Motion,Ex Parte: Stephanie Nascimento Administrator/Administratrix of the Estate of Davide Nascimento vs. Longmeadow Department of Public Works et al

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                                COMMONWEALTH OF MASSACHUSETTS
HAMPDEN, SS SUPERIOR COURT DEPARTMENT

OF THE TRIAL COURT
CIVIL ACTION NO: 1679CV00677

STEPHANIE NASCIMENTO, AS
THE ADMINISTRATRIX OF THE
ESTATE OF DAVIDE NASCIMENTO

vs.

)
)
)
)
Plaintiff )
)
)
)
)

TOWN OF LONGMEADOW
Defendant )

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO EXCLUDE EVIDENCE
THAT THE TOWN’S ENGINEER ALTERED THE TERMS OF THE TOWN’S
CONTRACT

Now comes the Plaintiff and hereby request that this Honorable Court Deny the
Defendant’s Motion to Exclude Evidence that the Town’s Engineer Altered the terms of the
Town’s Contract.

This wrongful death action stems from an incident that occurred on or about July 31,

2015 at a construction site at or near the intersection of Hazardville Road and Tedford Drive in
Longmeadow, Massachusetts. The Plaintiff's decedent was a laborer working in a trench when a
water main broke; flooded the trench, and caused the Plaintiff's decedent to drown. At the time
of his death, Davide Nascimento was employed by A. Martins and Sons Construction, Inc. The
Defendant, Town of Longmeadow, contracted with A. Martins and Sons Construction, Inc. to
replace the subject water main.

On July 1, 2015, the Defendant contracted A. Martins and Sons Construction, Inc. to

replace the sewer main running below Hazardville Road and below Knollwood Circle inLongmeadow, Massachusetts. To replace the sewer main, Martins Construction dug a trench
measuring approximately 5 feet across and 8 feet down on Hazardville Road. When the Martins
Construction crew left the worksite on July 30, 2015, they covered the trench with steel plates,
but did not place a “trench box” inside the trench.

On July 31, 2015, Mr. Antonio Martins, the owner of Martins Construction, met three
employees, including the deceased Davide Nascimento to the Hazardsville job site. The plates
were removed from on top of the trench so the trench work could begin. Mr. Martins was aware
that the crew had ‘uncovered/exposed an active water line while digging the trench.
Unfortunately, nothing was done to protect this active water line.

At approximately 7:00AM, on July 31, 2015, Mr. Jon Goldaper, a resident of Hazardville
Road, went outside to smoke a cigarette and watch the construction crew work. Mr. Goldaper
testified that he witnessed a man working inside the trench while an excavator was digging. Mr.
Goldaper was “immediately struck” by how close the excavator bucket was to the man working
in the trench. Mr. Goldaper further testified that these circumstances looked dangerous to him.
Approximately 30 minutes later, Mr. Goldaper’s son came in to his room complaining about the
lack of water pressure. By that time, the trench was flooded and Mr. Nascimento was dead.

Although the contract documents between the Defendant and A. Martins Construction
attempt to disclaim control of the work on the part of the Town, the actual course of the Town’s
and A. Martins’s performance of the contract demonstrate that the Town actually retained
sufficient contro! over the work.

According to the Contract, Mr. Yem Lip, the Defendant’s Town Engineer, was to be the
Defendant’s representative with respect to the work. Mr. Lip’s deposition testimony reveals that

he was much more involved in the decisions regarding the means and methods of theconstruction work than the contract documents intend. Specifically, Mr. Lip admitted that the
Town of Longmeadow’s Engineering Department was assigned to “oversee” A. Martins’s work.
Mr. Lip testified that while work was being performed by A. Martins, he would go to the jobsite
to make sure that the general public was safe from any trench collapse. Mr. Lip also testified
that while he did not “micromanage the day-to-day operations,” all work was to be done under
his oversight as Town Engineer.

In fact, Mr. Lip testified as to the specific circumstances that would trigger
Longmeadow’s expectation that A. Martin’s to use a trench box, and whether the Town would
allow A. Martins to use a trench box without backfilling a trench. Mr. Lip testified that he and
the contractor would usually discuss the use of a trench box ahead of time and that he would
“allow” the contractor, in some instances, to not put a trench box in place. Mr. Lip further
testified that on the Hazardville jobsite, he would “require” the use of a trench box if someone
was working in the trench at a depth greater than 2.5 feet. Mr. Lip’s testimony reveals that he
and the Town were making decisions with regard to when he and the Town would require a
trench box to be used and when he would make exceptions for its use. Despite any contractual
language, Mr. Lip, Longmeadow’s Town Engineer, assumed control over when A. Martins was
to use a trench box.

The Defendant argues that Mr. Lip could not modify or alter the terms of the contract.
This argument is belied by the contract documents, which were approved by the Board of
Selectman in accordance with the statutes and cases cited by the Defendant, which expressly
gave Mr. Lip unilateral authority to alter and amend the contract. Specifically, the Contract
states that “the Work will be overseen and administered by the Town Engineer .... Engineer will

act as Owner's representative, assuming all duties and responsibilities, rights and authorityassigned to engineer in Contract Documents in connection with the completion of the Work in
accordance with the Contract Documents.” (Exhibit 1, Section 2.1).

The General Conditions of the contract, which were incorporated into the prime contract,
state that the contract documents may be amended or modified by either a Change Order or a
Work Change Directive. (Exhibit 2, Section 3.04). However, “the requirements of the Contract
Documents may be supplemented, and minor variations and deviations in the Work may be
authorized by one or more of the following ways:

1. A Field Order [defined as a written order issued by the Engineer in Section 1.01];

2. Engineer’s approval of a Shop Drawing or Sample;

3. Engineer’s written interpretation or clarification.

(Exhibit 2, Section 3.04).

Moreover, Section 9.04 states that “Engineer may authorize minor variations in the Work
from the requirements of the Contract Documents which do not involve an adjustment in the
Contract Price or the Contract Times...” Exhibit 2, Section 9.04. One such variance would be
to require the use‘of a trench box where, as here, one was already on site and paid for.

It is therefore clear that Mr. Lip had the actual authority to amend the contract documents
where it would not cause a difference in contract price or time.

Furthermore, the statutes and cases cited by the Defendant only speak to a municipality’s
authority to enter into a contract. None are relevant on the issue of the authority to modify the
contract once it is in place. Through his interpretation of the contract and through his course of
performance, Mr. Lip had the authority to require a trench box on the jobsite. Therefore, the
Defendant’s motion to preclude evidence that the Town Engineer altered the terms of the

contract should be denied.Dated: 9 bsh 4

   
 

Respectfully Sub:
The Plaintiffs

By “PY ng

Brian C. Dever BBO #544203.
KECHES LAW GROUP, P.C.
122 Dean Street

Taunton, MA 02780

Tel No. (508) 822-2000

Fax No. (508-822-8022

bdever@kecheslaw.comEXHIBIT 1|
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W2Oll OL

SECTION 00500

: : AGREEMENT
This Agrecmetit, maie'this _first___ day of _Iuly the year tivo thousand and fifteen, between
a yeruestéd by its Select Board, hereinafter called,OWNER and A.
Marti Inc, hereinafter calléd CONTRACTOR, with an address of 679

Moote Stieet, Ludlow, MA 01056. .

OWNER and CONTRACTOR, in vonsideralion of the mutiial covenants hereiafey set forth,
agree.as follows:

ARTICLE! WORK

IL CONTRACTOR shall complete all Werk as specified or indicated ih the. Contvagt
Dooujnents herein referred to-ns Attachment -A, the Town of Longmeadow; InViléticn ‘for
Bid (IRB) docwnent {itled. Sewer Main Replacement Hazardvilla Road & Knollwood:Clrele;
Dated June. 3, 2015; and Addendum No.1 for Town of Longméado, Invitation. for Bid
(IFB) docutient titled Sewer Main Replacement Hazardyilie Road.& Knolhyood Clile,
Datéd June 16, 2015,

ARTICLE2 BNGINEER

 
 
   

21 The Project has been designed by téToywn Eigineering Department, The WORK will be

oversean and administered by: lhe Town, Engineer who is: hereinafter called ENGINEER,
ENGINEER. till act as OWNER’s iepresetitative, assuming all. duties and responsibilities,
tights and authority assigned to ENGJNERR -in.the Contract Documents ih éohivectlon with
tlie comptetlon ef the WorkIn accordance-with the Contract Documents,

ARTICLES CONTRACT TIMES

31 Dates for Substantial Complettox and Final Coinpletion
A. ‘The Work-will be completed.and ready for final by Angust 20, 2015, thé Substantial

Completion Date for wotk on Hazardville, Road, work oi all dthei streats myst be.
completed within 120 calendar days fiom tie atknowledgémont date doouirented on
the Notice td Proceed,

3.2  Liquidated Datages
A, -CONTRAGTOR and OWNER zecognize that flme is of the.esseijce of tlils Agreemeht

and that OWNER will suffer financtal Joss if the Work is ript completed within the
times. specified in paragtapf: 3.1 above, plus any extensions tliereof allawed. In
accordatice with the General Conditloiis, The patties, also. recognize the delays,
expense; -and difficulties involved’ in proving'In legal or arbivation proceeding:the
actual Joss suffered:by OWNER if the Work isnot completed on time, Accordingly,
instead of requifing any sucly ptoof, OWNER and CONTRACTOR agree that as
liquidated damages foi'délay (but nof as a penalty), CONTRACTOR shall pay
“OWNER $750 for each day that expires after the times specified in paragraph 3.1.

ARTICLE4 CONTRACT PRIGB

4.1 OWNBR shall pay CONTRACTOR for completion of the Work in accordance: with the
Contract Documents an: amount in cubfent funds equal -to the prices stated In
CONTRACTOR'S: Bid, attaches hersto a& an exhibif which is a contract amount not fo
‘oxceed $482,460;10 .

4.2 ‘Tlie total-amount will be adjusted by: measurenient, of -actual installed quéntiticg in. strict
conformity wilh the provisions contalned herein. The-unlt-of measure priding per bid pay
items ts.doeurnented in the Contractor’s bid submission; hereitt referred to.aq Adtadluhent Bs.
ihe A. Martins & Sons Construction, Inc, Bid Form, Septian 00410 dated June: 17,. 2045,

 

0sa0-L Agreement

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Any ammount above the contract not to exceed price documented in Article 4.1 will require
pre-authorization of the OWNER before proceeding.

ARTICLES PROGRESS PAYMENTS

5

5.2

5.3

Applications for Payment shall be processed tn accordance with Article 14: of the General
Conditions and in accordance with Massachusetts General Law.

OWNER shali make progress payments on account of the Contract Price on the basis of -

processed Applications for Payment monthly during constructlon. Al! progress payments
‘will be measured by the schedule of values established in paragraph 2.07.A of the General
Conditions,

OWNER shall retain from progress payments 5 percent of the value of Work completed,

ARTICLEG © CONTRACTOR’S REPRESENTATIONS

61

CONTRACTOR makes the following representations:

A, CONTRACTOR has examined and carefully studied the Contract Documents and the
other related data identified in the Bidding Documents,

B. CONTRACTOR has vislted the slte and become familiar with and Is satisfied as to the
general, local, and Site conditions that may affect cost, progress, and performance of
the Work.

C. CONTRACTOR is familiar with and is satlsfied as to ail federal, state, and local Laws
and Regulations that may affect cost, progress, aud performauce of the Work.

D. CONTRACTOR has obtained and carefully studied (or assumes responsibility for
having done so) ali additional or supplementary examinations, investigations,
explorations, tests, studies, and data concerning conditlons (surfaco, subsurface, and
Undergraund Faoifitles) at or contiguous to the Site which may affect cost, progress,
or performance of the Work or which relate to any aspect of the means, methods,
techniques, sequences, and procedures of construction to be employed by
CONTRACTOR, Including applying the specific means, methods, techniques,
sequences, and procedures of construction, if any, expressly required by the Contract
Documents to be employed by CONTRACTOR, and safety precautions and programs
incident thereto.

E. CONTRACTOR does not consider that any further examinations, investigations,
explorations, tests, studies, or data are necessary for the performance of the Work at
the Contract Price, within the Contract Times, and in accordance with the other terms
and conditions of the Contract Documents,

F, CONTRACTOR Is aware of the general nature of Work to be performed by OWNER
and others at the Site that relates to the Work as indloated in the Contract Documents,

G, CONTRACTOR has ‘correlated the information known to CONTRACTOR,
information and observations obtained from visits to the Site, reports and drawihgs
identified in the Contract Documents, and all additional examinations, investigations,
explorations, tests, studies, and data with the Contract Documents.

H. CONTRACTOR has given ENGINEER wvitten notice of all conflicts, errors,
ambiguities, or discrepancies that CONTRACTOR has discovered in the Contract
Documents, and the written resolution thereof by ENGINBER js acceptable to
CONTRACTOR,

1 The Contract Documents are generally sufficient to Indicate and convey
understanding of all terms and conditions for performance and furnishing of the Work,

ARTICLE7 CONTRACT DOCUMENTS

dt

Contents

A. — The Contract Documents consist of the following:
0500-2, AgreementThis Agrcoment (section 00500, inclusive);

100% Performance Bond in the amount of $482,460, 10;

100% Payment Bond in the amount of $482,460.10;

General Conditlons (Section 00700, inclusive);

Supplementary Conditions (Section 00800, inclusive);

Specifications as listed in the Table of Contents of the Project Manual;

Drawings consisting of a cover sheet and a total of 6 numbered sheets bearing
the following general title: Town of Longmeadow, Massachusetts Pian of 2015
Hazatdville Road Sewer Main Replacement Project;

Addenda (numbers J to 2, inclusive);

Exhibits to this Agreement (enumerated as follows):

a CONTRACTOR's Bid (Section 00410, inclusive);

b,  Dacumentatlon submitted by CONTRACTOR prior to Notice of Award;

10, The followtng which may be delivered or issued on or after the Effective Date
of the Agreement and are not attached hereto:

a. Notice to Proceed;

b. Written Amendments;

oO Work. Change Directives;
d. Change Order(s).

NAW wWN =

~~

B, The documents listed in paragraph 8.1.A are attached to this Agreement (except as
expressly noted otherwise above),
C, — There are no Contract Doouments other than those listed above In this Article 8.
D. The Contract Documents may only be amended, modified, or supplomented as
+ provided in paragraph 3.05’of the General Conditions.
ARTICLE8 MISCELLANEOUS
81 Terms
A, Terms used in this Agreement will have the meanings indicated in the General
Conditions,
8.2 Assigument of Contract

83

A

No assignment by a party hereto of any rights under or interests in the Contract will be
binding on another party hereto without the written consent of the party sought lo be
bound; and, specifically but without Imitation, moneys that may become due and
moneys that are due may not be assigned without such consent (except to the extent
that the effect of this restriction may be limited by lasv), and unless specifically stated
to the contrary in any written consent to an assignment, no assigument will release or
discharge the assignor from any duty or responsibility under the Contract Documents,

‘Successois and Asslgns

OWNER and CONTRACTOR each binds itself, ts partners, successors, assigns, and legal
representatives to the other party hereto, its partners, successors, assigns, and legal representatives
tn respect to all covenants, agreements, and obligations contained in the Contract Documents.

88 Severability

A

Any provision or part of the Contract Documents held fo be void or unenforceable

under any Law or Regulation shall be deemed stricken, and all remaining provisions

shall continue to be valid and binding upon OWNER and CONTRACTOR, who agree
00500-3 Agreementthat the Contract Documents shall be reformed to replace such stricken provision or
part thereof with a valid and enforceable provision that comes as close as possible to
expressing the intention of the stricken provision,

8.9 For Change Order work performed by the CONTRACTOR on this project, the mark-up shall
be 15 percent,. Also, the CONTRACTOR’s metkup for Change Order work by
CONTRACTOR’s sub-contractors) shall be limited to 15 percent, Finally, the agreed upon
direct labor mark-up for Change Orders on this project shall be 15 percent,

ARTICLE9 INSURANCE:

‘The Contractor shall be responsible to the Town or any third party for any property
damage or bodily injury caused by it, any of its subcontractors, employees or agents in the
performance of, or as a result of, the work under this Agreement. The Contractor and any
subcontractors used hereby certify that they are Insured for workers compensation,
property damage, personal and product liability. The Contractor and any subcontractor It
uses shall purchase, furnish copies of, and maintain in full force and effect insurance
policies in the amounts here indicated.

+ General Liability

Bodily Injury Liability: $1,000,000 per occurrence
Property Damage Liability $1,000,000 per occurrence
(or combined single Limit) $1,000,000 per occurrence
Automobile Liability .. .

Bodily Injury Liability; $1,000,000 per ocourrence
Property Damage Liability $1,000,000 per occurrence
(or combined single limit) $1,000,000 per occurrence

Workers’ Compensation Insurance
Coverage for all employees In accordance with Massachusetts General Laws, Prior to

commencement of any work under this Agreement, the Contractor shal! provide the Town
with Certificates of Insurance which include the Town as an additional named insured and
which include a thirty day notice of cancellation to the Town,

ARTICLE 19 PREVAILING WAGE RATES

Prevailing Wage Rates as determined by the Commissioner of the Department of Labor
and Workforce Development under the provisions of Massachusetts General Laws,
Chapter 149, Section 26 to 27H, as amended, apply to this project, It is the responsibility
of the Contractor to provide the Town with certifted payrolls and to comply with all
requirements ofthe aboye-cited statutes, The schedules of prevailing wage rates are
included in the bid documents and are referenced as Prevailing Wage Number:
20150526-035,

ARTICLE 20 SAFETY AND PROTECTION

Protection of the Work and Ownet’s Property: The Contractor shall at all times safely
guard the Owner's property from injury or foss in connection with this Agreement, The
contractor shall at all times safely guard and protect thelr own work, and that of adjacent
properly from damage. The Contractor shall replace or make good any such damage, loss
or injury. The Contractor shall clean the work avea and restore It to its original condition
upon the completion of the work. The Contractor shall comply with all applicable OSHA,
State and municipal regulations and requirements for services and facilitles in the

0500-4 Agreementperformance ofal{requiremients of this ¢ontract, OSHA safety requlternents and tealning
certification shall be adhered to-for all personnel working on Town property,

IN WITNESS HHEREOR, OWNER and CONTRACTOR have signed this digreement. One counterpart eacls
has been detivered 6 OWNER and CONTRACTOR. Ailportions ofthe contract Doerments hava been
signed or identified by OWNER aid CONTRACTOR or on thel: bohalf.

‘This Agreement will be effective on date the Agreement ackrrowledges on Page I of this

contract, Une Bffective Date.

OWNER: CONTRACTOR: A . ashing #Soe Gas) "tie
)

’

Town of Longmeadow :

  
   

 

  

byr ,
Town, Manager, Stephen J..Crane, Signature,
Peadiebent
Birbonin M Macks
Name
‘Contractor-Address:

b4 Mee Sk.
Lucklexs, MA amas

Pootet 4 (3+ SR S-ALRO

Faxt HIB- BFS—- AG)

Email OMA nshc CAL. Cart,
Federal /S0e: Hg DOBNH 6,

 

Depaitmént ‘Approval.

o_O.
Chad Thompson} Prostrentert
Cosnplidnce

  
 

oC lat

Certified.as tg th
Funds:

Availability of

  
  
 

 

 

‘own: Accountant’ Date.

   

Ag requited by MLG.L. Chapter 44 Section 316, this is to. certify that’ the Town of
Longmeadow lias an appropriation that. ls-adequate.to.cover' the. cost of this Contract.

00560-5 Agresment|
|

 

 

CERTIFICATION AS TO PAYMENT OF STATE TAXES

 

Pursuant to M,G.L.v.62C,S49A, I certify under the penalties of perjury that the
Contractor has complied with all faws of the Commonwealth of Massachusetts relating to

taxes, ‘ :
Uys BOHN ge P.Mo hs as & Sers_Ga-Tc,
Social Security Number or . Signature of Individual or 4

Federal Identification Number Corporate Nane

we austen oaths Provadenks

Corporate Officer
(lf applicable)

 

CERTIFICATE OF VOTE
(Corporations Only)
Ata duly authorlzed meeting of the Board of Directors of the

RMohins? Sage Corel Ty held on Say. | feos _it was VOTED that
(Name of Corporation) (Date) .
(Name) (Officer)

of this company, be and hareby is authorlzed to execute contracts and bonds in the name
and on behalf of sald company, and affix its corporate seal hereto; and such execution of
any contact or obligation in this company’s name on its behalf by such officer under seal
of the company, shall be valid and binding upon this company,

Lhereby certify that I am the clerk of the above named corporation and that

Droge MMos is the duly elected officer as above of said company,

and that the above vote has not been amended or rescinded and remains In full force

and effect as the date of this contract,

0500-6 AgreementCERTIFICATE OF INSURANCE
(PROVIDE AN INSURANCE CERTIFICATE NAMING LONGMEADOW AS INSURED)

,
This isto cerllly that te MadMog *Sing Cosh By (Company) hns Issued the policies Ilsted belonv, that
theso polioles nro written in nécordance wih the Companys stanidard policies and ondorsements, except as Indicated
below or as noted in the nftnchments hereto, which policies and endorsements will be mado availnble fo OWNER ypon
request, tint they provide coverage aud fimlts of fiability shown with respect to Che Insuranieo indicated, that they axe in

force on this date, hat all deductible amouats oro fadleated bolow, and that this Certlficale Is furnislied in accordance
with and for tho purpose of satisfying the requlrements of OWNER fn connection with the award and performmice of a

"Yee MWkedvrea|

 

 

 

contract of agreement between the Town of, (OWNER) and
I Name of Insured
: 2. Address of fnsured,
3 * Location and Description of Work
Project Contract No..
Coverage and Linijts of Linbility
(at least as shown below)
Bodily Injury Property Damago
Liability Liabllity:
Policy Effective Bxpimtion Bach Kaoh
Number Date Dote Occurrenco Agercgcte Occurrence Aggregate

 

A. Owners Protective Linbility hns been Issued a the expense of Above Insured
lo. (Owner)

$1,000,000 $1,000,000 $/,000,000 $1,000,000
B, Comprehensive General Linbllty
$1,000,000 $1,090,000 $1,000,000 $1,000,000
Includit Operntlons/Premises 2. XCU 3, Products/Completed Operations:

+4, Conitactunl os Belay 5, Independent Contractors
6. Broad Form Property Damage 7. Personal Injury:

 

 

  

 

© Auto Liability Bach Bach Rach
Including: 1. AllOvaed Person Acoldent _Acoldent
2.Hired $1,000,000 $1,000,000 $1,000,000
3. Non-owned

 

 

D, Workman's Compensation
Coniponsation Statutory State(s)
Coverngo B Lintit $1,000,000 if Applicable

 

 

B, Unbrella Liabiilyy
: $ Aggregale

F  Buildor’s Risk Insurance - All Risk” Completed Value Form
3,

 

 

 

As Specified in Contract or Agrecment

 

 

00500-7 AgreementCERTIFICATE OF NON-COLLUSION

The undersigned cerlifies under the penalties of pesjury that this bid or proposal has been made and
submitted in good faith and without colluston or fraud with any other person. As used in this
certification, the word “person” shall mean any natural person, business, partnership, corporation,
union, committee, club, or other organization, entity, or group of Individuals,

Scab of person signing bid or proposal)

  

 

*
(Name of Business) +» \

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(Wate)

00500-8 Agreement

 

|
|EXHIBIT 2STANDARD
GENERAL CONDITIONS
OF THE
CONSTRUCTION CONTRACT

Prepared by
ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE
and

Issued and Published Jointly By

  
 
 

ACEC

Avemean Couxar, or Excusrenmic Coneasres

National Society of < 5
wofessional Engineers ASC. ane Society
Profésstonal Engineers ia Private Practles or Givi Engineers

PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE *
a practice division of the
NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS

AMERICAN COUNCIL OF ENGINEERING COMPANIES
AMERICAN SOCIETY OF CIVIL ENGINEERS

This document has been approved and endorsed by

 

The Associated General Contractors of America

Knowtedge for Creating
and Sust

 

the Bult Envoamont

Construction Specifications Institute

 

ESCDC C-700 Standard General Conditions of the Construction Contract.
Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved.
0070-0a a a

   

Copyright ©2002

National Society of Professional Engineers
1420 King Street, Alexandria, VA 22314

American Council of Engineering Companies
1015 15th Street, N.W., Washington, DC 20005

American Society of Civil Engineers
1801 Alexander Bell Drive, Reston, VA 20191-4400

 

 

These General Conditions have been prepared for use with the Suggested Forms of Agreement Between Owner and
Contractor Nos. C-520 or C-525 (2002 Editions), Their provisions are interrelated and a change in one may necessitate a
change in the other. Comments concerning their usage are contained in the EICDC Construction Documents, General and
Instructions (No. C-001) (2002 Edition). For guidance in the preparation of Supplementary Conditions, see Guide to the
Preparation of Supplementary Conditions (No. C-800) (2002 Edition).

 

 

EJCDC C-700 Standard General Conditions of the Construction Contract.
Copyright © 2002 National Socicty of Professional Engincers for EJCDC. All rights reserved.
00700 -1TABLE OF CONTENTS

 
 
 
 
 
 
  
  
 
   
 
 
  
 
 
  
 
 
 
 
 
 
  
 
 
   
 
 
 
 
 
 
 
 
 
 
   
     
 
 
  
 
  
  
 
 
 
  
 
 
 

Page

ARTICLE | - DEFINITIONS AND TERMINOLOGY 6
1.01 Defined Term: 6
1.02 Terminology... 8
ARTICLE 2 - PRELIMINARY MATTE] 9
2.01 Delivery of Bonds and Evidence of Insurance. 9
2.02 Copies of Documents... 9
2.03 Commencement of Contract Times; Notice to Proceed. 9
2.04 Starting the Work...... 9
2,05 Before Starting Constructia 9

2.06 Preconstruction Conference
2.07 Initial Acceptance of Schedules.
ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE
3.01 Intent.....
3.02 Reference Standards
3.03 Reporting and Resolving Discrepancies.
3.04 Amending and Supplementing Contract Documents
3.05 Reuse of Documents.
3.06 Electronic Data.....

FEanssocoun

4.01 Availability of Lands.
4.02 Subsurface and Physical .
4.03 Differing Subsurface or Physical Conditions

4.04 Underground Facilities 13
4.05 13
4.06 13

ARTICLE 5 - BONDS AND INSURANCE...
5.01 Performance, Payment, and Other Bonds
5.02 Licensed Sureties and Insurer:

5.03 Certificates of Insurance.
5.04 Contractor's Liability Insurance:
5.05 Owner's Liability Insurance
5.06 Properly Insurance.
5.07 Waiver of Rights .

5.08 Receipt and Application of Insurance Proceeds
5.09 Acceptance of Bonds and Insurance; Option to Replace..
5.10 Partial Utilization, Acknowledginent of Property Insure

ARTICLE 6 - CONTRACTOR’S RESPONSIBILITIES.
6.01 Supervision and Superintendenc
6.02 Labor; Working Hours ...
6.03 Services, Materials, and Equipment ..
6.04 Progress Schedule ....
6.05 Substitutes and “Or-Equals
6.06 Concerning Subcontractors, Suppliers, and Others
6.07 Patent Fees and Royalties ..
6.08 Perniits.....

6.09 21
6.10 Taxes, 22
6.11 22

6.12 Record Documents...
6.13 Safety and Protection.
6.14 Safety Representative.
6.15 Hazard Communication Program.

EJCDC C-700 Standard General Conditions of the Construction Contract.

Copyright © 2002 National Society of Professional Engineers for EJCDC, All rights reserved.
00700-26.16

 

   
 
  
 
 
 
 
 
  
 
 
 
 
 
 
 
 
 
  
  
  
 
 
 
 
 
  
  
 
 
 
 
  
 
 
 
  
 
 
 
 
 
   
   
 
  
  
 
  
 
 
 
 
 
 

617
6.18 Continuing the Work...
6.19 Contractor’s General Warranty and Guarantee
6.20 Indenmification....
6.21 Delegation of Professional Design Service:
ARTICLE 7 - OTHER WORK AT THE SITE
7.01 Related Work at Site
7.02 Coordination.
7.03 Legal Relationships ..
ARTICLE 8 - OWNER’S RESPONSIBILITIES:
8.01 Communications to Contractor
8.02 Replacement of Engineer... 6
8.03 Furnish Data. 6
8.04 Pay When Due 6
8.05 Lands and Easements; 6
8.06 Tnsurance ww 6
8.07 Change Orders 6
8.08 Inspections, Tests, and Approvals. 6
8.09 Limitations on Owner’s Responsibiliti 7
8.10 Undisclosed Hazardous Environmental Condition. 7
8.12 Evidence of Financial Arrangements ..... 7
ARTICLE 9 - ENGINEER’S STATUS DURING CONSTRUCTION 7
9.01 Owner's Representative....... 7
9.02 Visits to Site... 7
9.03 Project Representative.. 7
9.04 Authorized Variations in Work. 7
9.05 Rejecting Defective Work ... 7
9.06 Shop Drawings, Change Orders and Payments 8
9.07 Determinations for Unit Price Work...... 8
9.08 Decisions on Requirements of Contract Documents and Acceptability of Work. 8
9.09 Limitations on Engineer’s Authority and Responsibilities 8
ARTICLE 10 - CHANGES IN THE WORK; CLAIMS 8
10.01 Authorized Changes in the Work 8
10.02 Unauthorized Changes in the Wor! 9
10,03 Execution of Change Order; 9
10.04 Notification to Surety. 9
10.05 9
ARTICLE 11 - CO! 0
11.01 Cost of the Work
11.02 Allowances... 31
11.03 Unit Price Worl 31
ARTICLE 12 - CHANGE OF CONTRACT PRICE; CHANGE OF CONTRACT TIMES. 32
12.01 Change of Contract Price. 32
12,02 Change of Contract Times 33
12.03 Delays... 33
ARTICLE 13 - TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK 33
13.01 Notice of Defects. 33
13.02 Access to Work. 33
13.03 Tests and Inspection: 33
13.04 Uncovering Work. 34
13.05 Owner May Stop the Wor! 34
13.06 Correction or Removal of Defective Work. 34
13.07 Correction Period... 34
13.08 Acceptance of Defective Work. 35
13.09 Owner May Correct Defective Wor 35
ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION, 36
14.01 Schedule of Values. 36
14.02 Progress Paymenis . 36
14.03 Contractor’s Warranty of Title
14.04 Substantial Completion...

  

 

EJCDC C-700 Standard General Conditions of the Construction Contract.
Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved.
0700-314.05
14.06
14.07
14.08
14,09

ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION

15.01
15.02
15.03
15.04

ARTICLE 16 - DISPUTE RESOLUTION.

16.01 Methods and Procedures.
ARTICLE 17 - MISCELLANEOUS.

17.01 Giving Notice...

17.02 Computation of Time:

17.03 Cumulative Remedies.

17.04 — Survival of Obligations.

17.05 Controlling Lay.

17.06 Headings...

 

SEE TTY FTE

   

Partial Utilization.
Final Inspection
Final Paymen
Final Completion Delayed.
Waiver of Claims ..

 
  
   
 
 
 
 
 
 
 
 
 
 
 
  
  
 

Owner May Suspend Work .....«
Owner May Terminate for Cause
Owner May Terminate For Convenience
Contractor May Stop Work or Terminat

 

FR SARA AL HESS eeoooe

 

 

EJCDC C-700 Standard General Conditions of the Construction Contract.
Copyright © 2002 National Soctety of Professional Engineers for EJCDC. All rights reserved.
0700-4GENERAL CONDITIONS

ARTICLE 1 - DEFINITIONS AND TERMINOLOGY

 

1.01 Defined Terms

A. Wherever used in the Bidding Requirements
or Contract Documents and printed with initial capital
letters, the terms listed below will have the meanings
indicated which are applicable to both the singular and
plural thereof. In addition to terms specifically defined,
terms with initial capital letters in the Contract
Documents include references to identified articles and
paragraphs, and the titles of other documents or forms.

1. Addenda-—Written or graphic instruments
issued prior to the opening of Bids which clarify, correct,
or change the Bidding Requirements or the proposed
Contract Documents.

2. Agreement—The written instrument which is
evidence of the agreement between Owner and Contractor
covering the Work.

3. Application for Payment—The form acceptable
to Engineer which is to be used by Contractor during the
course of the Work in requesting progress or final
payments and which is to be accompanied by such
supporting documentation as is required by the Contract
Documents. .

4, Asbestos-Any material that contains more
than one percent asbestos and is friable or is releasing
asbestos fibers into the air above current action levels
established by the United States Occupational Safety and
Health Administration,

5. Bid--The offer or proposal of a Bidder
submitted on the prescribed form setting forth the prices
for the Work to be performed.

6. Bidder—The individual or entity who submits
a Bid directly to Owner.

7. Bidding  Documents-The __ Bidding
Requirements and the proposed Contract Documents
Gincluding all Addenda):

8. Bidding Requirements—The Advertisement or
Invitation to Bid, Instructions to Bidders, bid security of
acceptable form, if any, and the Bid Form with any
supplements.

 

9, Change Order—A document recommended by
Engineer which is signed by Contractor and Owner and
authorizes an addition, deletion, or revision in the Work
or an adjustment in the Contract Price or the Contract
Times, issued on or after the Effective Date of the
Agreement.

10. Claim—A demand or assertion by Owner or
Contractor seeking an adjustment of Contract Price or
Contract Times, or both, or other relief with respect to the
terms of the Contract. A demand for money or services by
a third party is not a Claim,

11. Contract-The entire and integrated written
agreement between the Owner and Contractor concerning
the Work, The Contract supersedes prior negotiations,
representations, or agreements, whether written or oral.

12. Contract Documents-- Those items so
designated in the Agreement. Only printed or hard copies
of the items listed in the Agreement are Contract
Documents. Approved Shop Drawings, other Contractor’s
submittals, and the reports and drawings of subsurface
and physical conditions are not Contract Documents.

13. Contract Price-The moneys payable by
Owner to Contractor for completion of the Work in
accordance with the Contract Documents as stated in the
Agreement (subject to the provisions of Paragraph 11.03
in the case of Unit Price Work).

14. Contract Times-The number of days or the
dates stated in the Agreement to: (i) achieve Milestones, if
any, (ii) achieve Substantial Completion; and (iii) com-
plete the Work so that it is ready for final payment as
evidenced by Engineer’s written recommendation of final
payment.

15. Contractor--The individual or entity with
whom Owner has entered into the Agreement.

16. Cost of the Work~-See Paragraph 11.01.A for
definition.

17. Drawings-That part of the Contract
Documents prepared or approved by Engineer which
graphically shows the scope, extent, and character of the
Work to be performed by Contractor. Shop Drawings and
other Contractor submittals are not Drawings as so
defined.

18. Effective Date of the Agreement—The date
indicated in the Agreement on which it becomes effective,
but if no such date is indicated, it means the date on
which the Agreement is signed and delivered by the last
of the two parties to sign and deliver.

19. Engineer--The individual or entity named as
such in the Agreement.

 

BICDC C-700 Standard General Conditions of the Construction Contract,
Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved.

00700-520. Field Order-A written order issued by
Engineer which requires minor changes in the Work but
which does not involve a change in the Contract Price or
the Contract Times.

21. General Requirements--Sections of Division
1 of the Specifications. The General Requirements pertain
to all sections of the Specifications.

22, Hazardous Enviromental Condition-The
presence at the Site of Asbestos, PCBs, Petroleum,
Hazardous Waste, or Radioactive Material in such
quantities or circumstances that may present a substantial
danger to persons or property exposed thereto in
connection with the Work.

23. Hazardous Waste--The term Hazardous
‘Waste shall have the meaning provided in Section 1004 of
the Solid Waste Disposal Act (42 USC Section 6903) as
amended from time to time.

24, Laws and Regulations; Laws or Regulations-
-Any and all applicable laws, rules, regulations, ordinanc-
es, codes, and orders of any and all governmental bodies,
agencies, authorities, and courts having jurisdiction.

25. Liens-Charges, security interests, or
encumbrances upon Project funds, real property, or
personal property.

26. Milesione--A principal event specified in the
Contract Documents relating to an intermediate comple-
tion date or time prior to Substantial Completion of all the
Work.

27. Notice of Award—The written notice by
Owner to the Successful Bidder stating that upon timely
compliance by the Successful Bidder with the conditions
precedent listed therein, Owner will sign and deliver the
Agreement,

28. Notice to Proceed--A written notice given by
Owner to Contractor fixing the date on which the Con-
tract Times will commence to run and on which
Contractor shall start to perform the Work under the
Contract Documents.

29. Owner--The individual or entity with whom
Contractor has entered into the Agreement and for whom.
the Work is to be performed.

30. PCBs--Polychlorinated biphenyls.

31. Petroleum--Petroleum, including crude oil or
any fraction thereof which is liquid at standard conditions
of temperature and pressure (60 degrees Fahrenheit and
14.7 pounds per square inch absolute), such as oil,
petroleum, fuel oil, oil sludge, oil refuse, gasoline,
kerosene, and oil mixed with other non-Hazardous Waste
and crude oils,

 

32, Progress Schedule-A schedule, prepared and
maintained by Contractor, describing the sequence and
duration of the activities comprising the Contractor’s plan
to accomplish the Work within the Contract Times.

33. Project~The total construction of which the
Work to be performed under the Contract Documents may
be the whole, or a part.

34. Project Mamtal-The bound documentary
information prepared for bidding and constructing the
Work. A listing of the contents of the Project Manual,
which may be bound in one or more volumes, is
contained in the table(s) of contents.

35. Radioactive Material--Source, special nucle-
ar, or byproduct material as defined by the Atomic Energy
Act of 1954 (42 USC Section 2011 et seq.) as amended
from time to time.

36. Related Entity -- An officer, director, partner,
employee, agent, consultant, or subcontractor.

37. Resident Project Representative-The autho-
tized representative of Engineer who may be assigned to
the Site or any part thereof.

38. Samples--Physical examples of materials,
equipment, or workmanship that are representative of
some portion of the Work and which establish the
standards by which such portion of the Work will be
judged.

39. Schedule of Submittals--A schedule, prepared
and maintained by Contractor, of required submittals and
the time requirements to support scheduled performance
of related construction activities.

40. Schedule of Values--A schedule, prepared
and maintained by Contractor, allocating portions of the
Contract Price to various portions of the Work and used
as the basis for reviewing Contractor's Applications for
Payment.

41. Shop Drawings~All drawings, diagrams,
illustrations, schedules, and other data or information
which are specifically prepared or assembled by or for
Contractor and submitted by Contractor to illustrate some
portion of the Work.

42. Site—Lands or areas indicated in the Contract
Documents as being furnished by Owner upon which the
Work is to be performed, including rights-of-way and
easements for access thereto, and such other lands
furnished by Owner which are designated for the use of
Contractor.

43, Specifications~That part of the Contract
Documents consisting of written requirements for
materials, equipment, systems, standards and
workmanship as applied to the Work, and certain

EJCDC C-700 Standard General Conditions of the Construction Contract.
Copyright © 2002 National Society of Professional Engineers for EJCDC, All rights reserved,

0700-6administrative requirements and procedural matters
applicable thereto.

44, Subcontractor--An individual or entity
having a direct contract with Contractor or with any other
Subcontractor for the performance of a part of the Work
at the Site.

45, Substantial Completion--The time at which
the Work (or a specified part thereof) has progressed to
the point where, in the opinion of Engineer, the Work (or
a specified part thereof) is sufficiently complete, in
accordance with the Contract Documents, so that the
Work (or a specified part thereof) can be utilized for the
purposes for which it is intended. The terms “substantially
complete” and “substantially completed” as applied to all
or part of the Work refer to Substantial Completion
thereof,

46. Successful Bidder--The Bidder submitting a
responsive Bid to whom Owner makes an award.

47. Supplementary Conditions—That part of the
Contract Documents which amends or supplements these
General Conditions.

48, Supplier—A manufacturer, fabricator, suppli-
er, distributor, materialman, or vendor having a direct
contract with Contractor or with any Subcontractor to
furnish materials or equipment to be incorporated in the
Work by Contractor or any Subcontractor.

49. Underground Facilities--All underground
pipelines, conduits, ducts, cables, wires, manholes, vaults,
tanks, tunnels, or other such facilities or attachments, and
any encasements containing such facilities, including
those that convey electricity, gases, steam, liquid
petroleum products, telephone or other communications,
cable television, water, wastewater, storm water, other
liquids or chemicals, or traffic or other control systems.

50. Unit Price Work--Work to be paid for on the
basis of unit prices.

51. Work-—-The entire construction or the various
separately identifiable pacts thereof required to be
provided under the Contract Documents. Worl: includes
and is the result of performing or providing all labor,
services, and documentation necessary to produce such
construction, and furnishing, installing, and incorporating
all materials and equipment into such construction, all as
required by the Contract Documents.

52. Work Change Directive--A written statement
to Contractor issued on or after the Effective Date of the
Agreement and signed by Owner and recommended by
Engineer ordering an addition, deletion, or revision in the
Work, or responding to differing or unforeseen subsurface
or physical conditions under which the Work is to be
performed or to emergencies. A Work Change Directive
will not change the Contract Price or the Contract Times

 

but is evidence that the parties expect that the change
ordered or documented by a Work Change Directive will
be incorporated in a subsequently issued Change Order
following negotiations by the parties as to its effect, if
any, on the Contract Price or Contract Times.

1.02 Terminology

A. The following words or terms are not defined
but, when used in the Bidding Requirements or Contract
Documents, have the following meaning.

B. Intent of Certain Terms or Adjectives

1, The Contract Documents include the terms “as
allowed,” “as approved,” “as ordered”, “as directed” or
terms of like effect or import to authorize an exercise of
professional judgment by Engineer. In addition, the
adjectives “reasonable,” “suitable,”  “‘acceptable,”
“proper,” “satisfactory,” or adjectives of like effect or
import are used to describe an action or determination of
Engineer as to the Work. It is intended that such exercise
of professional judgment, action or determination will be
solely to evaluate, in general, the Work for compliance
with the requirements of and information in the Contract
Documents and conformance with the design concept of
the completed Project as a functioning whole as shown or
indicated in the Contract Documents (unless there is a
specific statement indicating otherwise). The use of any
such term or adjective is not intended to and shall not be
effective to assign to Engineer any duty or authority to
supervise or direct the performance of the Work or any
duty or authority to undertake responsibility contrary to
the provisions of Paragraph 9.09 or any other provision of
the Contract Documents.

C. Day

1 The word “day” means a calendar day
of 24 hours measured from midnight to the next midnight.

D. Defective

1. The word “defective,” when modifying the
word “Work,” refers to Work that is unsatisfactory,
faulty, or deficient in that it:

a. does not conform to the Contract Documents,
or

b, does not meet the requirements of any
applicable inspection, reference standard, test, or
approval referred to in the Contract Documents,
or

c, has been damaged prior to Engineer’s -
recommendation of final payment (unless
responsibility for the protection thereof has been
assumed by Owner at Substantial Completion in
accordance with Paragraph 14.04 or 14.05).

 

EJCDC C-700 Standard General Conditions of the Construction Contract,
Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved.

00700-7E. Furnish, Install, Perform, Provide

1. The word “furnish,” when used in connection
with services, materials, or equipment, shall mean to
supply and deliver said services, materials, or equipment
to the Site (or some other specified location) ready for use
or installation and in usable or operable condition.

2. The word “install,” when used in connection
with services, materials, or equipment, shall mean to put
into use or place in final position said services, materials,
or equipment complete and ready for intended use.

3. The words “perform” or “provide,” when used
in connection with services, materials, or equipment, shall
mean to furnish and install said services, materials, or
equipment complete and ready for intended use.

4. When “furnish,” “install,” “perform,” or “pro-
vide” is not used in connection with services, materials, or
equipment in a context clearly requiring an obligation of
Contractor, “provide” is implied.

F. Unless stated otherwise in the Contract Docu-
ments, words or phrases which have a well-known
technical or construction industry or trade meaning are

 

used in the Contract Documents in accordance with such

recognized meaning.

ARTICLE 2 - PRELIMINARY MATTERS

2.01 Delivery of Bonds and Evidence of Insurance

4. When Contractor delivers the executed
counterparts of the Agreement to Owner, Contractor shall
also deliver to Owner such bonds as Contractor may be
required to furnish.

B. Evidence of Insurance: Before any Work at
the Site is started, Contractor and Owner shall each
deliver to the other, with copies to each additional insured
identified in the Supplementary Conditions, certificates of
insurance (and other evidence of insurance which cither
of them or any additional insured may reasonably request)
which Contractor and Owner respectively are required to
purchase and maintain in accordance with Article 5.

2.02 Copies of Documents

A. Owner shall furnish to Contractor up to ten
printed or hard copies of the Drawings and Project
Manual. Additional copies will be furnished upon request
at the cost of reproduction.

2.03
Proceed

Commencement of Contract Times; Notice to

A, The Contract Times will commence to run on
the thirtieth day after the Effective Date of the Agreement

 

 

or, if a Notice to Proceed is given, on the day indicated in
the Notice to Proceed. A Notice to Proceed may be given
at any time within 30 days after the Effective Date of the
Agreement. In no event will the Contract Times com-
mence to run later than the sixtieth day after the day of
Bid opening or the thirtieth day after the Effective Date of
the Agreement, whichever date is earlier.

2.04 = Starting the Work

A. Contractor shall start to perform the Work on
the date when the Contract Times commence to run. No
Work shall be done at the Site prior to the date on which
the Contract Times commence to run.

2.05 Before Starting Construction

A. Preliminary Schedules: Within 10 days after
the Effective Date of the Agreement (unless otherwise
specified in the General Requirements), Contractor shall
submit to Engineer for timely review:

1. a preliminary Progress Schedule; indicating
the times (numbers of days or dates) for starting and
completing the various stages of the Work, including any
Milestones specified in the Contract Documents;

2. a preliminary Schedule of Submittals; and

3. a preliminary Schedule of Values for all of the
Work which includes quantities and prices of items which
when added together equal the Contract Price and subdi-
vides the Work into component parts in sufficient detail to
serve as the basis for progress payments during
performance of the Work. Such prices will include an
appropriate amount of overhead and profit applicable to
each item of Work.
2.06 Preconstruction Conference
A. Before any Work at the Site is started, a
conference attended by Owner, Contractor, Engineer, and
others as appropriate will be held to establish a working
understanding among the parties as to the Work and to
discuss the schedules referred to in Paragraph 2.05.A,
procedures for handling Shop Drawings and other
submittals, processing Applications for Payment,