilities,
damages, costs or expenses (including reasonable counsel fees) and
causes of action of whatever kind arising out of any work assignment
made by the Contractor or its Subcontractors or arising out of any breach
of any applicable collective bargaining agreement, employment contract,
or employee pension or benefit plan.
1.36.E
Environmental Protection. Contractor shall indemnify, defend and hold
harmless the Indemnified Parties from and against any and all liabilities,
claims, losses, damages, costs or expenses, including reasonable counsel
fees (including counsel fees in seeking indemnification), associated with
Contractor’s breach of Section 1.52 (Air and Water Pollution) and/or
Indemnified Parties’ actions to prevent or remedy any condition prohibited
by the Section 1.52 (Air and Water Pollution).
A-41
(June 2013)
1.36.F
First Aid Facilities. Contractor shall indemnify, defend and hold harmless
the Indemnified Parties from and against any and all liabilities, claims,
losses, damages, costs or expenses, including reasonable counsel fees
(including counsel fees in seeking indemnification), which may be incurred
or sustained by the Indemnified Parties by reason of the assertion of any
liability or claim for injury, loss, or damage of any kind of nature
whatsoever, direct or indirect, including any liability or claim based on
alleged negligence or malpractice arising out of the rendition of or in any
way connected with the furnishing of treatment at a first aid facility as set
forth in Section 1.39.B (First Aid Facility).
1.36.G
Taxes and Benefits. Contractor shall indemnify, defend and hold
harmless the Indemnified Parties from and against any and all liabilities,
claims, losses, damages, or expenses, including reasonable counsel fees
(including counsel fees in seeking indemnification), which may be incurred
or sustaining by the Indemnified Parties by reason of the assertion of any
liability or claim for injury, loss, or damage of any kind of nature
whatsoever, direct or indirect, including any liability or claim based on
Contractor’s failure to pay Taxes and Benefits as required by Section
1.62.A (Taxes and Employee Benefits).
1.36.H
Contractor to Assume Defense – Whenever any suit or other proceeding
which involves any matter with respect to which the indemnification
provisions of this Section 1.36 (Indemnification) are applicable shall be
brought against the Indemnified Parties, the Contractor shall upon receipt
of timely notice from Company of the institution of such suit or other
proceedings assume the defense thereof and defend the same at the
Contractor’s own expense and pay any and all costs, charges, attorneys’
fees and other expenses and any and all judgments that may be incurred
by or obtained against the Indemnified Parties in such suits or other
proceedings, and if any judgment or other lien shall be placed upon or
obtained against the property of the Indemnified Parties in or as a result of
such suits or other proceedings, the Contractor shall at once cause the
same to be released and discharged by giving bond or otherwise. The
Indemnified Parties shall have the right to approve counsel retained by the
Contractor and to participate in and be informed of the status of any suit or
other proceeding. The Indemnified Parties shall furnish the Contractor (at
the Contractor’s expense) information and assistance reasonably
requested by Contractor to enable the Contractor to defend such suit or
proceedings.
1.36.H
Bond and Insurance No Limitation – The Contractor expressly
understands and agrees that any performance bond or insurance
protection required by the Contract (including the Contract Documents), or
otherwise provided with respect to the Work, shall in no way limit the
responsibility to indemnify, save, and hold harmless and defend the
Indemnified Parties as herein provided. No limitation on the amount or
type of damages, compensation, or benefits payable by or for Contractor
under workers’ compensation acts, disability benefit acts, or other
employee benefit acts shall limit the indemnity herein provided.
A-42
(June 2013)
1.37
WAIVER OF IMPLEADER
1.37.A
Impleader – The Contractor hereby waives any claim or right to implead or
otherwise join Engineers, the Project Manager or the Construction
Inspector in any action, suit, or proceeding brought against the Contractor
by the Company with respect to the materials, Equipment, or facilities
being furnished by Contractor hereunder.
1.37.B
Waivers Must be in Writing – No waiver of any provision of the Contract,
and no consent to departure therefrom, by either party, shall be effective
unless in writing and signed by the waiving or consenting party, and no
such waiver or consent shall extend beyond the particular case and
purpose involved.
SAFETY PROGRAM AND SECURITY
1.38
SAFETY AND ACCIDENT REPORTS
1.38.A
Compliance with Applicable Laws – The Contractor and its Subcontractors
shall establish an active safety program, take all safety precautions and
furnish and install all guards and other safety devices necessary for the
prevention of accidents, and shall comply with all applicable local, state,
and federal safety laws, ordinances, rules and regulations particularly in
view of the dangers of working in the vicinity of electrically energized
equipment. Specific reference is made to the Occupational Safety and
Health Act of 1970, as amended and State Occupational Safety and
Health Law, Hawaii Revised Statutes Chapter 396, as amended.
1.38.B
Safety Committee – If so requested, Contractor shall cooperate with
Company in the formation of a safety committee for the Worksite and shall
conform to and enforce the safety instructions and regulations of such
Safety Committee. In any emergency affecting the safety of life, work, or
adjoining property, the Contractor shall, at its discretion and without
special instructions from Company, immediately act to prevent threatened
loss or injury.
1.38.C
Other Safety Procedures – In addition, the Contractor and its
Subcontractors shall comply with all other safety procedures required by
Company.
1.38.D
Prompt Notification – The Contractor shall promptly report in writing to the
Company all accidents whatsoever arising out of or in connection with the
performance of the Work, giving full details and statements of witnesses.
If death or serious injuries or serious damages are caused, the accident
shall be reported immediately by telephone or messenger to the
Company.
A-43
(June 2013)
1.38.E
Written Report – If a claim is made by anyone against the Contractor or
any of its Subcontractors or on account of any accident associated with
the Work, the Contractor shall promptly report the full details in writing to
Company.
1.39
NOTICE OF INJURY AND USE OF FIRST AID FACILITIES
1.39.A
Notice of Injury. The Contractor shall be responsible for providing the
Company immediately with notice of any injuries resulting from
Contractor’s or its Subcontractor’s performance of the Work.
1.39.B
First Aid Facilities – In the event that the Company in its sole discretion,
establishes emergency medical treatment facilities at the Worksite,
Contractor’s employees and its Subcontractor’s employees may seek
treatment at such facilities.
1.40
FIRE PROTECTION
1.40.A
It shall be the duty of each Contractor (and subcontractor), for its own
protection, to maintain in each temporary office, tool room, or storage
room used by it, and to provide in the building in close proximity to the
Work, fire extinguishers of sufficient size and quantities satisfactory to the
Company.
1.41
SECURITY
1.41.A
Joint Cooperation – The Contractor shall cooperate with the Company
and/or the Worksite land owner on all security matters and shall promptly
comply with any project security requirements established by the
Company and/or the Worksite land owner. The Contractor shall at all
times conduct all operations under the Contract in a manner to avoid the
risk of loss, theft, or damage by vandalism, sabotage, or other means to
any property. The Contractor shall promptly take all reasonable
precautions which are necessary and adequate against any conditions
which involve a risk of loss, theft, or damage to its property. The
Contractor shall continuously inspect all of the Work, materials,
Equipment, and facilities to discover and determine such conditions and
shall be solely responsible for discovery, determination, and correction of
any such conditions.
1.41.B
Security Enclosure – In support of the requirements set forth in Section
1.41.A (Joint Cooperation), Contractor shall furnish or construct a
temporary locked security enclosure at the Worksite in which he shall
store all Company and Contractor furnished material which may have
been delivered to the Worksite but not yet installed. This enclosure shall
remain locked at all times when the Contractor is not on the Worksite.
1.41.C
Security Practices and Procedures – Contractor and Contractor’s
employees who perform Work under this Contract shall comply with the
A-44
(June 2013)
security practices and procedures prescribed by Company and/or the
Worksite land owner to cover the Worksite. Contractor shall advise its
employees and Subcontractors and their employees of these practices
and procedures and secure their consent to abide by these procedures.
1.41.D
Guard Service – If Company considers it necessary, it will provide
watchmen and guards to protect its own interests. The Contractor shall
provide guard service sufficient for the protection of its own property and
Equipment and that of its Subcontractors. Company will not be
responsible for any loss of or damage to the Contractor’s property or its
Subcontractors’ property from any cause.
1.41.E
Identification – If Company or the Worksite landowner so requires, the
Contractor shall furnish its employees and its Subcontractors’ employees
identification badges. Each employee shall be required to wear his badge
in plain sight at all times whenever he is on the Worksite. The Contractor,
Subcontractors, and their employees shall observe all procedures for
admission to the Worksite proposed by the Company and/or the Worksite
landowner.
1.41.F
List of Employees – Prior to the start of the Work at the Worksite, the
Contractor and its Subcontractors shall submit to Company a list of all
employees (manual and non-manual) to be employed at the Worksite in
connection with the Work under this Contract. Such list shall include
employee’s name and number. During the term of the Contract, Contractor
shall keep an updated and current list and shall make such list available to
Company.
CONDUCT OF THE WORK
1.42
BARRIERS
1.42.A
The Contractor will arrange for the erection and maintenance of suitable
temporary barriers or rails around the Worksite, detours, traffic diversions
and excavations, provide a flagman and police officer at Contractor’s
expense, and take reasonable steps to ensure the general protection of
the public. No barriers shall be removed or altered without the approval of
the Construction Manager.
1.43
EQUIPMENT
1.43.A
Contractor to Furnish – The Contractor shall furnish all Equipment and any
other temporary construction required for the execution of the Work,
unless otherwise specified in the Contract Documents.
1.43.B
In Compliance with Most Stringent Standard – All Equipment and other
temporary construction shall be properly designed and self supporting
throughout, and shall be rigidly built so as to support safely the weight of
all materials, Equipment and persons to be placed thereon with a factor of
A-45
(June 2013)
safety of four based on ultimate strengths of the structural parts, or as
required by state and local laws, whichever requirements prove to be the
more rigid.
1.44
LINES AND GRADES
1.44.A
All base lines, a bench mark and grades shall be established by the
Contractor, who shall be responsible for the correctness of setting of all
members, structures, and equipment covered by the Contract, with
reference to these lines and grades.
1.44.B.
The Contractor shall carefully preserve any Company established bench
marks, reference points, and stakes and in case of willful or careless
destruction, shall be responsible for the cost of replacement and for any
mistakes or delays which result from such loss or disturbance.
1.44.C.
The Contractor shall employ a competent surveyor plus survey crew
members, acceptable to the Company, to lay out the work and establish
all lines and levels that may be required. The Contractor shall maintain a
survey force adequate to service the work and avoid delays due to lack of
survey information.
1.44.D
Complete records of all field survey work shall be kept by the Contractor in
accordance with good surveying practice and in standard field books.
Field books shall become the property of the Company and shall be
available to the Company at all times. All field books shall be delivered to
the Company upon completion of the Work.
1.45
SLEEVES AND SUPPORTS
1.45.A
Except as may be otherwise particularly specified or noted, the Contractor
shall furnish, set, and secure all inserts, hangers, sleeves, anchors, and
other supports and fittings required for the proper installation of the Work.
1.46
SHORING AND BRACING
1.46.A
Contractor shall be responsible for determining what temporary shoring
and bracing must be provided to support loads to which the Work may be
subjected, including construction equipment and the operation of such
equipment. Contractor shall be responsible for the adequacy and safety
of such shoring and bracing.
1.47
TEMPORARY ATTACHMENTS
1.47.A
Contractor shall be solely responsible for the adequacy of any temporary
attachments to the Company’s structure or other facilities, whether or not
A-46
(June 2013)
such attachments may be required for its Equipment. Where the Project
Specifications require the Engineers to review any such temporary
attachment, such review shall be solely for the purpose of determining its
potential impact on the Company’s structure or other facilities. Such
review shall in no way be interpreted as constituting approval of the
adequacy of such attachments for their intended use.
1.48
SAMPLES
1.48.A
The Contractor shall furnish, for approval, all samples of materials or finish
as directed. When approved by Company, the Work shall be executed in
accordance with the approved samples.
1.49
SPARE PARTS AND TOOLS FOR EQUIPMENT
1.49.A
Where spare parts and tools are furnished with the Equipment, the
Contractor shall turn them over to the Company with the Equipment.
Spare parts and tools shall be properly stored and shall not be used
without the approval of the Company.
1.50
CUTTING AND PATCHING
1.50.A
Contractor shall do such cutting, fitting and patching of existing structures
as may be required to install the Work and shall, at all points of contact,
properly fit it to existing work. Contractor shall not endanger any Work by
cutting, digging, or otherwise, and shall not cut or alter existing structures
or the Work of any other contractor except with the authorization of the
Engineers or Construction Manager or Company.
1.51
BLASTING
1.51.A
No blasting of any kind may be performed by Contractor and its
Subcontractors, without the prior written approval of Company.
1.52
AIR AND WATER POLLUTION
1.52.A
The Contractor shall perform the Work so as not to discharge into the
atmosphere from any source whatever smoke, dust, or other air
contaminants in violation of the laws, rules, and regulations of the
governmental entities having jurisdiction.
1.52.B
The Contractor shall, at its expense, provide suitable facilities to prevent
the introduction of any substances or materials into any stream, river, lake,
or other body of water which may pollute the water or constitute
substances or materials deleterious to people, fish, or wildlife.
A-47
(June 2013)
1.52.C
Existing improvements, including trees and other thriving plant life, on or
adjacent to the Worksite and not otherwise required to be removed shall
be preserved and protected against removal or damage unless absolutely
necessary to accomplish the Work.
1.52.D
Company shall have the right, but not the obligation, to, without notice,
take any action necessary to prevent or remedy any such prohibited
condition and to charge Contractor for the cost and expenses thereof.
Upon receipt of an invoice from Company in connection therewith,
Contractor shall immediately reimburse Company for such costs and
expense.
1.53
REMOVAL OF REFUSE
1.53.A
At Worksite – The Contractor shall, at all times, keep the Worksite and its
work areas in a neat, clean, and safe condition, and shall each day clean
up such work areas and remove therefrom and from the adjoining
premises all waste materials and rubbish and deposit it in designated
areas or containers. Upon completion of the Work and before final
payment is made, the Contractor shall remove from the Worksite, at its
own expense, all temporary buildings, rubbish of any kind, unused
materials, Equipment and other materials belonging to it or used in the
performance of the Work. Contractor shall return to the Company’s
warehouse or storage area on Worksite any salvageable materials
supplied by the Company for incorporation into the Work but not used.
Contractor shall leave the Worksite in a neat, clean, and safe condition.
1.53.B
Failure to Comply – If Contractor fails to comply with the requirements of
this provision, the Company may have others perform these activities and
the Contractor shall be liable for all costs and expenses incurred.
1.54
EQUIPMENT PROVIDED BY COMPANY FOR USE BY CONTRACTOR
1.54.A.
From time to time during the term of the Contract, Company may, in its
sole discretion and upon request of Contractor, make available to
Contractor certain Equipment as requested by Contractor. Company shall
not have any responsibility or liability for injury to or death of any person or
for damage to any real or personal property resulting from the Equipment,
used by and under the operation or control of the Contractor or any of its
Subcontractors or any of their respective employees, even though such
Equipment shall have been furnished or loaned, with or without charge
therefore, to the Contractor or any of its Subcontractors, or any of their
respective employees, by or through the Company.
(2)
THE EQUIPMENT IS PROVIDED BY COMPANY TO
CONTRACTOR “AS-IS”, “WHERE IS,” and “WITH ALL FAULTS”.
COMPANY GIVES NO REPRESENTATIONS OR WARRANTIES,
EXPRESS OR IMPLIED WITH RESPECT TO THE EQUIPMENT,
A-48
(June 2013)
INCLUDING ANY IMPLIED WARRANTIES OF QUALITY,
MERCHANTABILITY, FITNESS FOR PARTICULAR PURPOSE,
SERVICEABILITY OR OTHERWISE. The Equipment is furnished or
loaned to Contractor based solely on Contractor’s request and Contractor
shall rely exclusively on its judgment and expertise in selecting the
Equipment. Contractor has the duty to inspect the Equipment prior to use
and to train Contractor’s employees and Subcontractors and their
employees in the proper use of such Equipment.
(3)
The acceptance or use and the operation of or exercise of control
over any such Equipment by the Contractor or any of its Subcontractors,
or any employees of either, shall be conclusively construed to mean that
the Contractor has unconditionally accepted all responsibility and liability
for any and all damage, loss, or injury whatsoever resulting from the use,
misuse, or failure of such Equipment, whether such damage, loss, or
injury be to the Contractor’s own or any of its Subcontractor’s employees
or property or to any other persons or the property of such other persons,
including without limitation the Company, other contractors, their
subcontractors, and any employees or invitees of the foregoing.
LIENS; PERFORMANCE BONDS
1.55
UNPAID ACCOUNTS – LIENS
1.55.A
Contractor shall pay for labor, services, materials, Equipment and parts
thereof, and other expenses incurred by it or its Subcontractors in
connection with the Work. Contractor shall indemnify, defend and hold
harmless the Indemnified Parties from and against any and all liabilities,
claims, losses, damages, liens or expenses, including reasonable counsel
fees (including counsel fees in seeking indemnification), arising out of
unpaid accounts related thereto.
1.55.B
Company may require evidence satisfactory to it from Contractor that all
materials, Equipment and parts thereof supplied, work in progress, work
done, finished work delivered, or service performed, for which Company
has made a payment, are free and clear of mechanics or other liens,
attachments, claims and demands, charges or other encumbrances.
1.55.C
If at any time during the progress of the Work, the Contractor shall incur
any indebtedness for labor, services, materials, Equipment or parts
thereof which indebtedness (1) has become or may become a lien upon
the Work or any part thereof, or any materials or Equipment, or (2) may
become a claim against the Company, or Company’s property, including
but not limited to claims of mechanic’s and materialman’s liens under
Hawaii Revised Statutes Chapter 507, the Contractor shall immediately,
upon request by the Company, pay such claim or indebtedness or cause
such lien to be released and discharged by giving a bond sufficient under
the law applicable to such lien at Contractor’s expense; and, upon failure
so to do, the Company may in its discretion: (a) withhold any money due
the Contractor until such claim or indebtedness is paid, (b) apply any
A-49
(June 2013)
money due to Contractor toward the discharge thereof, and/or (c)
terminate the Contract pursuant to Section 1.58 (Termination for Default)
and take possession and control of the Work, accept such portions of the
Equipment and other materials covered by the Contract as in the opinion
of the Engineers may be used on the Work, and complete the Work or
cause the same to be completed according to the Project Specifications,
all in the manner and with the effect provided in Section 1.58 (Termination
for Default).
1.55.D
Prior to invoicing final payment, Contractor shall sign a release of liens in
a form prepared by Company and furnished to Contractor, as set forth in
Exhibit B (Form of Request for Final Payment and Release of Claims).
1.55.E
Contractor shall include the substance of this article in all contracts with
Subcontractors performing any part of the Work.
1.56
SURETY BONDS (Payment and Performance)
1.56.A
Performance and Payment Bond – Contractor shall furnish a Performance
and Payment Bond or other guarantee acceptable to Company in an
amount equal to 100 percent of the Contract Price, at no additional cost to
Company, in the form set forth in Exhibit C (Form of Performance and
Payment Bond). The bond shall be delivered to the Company within ten
(10) days after receipt of the Notice to Proceed or other notice of a
requirement for surety bond during performance of the Contract.
1.56.B
Acceptable Surety – Such bond shall be executed as Surety by a
corporation acceptable to the Company and authorized to issue Surety
Bonds in the State where the Work is to be performed. The bond shall be
accompanied by a certified copy of the Power of Attorney authorizing the
Attorney-in-Fact of the corporate Surety to execute and deliver the bond
on behalf of the Surety, together with a currently executed certificate of an
authorized officer of the Surety stating that the Power of Attorney is in full
force and effect.
SUSPENSION; TERMINATION; FORCE MAJEURE
1.57
SUSPENSION
1.57.A
Upon Company’s Notice – By notice in writing to the Contractor, the
Company may suspend the performance of all or any portion of the Work
to be performed under the Contract, at any time, in its sole discretion, and
for any reason, including, without limitation, convenience or Contractor
noncompliance with any requirement of the Contract. Upon issuing such
notice of suspension of the Work to Contractor, the Company shall
designate the amount and type of plant, labor, and equipment to be
committed to the Worksite during the period of suspension. The
Contractor shall use its best efforts to utilize its plant, labor, and
A-50
(June 2013)
equipment in such a manner as to minimize costs associated with
suspension.
(1)
(2)
Upon Receipt of Notice – Upon receipt of any such notice, the
Contractor shall, unless the notice requires otherwise:
(a)
Immediately discontinue work on the date and to the extent
specified in the notice;
(b)
Place no further orders or subcontracts for material,
services, or facilities with respect to the suspended Work
other than to the extent required in the notice;
(c)
Promptly make every reasonable effort to obtain suspension
upon terms satisfactory to the Company of all orders,
subcontracts, and rental agreements to the extent they relate
to performance of the Work suspended; and,
(d)
Continue to protect and maintain the Work including those
portions on which Work has been suspended.
Compensation for Suspension – As full compensation for such
suspension, Company shall reimburse Contractor for the following
costs, reasonably incurred, without duplication of any item, to the
extent that such costs directly result from such suspension of the
Work:
(a)
A standby charge to be paid to the Contractor during the
period of suspension of the Work which standby charge shall
be sufficient to compensate the Contractor for keeping, to
the extent required in the notice, its plant, employees and
equipment committed to the Work in a standby status;
(b)
All reasonable costs, as determined to be equitable by the
Company, associated with demobilization and subsequent
remobilization of the Contractor’s plant, employees, and
Equipment; and
(c)
An equitable amount to reimburse the Contractor for the cost
of maintaining and protecting that portion of the Work upon
which work has been suspended.
Any claim on the part of the Contractor for such compensation shall
be made within ten (10) working days after receipt by Contractor of
a notice to suspend the Work. No compensation will be granted if
suspension results from the Contractor’s noncompliance with the
requirements of the Contract.
(3)
Suspension Longer than 90 days – In the event such suspension
continues for more than ninety (90) days, the Company may
A-51
(June 2013)
release to the Contractor, for the Work satisfactorily completed by
the Contractor, approved and accepted by the Company, any
amounts retained by the Company under the terms of the Contract.
Such retained amounts shall only be released to the Contractor
after the Contractor’s complete compliance with the suspension
notice and the requirements of this Contract, including, without
limitation, Section 1.55 (Unpaid Accounts – Liens) and Section 1.06
(Final Payment and Release of Claims).
(4)
Resume Suspended Work – Upon receipt of notice to resume
suspended Work, the Contractor shall immediately resume
performance of the suspended Work to the extent required in the
notice. If as a result of any such suspension of the Work, the cost
to the Contractor of subsequently performing the Work is increased
or decreased, an equitable adjustment will be made in the cost of
performing the suspended Work in accordance with Section 1.19
(Changes and Increase or Decrease of Work). Any claim on the
part of the Contractor for additional time or compensation shall be
made within seven (7) calendar days after receipt of notice to
resume the Work and the Contractor shall submit a revised
Construction Schedule for review and approval by the Company.
1.57.B
Noncompliance – No compensation or extension of time will be granted if
suspension results from the Contractor’s noncompliance with any
requirements of this Contract.
1.58
TERMINATION FOR DEFAULT
1.58.A
Right to Terminate – The Company shall have the right to terminate this
Contract, in whole or in part, in accordance with Section 1.58.B (Failure to
Remedy) at any time during the performance of the Contract should the
Contractor:
(1)
Become insolvent or bankrupt, or cease, be unable, or admit in
writing its inability, to pay its debts as they mature, or make a
general assignment for the benefit of, or enter into any composition
or arrangement with creditors; or
(2)
Authorize, apply for or consent to, the appointment of a receiver,
trustee or liquidator of the Contractor or of a substantial part of its
assets, or proceedings seeking such appointment shall be
commenced against it; or
(3)
Authorize or take any action under bankruptcy, reorganization,
readjustment of debt insolvency, dissolution, liquidation or other
similar law of any jurisdiction, or proceedings under any such laws
shall be instituted against it; or
(4)
Assign or subcontract any part of the Contract in violation of
Section 1.09 (Subcontracts and Assignment); or
A-52
(June 2013)
(5)
(6)
Perform such that Company has determined that the Contractor for
any reason is:
(a)
Not maintaining the progress of the Work in accordance with
the approved schedule; or
(b)
Failing to provide insurance coverages required to be
provided by Contractor or any Subcontractor in accordance
with this Contract; or if such insurance coverages are
canceled, terminated, or modified so that the required
insurance coverages are no longer in full force and effect; or
(c)
Failing to furnish a faithful performance and/or labor and
material payment bond upon Company’s request; or
(d)
Neglecting or is unable to provide equipment, Equipment
and/or materials or to perform the Work required, or is
careless or incompetent; or
(e)
Failing in any way to comply with any of the conditions or
provisions of the Contract (including specifically the Project
Specifications or Company Drawings).
Fail to pay for labor, services, materials, equipment or parts in
accordance with Section 1.55 (Unpaid Accounts- Liens).
1.58.B
Failure to Remedy – If, within three (3) working days after receipt of a
written notice of default from Company, Contractor fails to remedy such
default or provide satisfactory evidence (as determined by Company in its
sole discretion) that such default will be corrected, and that the Contractor
is making reasonable progress toward that end, the Company may,
without limiting any other right or remedy available to it in law or equity,
either withhold any amounts otherwise due under the Contract or
terminate the Contract in whole or in part. Thereupon, the Company will
also have the right, but shall not be obligated, to complete such Work by
whatever method the Company may deem expedient including employing
another contractor or contractors under such form of contract as the
Company may deem advisable or the Company may provide any labor or
materials and perform any such part of the Work that has been
terminated, and the Company shall have the right to take possession of
and to use any or all of the materials, plant, Equipment, supplies, and
property of any and every kind furnished by the Contractor for such Work.
1.58.C
Contractor’s Expense – The expense of so completing the Work, together
with a reasonable charge for awarding and administering any subcontract
and any damages caused by the delays thus occasioned in completing the
Work, shall be charged to the Contractor, and such expense shall be
deducted by the Company out of such monies as may be due or may at
anytime thereafter become due to the Contractor. In case such expense
A-53
(June 2013)
exceeds the sum which would have otherwise been payable under the
Contract, the Contractor shall be liable for and shall upon notice from the
Company promptly pay to the Company the amount of such excess. The
Company shall not be required to obtain the lowest figures for the Work of
completing the Contract, but may make such expenditures as in its sole
judgment will best accomplish such completion.
1.58.D
Nonexclusive Remedy – The rights and remedies provided to the
Company herein are not exclusive but shall be cumulative and in addition
to other rights and remedies existing under this Contract, at law, or in
equity.
1.59
TERMINATION FOR CONVENIENCE
1.59.A
Right to Terminate – The Company shall have the right to terminate the
Contract in whole or in part, at any time and for any reason, in the sole
discretion of Company. The termination shall be effected by giving the
Contractor two (2) days prior written notice.
1.59.B
Procedure – Upon receipt of any such notice, the Contractor and its
Subcontractors shall, unless the notice requires otherwise:
1.59.C
(1)
Immediately discontinue the Work or portions thereof which can be
discontinued without creating a hazardous condition, on the date
and to the extent specified in the notice;
(2)
Cancel all outstanding commitments for labor, materials, and
Equipment on the terminated portion of the work which may be
canceled without undue cost. The Contractor shall notify the
Company of any commitment which cannot be canceled without
undue cost and the Company shall have the right to accept delivery
or to reject delivery and pay the agreed upon costs;
(3)
Place no further orders or subcontracts for labor, materials,
services, Equipment or facilities, other than as may be necessary or
required for completion of such portion of the Work under the
Contract that is not terminated; and
(4)
Assist the Company, as specifically requested in writing, in the
maintenance, protection, and disposition of property acquired by
the Company under the Contract.
Waiver by Contractor – Subject to compliance with the foregoing and any
other applicable provisions of the Contract which by their nature continue
beyond Final Acceptance (including but not limited to Section 1.55
(Unpaid Accounts – Liens) and Section 1.06 (Final Payment and Release
of Claims)), the Contractor shall waive any claims for damages including
loss of anticipated profits on account thereof, but as the sole right and
remedy of the Contractor upon any such termination, the Company shall
pay the Contractor the following:
A-54
(June 2013)
(a)
All amounts due (which shall include the appropriate profit) and not
previously paid to the Contractor for the Work completed on the
terminated portion in accordance with the Contract prior to such
notice, and for the Work thereafter completed as specified in such
notice. All amounts due shall be determined in accordance with
Contractor’s original costing basis and shall represent the actual
work completed on a percentage basis;
(c)
The reasonable costs of settling and paying claims arising out of
the termination;
(d)
The reasonable costs incurred pursuant to Section 1.59.B(4)
above;
(e)
Any other reasonable costs incidental to such termination of the
Work.
1.59.D
Contractor’s Invoice – The Contractor shall submit to the Company its
statement for the aforesaid amount in such reasonable detail as the
Company shall request, within thirty (30) days after such date of
termination and the Company, subject to verification thereof, shall remit
such amount properly due and payable to Contractor within thirty (30)
days after receipt of such statement by the Company. Company shall not
be liable to the Contractor for any other amounts (including any other
damages or anticipated profits) with respect to the remainder of the Work
on account of such termination.
1.59.E
Partial Termination – The Company may, at its election, invoke a partial
termination of the Work as a decrease in the scope of the Work in
accordance with Section 1.19 (Changes and Increase or Decrease of
Work).
1.60
FORCE MAJEURE
1.60.A
Excuse of Performance – Notwithstanding anything in the Contract to the
contrary, a party unable to carry out its obligations under the Contract due
solely to a Force Majeure shall be excused from performance of those
obligations directly impacted by such Force Majeure for such time as such
Force Majeure prevents the carrying out of such obligations. A party
rendered unable to fulfill any obligation under the Contract by reason of
Force Majeure shall make reasonable efforts to resume performance in
the shortest possible time. During any time in which a party is relying on
Force Majeure to excuse obligations hereunder, the other party shall be
excused from its corresponding obligations hereunder. The party relying
on Force Majeure shall give the other party written notice within 48 hours
after the Force Majeure condition or event begins describing the
particulars of such Force Majeure condition or event. Such party shall
thereafter provide the other party, within 14 days after the Force Majeure
condition or event begins, a written explanation of the Force Majeure
A-55
(June 2013)
condition or event and its effect on the non-performing party’s
performance, which explanation shall include evidence reasonably
sufficient to establish that the occurrence constitutes Force Majeure.
When the Force majeure condition or event ends, the non-performing
party shall resume performance of its obligations under this Contract and
shall give the other party written notice to that effect.
1.60.B
Definition – The term “Force Majeure” as used herein shall mean any
cause which is beyond the reasonable control and without the fault or
negligence of the party and which condition was not foreseeable by the
party at the time this Contract was entered into and which by reasonable
efforts, the party affected is unable to overcome, including without
limitation the following: acts of God; fire, flood, landslide, lightning,
earthquake, hurricane, tornado, storm exceeding prevailing weather
conditions, or volcanic eruption; strike, lockout or other labor difficulty not
reasonably anticipated or avoidable; theft; casualty; war; invasion; civil
disturbance; explosion; acts of public enemies; or sabotage.
MISCELLANEOUS
1.61
PUBLICITY
1.61.A
Company’s Approval – The Contractor shall not engage in any advertising,
publicity, or other promotional activities which in any way directly or
indirectly mentions or refers to this Agreement, the relationship between
the parties created thereby or the services and material furnished
thereunder without obtaining the prior written consent of the Company.
1.61.B
At Worksite – The Contractor shall not display any signs, posters, or other
advertising matter in or on any part of the Work or around the Worksite
thereof without specific written approval of Company.
1.61.C
Photos, Videotapes – Except as provided herein, the taking of
photographs, videotapes, or other visual images of the Worksite will not be
permitted without the prior approval of the Company.
1.62
TAXES AND EMPLOYEE BENEFITS
1.62.A
Taxes and Employee Benefits – The Contractor shall comply with all
applicable Federal or State of Hawaii tax laws and related regulations in
the performance of the Work covered by the Contract. The Contractor
shall pay all (1) employee taxes, wages, employer contributions, dues,
premiums and/or fringe benefits imposed by any Federal or State laws or
by any employment contract, collective bargaining agreement, labor
agreement, employee pension or benefit plan and/or established custom,
including any and all interest and penalties payable as a result of any
noncompliance therewith, and (2) gross receipts, sales, use, excise,
A-56
(June 2013)
transportation, privilege, occupational, property and other taxes applicable
to services, materials and supplies furnished or work performed
hereunder, which the Contractor is required by law to pay (collectively, the
“Taxes and Benefits”).
1.62.B
The Contract Price includes all applicable Taxes and Benefits, as well as
Hawaii general excise tax.
1.63
LABOR REQUIREMENTS
1.63.A
Job Rules – The Company shall have the right to issue job rules for the
Worksite. The Company further reserves the right to modify or change
such job rules. These job rules are to govern the conduct of all
Contractor’s and Subcontractor’s employees at the Worksite and are for
the safety and well-being of all such employees at the Worksite.
1.63.B
Contractor Responsible –The Contractor shall have full responsibility for
the conduct of its employees and any Subcontractor or persons employed
by Subcontractors. All employees shall be competent, experienced, and
orderly and shall in all respects cooperate and work in harmony with other
employees engaged upon the Work. Any employee employed by the
Contractor or Subcontractor who does not perform his work in a skillful
manner or whose continued presence at the Worksite is considered by the
Company to be inconsistent with the best interests of the Company shall,
at the request of the Company, be immediately removed from the Work
and replaced at no cost to Company, pursuant to Section 1.29.E (Right to
Reject), and such employee shall not be employed again in any portion of
the Work.
1.63.C
Labor Relations – The Contractor and each of its Subcontractors shall be
responsible for the labor relations with its own employees, and shall
negotiate and adjust any disputes between itself and its employees or
anyone representing such employees. The Contractor and each of its
Subcontractors shall, if signatory to a collective bargaining agreement or
agreements covering any employee employed in the Work, assure
compliance with such agreement or agreements, including any lawful
provisions applicable to subcontracts providing for on-Worksite labor
involved in the Work. The Contractor and its Subcontractors shall not
commit or permit any act which will interfere with the performance of work
by any other Contractor. Notice of any labor dispute or anticipated labor
dispute shall immediately be given by the Contractor to the Company and
shall be confirmed in writing. The Contractor agrees to supply and to
require each of its Subcontractors performing the Work to supply, upon
written request of the Company, any and all relevant information
necessary to substantiate compliance in the performance of the Work with
any applicable employment contract, collective bargaining agreement or
agreements, or employee pension or benefit plan.
1.63.D
Labor Disputes – The Contractor shall not accede to demands which are
in violation of applicable collective bargaining agreements. If any dispute
A-57
(June 2013)
arises with any union which, in the opinion of the Company, affects more
than a single contractor or which threatens to delay or interrupt the Work,
the Contractor or its Subcontractor, following consultation with the
Company shall avail itself of the appropriate remedies through the courts,
the National Labor Relations Board (NLRB), or any binding voluntary
adjustment procedure to resolve such a dispute or to obtain a temporary
or permanent injunction which would permit the resumption and
uninterrupted continuation of the Work. The Contractor shall keep the
Company apprised of all developments and actions regarding any such
dispute.
1.63.E
Effect of Continued Dispute – The continuation of any labor dispute
between a Contractor or its Subcontractors and their employees which, in
the opinion of the Company, is causing delay or interruption to the
progress of the Work or interference with the work of other contractors
shall be considered sufficient cause for the Company to suspend the Work
of the Contractor or its Subcontractor, pursuant to Section 1.57
(Suspension) pending resolution of the dispute to the satisfaction of the
Company.
1.63.F
Right to Intervene – The Company shall have the right to intervene in any
dispute by going directly to the NLRB, an appropriate court, or to use any
binding voluntary adjustment procedure to resolve such a dispute or to
obtain a temporary or permanent injunction which will permit the
resumption and uninterrupted continuation of the Work.
1.63.G
Familiarity with Work Assignments – The Contractor and its
Subcontractors shall be familiar with work assignments in effect at the
Worksite. Work assignments for the Work will be made in accordance
with the applicable collective bargaining agreements or NLRB decisions.
The Contractor and its Subcontractors shall coordinate work assignments
with the Company. If any Subcontractor fails to make work assignments
as provided by this Contract and if such failure results in a labor dispute
causing delay or interruption in the progress of the Work in the opinion of
the Company, then the Contractor may be required, upon written notice
from the Company, to replace the Subcontractor, solely at the Contractor’s
expense, with a Subcontractor who shall comply with the terms of this
Contract, including work assignment requirements.
1.63.H
Area Standards Wages and Benefits – If the Company so requires, all
on-Worksite work is to be performed with workers who are paid no less
than “area standards” wages and benefits under the wage rate schedule
for state government construction projects, as issued by the Hawaii
Department of Labor and Industrial Relations. “Area standards” wages
and benefits are to be determined from the rates contained in the most
current wage rate schedule, as that schedule may be updated from time to
time. The Contractor agrees to supply and to require each of its
Subcontractors performing the Work to supply, upon written request of the
Company, any and all relevant information necessary to substantiate
A-58
(June 2013)
compliance in the performance of the Work with this “area standards”
requirement.
1.64
NO WAIVER
1.64.A
Any failure by Company to insist upon observance or performance by
Contractor of the provisions of this Contract shall not be deemed a waiver
by Company of any such provision or the right to claim a default by reason
of such failure. The payment of any sum by Company to Contractor or the
receipt by Company of any of the Work with knowledge of any default
shall not be deemed to be a waiver of such default or any other default.
1.64.B
No waiver shall be binding upon Company unless it is in writing and
signed by Company. Any written waiver shall apply only to the specific
default or to the instance specified, and a waiver of any default shall not
be deemed a waiver of any other default, whether or not similar to the
default waived.
1.64.C
Company’s rights and remedies hereunder shall be cumulative and not
exclusive of each other and may be pursued separately or concurrently as
Company determines.
1.65
RIGHTS, CLAIMS AND DISPUTES
1.65.A
Any claim, except as otherwise provided herein, which Contractor may
have against Company arising out of the Work shall be presented in
writing to Company not later than thirty (30) days after the first occurrence
of the circumstance which gave rise to the claim. The claim shall contain
a concise statement of the question or dispute and the relevant facts and
data (including the applicable Contract provision) which support the claim.
Contractor shall furnish any additional information which Company may
require to enable it to evaluate and decide the claim.
1.66
GENDER AND NUMBER
1.66.A
The terms “Company” and “Contractor,” as and when used herein, or any
pronouns used in place thereof, shall mean and include the masculine,
feminine and neuter, the singular or plural number, individuals,
partnerships, trustees or corporations and their and each of their
respective successors, heirs, personal representatives, successors in trust
and assigns, according to the context thereof. All covenants and
obligations undertaken by two or more persons shall be deemed to be
joint and several unless a contrary intention is clearly expressed
elsewhere herein.
1.67
ATTORNEYS’ FEES AND COSTS
A-59
(June 2013)
1.67.A
If Contractor’s actions arising out of or relating to this Contract cause
Company to retain counsel to assist it in resolving the matter in dispute or
if Company is forced to pursue legal action against Contractor to enforce
the terms and conditions of this Contract, then Company shall be entitled
to its attorneys’ fees and costs incurred therein.
A-60
(June 2013)
1.68
CONFIDENTIALITY
1.68.A
Contractor hereby agrees not to disclose any confidential or proprietary
information of Company, its parent, affiliates or subsidiaries, that
Company provides to Contractor, or to which Contractor gains access to,
in connection with the Work (“Confidential Information”). Contractor also
hereby agrees to not use any name, trademark or logo of Company, or
otherwise refer to Company or any of its affiliates, in any press release,
publicity, award, competition, marketing or promotional material
whatsoever, unless Contractor is given express, specific, and prior written
authorization to do so by Company. In the event that Contractor becomes
compelled by law or court order or administrative body to disclose any
Confidential Information, Contractor will be entitled to disclose said
Confidential Information, provided that: (1) Contractor promptly and
immediately provides Company with prior written notice of any such legal
requirements, to enable Company to take any and all necessary action to
safeguard and protect the Confidential Information prior to any such
disclosure by Contractor, and (2) whenever possible, Contractor shall
furnish only that portion of Company’s Confidential Information which is
legally required to be disclosed and will exercise its commercially
reasonable efforts to obtain assurances that the Confidential Information
will be treated in confidence.
1.69
AMENDMENTS
1.69.A
This Contract (including the Contract Documents) may be amended or
supplemented by and only by written instruments duly executed by each of
the parties.
1.70
SEVERABILITY OF PROVISIONS
1.70.A
In the event a court or other tribunal of competent jurisdiction at any time
holds that any provision of this Contract (including the Contract Documents)
is invalid, the remainder of this Contract shall not be affected by thereby
and shall continue in full force and effect.
1.71
APPLICABLE LAW
1.71.A
The Contract, including the Contract Documents, shall be governed by
and construed in accordance with the laws of the State of Hawaii. Any
dispute concerning any question of fact or law arising hereunder which is
not settled by agreement between Contractor and Company shall be
decided by a court of competent jurisdiction of the State of Hawaii in
accordance with the laws of Hawaii; provided, however, that Company, at
its option, may elect to submit any such dispute to binding arbitration
pursuant to the Construction Industry Arbitration Rules of the American
Arbitration Association then in effect in which case the parties agree that
any alternative dispute resolution shall take place in the State of Hawaii.
Each party irrevocably consents to the exercise of personal jurisdiction
A-61
(June 2013)
over each of the parties by such courts and waives any right to plead,
claim or allege that Hawaii is an inconvenient forum.
A-62
(June 2013)
EXHIBIT A
FORM OF
FINAL RELEASE AND WAIVER BY SUBCONTRACTOR
(OR SUB-SUBCONTRACTOR AND MATERIALMAN OR
SUPPLY HOUSE) OF MECHANIC’S LIEN AND CLAIMS
TO:
[the “Contractor”]
FROM:
[the “Releasor”]
PROJECT:
[the “Project”]
In consideration of the payment in full to the undersigned Releasor of all progress
payments due and payable to the Releasor for labor, materials, equipment and supplies
furnished by the Releasor in the improvement of the real property (“Project”) described
above, the Releasor does hereby release and waive all liens and claims which it now
has, or may hereafter have, for furnishing such labor, materials, equipment and
supplies. Such liens and claims shall include, but shall not be limited to: (1) any
mechanic’s or materialman’s liens against the leasehold or fee simple title in and to
such real property and Project, (2) any right to assert or claim any such mechanic’s or
materialman’s liens, (3) any equitable liens, (4) any right to assert a claim under any
labor or material payment bond, if any, issued for the benefit of the Contractor, the
Company, or any other person or entity in connection with the Project, and (5) any
right, if any, to assert a claim to any construction funds held by Contractor, Company, or
their Banker. This release and waiver is for the benefit of, and may be relied upon by
the Contractor and the Company under their Construction Contract and the owner of the
fee simple title in and to such real property and their respective successors and assigns.
For the foregoing consideration, the Releasor further warrants and represents
that it has fully and duly paid for all labor, materials, equipment and supplies used or
furnished by it in connection with the Project to all persons or entities who have
furnished labor or materials on the Project under it (including, without limitation, all subsubcontractors, lower level subcontractors, materialmen, and material supply houses),
and hereby covenants and agrees to indemnify the Contractor, the Company, and the
owner of the fee simple property, and each of them, for and against any and all loss,
liability, or expenses (including reasonable attorneys’ fees) which may be sustained or
incurred by any of them for any failure of the Releasor to make such payments.
This Release does not impose or create any contractual duties or obligations on
Contractor in favor of any sub-subcontractor, materialman, supply
Exhibit A-1
(June 2013)
house, or any other person or entity who is working for or has contracted with persons
other than contractor.
Dated: Honolulu, Hawaii, This ____day of________________, _______.
________________________________________________
Name of Subcontractor, Sub-Subcontractor, or Materialman
By ___________________________
Its
Amount Paid to Date: $____________________
Balance Due:
$____________________
Exhibit A-2
(June 2013)
EXHIBIT B
FORM OF
CONTRACTOR’S REQUEST FOR FINAL PAYMENT
AND RELEASE OF CLAIMS
TO:
[the “Company”]
FROM:
[the “Releasor”]
PROJECT:
[the “Project”]
Releasor does hereby request Final Payment in the amount indicated below. In
consideration of the payment in full to the undersigned Releasor of such Final Payment
and all progress payments due and payable to the Releasor on account of labor,
materials, equipment and supplies furnished by the Releasor in the improvement of the
real property (“Project”) described above, the Releasor does hereby release and waive
all liens and claims which it now has, or may hereafter have, for furnishing such labor,
materials, equipment and supplies. Such liens and claims shall include, but shall not be
limited to: (1) any mechanic’s or materialman’s liens against the leasehold or fee simple
title in and to such real property and Project, (2) any right to assert or claim any such
mechanic’s or materialman’s liens, (3) any equitable liens, (4) any right to assert a
claim under any labor or material payment bond, if any, issued for the benefit of the
Company or any other person or entity in connection with the Project, and (5) any
right, if any, to assert a claim to any construction funds held by Company or its Banker.
This release and waiver is for the benefit of, and may be relied upon by the Company
and the owner of the fee simple title in and to such real property (if not the Company)
and their respective successors and assigns.
For the foregoing consideration, the Releasor further warrants and represents
that it has fully and duly paid for all labor, materials, equipment and supplies used or
furnished by it in connection with the Project to all persons or entities who have
furnished labor or materials on the Project under it (including, without limitation, all
subcontractors, lower level subcontractors, materialmen, and material supply houses),
and hereby covenants and agrees to indemnify the Company and the owner of the fee
simple property (if not the Company), and each of them, for and against any and all
loss, liability, or expenses (including reasonable attorneys’ fees) which may be
sustained or incurred by any of them for any failure of the Releasor to make such
payments. Releaser has attached hereto copies of Lien Releases executed by each
person or entity who has furnished labor or materials on the Project, evidencing the
extent of payments made to date and any outstanding balance owed.
Exhibit B-1
This Release does not impose or create any contractual duties or obligations on
Company in favor of any subcontractor, materialman, supply house, or any other person
or entity who is working for or has contracted with persons other than Company.
Dated: Honolulu, Hawaii, This _____ day of_______________, _____.
_______________________________________
Name of Contractor/Releasor
By ___________________________
Its
Amount Paid to Date: $____________________
Balance Due:
$____________________
Exhibit B-2
EXHIBIT C
FORM OF PERFORMANCE AND PAYMENT BOND
KNOW ALL PEOPLE BY THESE PRESENTS:
That
, as Principal, and
, as
Surety, are held and firmly bound unto HAWAIIAN ELECTRIC COMPANY, INC., herein
called “Company”, in the penal sum of
($
) for the payment of which sum well and truly to be made they bind themselves, their
successors and assigns, firmly by these presents.
The condition of this obligation is such that they bind themselves, their successors
and assigns, firmly by these presents.
The condition of this obligation is such that whereas the Principal has entered into
a contract with Company dated
, for
which Contract,
as the same may be amended from time to time by change orders or otherwise, notice of
which is hereby waived by Surety, and which Contract as so amended is hereinafter
referred to as the Contract.
NOW, THEREFORE, if Principal shall well and truly observe and perform said Contract
and shall promptly pay for all labor and materials furnished in connection with the
performance of the contract and shall indemnify and hold harmless Company from and on
account of any and all loss, expense or damage arising out of failure so to do, then this
obligation shall be void; otherwise it shall remain in full force and effect.
IN WITNESS WHEREOF, above bounded Principal and Surety have executed this Bond
this
day of
, _____.
Principal
Surety
Exhibit C-1
STATE OF HAWAII
)
)
CITY AND COUNTY OF HONOLULU
On this
SS.
)
day of
, ____, before me appeared
, to me personally known, who, being by me duly sworn, did say that he is
of
,a
corporation, that the seal of
corporation, as affixed to the foregoing instrument, is the corporate seal of said
corporation; that said instrument was signed and sealed in behalf of said corporation by
authority of its Board of Directors; and said
acknowledged
the instrument to be the free act and deed of said corporation.
________________________________
Notary Public
State of _______________________
My Commission Expires ____________
Exhibit C-2
EXHIBIT D
FORM OF WORK PROGRESS AND INVOICE ACCOUNTS REPORT
WORK PROGRESS & INVOICE ACCOUNT REPORT
1
2
3
CONTRACTOR:___________________ DATA FOR PERIOD:____________
SHEET _____ OF _____
4
5
6
CONTRACT WORK ITEM
DOLLAR VALUE
WORK
ITEM
NO.
WORK
ORDER
NO.
WORK ITEM
DESCRIPTION
BID QTY
UNIT COST
TOTAL
COST
7
8
9
10
VALUE OF WORK
COMPLETED TO DATE
VALUE OF WORK
COMPLETED IN
PREVIOUS PERIODS
% COMP.
% COMP.
$ AMT.
$ AMT.
11
12
VALUE OF WORK
COMPLETED THIS
PERIOD
% COMP.
$ TOT.
1
2
3
4
5
6
7
8
9
Last updated 11.02.12
Exhibit D-1
CS9503-1
6-2
EXHIBIT E
CONTRACT LABOR STANDARDS
1.
Incorporation By Reference and Representation of Eligibility
(a)
If this project is or will be financed with the proceeds of special purpose revenue
bonds, then in accordance with Act 61 (2007), this contract is subject to the provisions
of Hawaii Revised Statutes (H.R.S.) Chapter 104 and Hawaii Administrative Rules
(HAR) Title 12, Chapter 22, which are incorporated by reference and made a part of this
contract. The Contractor shall comply with H.R.S. Chapter 104 and HAR Title 12,
Chapter 22. The Contractor shall further cause this clause and all related CONTRACT
LABOR STANDARDS clauses to be physically inserted and incorporated into all
subcontracts at every tier for construction work on this project.
(b)
By entering into this contract, the Contractor warrants and represents that neither
it (nor he or she) nor any person or firm who has an interest in the Contractor's firm is a
person or firm ineligible to be awarded Government contracts by virtue of government
action under H.R.S. Chapter 104, H.R.S. Chapter 103D, section 3(a) of the federal
Davis-Bacon Act, 29 C.F.R. 5.12(a)(1), or 48 C.F.R. Part 9.
(c)
No part of this contract shall be subcontracted to any person or firm ineligible for
award of a Government contract by virtue of H.R.S. Chapter 104, H.R.S. Chapter 103D,
section 3(a) of the federal Davis-Bacon Act, 29 C.F.R. 5.12(a)(1), or 48 C.F.R. Part 9.
(d)
Any false Contractor representation may result in termination of the contract and
referral to the appropriate state agency for initiation of suspension and debarment
action pursuant to H.R.S. Chapter 104 or H.R.S. Chapter 103D.
2.
Payment of Wages and Contractor Obligations
(a)
Definitions.
-- Director – Means the Director of the Department of Labor and Industrial Relations of
the State of Hawai`i (DLIR).
--Site of the work -- (1) Means –
(i)
The primary site of the work. The physical place or places where the
construction called for in the contract will remain when work on it is completed; and
(ii)
The secondary site of the work, if any. Any other site where a significant
portion of the building or work is constructed, provided that such site is –
(A)
Located in the State of Hawai`i; and
(B)
Established specifically for the performance of the contract or
project;
(2)
Except as provided in paragraph (3) of this definition,
includes any fabrication plants, mobile factories, batch plants, borrow pits, job
headquarters, tool yards, or other similar facilities, provided -(i)
They are dedicated exclusively, or nearly so, to performance of the
contract or project; and
Exhibit E-1
(ii)
They are adjacent or virtually adjacent to the "primary site of the work" as
defined in paragraph (a)(1)(i), or the "secondary site of the work" as defined in
paragraph (a)(1)(ii) of this definition;
(3)
The “site of work” does not include permanent home offices,
branch plant establishments, fabrication plants, or tool yards of a Contractor or
subcontractor whose locations and continuance in operation are determined wholly
without regard to a particular H.R.S. Chapter 104 covered contract or project. In
addition, fabrication plants, batch plants, borrow pits, job headquarters, yards, etc., of a
commercial or material supplier which are established by a supplier of materials for the
project before opening of bids and not on the Project site, are not included in the "site of
the work." Such permanent, previously established facilities are not a part of the "site of
the work" even if the operations for a period of time may be dedicated exclusively or
nearly so, to the performance of a contract.
(b)(1)(i)
All laborers and mechanics employed or working upon the site of
the work shall be paid unconditionally and not less often than once a week, and without
subsequent deduction or rebate on any account (except such payroll deductions as are
permitted by rules issued by the Director) the full amount of wages and bona fide fringe
benefits (or cash equivalents thereof) due at time of payment computed at rates not less
than those contained in the wage schedule issued by the Director and published at
http://hawaii.gov/labor/rs/WRS/WRS.htm and as the Director may periodically adjust
through the term of this contract.
(ii)
The Contractor shall monitor http://hawaii.gov/labor/rs/WRS/WRS.htm
(which may be found at http://hawaii.gov/labor) and any subsequent updates of such
wage schedule and shall provide HECO and all subcontractors notice of all updates to
the wage schedule. In the event of any delay in the receipt of an updated wage
schedule, the Contractor shall ensure all laborers and mechanics receive retroactive
payment of any wage and fringe benefit underpayments resulting from the late
application of the wage schedule.
(iii)
All laborers and mechanics engaged in work on the site of the work and
any secondary sites shall be paid not less than the rates set in the DLIR wage schedule
regardless of any contractual relationship which may be alleged to exist between the
Contractor (or subcontractors) and such laborers and mechanics. Payment of any wage
schedule rates for a secondary site of the work shall be effective and required from the
first day during which work under the contract was performed at that site. Laborers and
mechanics employed by the construction Contractor or construction subcontractor that
are transporting portions of the building or work between the secondary site of the work
and the primary site of the work shall be paid in accordance with the wage schedule.
(2)
Contributions made or costs reasonably anticipated for bona
fide fringe benefits under H.R.S. Chapter 104 are considered wages paid to such
laborers or mechanics, subject to the requirements of H.R.S. Chapter 104 and relevant
rules of the Director. Regular contributions made or costs incurred for more than a
weekly period (but not less often than quarterly) under plans, funds, or programs which
cover the particular weekly period, are deemed to be constructively made or incurred
during such period.
(3)
Such laborers and mechanics shall be paid not less than the
appropriate wage rate and fringe benefits in the wage schedule for the classification of
work actually performed, without regard to skill, except as provided in rules of the
Exhibit E-2
Director relating to Apprentices and Trainees. Laborers or mechanics performing work
in more than one classification may be compensated at the rate specified for each
classification for the time actually worked therein; provided that the payroll records
accurately set forth the time spent in each classification in which work is performed.
(4)
The wage schedule (including any additional classifications
and wage rates conformed under this clause) and the DLIR Employee Rights Poster
(available by request at dlir.director@hawaii.gov) shall be posted at all times by the
Contractor and its subcontractors at the primary site of the work and each secondary
site of the work, if any, in a prominent and accessible place where it can be easily seen
by the workers.
(c)(1) The Contractor shall ensure that any class of laborers or
mechanics, which is not listed in the wage schedule and which is to be employed under
the contract, shall be classified in conformance with the wage schedule in accordance
with the provisions of HAR Title 12, Chapter 22. Additional classifications and wage
rates and fringe benefits shall be allowed only when all the following criteria have been
met:
(i)
The work to be performed by the classification requested is not performed
by a classification in the wage schedule.
(ii)
The classification is utilized in the area by the construction industry.
(iii)
The proposed wage rate, including any fringe benefits, bears a reasonable
relationship to the wage rates contained in the wage determination.
(iv)
No classification of “helpers” shall be permitted.
(d)
If, prior to entering into the project agreement with the State under H.R.S.
Chapter 39A, HECO has entered into a collective bargaining agreement with a bona
fide labor union governing HECO’s workforce, the economic terms of the collective
bargaining agreement shall be deemed the prevailing wage and fringe benefit rates for
any HECO employees who may perform work on the project. However, the then current
DLIR wage schedule shall be the applicable prevailing wage for workers of the
Contractor and any subcontractors at any time.
(e)
The Contractor and all subcontractors shall cooperate with HECO and DLIR
officials in the investigation of any alleged violations of H.R.S. Chapter 104 or the terms
of this contract and shall comply fully with HECO’s reasonable requests and any orders
and decisions of the Director, subject to appeal and review rights available under H.R.S.
Chapter 104 and implementing rules.
3.
Payment of Overtime
(a)
No Contractor or subcontractor employing laborers or mechanics shall require or
permit them to work over 40 hours in any workweek unless they are paid at least 1 and
1/2 times the basic rate of pay for each hour worked over 40 hours. In addition,
overtime rates shall be paid to all laborers and mechanics engaged in work on
weekends and holidays in accordance with H.R.S. Chapter 104 and HAR Title 12,
Chapter 22.
(b)
The responsible Contractor and subcontractor shall be liable for unpaid wages if
they violate the terms in paragraph (a) of this clause. In addition, the Contractor and
Exhibit E-3
subcontractor shall be liable for any penalties the Director may assess pursuant to
H.R.S. Chapter 104.
(c)
The Contractor shall insert the provisions set forth in paragraphs (a) and (b) of
this clause in subcontracts that may require or involve the employment of laborers and
mechanics and require subcontractors to include these provisions in any such lower tier
subcontracts. The Contractor shall be responsible for compliance by any subcontractor
or lower-tier subcontractor with the provisions set forth in paragraphs (a) and (b) of this
clause.
4.
Withholding of Contract Payments
HECO may, either upon request of an authorized representative of the Director or on
HECO’s own initiative, withhold or cause to be withheld from the Contractor under this
contract or any other HECO contract with the same Prime Contractor, so much of the
accrued payments or advances as may be considered necessary to pay laborers and
mechanics, including apprentices and trainees, employed by the Contractor or any
subcontractor the full amount of wages required by the contract. In the event of failure
to pay any laborer or mechanic, (including any apprentice or trainee, employed or
working on the site of the work), all or part of the wages required by the contract, HECO
may take such action as may be necessary to cause the suspension of any further
payment, advance, or guarantee of funds until HECO determines or the Director
determines and informs HECO that such violations have ceased.
5.
Payroll Reports and Maintenance of Records
(a)(1) The Contractor shall maintain payrolls and related basic records
during the course of the work and preserve such records for a period of 3 years
thereafter for all laborers and mechanics working at the site of the work. Such records
shall contain the name, address, and social security number of each such worker, his or
her correct classification, hourly rates of wages paid (including rates of contributions or
costs anticipated for bona fide fringe benefits or cash equivalents), daily and weekly
number of hours worked, deductions made, and actual wages paid, and such other
information as the Director may require in rules published at HAR Title 12, Chapter 22.
(2)
The Contractor and its subcontractors shall allow HECO and the
Director’s representatives to inspect records maintained under paragraph (a)(1) of this
clause. The Contractor or subcontractor also shall allow authorized representatives of
HECO and the Director to interview employees in the workplace during working hours.
(3)
Whenever the Contractor or subcontractors provide fringe benefits
to covered workers, the Contractor and subcontractors shall further maintain records
showing the commitment to provide such benefits is enforceable, that the plan or
program is financially responsible, and that the plan or program has been
communicated in writing to the laborers or mechanics affected, and records which show
the costs anticipated or the actual cost incurred in providing such benefits.
(4)
Contractors employing apprentices or trainees under approved
programs shall maintain written evidence of the registration of apprenticeship programs
and certification of trainee programs, the registration of the apprentices and trainees,
and the ratios and wage rates prescribed in the applicable programs.
Exhibit E-4
(b)(1) The Contractor shall submit weekly for each week in which
any contract work is performed a copy of all payrolls to the Director. The payrolls
submitted shall set out accurately and completely all of the information required to be
maintained under this clause. This information may be submitted in any form desired.
Optional Form WH-347 (Federal Stock Number 029-005-00014-1) is available for this
purpose and may be purchased from the Superintendent of Documents, U.S.
Government Printing Office, Washington, DC 20402. The Contractor is responsible for
the submission of copies of payrolls by all subcontractors.
(2)
Each payroll submitted shall be accompanied by a
"Statement of Compliance," signed by the Contractor or subcontractor or his or her
agent who pays or supervises the payment of the persons employed under the contract
and shall certify –
(i)
That the payroll for the payroll period contains the information required to
be maintained under paragraph (a) of this clause and that such information is correct
and complete;
(ii)
That each laborer or mechanic (including each helper, apprentice, and
trainee) employed on the contract during the payroll period has been paid the full
weekly wages earned, without rebate, either directly or indirectly, and that no
deductions have been made either directly or indirectly from the full wages earned,
other than permissible deductions as set forth in the Director’s rules; and
(iii)
That each laborer or mechanic has been paid not less than the applicable
wage rates and fringe benefits or cash equivalents for the classification of work
performed, as specified in the wage schedule applicable to the contract at the time the
work was performed.
(3)
The weekly submission of a properly executed certification set forth
on the reverse side of Optional Form WH-347 shall satisfy the requirement for
submission of the "Statement of Compliance" required by this clause.
(4)
The certifications required in this clause shall be to the Director,
and falsification of any of the certifications in this clause may subject the Contractor or
subcontractor to civil or criminal prosecution.
(5)
Upon request, Contractor shall provide HECO with copies of
certified payrolls and that have been submitted to the Director.
(c)
The Contractor or subcontractor shall make the records required under this
clause available for inspection, copying, or transcription by the Director’s authorized
representatives and by HECO. The Contractor or subcontractor shall permit HECO’s
and the Director’s representatives to interview employees during working hours on the
job. If the Contractor or subcontractors fail to submit required records or to make them
available, HECO may take such action as may be necessary to cause the suspension of
any further payment. Furthermore, failure to submit the required records upon request
or to make such records available may be grounds for debarment action by The State of
Hawai`i pursuant to H.R.S. Chapter 104 or H.R.S. Chapter 103D, as appropriate.
6.
Labor Standards Disputes
Disputes concerning labor standards requirements of this contract shall be resolved
through the procedures provided in the Director’s rules and shall not be addressed
under the disputes or private arbitration clause(s) of this contract. The Contractor
Exhibit E-5
understands and agrees that the rules, decisions and interpretations of the Director
pursuant to H.R.S. Chapter 104 shall be conclusive and binding on HECO and the
Contractor and its subcontractors, subject to appeal and review rights available under
the Director’s rules.
END OF ATTACHMENT H
Exhibit E-6