HomeMy WebLinkAbout15 108 Leachate Treatment Facility at Kincardine Waste Management Centre (Wellington Construction) By-law THE CORPORATION OF THE MUNICIPALITY OF KINCARDINE
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BY -LAW
NO. 2015 -108
BEING A BY -LAW TO ACCEPT A TENDER FOR CONSTRUCTION OF A
LEACHATE TREATMENT FACILITY AT
KINCARDINE WASTE MANAGEMENT CENTRE
(Wellington Construction)
WHEREAS Section 44 of the Municipal Act, 2001, S.O. 2001, c.25, as amended,
provides that a municipality has jurisdiction over a highway or bridge shall keep it
• in a state of repair that is reasonable in the circumstances;
AND WHEREAS pursuant to the said Municipal Act, Section 8 (1) and 9 provide
that the powers of a municipality under this or any other Act shall be interpreted
broadly so as to confer broad authority on the municipality to enable the
municipality to govern its affairs as it considers appropriate and to enhance the
municipality's ability to respond to municipal issues and has the capacity, rights,
powers and privileges of a natural person for the purpose of exercising its
authority under this or any other Act;
AND WHEREAS the Council of the Municipality of Kincardine deems it expedient
to accept the tender of Wellington Construction for construction of a leachate
treatment facility at Kincardine Waste Management Centre as outlined in Report
No. PWD 2015 -07;
NOW THEREFORE the Council of The Corporation of the Municipality of
Kincardine ENACTS as follows:
1. That the tender of Wellington Construction for construction of a leachate
• treatment facility at Kincardine Waste Management Centre, in the amount
of $2,238,720 (including non - refundable portion of HST), be hereby
accepted.
2. That the amount over the approved $1,886,560 in 2015 budget be funded
from the additional 2016 Federal gas taxes ($339,724), with the additional
overage of $12,436 funded out of the Lifecycle RF (Fund 80).
3. That the Mayor and Chief Administrative Officer be authorized and directed
to execute on behalf of the Council of The Corporation of the Municipality
of Kincardine, any contracts and other documents required to authorize this
purchase.
4. This by -law shall come into full force and effect upon its final passage.
5. This by -law may be cited as the "Leachate Treatment Facility at Kincardine
Waste Management Centre (Wellington Construction) By -law ".
READ a FIRST and SECOND TIME this 2 day of July, 2015.
• nd
READ a THIRD TIME and FINALLY PASSED this 2 day of July, 2015.
0 ,4-n -gala AL- 1110.,.z"Lok
Mayor Clerk
Leachate Treatment Facility at Kincardine Waste Management Centre
(Wellington Construction) By -law
By -Law No. 2015 —108
CONTRACT DOCUMENTS
Leachate Treatment Facility
Contract No. LF2015 -01
Municipality of Kincardine
Waste Management Centre
Kincardine, Ontario
GHD Limited
651 Colby Drive Waterloo Ontario N2V 1 C2
004074 / Report No 87 / July 07 2015
Project: Leachate Treatment Facility at Kincardine Waste
Management Centre
Refer to Article A -21 for signed contract Page 26 in Laserfiche
Between
The Corporation of the Municipality of Kincardine - OWNER
and
Wellington Construction Contractors - CONTRACTOR
Complete Contract filed under separate cover in Administration File —
C01 in Central Records:
Titled:
Municipality of Kincardine By -Law No. 2015 -108
BEING A BY -LAW TO ACCEPT A TENDER FOR CONSTRUCTION
OF A LEACHATE TREATMENT FACILITY AT KINCARDINE WASTE
MANAGEMENT CENTRE (Wellington Construction)
Cited as: Leachate Treatment Facility at Kincardine Waste Management Centre
(Wellington Construction) By -law
Dated: 2 day of July, 2015
1
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Contract Documents
Leachate Treatment Facility
Contract No. LF2015 -01
Municipality of Kincardine
Waste Management Centre
Kincardine, Ontario
GHD Limited
651 Colby Drive Waterloo Ontario N2V 1C2
004074 I Report No 87 I July 07 2015
•
Table of Contents
Page
AGREEMENT
ARTICLE 1 THE UNDERTAKING 2
ARTICLE 2 CONTRACT DOCUMENTS 2
ARTICLE 3 CONTRACT PRICE 3
ARTICLE 4 CONTRACT TIMES 3
ARTICLE 5 EXAMINATION AND INSPECTION 4
ARTICLE 6 ALTERATIONS AND OMISSIONS 4
ARTICLE 7 PROGRESS PAYMENTS 5
ARTICLE 8 WITHHOLDING PAYMENTS 7
ARTICLE 9 WORK TO BE FREE FROM ALL ENCUMBRANCES 7
ARTICLE 10 SUBSTANTIAL PERFORMANCE 8
ARTICLE 11 FINAL INSPECTION AND PAYMENT 9
ARTICLE 12 TAXES 11
ARTICLE 13 FORCE MAJEURE AND NO DAMAGES FOR DELAY 11
ARTICLE 14 RIGHT TO SUSPEND WORK 13
ARTICLE 15 TERMINATION 14
ARTICLE 16 WARRANTY AND GUARANTEE 16
ARTICLE 17 SUCCESSORS AND ASSIGNS 17
ARTICLE 18 PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS 17
ARTICLE 19 INDEMNIFICATION 18
ARTICLE 20 MISCELLANEOUS 18
EXHIBITS
EXHIBIT A STATUTORY DECLARATION
(TO ACCOMPANY SECOND AND SUBSEQUENT PROGRESS CLAIMS)
EXHIBIT B FINAL RELEASE OF ALL CLAIMS
EXHIBIT C STATUTORY DECLARATION
(FOR RELEASE OF HOLDBACK, MAINTENANCE SECURITY HOLDBACK,
OR BOTH UPON SUBSTANTIAL PERFORMANCE AND COMPLETION)
EXHIBIT D CONTRACTOR'S AFFIDAVIT OF ALL TAXES PAID
EXHIBIT E APPLICATION FOR PAYMENT
EXHIBIT F PERFORMANCE BOND
EXHIBIT G PAYMENT BOND
EXHIBIT H KINCARDINE CORPORATE STATEMENT OCCUPATIONAL HEALTH AND SAFETY
GENERAL CONDITIONS
Gc.01 DEFINITIONS AND TERMINOLOGY 1
Gc.02 CONTRACT DOCUMENTS 8
Gc.03 SUBCONTRACTORS AND SUPPLIERS 9
Gc.04 THE ENGINEER 10
Gc.05 DISPUTES AND CLAIMS 11
Gc.06 NOTICE OR OTHER COMMUNICATION 12
Gc.07 TO BE FURNISHED BY CONTRACTOR 12
Gc.08 PROSECUTION OF THE WORKS 14
Gc.09 ENGINEERING AND INSPECTION CHARGES 15
004074 (8»
Table of Contents
Page
Gc.10 EMERGENCIES 15
Gc.11 USE OF SITE 16
Gc.12 SUBSURFACE AND PHYSICAL CONDITIONS 17
Gc.13 DIFFERING SUBSURFACE OR PHYSICAL CONDITIONS 17
Gc.14 UNDERGROUND OR SUBMERGED FACILITIES 19
Gc.15 SAFETY AND PROTECTION 20
Gc.16 LAWS AND REGULATIONS 21
Gc.17 PERMITS 21
Gc.18 TESTS AND INSPECTIONS 21
Gc.19 SUBSTITUTES AND OR- EQUALS 25
Gc.20 RECORD DOCUMENTS 26
Gc.21 SHOP DRAWINGS AND SAMPLES 26
Gc.22 WORK BY OWNER OR BY OTHER CONTRACTORS 28
Gc.23 RECORD RETENTION, REVIEW, AND INSPECTION 29
Gc.24 CONFIDENTIALITY 29
Gc.25 UNIT PRICE WORK 30
Gc.26 ALTERATIONS, ADDITIONS, AND OMISSIONS 31
Gc.27 EXTRA WORK 32
Gc.28 FORCE ACCOUNT WORK 33
SPECIAL CONDITIONS
Sc.01 INSURANCE 1
Sc.02 FAILURE TO COMPLETE WORK ON TIME AND LIQUIDATED DAMAGES 5
Sc.03 PAYMENT PROCEDURES 6
Sc.04 ADDRESSES FOR GIVING NOTICE 7
Sc.05 RECORD RETENTION PERIOD 8
Sc.06 PERFORMANCE AND PAYMENT BONDS 8
Sc.07 PERMITS 8
Sc.08 SUBSURFACE AND PHYSICAL CONDITIONS 9
PROJECT SPECIFICATIONS
SCHEDULES
SCHEDULE OF INFORMATION 2
SCHEDULE OF PRICES SUMMARY SHEET 3
SCHEDULE OF PRICES 5
SCHEDULE OF ADDITIONAL UNIT PRICES 12
SCHEDULE OF EQUIPMENT RENTAL RATES 14
ATTACHMENTS
ATTACHMENT A — GEOTECHNICAL REPORT
004074 (87)
AGREEMENT
THIS AGREEMENT, entered into this 8th day of July 2015,
for
LEACHATE TREATMENT FACILITY
THE MUNICIPALITY OF KINCARDINE WASTE MANAGEMENT CENTRE
KINCARDINE, ONTARIO
by and between
THE MUNICIPALITY OF KINCARDINE
hereinafter referred to as "OWNER ",
and
Wellington Construction Contractors Inc.
a Corporation
hereinafter called "CONTRACTOR ",
NOW THEREFORE, OWNER and CONTRACTOR, for the consideration hereinafter named, agree as follows:
004074 (87) A -1
ARTICLE 1 THE UNDERTAKING
1.1 Work To Be Done
A. CONTRACTOR shall:
1. furnish all supervision, labor, services, materials, equipment, transportation,
Plant and Equipment, temporary facilities, and incidentals of every kind
necessary, and perform and complete in the most substantial, timely, and
workmanlike manner, the Works specified or indicated in the Contract
Documents entitled "Leachate Treatment Facility, The Municipality of
Kincardine Waste Management Centre, Kincardine, Ontario "; and
2. do and fulfill everything required by and in complete accordance with the
Contract (the Contract Documents) as defined herein.
ARTICLE 2 CONTRACT DOCUMENTS
2.1 Documents Forming the Contract
A. The Contract and the Contract Documents shall be one and the same. The Contract
Documents establish the rights and obligations of the parties and shall be deemed
to include: the executed Agreement; the executed Performance and Payment
Bonds; the General Conditions; the Special Conditions; the Project Specifications;
the Drawings; the Schedule of Information, the Schedule of Prices, the Schedule of
Additional Unit Prices approved by ENGINEER, and the Schedule of Equipment
Rental Rates approved by ENGINEER; any Addenda; all provisions required by Laws
and Regulations to be inserted in the Contract whether actually inserted or not; all
Written Amendments, Change Orders, Work Change Directives, Field Orders, and
ENGINEER'S written interpretations and clarifications issued on or after the date of
Notice of Award; and all appendices, attachments, and exhibits to any of the
foregoing.
2.2 Reporting and Resolving Discrepancies
A. CONTRACTOR shall be fully responsible for thoroughly reviewing the Contract
Documents.
B. Should conflict appear between the various Contract Documents, priority shall be
given in order of appearance in the following list:
1. Agreement;
2. Special Conditions;
3. General Conditions;
4. Project Specifications;
5. Drawings:
1. General,
2. Details; and
6. Schedules.
C. If, during the performance of the Works, CONTRACTOR discovers any conflict,
discrepancy, ambiguity, error, or omission within the Contract Documents or
004074 (87) A -2
between the Contract Documents and any provision of any Law or Regulation
applicable to the performance of the Works, or of any standard, specification,
manual, or code, or of any instruction of any Supplier, CONTRACTOR shall notify
ENGINEER thereof in writing within 24 hours after discovery, for resolution by
ENGINEER. CONTRACTOR shall not proceed with the Works affected thereby
(except in an emergency) until an amendment or supplement to the Contract
Documents has been issued by one of the methods indicated in Paragraph 6.1 or
ENGINEER determines that no such conflict exists. Any work affected by such
conflict, discrepancy, ambiguity, error, or omission which is performed prior to
ENGINEER's decision shall be at CONTRACTOR's risk and expense and at no
additional cost to OWNER.
D. Except as may be otherwise specifically stated in the Contract Documents, the
provisions of the Contract Documents shall take precedence in resolving any
conflict, discrepancy, ambiguity, error, or omission between the provisions of the
Contract Documents and: (i) the provisions of any standard, specification, manual,
code, or instruction (whether or not specifically incorporated by reference in the
Contract Documents); or (ii) the provisions of any Laws or Regulations applicable to
the performance of the Works (unless such an interpretation of the provisions of
the Contract Documents would result in violation of such Law or Regulation).
ARTICLE 3 CONTRACT PRICE
3.1 Contract Price
A. In consideration of the payments to be made by OWNER to CONTRACTOR as
hereinafter mentioned, CONTRACTOR shall perform and complete the Works in
accordance with the provisions of the Contract Documents.
B. In consideration of the performance and completion of the Works in accordance
with the provisions of the Contract Documents, OWNER shall pay the Contract Price
to CONTRACTOR at the time and in the manner prescribed in the Contract
Documents.
C. The Contract Price shall consist of:
1. Lump sums named in the attached Schedule of Prices having a total (based
on quantities entered in the Schedule of Prices in the case of unit price items)
Two million two hundred thousand
Dollars ($2,200,000); and
2. plus or minus any adjustments made in accordance with the Contract.
ARTICLE 4 CONTRACT TIMES
4.1 Notice to Proceed
A. CONTRACTOR shall begin the Works on the day indicated in the Notice to Proceed
and shall prosecute the Works or any specified part thereof so that the Works or
any specified part thereof is substantially performed, and completed and ready for
final payment within the number of days, or alternatively, on or before the dates
004074 (87) A -3
I I
set forth in Section 01 10 00 of the Project Specifications. The issuance of the
Notice to Proceed by ENGINEER on behalf of OWNER will fix the date on which the
Contract Times (or Milestones) will commence to run.
ARTICLE 5 EXAMINATION AND INSPECTION
5.1 Documents and Site Conditions
A. CONTRACTOR represents and warrants to OWNER that before making its bid it
carefully examined the bid documents, including Addenda, and it carefully
examined, inspected, investigated, explored, tested, and studied the Site, as well as
its surrounding territory, and is fully informed regarding all of the risks,
contingencies, and other circumstances and conditions affecting or influencing the
work to be done and labor and materials to be furnished for the completion of the
Contract, including, without limiting the generality of the foregoing, Laws and
Regulations, the nature and location of the Works, the general and local conditions,
particularly those bearing upon transportation, disposal, handling and storage of
materials, availability of labor, water, electric power, roads, uncertainties of
weather, physical conditions at the Site, the location and condition of facilities and
structures (including utilities and the like), whether above or below the ground or
underwater, the conformation and conditions of the ground, the character of
equipment and facilities needed prior to and during the prosecution of the Works,
and all other matters which can in any way affect the progress, performance, or
furnishing of the Works, or the cost thereof under the Contract.
B. Except as provided in Gc.12 and Gc.13 of the General Conditions, CONTRACTOR
assumes the risk of all surface, subsurface, or any other conditions at the Site,
whether known or unknown, which may affect its performance under the Contract,
and shall not attempt to seek a change in the Contract Price or the Contract Times
(or Milestones) or to excuse any inadequacy, failure, or lack of performance of its
obligations under the Contract on grounds of such conditions regardless of any
inaccuracy or incompleteness of information which CONTRACTOR has acquired
from OWNER or any other source. CONTRACTOR acknowledges that such
information from OWNER or any other source is not intended as a representation
or warranty with respect to conditions to be encountered at the Site and is only
provided for informational purposes.
ARTICLE 6 ALTERATIONS AND OMISSIONS
6.1 OWNER's Right to Make Changes
A. OWNER reserves the right, at any time during the progress of the Works, to alter
the Drawings or the Project Specifications, add to the Works, or omit any portion of
the Works as OWNER may deem reasonably necessary; and to make allowances for
additions and deductions in the Contract Price in accordance with the Contract.
6.2 Amending and Supplementing Contract Documents
A. The Contract Documents may be amended to provide for additions, deletions, and
revisions in the Works or to modify the terms and conditions thereof in one or more
004074 (87) A -4
of the following ways: (i) Written Amendment; (ii) Change Order; or (iii) a Work
Change Directive.
B. The requirements of the Contract Documents may be supplemented, and minor
variations and deviations in the Works may be authorized, by one or more of the
following ways: (i) a Field Order; (ii) ENGINEER's approval of a Shop Drawing or
Sample; or (iii) ENGINEER's written interpretation or clarification.
ARTICLE 7 PROGRESS PAYMENTS
7.1 Applications for Payments
A. Applications for Payment shall be based on the Schedule of Prices attached hereto
and made a part hereof. The Schedule of Prices shall be incorporated into an
Application for Payment in the form prescribed by the Contract Documents
(Exhibit E). The Schedule of Prices shall be the full inclusive cost of the Works
described including all costs, expenses, profit, overhead, and taxes (as provided in
Article 12 of the Agreement) which may be required in and for the performance of
the Works described, together with all general risks, liabilities, and obligations set
forth or implied in the Contract Documents. The Schedule of Prices is to be used as
a basis of payment only and shall not be used as a description of the full extent of
the Works to be completed under the Contract. Any work required to properly
complete the Works, but not specifically listed as a separate pay item, must be
provided for and the cost of such work will be deemed included in the appropriate
items listed in the Schedule of Prices. If requested by ENGINEER, CONTRACTOR
shall submit a price breakdown for any lump sum items contained in such Schedule
of Prices. No progress payment shall be made to CONTRACTOR until an acceptable
Application for Payment is submitted to ENGINEER.
B. Within 10 days following the first day of each month, CONTRACTOR shall submit to
ENGINEER for review an Application for Payment filled out and signed by
CONTRACTOR covering the Works completed during the preceding month and
accompanied by Statutory Declarations as set forth in Article 9 and such other
supporting documentation as is required by the Contract Documents. If payment is
requested on the basis of materials and equipment not incorporated in the Works
but delivered and suitably stored at the Site or at another location agreed to in
writing and provided such payment is expressly allowed in accordance with the
Special Conditions, the Application for Payment shall also be accompanied by a bill
of sale, invoice, or other documentation warranting that OWNER has received the
materials and equipment free and clear of all Liens and evidence that the materials
and equipment are covered by appropriate property insurance or other
arrangements to protect OWNER's interest therein, all of which must be
satisfactory to OWNER.
C. As the work progresses in accordance with the Contract and in a manner that is
satisfactory to OWNER, OWNER will make progress payments on account of the
Contract Price to CONTRACTOR in the manner set forth in the Special Conditions,
against Applications for Payment recommended by ENGINEER of CONTRACTOR's
performance of portions of the Works to the satisfaction of ENGINEER. OWNER
shall have no responsibility to pay or reimburse CONTRACTOR with respect to any
matters stated in the Contract to be at the cost or expense of CONTRACTOR or to
be at no extra or additional cost or expense to OWNER. OWNER shall have no
004074 (87) A -5
obligation to pay CONTRACTOR for work which is not satisfactory to OWNER or is
not done in accordance with the Contract.
D. Payment in the case of unit price work will be based on actual quantities of
completed work, determined by ENGINEER by the methods specified in the Project
Specifications, and in accordance with Paragraph 25.2 A of the General Conditions,
at the prices entered in the Schedule of Prices, except that in no event shall
CONTRACTOR be paid for the quantity of unit price work which is in excess of the
approximate quantities set forth in the Schedule of Prices without the express
advance written approval of ENGINEER prior to any such work being initiated by
CONTRACTOR. Payment in the case of lump sum work will be based on the
percentage of work completed, as determined by ENGINEER, times the lump sum
price entered in the Schedule of Prices.
E. OWNER will retain a percentage of all progress payments due to CONTRACTOR
under the Contract.
7.2 Review of Applications
A. ENGINEER will, within 10 days after receipt of each Application for Payment, either
indicate in writing a recommendation of payment and present the Application for
Payment to OWNER, or return the Application for Payment to CONTRACTOR
indicating in writing ENGINEER's reasons for refusing to recommend payment. In
the latter case, CONTRACTOR may make the necessary corrections and resubmit
the Application for Payment.
B. ENGINEER may refuse to recommend the whole or any part of any payment if, in
ENGINEER's opinion, the Works has not progressed to the point indicated or is not
completed in accordance with the Contract Documents. ENGINEER may also refuse
to recommend any such payment, or, because of subsequently discovered evidence
or the results of subsequent inspections or tests, revise or revoke any such payment
recommendation previously made, to such extent as may be necessary in
ENGINEER's opinion to protect OWNER from loss.
7.3 Progress Payment Becomes Due
A. Thirty days after ENGINEER's recommendation, the amount recommended for
progress payment will (subject to the provisions of Article 8) become due, and
when due will be paid by OWNER to CONTRACTOR.
B. Progress payments, however, shall not constitute acceptance of CONTRACTOR's
work by OWNER, nor be construed as a waiver of any right or claim by OWNER.
7.4 CONTRACTOR's Warranty of Title
A. Upon the making of progress payments by OWNER, all work, materials, and
equipment covered thereby shall become the sole property of OWNER.
CONTRACTOR warrants and guarantees that title to all Works, materials, and
equipment covered by any Application for Payment, whether incorporated in the
Project or not, will pass to OWNER no later than the time of payment free and clear
of all Liens.
004074 (a» A -6
7.5 Payment to Subcontractors and Suppliers
A. CONTRACTOR shall pay each Subcontractor and Supplier the full amount paid by
OWNER for its proportionate share of work, not later than 5 days after receipt of
payment from OWNER.
B. CONTRACTOR agrees that all funds requested in its Applications for Payment for the
benefit of Subcontractors, Suppliers, and laborers as evidenced by CONTRACTOR's
sworn statement shall be paid from the funds received from OWNER for each
Application for Payment. OWNER reserves the right to furnish to any Subcontractor
or Supplier evidence of the amounts certified on their respective account for
payment to CONTRACTOR.
ARTICLE 8 WITHHOLDING PAYMENTS
8.1 OWNER'S Right to Withhold or Reduce Payment
A. Notwithstanding anything to the contrary herein contained, OWNER shall have the
right, without any duty, to withhold or reduce any payments due or to become due
CONTRACTOR, by reason of (i) any indebtedness owed by CONTRACTOR to OWNER;
(ii) any defective work not remedied or any defective materials not removed and
replaced; (iii) any third -party claims filed or reasonable evidence indicating
probable filing of any such claims; (iv) any Liens in favor of any workers,
Subcontractors, Suppliers, or laborers; (v) a claimed failure of CONTRACTOR to
make any payments to its Subcontractors, Suppliers, or laborers; (vi) reasonable
doubt that the Works can be completed for the unpaid balance of the Contract
Price; (vii) reasonable indication that the Works will not be completed within the
Contract Times (or Milestones); (viii) unsatisfactory or untimely prosecution of the
Works by CONTRACTOR; (ix) any failure of CONTRACTOR to comply with the
Contract Documents; (x) any loss, penalty, damage, or attorney's fees associated
with CONTRACTOR or the Works; (xi) the negligence or willful misconduct of
CONTRACTOR or any Representative; and /or (xii) any set -off to which OWNER may
be legally entitled.
ARTICLE 9 WORK TO BE FREE FROM ALL ENCUMBRANCES
9.1 Releases; Statutory Declarations; Sworn Statements
A. Before making progress payments or final payment or releasing any holdback,
OWNER will require CONTRACTOR to furnish evidence that all work performed and
materials supplied and all structures built for which payment is being made are free
and clear from all lawful Liens under any Laws or Regulations, including, without
limiting the generality of the foregoing, legal provisions relating to Liens in favor of
workers, builders, architects, Subcontractors, or Suppliers, and such other evidence
as may be necessary to satisfy OWNER that CONTRACTOR has fulfilled
CONTRACTOR's obligations under the Contract.
B. CONTRACTOR's Applications for Payment shall be accompanied by CONTRACTOR's
Statutory Declaration (Exhibit A) indicating that all accounts for labor, subcontracts,
products, construction machinery and equipment, and other indebtedness which
may have been incurred by CONTRACTOR in the performance of the Works and for
004074 (87) A -7
which OWNER might in any way be held responsible have been paid in full except
holdback monies properly retained. In addition each Application for Payment shall
be accompanied by satisfactory evidence of compliance with workers'
compensation legislation including premiums due thereunder.
C. CONTRACTOR's final Application for Payment shall be accompanied by
CONTRACTOR's Statutory Declaration (Exhibit C) and satisfactory evidence of
compliance with workers' compensation legislation including premiums due
thereunder, CONTRACTOR's Final Release of All Claims (Exhibit B), and Final Release
of All Claims (Exhibit B) from all Subcontractors and Suppliers who have not
previously submitted a Final Release of All Claims.
D. For release of holdback CONTRACTOR shall furnish:
1. Statutory Declaration (Exhibit C); and
2. Final Release of All Claims (Exhibit B) applicable to the services completed or
materials furnished up to the date of CONTRACTOR's application for release
of holdback, signed by each Subcontractor and Supplier who has a right to
file a Lien against the premises.
E. Releases of all claims arising out of or which may arise out of or filed in connection
with the Works, and Statutory Declarations shall be complete and legally effective.
Sample copies of the required Statutory Declarations and release of claim forms are
provided by OWNER. Such suggested forms are intended to cover only OWNER's
minimum requirements under the Contract. CONTRACTOR shall be responsible for
supplementing these forms and supplying to OWNER any other information, forms,
and documents which may be required by applicable laws of the Province where
the work is being performed.
F. CONTRACTOR shall immediately notify OWNER in the event CONTRACTOR obtains
information that a Lien has been or may be asserted against the Site or in relation
to the Works. CONTRACTOR shall immediately pay, satisfy, and discharge any and
all obligations and liabilities (including settlement costs, court costs, and reasonable
attorneys' fees) arising from or related to any such Liens. CONTRACTOR shall be
liable to pay to OWNER all moneys that the latter may pay in vacating or
discharging a Lien, including without limitation all amounts paid by way of security
for costs or otherwise, and all legal fees on a solicitor - client basis.
ARTICLE 10 SUBSTANTIAL PERFORMANCE
10.1 Inspection for Substantial Performance
A. When CONTRACTOR considers the entire Works to meet the requirements of the
Construction Lien Act with respect to both completion cost and readiness for
intended use, CONTRACTOR shall notify OWNER and ENGINEER in writing that the
work is substantially performed (except for items specifically listed by CONTRACTOR
as incomplete) and request that ENGINEER issue a certificate of Substantial
Performance. Promptly thereafter, OWNER, CONTRACTOR, and ENGINEER shall
make an inspection of the Works to determine the status of completion. If
ENGINEER does not consider the Works substantially performed, ENGINEER will
notify CONTRACTOR in writing giving the reasons therefor. If ENGINEER considers
004074 (87) A -8
the Works substantially performed, ENGINEER will prepare and deliver to OWNER a
tentative certificate of Substantial Performance which shall fix the date of
Substantial Performance. There shall be attached to the certificate a tentative list
of items to be completed or corrected before final payment. OWNER shall have
7 days after receipt of the tentative certificate during which to make written
objection to ENGINEER as to any provisions of the certificate or attached list. If,
after considering such objections, ENGINEER concludes that the Works is not
substantially performed, ENGINEER will within 14 days after submission of the
tentative certificate to OWNER notify CONTRACTOR in writing, stating the reasons
therefor. If, after consideration of OWNER's objections, ENGINEER considers the
Works substantially performed, ENGINEER will within said 14 days execute and
deliver to OWNER and CONTRACTOR a definitive certificate of Substantial
Performance (with a revised tentative list of items to be completed or corrected)
reflecting such changes from the tentative certificate as ENGINEER believes justified
after consideration of any objections from OWNER. At the time of delivery of the
tentative certificate of Substantial Performance, ENGINEER will deliver to OWNER
and CONTRACTOR a written recommendation as to division of responsibilities
pending final payment between OWNER and CONTRACTOR with respect to security,
operation, safety, and protection of the Works, maintenance, heat, utilities,
insurance, and warranties and guarantees. Unless OWNER and CONTRACTOR agree
otherwise in writing and so inform ENGINEER in writing prior to ENGINEER's issuing
the definitive certificate of Substantial Performance, ENGINEER's aforesaid
recommendation will be binding on OWNER and CONTRACTOR until final payment.
B. OWNER shall have the right to exclude CONTRACTOR from the Site after the date of
Substantial Performance, but OWNER shall allow CONTRACTOR reasonable access
to complete or correct items on the tentative list.
ARTICLE 11 FINAL INSPECTION AND PAYMENT
11.1 Final Inspection
A. Upon written notice from CONTRACTOR that the entire Works or an agreed portion
thereof is complete, ENGINEER will make a final inspection with OWNER and
CONTRACTOR and will notify CONTRACTOR in writing of all particulars in which this
inspection reveals that the Works is incomplete or defective. CONTRACTOR shall
immediately without cost or inconvenience to OWNER, and in accordance with
ENGINEER's written instructions (i) take such measures as are necessary to
complete such Works; (ii) correct all defective Works identified by ENGINEER, or, if
any work is rejected by ENGINEER, remove it from the Site and replace it with work
that is not defective; and (iii) correct or remove and replace any damage to other
Works or the work of others resulting from defective or rejected Works all to the
satisfaction of ENGINEER.
11.2 Final Application for Payment
A. After CONTRACTOR has, in the opinion of ENGINEER, satisfactorily completed all
corrections identified during the final inspection and has delivered, in accordance
with the Contract Documents, all maintenance and operating instructions,
certificates of disposal /destruction, schedules, guarantees, warranties, bonds,
certificates or other evidence of insurance, certificates of inspection, marked -up
record documents (as provided in Gc.20 of the General Conditions), and other
004074 (87) A -9
documents, CONTRACTOR may make application for final payment following the
procedure for progress payments.
B. The final Application for Payment shall be accompanied (except as previously
delivered) by:
1. all documentation called for in the Contract Documents, including, but not
limited to, evidence of compliance with workers' compensation legislation
required by Paragraph 1.4 C.3 of the Special Conditions and evidence of
continuation of insurance required by Paragraph 1.3 B.5 of the Special
Conditions;
2. a written statement from CONTRACTOR that CONTRACTOR has no further
claims or demands for additional monies or extra work in connection with
the Contract;
3. CONTRACTOR's affidavit that all federal, provincial, and local taxes applicable
to the Works, including, but not limited to, sales, consumer, use, excise, and
disposal taxes have been paid (Exhibit D);
4. releases and statutory declarations as set forth in Article 9;
5. Asset titles and inventories; and
6. any and all other documents reasonably required by ENGINEER OR OWNER.
C. In lieu of the releases specified in Paragraph 11.2 B and as approved by OWNER,
CONTRACTOR may furnish receipts, and an affidavit of CONTRACTOR that the
receipts include all labor, services, equipment, and material for which a Lien could
be filed, and all payrolls, material and equipment bills, and other indebtedness
connected with the Works for which OWNER (or the owner(s) of the premises
where the Site is located if other than OWNER) or property at the Site might in any
way be responsible have been paid or otherwise satisfied. If any Subcontractor or
Supplier refuses to furnish a release or receipt in full, CONTRACTOR shall furnish a
bond or other collateral satisfactory to OWNER to indemnify OWNER and
ENGINEER, and their respective representatives and agents against any Liens.
11.3 Review of Application and Acceptance
A. If, on the basis of ENGINEER's observation of the Works during construction and
final inspection, and ENGINEER's review of the final Application for Payment and
accompanying documentation as required by the Contract Documents, ENGINEER is
satisfied that the Works has been completed and CONTRACTOR's other obligations
under the Contract Documents have been fulfilled, ENGINEER will, within 10 days
after receipt of the final Application for Payment, indicate in writing ENGINEER's
recommendation of payment and present the Application for Payment to OWNER
for payment. At the same time ENGINEER will also give written notice to OWNER
and CONTRACTOR that the Works is acceptable subject to the provisions of
Paragraph 11.5. Otherwise, ENGINEER will return the Application for Payment to
CONTRACTOR, indicating in writing the reasons for refusing to recommend final
payment, in which case CONTRACTOR shall make the necessary corrections and
resubmit the Application for Payment.
004074 (a» A -10
11.4 Final Payment Becomes Due
A. Thirty days after presentation to OWNER of the Application for Payment and
accompanying documentation, the amount recommended for final payment by
ENGINEER will become due and, when due, will be paid by OWNER to
CONTRACTOR.
B. OWNER shall pay the remainder of the Contract Price as recommended by
ENGINEER.
11.5 Waiver of Claims
A. CONTRACTOR's acceptance of payment upon final completion and acceptance of
the Works shall constitute a waiver of all claims by CONTRACTOR against OWNER.
ARTICLE 12 TAXES
12.1 Proof of Payment; Affidavit of Taxes Paid
A. The Contract Price shall include all taxes required by Laws and Regulations,
including, but not limited to, sales, consumer, use, excise, disposal, or any other
applicable taxes.
B. Prior to final payment, CONTRACTOR shall submit an affidavit (Exhibit D) that all
such taxes have been paid. Said affidavit is a condition precedent to OWNER's
obligation to pay.
12.2 Harmonized Sales Taxes
A. The total Contract Price shall include the Harmonized Sales Tax (HST). However, the
individual prices, if any, set forth in the Schedule of Prices SHALL NOT include the
HST. The appropriate HST amounts will be paid to CONTRACTOR in addition to the
amounts recommended for payment by ENGINEER for work performed under the
Contract and will therefore not affect individual prices. HST amounts shall be
included as a separate item on the summary page of Applications for Payment and
on the summary page of Schedule of Prices.
ARTICLE 13 FORCE MAJEURE AND NO DAMAGES FOR DELAY
13.1 Force Majeure Event
A. Any delays in or any failure of performance of either party hereto shall not
constitute a default under the Contract, or give rise to any claim for damages, to the
extent (i) such delays or failure of performance are not reasonably foreseeable, are
caused by circumstances beyond the control of the party thereby affected, and
constitute "force majeure" under Paragraph 13.1 B hereof (collectively "force
majeure event "); and (ii) the affected party satisfies the notice and claim filing
requirements, as applicable, of the Contract.
B. For the purposes of the Contract, the term "force majeure" means an occurrence or
non - occurrence arising from causes beyond the control of a party and which could
004074 ( A -11
not be avoided or overcome by due diligence. Force majeure does not include
unanticipated or increased costs, changed financial circumstances, contract
disputes, failure to obtain workers, materials, or supplies, unless directly caused by
the outbreak of a war or a strike.
C. Time necessary for reviews by ENGINEER of Shop Drawings and Samples, and field
changes to meet actual conditions, and delays incurred by seasonal and weather
limitations shall be anticipated, and are not a force majeure event, and are not
eligible for additional compensation or extensions of time. Delays attributable to
and within the control of a Subcontractor or Supplier shall be deemed to be delays
within the control of CONTRACTOR, and also are not a force majeure event, and are
not eligible for additional compensation or extensions of time.
D. CONTRACTOR expressly understands that one of the material terms of the Contract,
for which it has received substantial consideration, is to shift to CONTRACTOR,
except as stated otherwise herein, any and all risks CONTRACTOR may suffer as a
result of delays, including, but not limited to, a force majeure event, during the
term of the Contract. Except as stated otherwise herein, in no event shall any
delay, except a force majeure event, result in a change to the Contract Times (or
Milestones), and no delay shall result in a change to the Contract Price or any claim
by CONTRACTOR for additional compensation, and OWNER shall not be held
responsible for any loss or damage suffered by CONTRACTOR by reason of any such
delay.
E. CONTRACTOR shall include in the Contract Price the cost of doing the work under
the Contract caused by the non- compensatory delays described above.
F. CONTRACTOR shall use all means available, including overtime at CONTRACTOR's
expense and at no additional cost to OWNER, to complete the Works in accordance
with the Contract Times (or Milestones), time being of the essence.
13.2 Notice and Claim Filing Requirements
A. In the event a condition arises which wholly or in part prevents or will prevent
either party hereto from performing hereunder, the affected party shall inform the
other in writing within 24 hours of the time at which the affected party first has
reason to believe the condition has occurred or may occur and stating the general
nature of the claim. Provided the notice described in this Paragraph 13.2 A is given
and the other notice and claim filing requirements, as applicable, of the Contract
are met, the obligation affected by a force majeure event shall be extended by
Change Order or Written Amendment for a time equal to the delay caused solely by
the intervention of such force majeure event.
B. For a force majeure claim CONTRACTOR shall notify ENGINEER and OWNER orally
within 48 hours from the start of any delay in the Works to explain the cause and
the expected duration of the delay. Within 5 working days after first becoming
aware of a possible delay, CONTRACTOR shall file with ENGINEER and OWNER
written notice of any claim for an extension to the Contract Times (or Milestones)
due to a force majeure event. Such notice shall contain an explanation of the
cause(s) of any actual or potential delay, the anticipated duration of any delay, the
measures taken and to be taken to prevent or minimize the delay, and the
timetable for implementation of such measures. CONTRACTOR shall file with
ENGINEER and OWNER any claim for an extension to the Contract Times (or
004074 (87) A -12
Milestones) due to a force majeure event, along with all required supporting data,
in writing within 10 days from the time when such alleged force majeure event shall
have ceased. If CONTRACTOR fails to meet any of the notification or claim filing
requirements set forth herein, CONTRACTOR shall be deemed to have waived any
right to an extension to the Contract Times (or Milestones). CONTRACTOR has the
burden to prove the events that caused the delay, that such events constitute a
force majeure event, that CONTRACTOR satisfied the notification and claim filing
requirements of the Contract, and that CONTRACTOR is entitled to an extension to
the Contract Times (or Milestones) due to a force majeure event. A claim by
CONTRACTOR for an extension to the Contract Times (or Milestones) must set forth
in detail the source and the nature of each alleged force majeure event, the date
upon which each such force majeure event began and ended, and the obligation
under the Contract which is delayed due to each such force majeure event.
CONTRACTOR shall, in any event, be entitled to an extension of the Contract Times
(or Milestones) for a force majeure event only for the number of days of delay
which OWNER determines to be due solely to such force majeure event, and only
for the obligation under the Contract affected by such force majeure event as
determined by OWNER. CONTRACTOR shall not be entitled to receive a separate
extension of time for each one of several force majeure events operating
concurrently, but, if at all, only for the actual period of delay in completion of the
Works as determined by OWNER irrespective of the number of force majeure
events contributing to produce such delay. If one of several causes of delay
operating concurrently arises from any act or omission of CONTRACTOR or any
Representative, and would of itself (irrespective of the concurrent causes) have
delayed the Works, no extension of time will be allowed for the period of delay
arising from such act or omission, regardless of the existence of a concurrent force
majeure event. An extension of one Milestone for any part of the Works based
upon a particular force majeure event shall not entitle CONTRACTOR to an
extension of a subsequent Milestone or the final dates of completion in the
Contract Times without CONTRACTOR meeting its burden of proof for each
incremental step or requirement for which a time extension is sought.
13.3 Delay by OWNER
A. If CONTRACTOR's performance under the Contract is materially delayed due solely
to the negligence, reckless or willful misconduct, or breach of the Contract on the
part of OWNER or those for whom OWNER is responsible, then, provided that
CONTRACTOR fully meets all notice and claim filing requirements set forth in Gc.05
of the General Conditions, CONTRACTOR as its sole remedy shall be entitled to:
(i) an extension to the Contract Times (or Milestones) by Change Order or Written
Amendment equal to the duration of such material delay, and (ii) an increase in the
Contract Price by Change Order or Written Amendment so as to properly
compensate CONTRACTOR for any increased cost reasonably and actually incurred
as a direct result of such material delay.
ARTICLE 14 RIGHT TO SUSPEND WORK
14.1 OWNER May Suspend
A. Notwithstanding any provision in the Contract Documents to the contrary, at any
time and without any cause whatsoever, OWNER may suspend the execution of the
Works by CONTRACTOR or any portion thereof for the period of time that OWNER
004074 (87) A -13
determines appropriate for the convenience of OWNER by notice in writing to
CONTRACTOR and ENGINEER.
B. CONTRACTOR, as its sole remedy and full compensation for such suspension, shall
be entitled to an extension to the Contract Times (or Milestones) or an adjustment
in the Contract Price, or both, to the extent directly attributable to any such
suspension provided that no adjustment shall be made for any claim under
Paragraph 14.1 B unless CONTRACTOR files notice of such claim in writing with
ENGINEER and OWNER within 10 days after the suspension of the Works or any
portion thereof and fully meets the other notice and claim filing requirements set
forth in Gc.05 of the General Conditions.
ARTICLE 15 TERMINATION
15.1 OWNER May Terminate for Cause
A. The occurrence of any one or more of the following events will justify termination
for cause:
1. CONTRACTOR's failure to perform the Works in accordance with the Contract
Documents (including, but not limited to, refusal or failure to timely supply
sufficient skilled workers, suitable materials or equipment, or Plant and
Equipment, or failure to adhere to the progress schedule established under
Paragraph 8.1 C of the General Conditions as adjusted from time to time
pursuant to Paragraph 8.1 D of the General Conditions, or failure to make
prompt payments to Subcontractors or Suppliers;
2. CONTRACTOR's disregard of Laws or Regulations of any public body having
jurisdiction;
3. CONTRACTOR's disregard of the authority or instructions of ENGINEER;
4. CONTRACTOR's violation in any material way of any provisions of the
Contract Documents.
B. In addition to OWNER's rights as set forth in Article 14 and without prejudice to any
other right or remedy to which OWNER might be entitled, OWNER may
immediately terminate the services of CONTRACTOR upon written notice to
CONTRACTOR (and the surety, if any) if one or more of the events identified in
Paragraph 15.1 A occur which goes unremedied by CONTRACTOR for 7 days after
CONTRACTOR has received written notice thereof from OWNER, or in the event it
comes to the attention of OWNER that CONTRACTOR has made a material
misrepresentation to OWNER as an inducement for OWNER to enter into or
continue the Contract.
C. Unless OWNER agrees otherwise, the Contract shall be automatically terminated
upon CONTRACTOR becoming insolvent or subject to receivership, bankruptcy, or
other insolvency proceedings, whether or not under Court supervision.
D. Should OWNER terminate CONTRACTOR's services, as provided in Paragraph 15.1 B,
OWNER may exclude CONTRACTOR from the Site, and take possession of the whole
of the Works and of all temporary works, and of all Plant and Equipment at the Site,
004074 (87) A -14
and use the same to the full extent they could be used by CONTRACTOR (without
liability to CONTRACTOR for trespass or conversion), incorporate in the Works all
materials and equipment stored at the Site or for which OWNER has paid
CONTRACTOR but which are stored elsewhere, and OWNER may finish the Works
by whatever method OWNER may deem expedient, including but not limited to, by
contract negotiated or publicly let, by the use of its own forces, by calling upon
CONTRACTOR's surety to complete the Works, or by a combination of any such
methods. In any such case, CONTRACTOR shall not be entitled to receive any
further payment until the Works is finished. OWNER shall only be responsible to
CONTRACTOR for work performed prior to the effective date of termination under
this Paragraph 15.1, in accordance with the Contract Documents, subject to any
set -off to which OWNER may be legally entitled. If the unpaid balance of the
Contract Price exceeds all claims, costs, expenses, losses, and damages (including
but not limited to all fees and charges of engineers, architects, attorneys, and other
professionals and all court or arbitration or other dispute resolution costs)
sustained by OWNER arising out of or relating to completing the Works, such excess
shall, subject to Article 9, be paid to CONTRACTOR. If such claims, costs, expenses,
losses, and damages exceed such unpaid balance, CONTRACTOR shall pay the
difference to OWNER within 30 days of OWNER's written demand for payment.
Such claims, costs, expenses, losses, and damages incurred by OWNER due to
CONTRACTOR's default will be incorporated in a Change Order or Written
Amendment, provided that when exercising any rights or remedies under this
Paragraph 15.1 D OWNER shall not be required to obtain the lowest price for the
Works performed.
E. If, in the case of CONTRACTOR's failure or refusal to supply additional workers,
Plant and Equipment, or supervisory personnel, it is in the interest of OWNER to do
so, OWNER may without prejudice to any other right or remedy, continue
CONTRACTOR's services on some of the Works and take possession of other parts of
the Works and some or all of the temporary works, premises, Plant and Equipment,
and materials and equipment at the Site for such other parts of the Works and
finish such other parts of the Works by whatever method OWNER may deem
expedient. If CONTRACTOR's services are not terminated, CONTRACTOR shall not
be entitled to receive any further payment on account of the parts of the Works of
which OWNER has taken possession until the whole of the Works is finished.
F. Where CONTRACTOR's services have been so terminated by OWNER, the
termination will not affect any rights or remedies of OWNER against CONTRACTOR
then existing or which may thereafter accrue. Any retention or payment of monies
due CONTRACTOR by OWNER will not release CONTRACTOR from liability.
G. In no event shall CONTRACTOR be paid by OWNER for loss of anticipated profits or
revenue or other economic loss arising out of or resulting from termination for
cause.
15.2 OWNER May Terminate for Convenience
A. Notwithstanding any other provision in the Contract Documents to the contrary and
without prejudice to any other right or remedy of OWNER, OWNER may, at any
time, terminate the Contract, or any work to be performed hereunder, in whole or
in part, for convenience and without any cause whatsoever upon 10 days advance
written notice to CONTRACTOR ( "Notice "). The Notice shall specify the extent of
termination and the effective date. In such event, the Contract shall terminate on
004074 (87) A -15
the date and in the manner set forth in such Notice and, unless the Notice provides
otherwise, CONTRACTOR shall be obligated to perform the following duties on the
effective date of termination:
1. cease operations as specified in the Notice;
2. terminate all subcontracts (if any) and orders (if any) to the extent they
relate to termination;
3. continue any work not terminated; and
4. take any other actions as directed by ENGINEER.
B. In the event of termination under this Paragraph 15.2, CONTRACTOR shall, subject
to Article 8, be entitled to receive, as its sole remedy, payment (without duplication
of any items) for: (i) completed and acceptable Works executed in accordance with
the Contract Documents prior to the effective date of such termination;
(ii) expenses sustained prior to the effective date of termination in performing
services and furnishing labor, materials, or equipment as required by the Contract
Documents in connection with uncompleted Works, plus fair and reasonable sums
for overhead and profit on such expenses; (iii) reasonable expenses incurred in
settlement of terminated contracts with Subcontractors, Suppliers, or others;
(iv) reasonable expenses directly attributable to termination; and (v) any retainage
then held by OWNER, less any amounts owed by CONTRACTOR to OWNER.
C. In the event that OWNER terminates the Contract in a manner which is
subsequently determined to be wrongful or unjustified, such termination shall be
deemed a termination for convenience of OWNER under this Paragraph 15.2.
ARTICLE 16 WARRANTY AND GUARANTEE
16.1 CONTRACTOR's General Warranty and Guarantee
A. CONTRACTOR expressly warrants and guarantees to OWNER and ENGINEER that all
materials and equipment furnished shall be new unless otherwise specified, and
that all Works under the Contract shall be in conformance with the Contract
Documents and will not be defective. CONTRACTOR shall promptly make good,
without cost to OWNER, any and all Works that is defective.
B. CONTRACTOR's obligation to perform and complete the Works in accordance with
the Contract Documents shall be absofute. None of the following will constitute an
acceptance of the Works that is not in accordance with the Contract Documents or
a release of CONTRACTOR's obligation to perform the Works in accordance with the
Contract Documents:
1. observations by ENGINEER;
2. recommendation by ENGINEER or payment by OWNER of any progress or
final payment;
3. the issuance of a certificate of Substantial Performance by ENGINEER or any
payment related thereto by OWNER;
004074 (87) A -16
4. use or occupancy of the Works or any part thereof by OWNER;
5. any acceptance by OWNER or any failure to do so;
6. any review and approval of a Shop Drawing or Sample submittal or the
issuance of a notice of acceptability by ENGINEER;
7. any inspection, test, or approval by others; or
8. any correction of defective Works by OWNER.
ARTICLE 17 SUCCESSORS AND ASSIGNS
17.1 No Assignment
A. Due to the unique qualifications of CONTRACTOR upon which OWNER is relying in
entering the Contract, CONTRACTOR shall not assign or otherwise transfer or
alienate any of its benefits or obligations under the Contract without the advance
written approval of OWNER, and any purported assignment, transfer, or alienation
by CONTRACTOR of such benefits or obligations without such approval shall be null
and void.
B. The Contract shall inure to the benefit of and be binding upon, the parties and their
respective successors and assigns.
ARTICLE 18 PATENTS AND OTHER INTELLECTUAL PROPERTY RIGHTS
18.1 Patent Fees and Royalties; Indemnification
A. CONTRACTOR shall secure all rights and pay all license fees and royalties and
assume all costs incident to the use in the performance of the Works or the
incorporation in the Works of any invention, design, process, product, or device
which is the subject of patent rights, copyrights, or other intellectual property rights
held by others.
B. CONTRACTOR shall defend, indemnify, hold harmless OWNER, ENGINEER, , and
the present and future officers, shareholders, directors, officials, employees,
representatives, agents, partners, affiliates, parents, and subsidiaries of each and
any of them from and against any and all liabilities, damages, penalties, fines,
forfeitures, demands, claims, causes of actions, suits, judgments, losses, costs, and
expenses of every kind (including, but not limited to, all fees and charges of
engineers, architects, attorneys, and other professionals and all court or arbitration
or other dispute resolution costs), whether foreseeable or unforeseeable, which
any or all of them may hereafter suffer, incur, be responsible for, or pay out, as a
result of any violation or an alleged violation of any patent rights, trade secrets,
copyrights, or other intellectual property rights resulting, in whole or in part, from
any act or omission by CONTRACTOR or any Representative.
C. The provisions of this Article 18 shall survive final payment, completion, and
acceptance of the Works, or termination or completion of the Contract.
004074 (87) A -17
ARTICLE 19 INDEMNIFICATION
19.1 CONTRACTOR's Indemnification
A. CONTRACTOR shall assume entire responsibility and liability, to the fullest extent
permitted by Laws and Regulations, for all damages or injury to all persons
(including, but not limited to, sickness, disease, or death), whether employees or
otherwise, and to all property including, without limiting the generality of the
foregoing, loss of use, or contamination of or adverse effects on the environment or
any natural resources, arising out of, resulting from, or in any manner connected
with, the execution of the Works provided for in the Contract or occurring or
resulting from the use by CONTRACTOR, or any Subcontractor, Supplier, or
Representative, of materials, equipment, instrumentalities, or other property,
whether the same be owned by OWNER, CONTRACTOR, or third parties, and
CONTRACTOR, to the fullest extent permitted by Laws and Regulations, agrees to
indemnify and save harmless OWNER, ENGINEER, and the present and future
officers, shareholders, directors, officials, employees, representatives, agents,
partners, affiliates, parents, and subsidiaries of each and any of them from and
against all such claims including, without limiting the generality of the foregoing,
claims for which OWNER or ENGINEER may be or may be claimed to be liable and
legal fees and disbursements paid or incurred to enforce the provisions of this
Paragraph 19.1, and CONTRACTOR further agrees to obtain, maintain, and pay for
such insurance coverage and endorsements as will insure the provisions of this
Paragraph 19.1.
B. The indemnification obligations under this Article 19 shall not be limited in any way
by the amount or type of damages, compensation, or benefits payable under
worker's compensation acts, disability benefit acts, other employment benefit acts,
or the amount of insurance carried or recovered.
C. The provisions of this Article 19 shall survive final payment, completion, and
acceptance of the Works, or termination or completion of the Contract.
ARTICLE 20 MISCELLANEOUS
20.1 Governing Law and Venue
A. The formation, validity, performance, and breach of the Contract and any matter
relating thereto, and all claims, disputes, or actions whatsoever of any nature
between the parties, shall be construed, enforced, and determined in accordance
with the laws of the Province of Ontario.
20.2 Complete Agreement
A. The Contract contains the entire agreement of the parties, and cancels and
supersedes all prior negotiations and agreements of the parties, with respect to its
subject matter. There has been no promise or representation made by either party
to induce the other party to enter into the Contract which is not set forth in the
Contract. The fact that a deletion from or addition to the Contract has been made
during its negotiation shall not be used for any purpose, including without
004074 (87) A -18
limitation for the purpose of interpreting the Contract. No principle providing for
the construction or interpretation of an agreement adverse to its drafter shall apply
to the Contract. The Contract shall not be set aside, modified, amended, or
augmented, in whole or in part, except in writing signed by a duly authorized
representative of each party.
20.3 Severability
A. Every paragraph, part, term, or provision of the Contract is severable from the
others. If any paragraph, part, term, or provision of the Contract is construed or
held to be void, invalid, or unenforceable by order, decree, or judgment of a court
of competent jurisdiction, the remaining paragraphs, parts, terms, and provisions of
the Contract shall not be affected thereby but shall remain in full force and effect.
20.4 Survival of Obligations
A. All representations, releases, waivers, indemnifications, warranties, guarantees,
and similar agreements made in, required by, or given in accordance with the
Contract Documents, as well as all obligations of the Contract Documents which are
expressly or implicitly continuing obligations, shall survive final payment,
completion, and acceptance of the Works, or termination or completion of the
Contract.
20.5 Cumulative and Non - Exclusive Rights and Remedies
A. The individual rights and remedies of OWNER under the Contract Documents shall
be cumulative and in addition to, not in lieu of, any other rights and remedies of
OWNER provided at law or in equity.
20.6 Waiver
A. A waiver of any provision of the Contract Documents shall be binding and effective
only if the same shall be in writing signed by both parties hereto. A waiver of any
breach of the Contract Documents shall be for that one time only and shall not
apply to any subsequent breach, unless otherwise agreed to in writing by both
parties hereto. OWNER's acceptance of a late or otherwise non - conforming
performance by CONTRACTOR shall not be deemed a waiver of OWNER'S right to
hold CONTRACTOR liable for any damage resulting therefrom nor OWNER'S right to
terminate the Contract for cause related to the same. The failure of either party to
insist in one or more instances upon the terms of the Contract, or to exercise any
right hereunder, shall not be construed as a waiver of the future performance of
any such term or the future exercise of such right, and the obligation of each party
with respect to such future performances shall continue in full force and effect.
20.7 Specific Performance
A. Failure of CONTRACTOR to comply strictly with the provisions of the Contract, as
amended by all Written Amendments and Change Orders, shall entitle OWNER to
all rights and remedies for breach of contract, and OWNER shall be entitled, at its
sole discretion and option, to obtain specific performance by CONTRACTOR solely
upon a showing of any breach of the Contract, as amended by all Written
Amendments and Change Orders, and without (i) posting by OWNER of any bond or
security therefore, or (ii) any other showing.
004074 (87) A -19
20.8 Independent Contractor
A. CONTRACTOR shall be an independent contractor, maintaining control over its own
employees and operations, and neither CONTRACTOR nor anyone employed by
CONTRACTOR shall be deemed to be a servant, employee, or agent of OWNER.
CONTRACTOR shall be fully responsible for and shall withhold or pay, or both, as
may be required by Laws and Regulations, all federal, provincial, and local taxes and
contributions with respect to, measured by, or based upon compensation paid to or
earned by CONTRACTOR's employees.
20.9 Health and Safety
A. CONTRACTOR to sign Municipality of Kincardine Occupational Health and Safety
Compliance Form included as Exhibit H.
004074 (87) A -20
CONTRACTOR and OWNER hereby agree to the full performance of the covenants herein contained and
IN WITNESS WHEREOF:
have signed this Agreement as of the day and year first written. This Agreement bears the formal date
aforementioned and shall be for all purposes retroactive to such date even though signed and acknowledged on
the dates mentioned below,
SIGNED IN THE PRESENCE OF:
The Corporation of the Municipality of Kincardine Wellington Construction Contractors
OWNER . ONTRACTOR
BY 1 • • BY
(Authorized Signature) (Authorized Signature)
��lea Oxrk .1iM 1
(P Name) (Print Name)
(Print Title) (Print Title)
This 8th day of July 2015 This 8th day of July 2015
at atv Dn�T
(Location) (Location)
WITNESS WITNESS J. •
Note: If CONTRACTOR is a corporation or partnership, attach evidence of authority to sign.
END OF AGREEMENT
004074 (87) A -21