Extra Work will be analyzed in accordance with Section 109.5 - Adjustments for Delay. For a related provision, see Section 109.8 - Contract Modification.
109.4Differing Site Conditions
109.4.1 Definition “Differing Site Conditions” are subsurface or latent physical conditions that, at the time of Bid submittal, were:
generallyrecognized as inherent in Work like that specified by the Contract by Contractors experienced in such Work, and
the case of the Contractor includes its Subcontractors. 109.4.2 Risk of Other Conditions All costs, Work, Delays, or other damages related to or arising from site conditions that are not Differing Site Conditions are the sole risk and responsibility of the Contractor. 109.4.3 Notice and Procedural Requirements If the Contractor discovers what it considers Differing Site Conditions that may cause adjustments to compensation, time, or other Contract requirements, t he Contractor shall provide “Notice of Issue for Consideration” within 48 hours of discovery and before doing an y Work relating to such conditions as provided in Section 104.4.5 - Early Negotiation. The Contractor shall then comply with all other requirements of Section 104.4.5 - Early N egotiation, and Section 111 - Resolution of Disputes. The Contractor will not be entitled to any change to compensation, time, or Work requirements without proper notice as specified i n this Section 109.4. Failure to provide such notice or to otherwise comply with this Section 109.4 will constitute a waiver of all claims related to such conditions. If the Department discovers what it considers Differing Site C onditions that may cause adjustments to compensation, time, or other Contract requ irements, then the Department will provide the Contractor with written notice with in 48 hours of discovery. If the Contractor disagrees with t he Department’s finding of Diffe ring Site Conditions or the related adjustments, then the Contractor shall provide “Notice of Issue for Consideration” within 48 hours of receipt of the Department’s written notice a nd comply with the requirements of Section 104.4.5 - Early Negotiation and Section 111 - Resolution of Disputes. 109.4.4 Investigation / Adjustment Upon notification by the C ontractor or upon the Department’s own initiative, the Department will investigate th e conditions. If the Department determines that Differing Site Conditions exist and that the Differing Site Conditions have caused an increase in the cost or time required for the performance of the Work, then the Contractor is entitled to an Equitable Adjustmen t for the additional costs in accordance with Section 109.7, Equitable Adjustments to Compens ation and Time - Basis of
Payment that are caused directly by the Differing Site Conditio ns. If the Department determines that Differing Site Conditions exist and that the Di ffering Site Conditions have caused a decrease in the cost or time required for the performa nce of the Work, then the Department is entitled to a credit in the amount of savings to compensable items in accordance with Section 109.7, Equitable Adjustments to Compens ation and Time, that are caused directly by the Differing Site Conditions. Delays cause d by Differing Site Conditions will be considered in accordance with Section 109.5 - Adjustments for Delay.
109.5Adjustments for Delay
109.5.1 Definitions - Types of Delays Delays are defined as f ollows and may be divided into more than one type depending upon cause.
“Excusable Delay” is a Delay to the Critical Path that is direc tly and solely caused by
Emergency Disaster is declared. The Contractor will be entitle d to an adjustment of time under this Section only if the Project falls within the ge ographic boundaries prescribed under the disaster declaration. or (2) a flooding ev ent at the affected location of the Project that results in a Q25 headwater elevati on, or greater, but less than a Q50 headwater elevation. Theoretical headwater elevatio ns will be determined by the Department; actual headwater elevations will be determined by the Contractor and verified by the Department or (3) An Uncontrollable Event
directly and solely caused by: (1) a weather-related Uncontrollable Event of such an unusually severe nature that a Federal Emergency Disaster is de clared. The Contractor will be entitled to an Equitable Adjustment under th is Section only if the Project falls within the geographic boundaries prescribed under the disaster declaration and receives project-specific emergency funds, and the Contractor can show proof that the Work was delayed by this weather event, (2 ) an Uncontrollable Event caused by a Utility Company for which the Utility Company reimburses the Department, (3) an Uncontrollable Event caused by other third p arty (not Subcontractors) Working on Project-related Work within the Proj ect Limits if, and only if, the such other third party offers the Department reimb ursement for such Delay, or (4) acts by the Department that are in violation of a pplicable laws or the Contract, or (5) a flooding event at the affected location of t he Project that results in a Q50 headwater elevation, or greater. Theoretical Q50 headwater elevations will be determined by the Department; actual headwater elevations will be determined by the Contractor and verified by the Department.
Delays or Compensable Delays. For a related provision, see Section 101.2 - Definition of Unc ontrollable Event.
109.5.2 Entitlement to Adjustments
109.5.2(B) below and complies with the notification, documentation, and procedural requirements set forth in the Contract, the Contractor is entit led to certain adjustments to the Contract depending upon the type of Delay.
no additional compensation.
and an Equitable Adjustment as set forth in Section 109.7 - Equ itable Adjustments to Compensation and Time.
time nor additional compensation. For related provisions, see Sections 104.2.7 - Damage to Proje ct Caused By Uncontrollable Events and 104.3.10 - Responsibility for the Dam age to Work.
Delay or a Compensable Delay, the Contractor must demonstrate a ll of the following:
coordinate, and manage the Work, as evidenced by documentation created as the Work progressed, including Progress Meeting minutes;
period of time when Excusable and Inexcusable Delays are concur rent. The Contractor also is not entitled to either a time extension or an Equitable Adju stment for the period of time when Compensable and Inexcusable Delays are concurrent. In the event Compensable and Excusable Delays are concurrent, the Contractor is entitled onl y to a time extension, not an Equitable Adjustment, for the period of time such Delays are co ncurrent. 109.5.3 Early Completion Date Delay Claims For the purposes o f this Section 109.5.3, a “Contractor’s Early Completion Date” means a Project Completion date shown on the Contractor’s initial Schedule of Work submitted in accor dance with Section 107.4.2 - Schedule of Work Required that is earlier than the Contract’s s pecified Completion date. The Department will not be liable for any claims or expenses re lated to the period of time between the Contractor’s Early Completion Date and the Contract ’s specified Completion date, unless the Contractor demonstrates, by clear and convinci ng evidence that: (A) all requirements of Section 109.5.2(B) - Requirements for Entitleme nt are met, and (B) that the Contractor’s Early Completion Date was reasonable at the time o f Bid in light of the surrounding facts and circumstances, including the Contractor's available resources, and the requirements of the Work.
109.5.4 Notice and Procedural Requirements If the Contractor becomes aware of facts or circumstances that may cause a Delay for which the Con tractor may seek adjustments to compensation, time, or other Contract requiremen ts, the Contractor must notify the Resident of such “Issue” within 48 hours and before doing any Work relating to such facts or circumstances as provided in Section 104.4.5 - Ea rly Negotiation. Except as otherwise provided in thisS ection 109.5, the Contractor shall then comply with all other requirements of Section 111 – “Resolution of Disputes.” The Co ntractor will not be entitled to any change to compensation, time, or Work requirements witho ut proper and timely notice. Failure to provide such notice constitutes a waiver of all claims related to such conditions. 109.5.5 Documenting the Delay and Request for Adjustments
Contractor must keep records as provided in Section 111.1.6 – C ontractor’s Obligation to Keep Records. Further, the Contractor must submit weekly writt en reports containing the following information.
impact of the Contractor's Critical Path.
Delay” or “Compensable Dela y” contained in Section 109.5.1(A) o r (B).
to the Delay, (B) the identifi cation of all non-salaried Projec t employees for whom costs are being compiled, and (c) a summary of time charges for Equipment, identified by the manufacturer’s number for which costs are bei ng compiled.
phase of Work that the Contractor claims has been Delayed, the Contractor shall submit a written report to the Department that contains the following information:
narrative of how the cause for the Delay meets the definition o f “Excusable Delay” or “Compensable Delay” cont ained in Sections 109.5.1(A) or (B), including all reports prepared for the Contractor by consultants, if used;
Critical Path; and
under Section 109.7.5 – Force Account Work, including measureme nt and explanation. The Department may require that all costs shown in the report be certified by an accountant, and that the Contractor provide all other informati on described in Section 111.2.2 - Detailed Notice of Dispute.
109.5.6 Decision by Program Manager Within 30 Days of receivi ng all information described in Section 109.5.5(B) - Re quest and Report After Comp letion, the Program Manager will Deliver a written decision on the request made to the Contractor. Failure to provide a decision within said 30-day period shall be considere d a denial of the Contractor’s request, unless the parties mutually agree to an extension of t ime for such decision. 109.5.7 Additional Consideration By Department If the Contrac tor wants additional consideration, the Contractor shall Deliver a “Notice of Unreso lved Dispute” to the Department’s appropriate Bureau Director within 14 Days of Rece ipt of the Program Manager’s decision. Such Notice shall comply with Section 111. 3.1 - Notice of Unresolved Dispute. The parties must then c omply with all other Dispute r esolution provisions of this Contract, beginning with Section 111.3 - Negotiation By Managem ent.
109.6Value Engineering
109.6.1 Overview - General Requirements A Value Engineering C hange Proposal
produce cost savings without impairing essential characteristics of the Project, including function, serviceability, safety, durability, maintainability, and aesthetics, all as determined by the Department. A VECP shall contain proven features that have been used under similar conditions. A proposal is not a VECP if equi valent options are already prov ided in the Contract. A VECP must be approved by the Department. Unless otherwise a greed in writing, the Contractor and the Department will equally share the Net Sa vings generated by the VECP as provided in Section 109.6.4( C) - Contract Modification - Amount of Payment. Unless mutually agreed otherwis e, the VECP approval process wi ll occur in three steps: (A) Conceptual VECP subm ission and review, (B) Detailed VECP submission and evaluation, and if approved, (C) C ontract Modification, includi ng the amount of payment due to the Contractor and credit due to the Department. When t he nature and scope of a VECP warrants, the parties may agree to truncate the VECP appro val process. 109.6.2 Conceptual VECP
VECP” to the Resident. The Conceptual VECP is not a formal and complete submittal based upon detailed technical analysis, but instead relays a co nceptual idea based upon the Contractor’s knowledge and experience. The Conceptual VECP sho uld include the following information:
includes the basic differences between the existing Contract an d the proposed change.
advantages and disadvantages of t he VECP, including effects on function, serviceability, safety, durability, maintainability, aesthetics , and any other factors significantly altered by the VECP.
109.6.4(C) - Contract Modification - Amount of Payment.
submit a Detailed VECP. Such estimate must specify the date by which the Department must approve the VECP to obtain the maximum cost red uction, and the latest date by which the Department must approve the VECP for t he Contractor to avoid significant impacts on the estimated Net Savings or the C ontractor's Schedule of Work. If the Department determines that the time for response is insufficient for review, the Contractor will be so notified.
review a Conforming Conceptual VECP and respond to the Contract or within 14 Days of Receipt. The Department may, at its sole discretion, (1) invit e the Contractor to submit a Detailed VECP, (2) reject the Conceptual VECP for reasons that will be described briefly, or (3) request additional information. The Department may also , in its sole discretion, agree to partially reimburse the Contr actor for the costs to develop and submit a Detailed VECP. 109.6.3 Detailed VECP
shall contain the following information that is sufficient in detail to clearly define and explain the proposed change(s):
VECP, including the general desc ription of the VECP, advantages and disadvantages, use, or testing performed, elsewhere, a detailed computation of the estimated Net Savings generated in accordance with Section 109. 6.4(C) - Contract Modification - Amount of Payment, actual VECP development costs to date, and estimated savings and schedule impacts, including approval date (s) required. If the Department determines that the time for response is insufficien t for review, the Contractor will be notified promptly.
to the original Contract features and requirements. All VECPs that require engineering design, computations, or analysis shall be prepared under the responsible charge of, and sealed by, a Professional Engineer l icensed in the State of Maine.
it determines is necessary to properly evaluate the VECP. Wher e design changes are proposed, such additional information may include results o f field investigations and surveys, design computations, specifications, and field cha nge sheets. The Contractor will promptly provide any such requested information .
information to verify the Contractor’s cost analyses.
provide the Contractor with a written response within 14 Days o f Receipt of all of the information it has determined is necessary to properly evaluate the VECP. Such response will include a brief description of the Department’s reason(s) for its decision. The Department, at its sole discretion, will either approve the De tailed VECP, approve it with conditions, or reject it. The Department may base its decision on any reason that is in the best interest of the Department, including: (1) unacceptable im pact on the function, serviceability, safety, durability, maintainability, or aesthet ics of the Project, (2) insufficient testing or use of the VECP concepts elsewhere, (3) insufficient justification of cost savings,
judgment. The Contractor may re quest that the Department recon sider certain portions of the decision. If requested, the Department will reconsider its decision and then issue a final decision, which is not subject to review or appeal.
Contractor does not desire to pro ceed with the VECP as approved by the Department, the VECP process will terminate and the Department will reimburse t he Contractor for 100 percent of all VECP development costs incurred by the Contracto r to date. 109.6.4 Contract Modification - Am ount of Payment If the VECP is approved, or if it is approved with conditions, and the Contractor wants to pro ceed, a Contract Modification will be executed by the parties. In addition to the requiremen ts of Section 109.8 - Contract Modifications, the VECP will set forth the net savings generate d by the VECP, which shall be split equally between the Contractor and the Department, per the following formula: NS = EGS - CDC - DVEC W h e r e : NS = Net Savings generated by the VECP, as determined by th e Department. EGS = Estimated Gross Savings, which is the difference betwee n the cost of performing the Work as originall y specified in the Contract and the cost of performing the Work as revised by the VECP, at agreed upon or l ump sum prices. CDC = Contractor’s Development Costs related to the preparation of the Detailed VECP, including costs of the Cont ractor’s design subconsultants and Subcontractors. The Department shall reimburse the Contractor for these costs. DVEC = Department’s VE Costs related to review, approval, and i mplementation of the VECP, including design costs, fie ld inspection, and the value o f any Department provided property.
Once the Contract Modification is executed, the Contractor may be paid for its actual Development Costs. The Contractor’s share of the Net Savingss hall not be disbursed until the Work is complete and the actual Net Savings is known. The Contract Modification shall also set forth any adjustments to Contract Time related to the Work as revised by the VECP, if any. 109.6.5 Subsequent Payment Adjustments Upon Completion of the portion of the Work revised by the VECP, the Department, on its own initiative or upon request by the Contractor, may review the actual net savings realized by the V ECP. The Contractor will be afforded an opportunity to review and comment on such a review. If the actual net savings was greater than set forth in t he Contract Modification, the in creased savings will be shared equally by the parties. If the net savings was less than set f orth in the Contract Modification, the reduction in s avings will be borne equally by the parties. 109.6.6 General Conditions Regarding VECPs
have the unrestricted right t o use any approved VECP, or any VE CP in which the Department has reimbursed the Contractor for any portion of the development costs, on other Department Projects without notice, cost, or liability to the Contractor.
for, and submit all proposals initiated by the Contractor’s Sub contractors.
or otherwise before approval of a Detailed VECP. The Contracto r is responsible for all Delays caused by the VECP that were not negotiated in the C ontract Modification.
Contract.
claim against the Department for additional compensation or tim e resulting from the Delayed review or rejection of a VECP, including, but not limited to, development costs, loss of anticipated profits, and increased Material or l abor costs.
Contract, all VECP decisions by the Department are final and ar e not subject to the Dispute resolution provisions pr ovided in this Contract or othe rwise available at law.
Equitable Adjustments to Compensation and Time
109.7.1 General Equitable Adjustment means an adjustment to c ompensation due to a change in the nature or scope of Work as defined in this Section 109. This Section 109.7 applies to all changes to the nature or sco pe of the Work excepting (A) changes in quantities, which are governed by Section 109.1, (B) elimination of items of Work which is governed by Section 109.2, and (C) pa yment for Value Engineering Change Proposals, which is governed by Section 109. 6. 109.7.2 Basis of Payment Adjustments will be established by m utual Agreement based upon Unit or Lump Sum Prices that include labor, materials, equipment, mark-up, overhead, profit, and time. These agreed upon Unit or Lump Sum prices will be full compensation and no additional overhead, profit, mark-ups, or f ees are allowed. If Agreement on Equitable Adjustments cannot be reached, the Contr actor shall accept payment on a Force Account basis as provided in Section 109.7.5 - Force Account Work, as full and complete compensation for all Work relating to the Equ itable Adjustment. 109.7.3 Reserved 109.7.4 Non-Compensable Items The Contractor is not entitled to compensation or reimbursement for any of the following items:
Bidding opportunities, and insolvency,
fees, expert witness fees, claims preparation expenses, and cos ts related to DRB proceedings, mediation, arbitration, or litigation, and
109.7.5 Force Account Work Compensation for Force Account Wor k will be computed according to this Section.
actually engaged in the changed Work and the foreperson in dire ct charge of the changed Work as determined from certified payrolls, plus 90 percent of the sum thereof for all fringe benefits, payroll taxes, overhead, and profit.
will receive the Actual Cost of Materials, including freight an d Delivery charges (but excluding any sale or use tax) plus a single 15 percent markup. For all Materials not incorporated in the permanent Work, the Contractor will receive the difference of actual value of such Material at the time of its use less the fair sal vage value of Material when released, plus 15 percent of said difference. There shall be n o markup on markups.
other Equipment, the Contractor will receive the rental rates f or the actual time to the nearest ¼ hour that such Equipment is in operation on the Work. Time spent moving Equipment within the Project Limits and any approved idle time may be measured for payment when authorized. Time spent servicing, maintaining, an d changing attachments will not be paid for. The rental rates shall include the cost of all fuel oil, lubrication, supplies, necessary attachments, repairs and maintenance of any kind, depreciation, storage, insurance, small tools, and all other Incidentals. The maximum Hourly Equipment rental rates (R) will be determined using the most current Blue Book rates and the following formula: R = A x B x E + C + D W h e r e : A = Blue Book monthly rate divided by 176 B = Blue Book regional adjustment factor for Maine C = Blue Book estimated operating costs per hour D = Operator’s hourly payroll rate plus 90 percent E = Factor from the Rate Adjustment Table for the year the mac hine was made When the Contractor’s Equipment is ordered to be available for Force Account Work, but is idle for reasons not t he fault of the Contractor, standby time will be paid at 70% of the hourly Equipment rental rate excluding all operating costs. For each piece of Equipment, the Contractor shall provide the following information: the manufacturer’s name, Equipment type, year of manufacture, m odel number, type of fuel used, horsepower rating, attachments required, together with it s size or capacity and any further information necessary to ascertain the proper rate. Th e Contractor shall also provide a photocopy of the appropriate pages from the Blue Book that we re used to arrive at the rates and prepare a chart that fully shows all the details of t he Equipment costs. Unless otherwise specified, manufacturer’s ratings and manufac turer-approved modifications will be used to classify Equipment for the determ ination of applicable rental rates. A unit of at least the minimum rating recommended by th e manufacturer shall power equipment that has no direct power unit. If the Department specifies Equipment not listed in the above publication, the Department will establish a reasonable rate for such Equipment. If requested by the
Department, the Contractor will produce cost data to assist the Department in the establishment of such rental rate, including all records that a re relevant to the Actual Costs including rental Receipts, acquisition costs, financing documen ts, lease Agreements, and maintenance and operational cost records. Equipment leased by the Contract or for Force Account Work and a ctually used on the Project will be paid for at the actual invoice amount plus 10% markup for administrative costs.
the Contractor above the grade of foreman or having general sup ervision of the Work will be included in the labor items as specified above, except when the Contractor’s entire on- site Workforce is occupied with Force Account Work, in which ca se, the salaries of the Superintendent may be included i n the labor item specified abov e when the nature of the Work is such that their services are required, as determined by the Department.
supported by Receipted Invoices for all Materials used and tran sportation charges. If Materials used on the Force Account Work are not specifically p urchased for such Work but are taken from the Contractor’s stock, then instead of Invoices , the Statements shall contain or be accompanied by an affidavit of the Contractor certifying that such Materials were taken from stock, that the quantity claimed was actually used, and that the price and transportation claimed represent the Actual Cost to the Contrac tor, excluding storage costs. No payment will be made for Work performed on a Force Account basis until the Contractor has furnished duplicate itemized Statements of the c ost of such Force Account Work detailed to the following: 1) Name, classification, date, daily hours, total hours, rate, and amount for each foreman and laborer. 2) Designation, dates, daily hours, total hours, rental rate, and amount for each unit of Equipment. 3) Quantities of Materials, prices, and amounts. 4) Transportation charges on Materials. F. Subcontractor Quoted Work When accomplishing Force Account Work that utilizes Subcontractors, the Contractor will be allowed a maxim um markup of 5% for profit and overhead on the Subcontractor’s portion of the Force Accoun t Work. If the Department does not accept the Subcontractor quote, then the Subcontractor work will be subject to the Force Account provisions with a 5% markup for profit & overhead .
109.8Contract Modification Excepting changes to quantities a s provided in Section
109.1.1 - Changes Permitted, all changes to the Contract that a ffect compensation, time, or quality must be made by written Contract Modification. The Con tract Modification will describe the underlying issue that resulted in the Contract Mod ification and will specify adjustments to compensation, time, or other Work requirements, as applicable. If
adjustments to compensation or time are not shown on the face o f the Contract Modification, then there are no such adjustments. All Contract Modifications must be signed by the Project Manager or Resident. By signing a Contract Modification, t he Contractor agrees to all t he terms thereof and waives any and all claims for additional compensation, time, or other Work requirement adjustments relating to the issue that is the subject of the Co ntract Modification. All Contract Modifications are to be noted in Progress Meeting minu tes.
Scope of Section This Section contains general requirements f or indemnification, bonding, and insurance by the Contractor.
110.1Indemnification The Contractor agrees to indemnify, def end, and hold
harmless the Department and its officers, directors, employees, agents, and consultants from and against all claims, actions, torts, costs, losses, and dama ges for bodily injury (including sickness, disease, or death) and property damage arising out of or relating to this Contract or the performance of Work by the Contractor, its Subcontractors, subconsultants, engineers, suppliers, any individuals or entities directly or indirectly e mployed by any of them, or anyone for whose acts any of them may be liable, excepting only claims directly and solely caused by the negligence of the Department. Damages covered in clude, but are not limited to, all Dispute resolution costs, including court costs, attorn ey’s fees, and the fees of engineers and consultants, arbitrators, and other professionals related to Dispute defense and preparation. This indemnification obligation shall not be limited in any wa y by any limitation on the amount or type of damages, compensation, or benefits payabl e by or for the Contractor or any Subcontractor, subconsultant, engineer, supplier, or other individual or entity under Workers’ Compensation acts, disability benefit acts, or other e mployee benefit acts.
110.2Bonding
110.2.1 Bonds The Contractor shall provide signed, valid, and enforceable Performance and Payment Bonds complying with the Contract. The Department may also require Warranty and Maintenance Bonds for specific items using a Contract specific special provision. For a related provision, see Section 103.5 - Award Conditions. The Contractor shall procure bonds from a company organized an d operating in the United States, licensed or approved to do business in the State of Maine by the State of Maine Department of Professional and Financial Regulation, Bure au of Insurance, and listed on the latest Federal Department of the Treasury listing for “C ompanies Holding Certificates