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CITY OF MUSKEGON
CITY COMMISSION MEETING
September 9, 2024 @ 5:30 PM
MUSKEGON CITY COMMISSION CHAMBERS
933 TERRACE STREET, MUSKEGON, MI 49440
AGENDA
☐ CALL TO ORDER:
☐ PRAYER:
☐ PLEDGE OF ALLEGIANCE:
☐ ROLL CALL:
☐ HONORS, AWARDS, AND PRESENTATIONS:
A. Recognize Joshua Fors - Michigan Sexton of the Year Manager's Office
B. Regional Transit Authority Articles of Incorporation Manager's Office
C. Port Development Conversation Manager's Office
D. Nelson House Purchase and Development Agreement Planning
E. Short-Term Rental - Final Ordinance Presentation Manager's Office
☐ PUBLIC COMMENT ON AGENDA ITEMS:
☐ CONSENT AGENDA:
A. Approval of Minutes City Clerk
B. Nims Water Tower Cellular Antenna Lease Renewal Public Works
C. Marshall Water Tower Cellular Antenna Lease Renewal Public Works
D. Contract Award - 2024 Mill and Resurfacing Project Public Works
E. Amendment for Engineering Services - Olthoff Drive Extension Project
Public Works
F. Washwater Pump Replacement Valves DPW- Water Filtration Plan
G. Request to amend the planned unit development (PUD) at 3400, 3460,
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3474 Wilcox Avenue, 1875 Waterworks Road, and 1490 Edgewater Street
(the Docks). SECOND READING Planning
H. Rezoning of 349 W Webster Ave from Form Based Code, Urban
Residential (FBC, UR) to Form Based Code, Neighborhood Core (FBC,
NC). SECOND READING Planning
I. Rezoning of 1700 Oak Ave from Medical Care (MC) to Low-Density
Multiple Family Residential (RM-1). SECOND READING Planning
☐ PUBLIC HEARINGS:
☐ UNFINISHED BUSINESS:
☐ NEW BUSINESS:
☐ ANY OTHER BUSINESS:
☐ PUBLIC COMMENT ON NON-AGENDA ITEMS:
► Reminder: Individuals who would like to address the City Commission shall do the following:
► Fill out a request to speak form attached to the agenda or located in the back of the room.
► Submit the form to the City Clerk.
► Be recognized by the Chair.
► Step forward to the microphone.
► State name and address.
► Limit of 3 minutes to address the Commission.
☐ CLOSED SESSION:
☐ ADJOURNMENT:
AMERICAN DISABILITY ACT POLICY FOR ACCESS TO OPEN MEETINGS OF THE CITY OF
MUSKEGON AND ANY OF ITS COMMITTEES OR SUBCOMMITTEES
To give comment on a live-streamed meeting the city will provide a call-in telephone
number to the public to be able to call and give comment. For a public meeting that is
not live-streamed, and which a citizen would like to watch and give comment, they
must contact the City Clerk’s Office with at least a two-business day notice. The
participant will then receive a zoom link which will allow them to watch live and give
comment. Contact information is below. For more details, please visit:
www.shorelinecity.com
The City of Muskegon will provide necessary reasonable auxiliary aids and services, such
as signers for the hearing impaired and audio tapes of printed materials being
considered at the meeting, to individuals with disabilities who want to attend the
meeting with twenty-four (24) hours’ notice to the City of Muskegon. Individuals with
disabilities requiring auxiliary aids or services should contact the City of Muskegon by
writing or by calling the following:
Ann Marie Meisch, MMC. City Clerk. 933 Terrace St. Muskegon, MI 49440. (231)724-6705.
clerk@shorelinecity.com
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Regional Transit Authority Articles of
Incorporation
Submitted by: LeighAnn Mikesell, Deputy City Department: Manager's Office
Manager
Brief Summary:
Staff and a guest from the Muskegon Area Transit System will be presenting the proposed Articles of
Incorporation for the new regional transit authority.
Detailed Summary & Background:
In November 2023, the City Commission approved a resolution of intent to join other municipalities in
forming a regional transit authority. The first formal step for the group is to establish Articles of
Incorporation. The legislative body of each member agency will need to approve the articles for the
authority to proceed forward with developing bylaws and seeking funding.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 GOAL 4: FINANCIAL INFRASTRUCTURE - Maximized efficient use of existing infrastructure
Amount Requested: Budgeted Item:
N/A Yes No N/A X
Fund(s) or Account(s): Budget Amendment Needed:
N/A Yes No N/A X
Recommended Motion:
Presentation only
Approvals: Guest(s) Invited / Presenting:
Immediate Division
Head Yes
Information
Technology
Other Division Heads
Communication
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Legal Review
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ARTICLES OF INCORPORATION
OF THE
MUSKEGON AREA TRANSIT SYSTEM (MATS)
Article I
Formation
These Articles of Incorporation are executed and adopted by the Incorporating Political Subdivisions
listed below to incorporate a public authority under the Public Transportation Authority Act of the State
of Michigan, P.A. 196 of 1986, as amended (“Act 196”). The Incorporating Political Subdivisions
anticipate that the Authority will enter into agreements with the County of Muskegon, the State of
Michigan, and the Federal Transit Administration as may be necessary for the authority to acquire all of
the County of Muskegon’s public transportation assets and assume all public transportation liabilities to
the extent permitted under Act 196.
Article II
Name, Incorporating Political Subdivisions, and Authority District
Section 1. Name. The name of the Authority is the Muskegon Area Transit System.
Section 2. Incorporating Political Subdivisions. The following political subdivisions located within
Muskegon County, Michigan, are the Incorporating Political Subdivisions and initial Members of the
Authority:
City of Muskegon
City of Muskegon Heights
City of Norton Shores
City of Roosevelt Park
Additional political subdivision(s) may become Members or additional portions of a Member political
subdivision may be added to the Authority District after the formation of the Authority upon resolution
adopted by a majority vote of the members elected to, and serving on, the legislative body of the political
subdivision requesting such membership or addition and upon approval by a two-thirds vote of the
Authority Board of Directors, and upon proper adoption of an Amendment to these Articles as outlined
herein.
Section 3. Authority District. For purposes of property tax levies as permitted by Act 196, the Authority
shall have an “Authority District” with a geographic boundary that includes all of the voting precincts that
have been authorized for inclusion by the Members in these Articles of Incorporation, as may be
amended. The initial Authority District shall include:
City of Muskegon – All Precincts
City of Muskegon Heights – All Precincts
City of Norton Shores – All Precincts
City of Roosevelt Park – All Precincts
The Muskegon Area Transit System may provide its services both within the boundaries of its Authority
District and outside of its Authority District in accordance with Act 196.
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Article III
Purposes and Powers of the Authority
Section 1. Purposes. The purposes for which the Authority is created are:
a. To provide public transportation services to the extent authorized by Act 196, including to
plan, promote, finance, acquire, improve, enlarge, extend, own, construct, operate, maintain,
replace, and contract for public transportation services and facilities within the Authority
District.
b. To provide ancillary services incidental, necessary, or convenient in support of the provision
of public transportation services, including the facilitation of multi-modal access and
connections for personal mobility devices, bicycles, pedestrians, inter-city buses, passenger
rail, ports, airports, and other transportation means.
c. To provide public transportation services within or outside the Authority District under
contract or as determined beneficial by the Authority.
d. To succeed to all rights, duties, and obligations of the County of Muskegon regarding public
transportation services to the extent permitted under Act 196.
e. To do all things necessary, suitable, or proper for the accomplishment of the above purposes.
Section 2. General Powers. The Authority has the power to do anything authorized or permitted by Act
196, and to do any other lawful act reasonably necessary, proper, suitable, or convenient for the
achievement or furtherance of the purposes above stated.
Article IV
Board of Directors – Governance of the Authority
Section 1. The Board. The Authority shall be governed by a Board of Directors (the “Board” and/or
“Directors”).
Section 2. Composition. The Board shall consist of four (4) voting Directors. The legislative body of
each Member shall appoint one (1) Director, that being the chief executive, or another upper level
administrative official of the Member. The legislative body of each Member may also appoint one (1)
alternate Director, who shall also be an administrative official, who may attend meetings and otherwise
act on behalf of the Director appointed by that Member.
Section 3. Terms. Each manager, supervisor, or administrative official appointed as Director or alternate
Director shall serve for a term that runs concurrent with the time period for which they hold their office
with the Member that appointed them.
Section 4. Removal / Resignation. Directors and alternate Directors, once appointed, shall continue to
serve until they are reappointed, replaced by an appropriately appointed replacement, removed, or they
resign. Directors and alternate Directors shall serve at the pleasure of the legislative body that appointed
them and may be removed for any reason in the same manner by which they were appointed. A Director
desiring to resign shall submit such resignation in writing to the Chairperson of the Authority Board of
Directors and to the Member that appointed them. Such resignation shall take effect upon receipt of the
resignation by the Chairperson of the Board of Directors. The legislative body that made the appointment
of the removed or resigning Director shall make a replacement appointment within sixty (60) days of the
removal action or accepted resignation. Professionalism and attendance at Board meetings is imperative
and the Board may, by a two-thirds vote of the Authority Board of Directors, formally request that a
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legislative body appoint a replacement Director for a pattern or practice of unexcused absence or for
conduct unbecoming.
Section 5. Board Meetings. – The Board shall hold an initial meeting at a time and place selected and
agreed to by the Board members for the purpose of appointing officers, adopting bylaws, and taking any
other action the Board deems necessary. Thereafter, the Board shall hold at least an annual meeting at
such place and time as shall be fixed by the Board. The Board shall transact other business as may be
necessary at its annual meeting and shall hold regular meetings on a schedule to be determined by the
Board.
Section 6. Voting and Decisions. Each Director shall have one (1) vote. Decisions of the Board shall
require a majority vote of the total number of Directors present at any meeting of the Board in which a
quorum is present.
Section 7. Quorum. A majority of the total number of Directors then in office who are present at a duly
held meeting shall constitute a quorum for conducting business at any meeting of the Board. Attendance
by electronic means shall be allowed only as permitted by applicable law.
Section 8. Compensation of Directors. Directors shall not be compensated by the Authority for
attendance at meetings of the Board. Directors shall be entitled to reimbursement by the Authority for
actual expenses incurred in the discharge of their official duties as determined by the Authority.
Section 9. Indemnification of Directors. The Board shall indemnify Directors of the Authority to the
fullest extent permitted by applicable law. The Board may indemnify employees and other agents of the
Authority as permitted by applicable law.
Section 10. Bylaws, Rules and Regulations. The Board shall adopt and establish its own bylaws, rules
and regulations, policies and procedures regarding the operation, maintenance and management of the
public transportation system.
Section 11. Open Meetings Act. The Board is a public body subject to the Open Meetings Act, PA 267
of 1976, as amended, and all meetings of the Board shall be open to the public.
Article V
Financial Matters
Section 1. Financial Records. The Authority shall maintain adequate financial records in accordance
with law and generally accepted accounting principles.
Section 2. Annual Report. The Authority shall prepare an annual report on the Authority’s operation and
financial condition, which shall be made available to the public and transmitted to the Members of the
Authority.
Section 3. Audits, Budgets, and Appropriations. The Authority shall provide for audits, budgets, and
appropriations as required by Act 196.
Section 4. Fiscal Year. The Authority shall operate on a Fiscal Year beginning October 1 annually.
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Article VI
Local Funding for Public Transportation Purposes
Section 1. Property Tax Levy. The Authority may levy property taxes on all of the taxable property
within the limits of the Authority District for public transportation purposes as permitted by Act 196 and
these Articles. Taxes shall not be levied except upon the approval by a majority of votes cast by
registered and qualified electors residing in the Authority District and voting on the proposal(s) as
authorized by Act 196. Any election on a transit revenue proposal initiated by the Authority shall be
conducted and certified in accordance with Act 196.
Section 2. Collection of a Tax Levy. Any tax levy approved by the electorate shall be collected and
transmitted to the Authority in accordance with the requirements of Act 196.
Section 3. Local Share Contribution Funding from Incorporating Political Subdivisions. Upon formation
of the Authority, the Incorporating Political Subdivisions shall begin contributing quarterly to the
Authority an amount equal to the funding levels paid by each Incorporating Political Subdivision for
County-governed public transportation services in 2024. This level of quarterly contribution shall end
after four years, or earlier at such time as a tax levy has been successfully collected by the Authority or an
alternative local funding formula has been agreed by contract. No further Local Share Contribution under
this Section shall be required of the Incorporating Political Subdivisions for the general purpose of
forming the Authority. Local funding may be required as outlined elsewhere.
Section 4. Should a levy contemplated by this Article fail within four years of Authority formation, a
Member may, by adoption of a resolution by a majority of the members elected to and serving on the
legislative body of the Member, present to the Authority a request to be released from membership in the
Authority. The Authority will not unduly decline the request and will act affirmatively as outlined in
Article IX, Section 1(b), below.
Section 5. Local Jurisdiction and Contract Funding. The Authority shall have the ability to contract to
provide services as it deems appropriate consistent with these Articles and Act 196. Contracts may
include those entered with local municipalities, including Members, that provide for the purchase of
service types or service levels not otherwise available or not offered in like manner across the entire
Authority District.
Section 6. Funding equal to Tax Levy for New Subdivisions. In the event that a new Member (or
additional voting precincts of an existing Member) is added to the Authority District after its formation,
the Member requesting such addition shall be required to provide quarterly funding at an amount agreed
with the Authority (if no tax levy has yet been passed). If a tax levy has been approved for collection, the
new (or expanded) Member shall provide annual funding equal to the value of the tax levy that would
have been assessed to the Member had it been included in the most recent tax levy. Such payment shall
continue annually until the new Member’s voting precincts can be included in a subsequent tax levy.
Article VII
Filing and Publication
Section 1. Filing and Publication. Within thirty (30) days after the signing of these Articles of
Incorporation by all Incorporating Political Subdivisions, the Muskegon County Administrator, or his/her
designee, shall:
(a) Publish a copy of these articles at least once in a newspaper circulated within the area
proposed to be served by the Authority, and
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(b) File a copy of these Articles with the Secretary of State, the Muskegon County Clerk, and the
Director of the Michigan Department of Transportation
Section 2. Effective Date. These articles shall become effective immediately upon filing and publication
as described above.
Section 3. Subsequent Filings. Publication and filing of Amendments to these Articles shall be
consistent with Section 1 and Section 2, but shall be performed by the Chairperson of the Authority Board
of Directors or his/her designee as the responsible official instead of the County Administrator.
Article VIII
Amendment
Section 1. These Articles may be amended upon a resolution adopted by two-thirds of the legislative
bodies that are, at the time of the proposed amendments, participating as Members of the Authority. No
amendment shall be effective until the amendment is filed and published in the same manner as required
for adoption of these Articles.
Article IX
Release or Withdrawal from Authority
Section 1. An Incorporating Political subdivision may be released from membership in the Authority if
all the following conditions are met:
(a) Adoption of a resolution by a majority of the members serving on the governing or legislative
body of the Incorporating Political Subdivision requesting release from membership.
(b) Acceptance of the request by a 2/3 vote of the members serving on the board of the
Authority, excluding the members representing the political subdivision requesting release.
(c) Payment or the provision for payment is made regarding all obligations of the Incorporating
Political Subdivision to the public authority or its creditors.
Section 2. Notwithstanding the provisions of Section 1, an Incorporating Political Subdivision may also
be released from membership in the authority if all the following conditions are met:
(a) A petition subject to section 5488 of the Michigan election law, 1945 PA 116, MCL 168.488,
that bears the signatures of registered electors of the Incorporating Political Subdivision equal
to at least 20% of the number of votes cast in the Incorporating Political Subdivision for all
candidates for governor in the last general election in which a governor was elected and that
requires the governing body of the Incorporating Political Subdivision entity by resolution to
submit the question to its electors at the next general or special election is filed not less than
60 days before the election with the clerk of the entity presenting the question.
(b) The Incorporating Political Subdivision desiring to withdraw from the authority has approved
the question by a majority of the qualified and registered electors voting at a general or
special election held in November before the expiration of a tax authorized to be levied under
this act.
(c) The vote upon the question approving the resolution is by ballot and is in substantially the
following form: "Shall __________ (the Incorporating Political Subdivision) as provided by
1986 PA 196 withdraw from the authority as a member? Yes ____ No ____".
(d) All ballots are cast, canvassed, and the results of the election certified in the same manner as
ballots on any other question submitted to the electors of the entity seeking withdrawal
pursuant to the Michigan election law, 1954 PA 116, MCL 168.1 to 168.992.
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(e) Payment or the provision for payment is made regarding all obligations of the political
subdivision to the public authority or its creditors. If withdrawal is approved by a majority of
the electors voting on the question, the decision will take effect at the expiration date of the
tax and neither the Authority nor officials of the other political subdivision(s) may appeal or
amend this decision.
Section 3. Notwithstanding Section 1 and 2 above, an Incorporating Political Subdivision that is part of
the Authority may withdraw from the Authority in any year in which a tax authorized to be levied under
Act 196 of 1986 expires, without meeting the conditions listed in Section 1 or 2, if the Incorporating
Political Subdivision makes the determination to withdraw by a vote of its legislative body held in
January of that year.
Article X
Savings Clause
Section 1. Savings Clause. The invalidity or unenforceability of any term in these Articles shall not
affect the validity or enforceability of any remaining term in these Articles.
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Endorsements
The foregoing articles of incorporation were adopted by an affirmative vote of a majority of the members
serving on the governing or legislative body of _________________________, __________ at a meeting
duly held on the _____ day of _____________, A.D., 20__.
______________________________
___________
______________________________
The foregoing articles of incorporation were adopted by an affirmative vote of a majority of the members
serving on the governing or legislative body of _________________________, __________ at a meeting
duly held on the _____ day of _____________, A.D., 20__.
______________________________
___________
______________________________
The foregoing articles of incorporation were adopted by an affirmative vote of a majority of the members
serving on the governing or legislative body of _________________________, __________ at a meeting
duly held on the _____ day of _____________, A.D., 20__.
______________________________
___________
______________________________
The foregoing articles of incorporation were adopted by an affirmative vote of a majority of the members
serving on the governing or legislative body of _________________________, __________ at a meeting
duly held on the _____ day of _____________, A.D., 20__.
______________________________
___________
______________________________
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Port Development Conversation
Submitted by: Jonathan Seyferth, City Manager Department: Manager's Office
Brief Summary:
Representatives from Mart Dock will present outlines of a proposal for port development in
Muskegon, which includes increased public access along the eastern edge of Muskegon Lake and
downtown.
Detailed Summary & Background:
Several years ago, the City of Muskegon and Mart Dock began discussions on the possibility of a
"land swap" between the two entities, which would include the property at Fisherman's Landing (city
property) and what's referred to as the Third Street Pier (Mart Dock property). For various reasons,
those conversations did not result in a deal.
Recently, city staff and the Mart Dock have again started these conversations, but with a broader
focus that looks at opening additional Muskegon Lake access on the east side of the lake (a
concept of areas that could be used for east-side public access is attached - no details have been
finalized and this is for conversation example only) and a complete picture of what downtown
access could look like from Terrace Point west to GVSU's AWRI facility (Mart Dock will present on this
concept Monday).
This conversation relates to the more extensive waterfront development conversations that started
following the city's completion of its master planning process last year. Multiple parties are involved in
these conversations, including Muskegon County, WMSRDC, Parkland Properties, and the Muskegon
Lakeshore Chamber of Commerce.
A key part of this conversation is relocating the current Mart Dock port operations to the Fisherman's
Landing site and completely redeveloping the Mark Dock into mixed uses with extensive public
access. Mark Dock envisions containerized operations on the Fisherman's Landing site.
A factor that has changed since the city's initial conversation with the Mart Dock is the possibility of
acquiring the Verplank Property to the east of Fisherman's Landing and greatly expanding public
access along the south branch of the Muskegon River and out onto Muskegon Lake (this is often
referred to as an expansion of Richards Park because of its proximity to and likely connection to
Richard Park if the development were to occur).
Although many broad strokes are noted here and have been discussed, we're closer to the
beginning of this conversation rather than the end. There will be a plan and opportunity for public
feedback, especially as it relates to new access along the east end of Muskegon Lake.
If the City Commission is comfortable with what is discussed at this meeting, city staff will begin
drafting a formal agreement with Mark Dock that will formalize the logistics of the process to possibly
set up a land transfer between the two parties and key milestones that will be inflection points. The
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objective is to produce an agreement establishing a road map for how public access would be
maintained and increased and outline the city's commitment to actively partner with Mark Dock in
applying for Federal Port Development Grants. These grants would be critical in financing any
redevelopment of Muskegon's port.
Mart Dock will attend the meeting on Monday to present some of their ideas and make some
commitments about how they are willing to move the project forward.
Key Topics for Discussion on Monday:
- Mart Dock's vision for its property in the future
- City staff discussing how public access on the east side of the lake could be expanded to the
public as a result of this development
- Mart Dock's ideas related to a port collaborative on Muskegon Lake and how that could positively
impact the community (and who, potentially, would be included in that collaborative)
- Guarantees of additional public access at Third Street even if federal grants are not successfully
obtained
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Improved access to the waterfront
Goal/Action Item:
2027 Goal 1: Destination Community & Quality of Life - Improved access to waterways
Amount Requested: Budgeted Item:
n/a Yes No N/A X
Fund(s) or Account(s): Budget Amendment Needed:
n/a Yes No N/A X
Recommended Motion:
Discussion only
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head Yes
Information
Technology
Other Division Heads
Communication
Legal Review
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Aspen woods
Native restoration
Existing or restored wetland
Vehicular access
Pedestrian and bike trail
Park Expansion
Port Use – 25 acres
Port Use - Flex
Port
Port Use
Use - Primary
Boat Launch Area
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Nelson House Purchase and Development
Agreement
Submitted by: Jamie Pesch, Planner Department: Planning
Brief Summary:
Discussion on the Nelson House purchase and development agreement.
Detailed Summary & Background:
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
Amount Requested: Budgeted Item:
Yes No N/A
Fund(s) or Account(s): Budget Amendment Needed:
Yes No N/A
Recommended Motion:
Approvals: Guest(s) Invited / Presenting:
Immediate Division
Head No
Information
Technology
Other Division Heads
Communication
Legal Review
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CITY OF MUSKEGON REQUEST FOR BID
Nelson House Purchase and Redevelopment Request for Bids
Introduction:
The City of Muskegon is seeking bids from qualified buyers for the purchase and remodeling of
the structure located at 382 West Muskegon Avenue., Muskegon, MI 49440, commonly known
as the Nelson House. This project involves acquisition and complete renovation of the structure
for the purpose of utilization as an owner-occupied, single family home. The goal of this project
is to preserve the historically significant structure, enhance the area's aesthetic appeal, and to
increase owner-occupied housing stock in the community.
Project Description:
The City of Muskegon Development Services Division will contract with a qualified buyer that
can demonstrate financial capability to complete the remodeling and occupancy of the Subject
Property. This Division is responsible for managing the city’s Community Neighborhood
Services, Planning Department, and Economic Development initiatives. These departments
oversee zoning, site plans, and business development services, ensuring compliance with city
regulations and fostering community growth.
Buyer Requirements:
1. Proof of Financing and Purchase Price Offer:
o Bid materials shall include the price offered for the Subject Property, method of
payment (cash/loan) and proof of financing or capability to achieve financing.
Accepted
2. Exterior Targeted Demolition and Renovation Plan:
o The City has not completed a formal inspection of the subject property’s
exterior. Stabilization of the exterior to prevent further deterioration should be a
priority in any bid.
o Buyer shall be responsible for any necessary removals (siding, existing roofing
material, window casings, etc)
o Specific timeline for commencement for exterior renovations will be dictated in a
purchase and development agreement approved by the City Commission, but
shall commence no later than 90 days after closing.
3. Interior Renovation Plan:
o Bidders shall submit a proposed timeline and detailed scope of renovation from
a licensed contractor with their bid.
o Specific timeline for commencement of interior renovations will be dictated in a
purchase and development agreement approved by the City Commission, but
shall commence no later than 150 days after closing.
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Property Information
382 W. Muskegon Avenue Muskegon, MI
General Information:
The Subject Property is a historic single family home that has been recently relocated to the
parcel at 282 W. Muskegon Avenue in Downtown Muskegon, Michigan. The home sits in a
registered Historic District, and all exterior renovations of the Subject Property, fencing,
additions, or accessory structures will be required to receive approval from the Historic District
Commission. The City of Muskegon and Muskegon Public Schools have completed asbestos
abatement and removal within the structure, a report of which is available to Bidders or their
representatives for review at City Hall.
Owner City of Muskegon
Owner Address 933 Terrace St. Muskegon, MI 49440
Property Address 382 W. Muskegon Avenue, Muskegon, MI 49440
Property Number 61-24-205-336-0008-00
Year Built 1890 approx.
Occupancy Not occupied
Existing Condition Exterior Photos
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Proposal Submission Requirements:
Proposals must clearly state the name, address, phone number, and email address of the
Bidder. By submitting a sealed bid, Bidders acknowledge that any agreement for sale of the
Subject Property shall require:
• Commitment to Owner-Occupy: The City Commission and the community at large have
prioritized increasing the number of owner-occupiers in the City of Muskegon. The
successful Bidder will commit in their sealed bid and in the Purchase and Development
Agreement to establish the Subject Property as their primary residence upon project
completion. The City intends to file a deed restriction requiring owner-occupancy at the
Subject Property in perpetuity to the extent permissible by law.
• Work Timeline: Successful Bidders will accept and comply with the development
milestone requirements as reflected in the Purchase and Development Agreement.
Namely, exterior stabilization to be commenced within 90 days of closing and interior
renovations commenced within 150 days of closing. Project completion and occupancy
should not exceed a total project timeline of 12 months.
• Reverter Clause: Successful Bidders will accept and acknowledge that the City of
Muskegon will include a “reverter clause” in the Purchase and Development Agreement
which will allow for “claw back” of the Subject Property in the event Bidder is not
making adequate progress or is otherwise in breach of the Agreement.
• Project Budget: Bidders will provide a total cost estimate for all anticipated renovations
along with evidence of financial capability to perform said improvements.
• Contractor Information: Bidders will provide license information, at least one sample
project, and references for the general contractor that will complete the project on
Bidder’s behalf.
• Compliance with City Goals: Attention is called to the fact that the City requires that the
Contractor employ local trades and laborers insofar as possible; the goals established
are 14% minority and 7% female participation in each trade. The Contractor must
ensure employees and applicants for employment are not discriminated against based
on race, creed, color, religion, sex, national origin, handicapped condition, or veteran
status, and that all pertinent regulations are complied with. The City of Muskegon
reserves the right to reject any or all bids or to waive any informalities or irregularities in
the bidding.
Proposal Deadline:
Proposals are due by 2:00 p.m. local time on Thursday, November 21st, 2024. They must be
sealed and delivered to: Muskegon City Hall, City Clerk’s Office, 933 Terrace Street, P.O. Box
536, Muskegon, MI 49440. Proposal envelopes should be marked “Nelson House Purchase
Sealed BID”. Staff anticipates presenting a recommendation to the City Commission at their
December 10, 2024 meeting.
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Pre-Proposal Questions:
Please direct all questions to:
• Jamie Pesch, Planner Jamie.Pesch@shorelinecity.com 231-724-4405
Important Considerations:
• Site Visit: Prospective Bidders and their contractor are REQUIRED to visit the site before
submitting their proposals to fully understand the scope of the project. Bidders must
contact Jamie Pesch in the City of Muskegon Planning Department to coordinate site
access. There is no limit to the number of visits but there will be no exploratory
demolition permitted.
• Permits and Licenses: The selected Bidder will be responsible for obtaining all necessary
permits and licenses to complete the renovations.
• Safety and Environmental Compliance: Bidders must adhere to all safety and
environmental regulations throughout any site visits.
Page 21 of 399
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Short-Term Rental - Final Ordinance
Presentation
Submitted by: Jonathan Seyferth, City Manager Department: Manager's Office
Brief Summary:
Following feedback from the City Commission and the public the staff has updated the proposed STR
Ordinance.
Detailed Summary & Background:
In August, the staff presented a proposed ordinance change focused on short-term rentals (STRs) in
the City of Muskegon. The proposed ordinance has been updated following feedback from the City
Commission and the public.
The staff still proposes separating the city into zones based on Federal Census Tracts and capping
STRs within each zone to 4% of the total housing stock. Staff also recommends that the DDA and
Lakeside BID districts be pulled out of these tracts to encourage short-term rentals in these zones. This
will adjust the Lakeside and North Nelson/Jackson Hill tract caps. Updated caps for each zone/tract
are on the following page. I should note that by removing the Lakeside BID from the cap, the
Lakeside Tract went from having more STRs than the cap would allow to fewer and opening up
seven (7) additional licenses within that census tract.
Taking into consideration additional feedback, the staff is also recommending that current properties
with active STR licenses be able to be sold and have their STR licenses transferred to the new owner -
if the new owner can meet STR application requirements. Additionally, the new owner must apply for
their STR license within 60 days of the purchase of their property, or they forfeit their right to an STR
license.
The staff plans to hold a special Planning Commission meeting the week of September 16 to hold a
public hearing on the STR ordinance and then bring the ordinance to the City Commission for final
consideration on October 8, 2024.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 Goal 1: Destination Community & Quality of Life
Amount Requested: Budgeted Item:
N/A Yes No N/A X
Fund(s) or Account(s): Budget Amendment Needed:
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N/A Yes No N/A X
Recommended Motion:
Discussion Only
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Other Division Heads X
Communication X
Legal Review X
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Zoning Recommendation
• Amend Definitions section (Article II) of the zoning ordinance - Short Term Rental: A property in
which a tenant is allowed to lease the dwelling unit or a portion of the dwelling unit for periods
of less than one calendar month but more than 24 hours in return for remuneration.
• Create a Short-Term Rental Overlay District which allows a certain number of Short-Term Rental
certificates in each zone. The zones were created based off of the census tracts. The idea is to
limit the number of Short-Term Rentals in each zone to 4% of the housing stock. Studies have
shown negative impacts to neighborhoods when Short-Term Rentals increase to over 5% of the
housing stock.
Proposed Short-Term Rental Ordinance
Section 2314: Short-Term Rental Overlay District
A Short-Term Rental Overlay District is hereby created as outlined in Figure 23-3. Within said overlay
district, a certain number of Short-Term Rentals are licensed in each zone pursuant to City Code
Sections 10-353 through 10-379. The zones were created using census tract information and will be
periodically reviewed to ensure that this ordinance reflects the appropriate balance of Short-Term
Rentals among other use types.
1. Overlay District:
a. Location: See Figure 23-3 for the location of the overlay district, which is separated into 11
different zones, each allowing their own maximum number of Short-Term Rentals.
b. Number of Short-Term Rentals allowed per zone. A Short-Term Rental must be located in a
unit designated for residential use. The number of Short-Term Rentals allowed in each zone
is as follows:
Zone 1 – 34
Zone 2 – 68
Zone 3 – 60
Zone 4 – 70
Zone 5 – 79
Zone 6 – 25
Zone 7 – 80
Zone 8 – 50
Zone 9 – 95
Zone 10 – 77
Zone 11 – 13
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c. Exemptions: Properties located within the Downtown Development Authority and Lakeside
Business Improvement District boundaries are exempt from this ordinance. There are no
maximum number of Short-Term Rentals allowed within these areas.
2. Restrictions:
a. Neighboring properties: No parcel within the City shall have more than two Short-Term
Rentals abut its property lines.
3. Transferring of licenses:
a. Any person purchasing a property that has an active Short-Term Rental license will have the
opportunity to apply for that particular license. The new applicant will have up to 60 days to
apply with the Inspections Department for the Short-Term Rental license at that particular
address.
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Census Tract Housing Units STR’s Percentage of Units Number of Additional Total STR’s Allowed at
STR’s to get to 4% 4%
1 (Beachwood/Bluffton) 861 73 8.4% -39 34
2 1724 61 3.5% 7 68
(Lakeside/West Glenside)
3 1514 27 1.7% 33 60
(Nims)
5 1992 5 0.002% 74 79
(Downtown/North Nelson/Jackson Hill)
4 1758 5 0.002% 65 70
(Campbell Field/East Glenside)
7 2023 4 0.002% 76 80
(Angell/Marsh Field)
10 1939 1 0.0005% 76 77
(Oakview/Sheldon Park/Oakview)
9 2392 1 0.0004% 94 95
(Marquette/East of 31)
11 346 0 0% 13 13
(East Muskegon)
8 1256 0 0% 50 50
(Angell)
6 643 0 0% 25 25
(South Nelson)
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DRAFT
Short-Term Renal Zones
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Approval of Minutes
Submitted by: Ann Meisch, City Clerk Department: City Clerk
Brief Summary:
Approve minutes of the August 27, 2024, City Commission Meeting.
Detailed Summary & Background:
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
Amount Requested: Budgeted Item:
Yes No N/A x
Fund(s) or Account(s): Budget Amendment Needed:
Yes No N/A x
Recommended Motion:
Approval of the minutes.
Approvals: Guest(s) Invited / Presenting:
Immediate Division
Head No
Information
Technology
Other Division Heads
Communication
Legal Review
Page 28 of 399
CITY OF MUSKEGON
CITY COMMISSION MEETING
August 27, 2024 @ 5:30 PM
MUSKEGON CITY COMMISSION CHAMBERS
933 TERRACE STREET, MUSKEGON, MI 49440
MINUTES
CALL TO ORDER
The Regular Commission Meeting of the City of Muskegon was held at City Hall,
933 Terrace Street, Muskegon, Michigan at 5:30 p.m., Tuesday, August 27, 2024.
Pastor Adam Dollar from Evanston Avenue Baptist Church opened the meeting
with prayer, after which the Commission and public recited the Pledge of
Allegiance to the Flag.
ROLL CALL
Present: Mayor Ken Johnson, Vice Mayor Rebecca St.Clair, Commissioners Jay
Kilgo, Destinee Keener, Willie German, Jr., and Rachel Gorman, City Manager
Jonathan Seyferth, City Attorney John Schrier, and City Clerk Ann Marie Meisch
Absent: Commissioner Katrina Kochin
PUBLIC COMMENT ON AGENDA ITEMS
No public comments were made.
2024-77 CONSENT AGENDA
D. 7th Amendment to Lumberjacks Agreement-Scoreboard Arena
Staff is requesting the Commission's approval for a new center hanging
scoreboard in Trinity Health Arena. The Arena Staff and Muskegon Lumberjacks
are seeking approval to purchase a new scoreboard and add it to the list of
items being addressed to re-negotiate in the 7th amendment. The 6th
amendment which approved the new construction called for some additional
things to be addressed in the Lumberjacks shared use agreement. Arena staff is
requesting to contribute $200,000 from the state MEDC RAP grant award to help
the Lumberjacks offset the total cost of the scoreboard. The Lumberjacks will
fund the balance of the project with a 7 year payback on rent credit starting in
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2027 at an interest rate of 5.25%. The current scoreboard is beyond its life
expectancy and we are no longer able to service the outdated technology.
STAFF RECOMMENDATION: Recommend the Commission allows the City to enter
into an agreement with the Lumberjacks to purchase a new center hung
scoreboard at the Arena.
F. Fluoride Contract Renewal - DPW Filtraton Public Works
Staff is requesting approval to renew our current contract with Univar to supply
fluoride to the Water Filtration Plant. The Water Filtration Plant purchases water
treatment chemicals as part of a cooperative that includes six area
municipalities. The contracts and bidding processes are managed by the City
of Grand Rapids.
In 2023, the City of Grand Rapids issued public bid invitations to supply and
deliver fluoride (hydrofluorosilicic acid) on behalf of the consortium. Staff had
requested and was granted approval for Univar as the lowest bidder for the
delivery of fluoride for a one-year term with two, one-year renewal options. We
are currently at the end of our one-year contract and are requesting to renew it
for a second year (the first of the two renewal periods).
The Water Filtration Plant uses an average of 60 tons of fluoride annually. Under
the renewal contract with Univar, the estimated annual cost based on average
use will be $31,500 ($525/ton). An increase of $1,500 (+$25/ton) from the
previous contract. Fluoride purchases are included in the Water Filtration Plant
budget. Based on average use it is anticipated that no budget adjustments will
be required this fiscal year, however the actual amount spent will ultimately
depend on water usage.
STAFF RECOMMENDATION: To approve a one-year renewal of the contract with
Univar for the supply and delivery of fluoride at a cost of $550 per ton.
H. Modify MERS Defined Benefit (DB) Plan Adoption Agreement Finance
Modify MERS Defined Benefits Plan Adoption Agreement to lump sum payments
of Comp Time. MERS has requested the City to modify its plan to include comp
time payouts. In the past, it was coded as deferred overtime, which MERS
deems as comp time payout.
STAFF RECOMMENDATION: We recommend that the Commission adopts the
modification to all MERS Defined Benefits plans to allow lump sum payments of
comp time.
I. South PM Restroom & Kite Shack Improvements Award DPW- Parks
A public bid was posted on July 25th for the construction of a new restroom at
South Pere Marquette and improvements to the Kite Shack. The target cost was
$700,000, with a grant from the DNR covering $300,000 of that. CooperRock
Construction of Grand Rapids is the low bidder and recommended contract
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awardee for $602,049. CooperRock Construction, out of Grand Rapids,
submitted the low bid for the project, $602,049. Clifford Buck Construction, a
local City of Muskegon bidder (located at 500 Irwin), came in second with a bid
of $630,771. When the 2% local bidding adjustment was applied, Clifford Buck
was still about $16,000 higher.
It should be noted that we are receiving a state grant from the DNR. The DNR
does not recognize local bidding adjustments and requires the City (and any
grant recipients) to go with the low bidder. If we were to choose not to go with
the low bidder, the City would forfeit its DNR grant.
There are some additional project costs related to Consumers Energy moving a
utility pole that are not included in this final bid.
STAFF RECOMMENDATION: To award the Pere Marquette South Restroom & Kite
Shack Improvement project to CooperRock Construction for $602,049.
J. Rezoning of 349 W Webster Ave from Form Based Code, Urban
Residential (FBC, UR) to Form Based Code, Neighborhood Core (FBC,
NC). Planning
The Planning Commission unanimously recommended in favor of the request at
their August meeting. This property is the former location of the Muskegon Public
Schools Administration building. It has been privately owned since 2021. The
applicant is requesting a rezoning to allow the building to be converted into a
hotel, with retail and other mixed-uses. There were no public comments given at
the public hearing.
STAFF RECOMMENDATION: I move to approve the request to rezone the
property at 349 W. Webster Ave. from Form Based Code, Urban Residential to
Form Based Code, Neighborhood Core.
(REQUIRES SECOND READING)
K. Rezoning of 1700 Oak Ave from Medical Care (MC) to Low-Density
Multiple Family Residential (RM-1). Planning
The Planning Commission unanimously recommended approval of the request
at their August meeting. The property is the site of the former Muskegon General
Hospital and is still zoned MC, Medical Care. The site measures just under 26
acres. The applicant is seeking a rezoning to RM-1, Low-Density Multi-Family
Residential to allow for a 144-unit “work force” apartment development. The
plans include the demolition of the existing hospital buildings. The applicant
would utilize about 14 acres of the 26 acre site. The Planning Commission
recommended in favor of the rezoning and also approved the site plan,
contingent upon the City Commission approving the rezoning.
STAFF RECOMMENDATION: I move to approve the rezoning of 1700 Oak Ave
from Medical Care (MC) to Low-Density Multiple Family Residential (RM-1).
(REQUIRES SECOND READING)
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L. Acquisition of vacant buildable lots at 60 E Walton, 1192 Ambrosia, 456
McGlaughlin, 379 McLaughlin, and 1047 Wood Street Economic
Development
Development Services has been working with Rashard Thrower to acquire his
vacant properties with the intent to retain his firm Q9 Development, LLC to
construct affordable infill housing on the properties within the next 48
months. For three years staff have been working with Mr. Thrower to attempt a
housing infill project on these lots. Initially, the owner hoped to build and retain
affordable rental properties on the sites, but due to interest rate increases,
construction cost inflation, and the desire to keep rents low in his home
neighborhood that project concept became non-viable. Staff then worked with
Mr. Thrower to try to develop a "for-sale" project as we have done with other
builders that buy their lots and construct units, but again the prices needed to
generate any return and prevent losses on the project made the homes
unattainable for most folks in the community, and there was some concern that
a lack of comparable sales in these areas would prevent sales from going
through as well.
Finally, staff proposed to Mr. Thrower that the City could potentially acquire the
properties and then retain Mr. Thrower and a contractor partner to build on the
sites, as we have done for the ARP and Midtown phase projects. This would
allow us to build more economical models and keep them at affordable prices
while regaining losses through the Brownfield, while eliminating the risk to Mr.
Thrower were he to build on these lots privately.
The purchase agreement includes a 4-year exclusive right for Mr. Thrower to act
as the builder for the City on these properties. If we do not successfully
complete a residential construction project by then, the City is free to select any
other builder, sell the properties for private construction, or any other
reasonable option. It should be noted that a separate purchase agreement for
a property owned by Mr. Thrower on Peck Street will come to the Commission at
a later meeting, but it made sense to separate that one as it was formerly a gas
station and staff would like a longer due diligence period to conduct an
environmental site assessment.
STAFF RECOMMENDATION: To approve the Real Estate Purchase Agreement as
presented, and to authorize the Mayor and Clerk to sign.
Motion by Commissioner Keener, second by Commissioner Gorman, to adopt
the Consent Agenda minus items A, B, C, E, and G.
ROLL VOTE: Ayes: St.Clair, Johnson, Kilgo, Keener, German, and Gorman
Nays: None
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MOTION PASSES
2024-78 ITEMS REMOVED FROM THE CONSENT AGENDA
A. Approval of Minutes City Clerk
Approve minutes of the August 12, 2024, City Commission Worksession Meeting
and the August 13, 2024, City Commission Meeting.
STAFF RECOMMENDATION: Approval of the minutes.
Motion by Commissioner Kilgo, second by Commissioner Gorman, to approve
the minutes.
ROLL VOTE: Ayes: Gorman, St.Clair, Johnson, Kilgo, Keener, and German
Nays: None
MOTION PASSES
M. Request to Amend the Planned Unit Development (PUD) at 3400, 3460,
3474 Wilcox Avenue, 1875 Waterworks Road, and 1490 Edgewater Street
(The Docks) Planning (ITEM ADDED BY MAYOR)
The plans have been amended to develop around areas that have been
declared as established wetlands. There will be a total of 240 residential units
and a community building with retail/restaurant space. The Planning
Commission unanimously recommended approval of the amended PUD with
the following conditions:
1. The applicant receives a stormwater permit from the Engineering
Department.
2. All utility plans are reviewed and approved by the Engineering
Department.
3. Lane widths of streets are reduced to 9 or 10 feet subject to the
Engineering Department.
4. Bulb outs are eliminated on road A.
5. Road C will be connected back to road B.
6. The parking lot to the southern marina parking lot will be revised as
discussed.
7. Landscaping areas inside of parking areas and streets will be privately
maintained.
8. A public/private street map will be provided and describe the ownership
as discussed with all private/owned roadways being publicly accessible.
9. A landscaping plan is approved by the Planning Department.
Conditions 4, 5, and 6 have been addressed and reflected on the revised plans
in the packet.
STAFF RECOMMENDATION: To approve the request to amend the PUD with the
following conditions:
1. The applicant receives a stormwater permit from the Engineering
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Department.
2. All utility plans are reviewed and approved by the Engineering
Department.
3. Lane widths of streets are reduced to 9 or 10 feet subject to the
Engineering Department.
4. Landscaping areas inside of parking areas and streets will be privately
maintained.
5. A public/private street map will be provided and describe the ownership
as discussed with all privately-owned roadways being publicly
accessible.
6. A landscaping plan is approved by the Planning Department.
Motion by Commissioner Kilgo, second by Commissioner Gorman, to amend
the PUD to add an additional condition that on-street parking, inclusive of
handicap parking, be placed to the north of the structural retaining wall at
Public Road E’s northerly bend.
ROLL VOTE: Ayes: German, Gorman, St.Clair, Johnson, Kilgo, and Keener
Nays: None
MOTION PASSES (REQUIRES SECOND READING)
B. 30-Day Extension of the Short Term Rental Registration Pause Manager's
Office
This will extend the end date of the STR Pause from September 8, 2024, to
October 8, 2024. In March 2024, the City Commission put into place a pause on
Short Term Rental (STR) registrations. The pause is set to expire on September 8,
2024. Because the staff is still finalizing updated STR rules following Commission
feedback, extending the registration pause by 30 days is prudent to ensure the
new rules/ordinances are in place before the pause expires. The new expiration
date would be Tuesday, October 8, 2024. The objective would be to have the
Commission vote on an ordinance in early September 2024.
STAFF RECOMMENDATION: To extend the Short Term Rental Registration Pause
by 30 days, expiring on Tuesday, October 8, 2024.
Motion by Commissioner Kilgo, second by Vice Mayor St.Clair, to extend the
Short Term Rental Registration Pause by 30 days, expiring on Tuesday, October
8, 2024.
ROLL VOTE: Ayes: Keener, German, Gorman, St.Clair, and Johnson
Nays: Kilgo
MOTION PASSES
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C. Write Off of Loan to BoomTown Market, LLC Balance Economic
Development
We have an unpaid balance on our original Economic Development Revolving
Loan to BoomTown Market that must be written off per our auditor's guidance.
In April of 2019, the City received an application for a $55,000 loan from
Boomtown Market for furnishings for their grocery store concept. This loan
application was approved by the City Commission at their June 25, 2019,
regular meeting. By February of 2020, ownership of BoomTown requested to be
temporarily placed on interest only payments due to winter slowdowns, which
were later exacerbated by the Covid-19 pandemic. Sometime later the owner
ran into significant medical issues and decided to close, owing several lenders
and the landlord large sums ahead of our loan in position. This has resulted in
our inability to collect the remainder of the original loan. The total paid to the
City through the life of the loan is $13,933.12. The write off amount, inclusive of
unpaid interest, is $60,164.71.
STAFF RECOMMENDATION: Motion to write off $60,164.71 in unpaid debt owed
by BoomTown Market, LLC as presented.
Motion by Commissioner German, second by Vice Mayor St.Clair, to write off
$60,164.71 in unpaid debt owed by BoomTown Market, LLC as presented.
ROLL VOTE: Ayes: Kilgo, Keener, German, Gorman, St.Clair, and Johnson
Nays: None
MOTION PASSES
E. Rooftop Solar Lease Public Works
Staff requests approval to enter into a lease with Sunwealth LLC for space on
the Trinity Health Arena rooftop for the installation of photovoltaic solar energy
generation equipment. The solar system installed on the arena roof has been in
operation for nearly six months; however, in reviewing their files, the system
owner (Sunwealth LLC) realized that a lease, granting them the right to install
the system on the arena roof, had not been executed. Attorney's at Sunwealth
and Miller Canfield (on behalf of the City) worked to develop this lease and it is
presented to the Commission for approval. The term of the lease is concurrent
with the power purchase agreement (PPA) that governs the two parties' use
and maintenance of the system, which is for 25 years unless extended or unless
the City purchases the equipment earlier. This does not change any of the
particulars of the solar project, it simply allows the system to sit on the arena roof
as intended.
STAFF RECOMMENDATION: To authorize staff to enter into a lease with Sunwealth
LLC for space on the Trinity Health Arena rooftop for the installation of
photovoltaic solar energy generation equipment.
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Motion by Commissioner Kilgo, second by Commissioner German, to authorize
staff to enter into a lease with Sunwealth LLC for space on the Trinity Health
Arena rooftop for the installation of photovoltaic solar energy generation
equipment.
ROLL VOTE: Ayes: Johnson, Kilgo, Keener, German, Gorman, and St.Clair
Nays: None
MOTION PASSES
G. Modify MERS Defined Contribution (DC) Plan Adoption Agreement
Finance
Modify MERS Defined Contribution Plan Adoption Agreement to lump sum
payments of Comp Time. MERS has requested the City to modify its plan to
include comp time payouts. In the past, it was coded as deferred overtime,
which MERS deems as comp time payout.
STAFF RECOMMENDATION: To adopt the modification to all MERS Defined
Contribution plans allowing lump sum payments of comp time.
Motion by Commissioner German, second by Commissioner Kilgo, to adopt the
modification to all MERS Defined Contribution plans allowing lump sum
payments of comp time.
ROLL VOTE: Ayes: St.Clair, Johnson, Kilgo, Keener, German, and Gorman
Nays: None
MOTION PASSES
ANY OTHER BUSINESS
City Manager Jonathan Seyferth commented on short-term rentals - carveouts
and transferability. Commissioner German Stated what a honor it was to attend
the Democratic National Convention as an elected District Delegate. Vice
Mayor St.Clair stated that August 26, 2024, was National Woman’s Equality Day.
Mayo Johnson thanked Commission, staff, and Neighborhood Associations for
the great National Night Out event at Marsh Field. Commissioner Kilgo
mentioned that the next City Commission Meeting will be combined with the
Worksession Meeting on Monday, September 9th, at 5:30 p.m.
PUBLIC COMMENT ON NON-AGENDA ITEMS
Public comments received.
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ADJOURNMENT
The City Commission meeting adjourned at 7:02 p.m.
Respectfully Submitted,
Ann Marie Meisch, MMC City Clerk
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Nims Water Tower Cellular Antenna Lease
Renewal
Submitted by: Dan VanderHeide, Public Works Department: Public Works
Director
Brief Summary:
Staff requests authorization to enter into a 10 year lease renewal agreement with up to 25 years of
extension options with New Cingular Wireless PCS, LLC for space on and near the Nims water tower
for a cellular antenna and related equipment.
Detailed Summary & Background:
Commission authorized Maralat, LLC, a cellular antenna industry consultant, to enter into negotiations
on the City's behalf with AT&T for renewal of their lease on the Nims water tower. Staff, legal counsel
and Maralat have been working with AT&T to finalize the terms of a lease extension and have
reached an agreement as presented in the attached lease agreement. The table below summarizes
the terms in both the prior lease and this proposed extension.
Component Prior Lease Proposed Renewal
Rental Rate $4,938.77 $4,850
Annual Escalation 3% 3%
Commencement Date N/A February 1, 2024
Termination Date September 30, 2018 January 31, 2059
Termination Fee (Initial 10-Year Term) None 100% of Rent for 5 Years, then 50%
Equipment Upgrade Fee None $325 per Month Per New Antenna
Administrative Signing Bonus None $7,500
The proposed lease is the same as the Marshall water tower extension included on tonight's agenda.
Although the rental rate is slightly decreased at the start of the lease, Maralat ensures staff that it
reflects the best available rates and terms available to the City and the lease includes other items
such as a termination fee, an upgrade fee and an administrative signing bonus that make the slight
rent reduction less impactful overall, and the extension continues the 3% annual escalator.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Decrease infrastructure burden on residents, Sustainability in financial practices and infrastructure,
Increase revenue
Page 38 of 399
Goal/Action Item:
2027 GOAL 4: FINANCIAL INFRASTRUCTURE - Increase revenue
Amount Requested: Budgeted Item:
N/A Yes X No N/A
Fund(s) or Account(s): Budget Amendment Needed:
591 (Water) Yes No X N/A
Recommended Motion:
Authorize staff to enter into a 10 year lease renewal agreement with up to 25 years of extension
options with New Cingular Wireless PCS, LLC for space on and near the Nims water tower for a
cellular antenna and related equipment.
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Other Division Heads X
Communication
Legal Review X
Page 39 of 399
Market: MI / IN
Cell Site Number: GRANMI5603
Cell Site Name: Muskegon Nims WT
Fixed Asset Number: 10124755
STRUCTURE LEASE AGREEMENT
THIS STRUCTURE AGREEMENT (“Agreement”), dated as of the latter of the signature dates
below (the “Execution Date”) and effective _____________, 2024 (the “Effective Date”), is entered into by
City of Muskegon, a Michigan municipal corporation, having a mailing address of 933 Terrace Street,
Muskegon, MI 49443 (“Landlord”) and New Cingular Wireless PCS, LLC, a Delaware limited liability
company, having a mailing address of 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta, GA 30319 (“Tenant”).
BACKGROUND
Landlord owns or controls that certain plot, parcel or tract of land, as described on Exhibit 1,
improved with a water tower (the “Water Tower”), together with all rights and privileges arising in
connection therewith, located at 719 Nims Street, in the County of Muskegon, State of Michigan (collectively,
the “Property”). Landlord desires to grant to Tenant the right to use a portion of the Property in accordance
with this Agreement.
Landlord and Tenant (or their predecessors-in-interest) entered into that certain Site Lease dated
October 1, 1998, as amended by that certain First Amendment to the Site Lease dated January 29, 2009, as
amended by that certain Second Amendment to the Site Lease dated August 17, 2012, as amended by that
certain Third Amendment to the Site Lease dated September 23, 2014, and as further amended by that certain
Fourth Amendment to the Site Lease dated November 10, 2014 (collectively, the “Prior Lease”), for the
Premises defined below and the term of the Prior Lease expired on September 30, 2018. Landlord and Tenant
agree that this Agreement shall be effective as of the Effective Date and as of the Effective Date, the Prior
Lease shall be terminated and of no further force and effect and this Agreement replaces and supersedes the
Prior Lease.
The parties agree as follows:
1. LEASE OF PREMISES. Landlord hereby leases to Tenant a portion of the Property consisting of:
(a) approximately 100 square feet including the air space above such ground space, as described
on attached Exhibit 1, for the placement of Tenant’s Communication Facility;
(b) space for any structural steel or other improvements to support Tenant’s equipment
(collectively, the space referenced in (a) and (b) is the “Equipment Space”);
(c) that certain space on the Water Tower, as generally depicted on Exhibit 1, including the air
space above same, where Tenant shall have the right to install its antennas and other equipment (collectively,
the “Antenna Space”); and
(d) those certain areas where Tenant’s conduits, wires, cables, cable trays and other necessary
connections are located between the Equipment Space and the Antenna Space, and between the Equipment
Space and the electric power, telephone, and fuel sources for the Property (hereinafter collectively referred to
as the “Connection Space”). Landlord agrees that Tenant shall have the right to install connections between
Tenant’s equipment in the Equipment Space and Antenna Space; and between Tenant’s equipment in the
Equipment Space and the electric power, telephone, and fuel sources for the Property, and any other
improvements and will require written approval before installing a flammable fuel source such as natural gas
or propane, which consent may be withheld in Landlord’s sole discretion. Landlord further agrees that Tenant
shall have the right to install, replace and maintain utility lines, wires, poles, cables, conduits, pipes and other
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necessary connections over or along any right-of-way extending from the aforementioned public right-of-way
to the Premises. All new installations of equipment and services by Tenant at the Premises shall require prior
notice and approval by Landlord and Landlord’s inspections department, such approvals not to be
unreasonably withheld, conditioned or delayed. The Equipment Space, Antenna Space, and Connection
Space, are hereinafter collectively referred to as the “Premises.”
2. PERMITTED USE. Tenant, its personnel, invitees, contractors, agents, subtenants, or its authorized
sublessees, or assigns may use the Premises, at no additional cost or expense, for the transmission and
reception of any and all communications signals and, to modify, supplement, replace, upgrade, expand, or
refurbish the equipment, as provided herein, and/or the improvements thereon (collectively, the
"Communications Facility") or relocate the same within the Premises, at any time during the term of the
Agreement, so long as these changes do not exceed the structural capacity of the tower/structure at this height,
or at Tenant's sole expense upgrade the structural capacity, or in order to be in compliance with any current
or future federal, state or local mandated application, including but not limited to emergency 911
communication services or for any other reason. Before Tenant commences any modification which increase
the structural load on the tower/structure, Tenant shall provide Landlord with a passing structural
analysis. Tenant may operate the Communications Facility at any frequency for which it has all requisite
licenses and permits so long as these frequencies do not cause an interference issue with an existing lawfully
installed and properly operated tenant on the tower/structure. Landlord shall reasonably cooperate in obtaining
governmental and other use permits or approvals necessary or desirable for the foregoing permitted use. As
of the Effective Date of this Agreement, Tenant has the right to install nine (9) antennas, as well as any
antennae required for E911 purposes and/or for Tenant to keep its Communications Facility in compliance
with all applicable laws and regulations as required herein. Should Tenant increase the quantity of antennas
beyond nine (9), then Tenant shall increase its monthly rental payment to Landlord by $325.00 for each
additional antenna. Said rental increase shall commence on the 1st day of the month after Tenant begins the
equipment installation. This rental increase shall not apply to antennas added for E911 purposes or for Tenant
to keep the Communications Facility in compliance with any applicable law or regulations as required herein.
If Landlord does not comply with the terms of this section, in addition to any other rights it may have at law,
Tenant may terminate the Agreement and shall have no further liability to Landlord. If Landlord does not
comply with the terms of this section, Tenant will have the right to exercise any and all rights available to it
under law and equity, including the right to cure Landlord’s default and to deduct the costs of such cure from
any monies due to Landlord from Tenant. Landlord and Tenant agree that any portion of the Communication
Facility that may be conceptually described on Exhibit 1 will not be deemed to limit Tenant’s Permitted Use.
If Exhibit 1 includes drawings of the initial installation of the Communication Facility, Landlord’s execution
of this Agreement will signify Landlord’s approval of Exhibit 1. During the Term, Tenant cannot materially
interfere with or block Landlord's access with the main functions and day-to-day operations of the Water
Tower or with existing tenants as of the Effective Date. For a period of ninety (90) days following the start
of construction, Landlord grants Tenant, its subtenants, licensees and sublicensees, the right to use such
portions of the Landlord’s contiguous, adjoining or surrounding property (the “Surrounding Property”) as
may reasonably be required during construction and installation of the Communication Facility. Tenant has
the right to install and operate transmission cables from the equipment shelter or cabinet to the antennas,
electric lines from the main feed to the equipment shelter or cabinet and communication lines from the
Property’s main entry point to the equipment shelter or cabinet, install a generator and to make other
improvements, alterations, upgrades or additions appropriate for Tenant’s Permitted Use, including the right
to construct a fence around the Premises or equipment (so long as the fence does not unreasonably interfere
with Landlord's existing use of the Water Tower or the existing use of the Water Tower by tenants existing
as of the Effective Date), install warning signs to make individuals aware of risks, install protective barriers,
install any other control measures reasonably required by Tenant’s safety procedures or applicable law, and
undertake any other appropriate means to secure the Premises or equipment at Tenant’s expense. Tenant has
the right, to install, modify, supplement, replace, upgrade, expand the Communication Facility (including, for
example, increasing the number of antennas or adding microwave dishes) or relocate the Communication
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Facility within the Premises at any time during the Term. Tenant will be allowed to make such alterations to
the Property in order to ensure that the Communication Facility complies with all applicable federal, state or
local laws, rules or regulations. In the event Tenant desires to modify or upgrade the Communication Facility,
in a manner that requires an additional portion of the Property (the “Additional Premises”) for such
modification or upgrade, Landlord agrees to lease to Tenant the Additional Premises, upon the same terms
and conditions set forth herein, except that the Rent shall increase, in conjunction with the lease of the
Additional Premises by the amount equivalent to the then-current per square foot rental rate charged by
Landlord to Tenant times the square footage of the Additional Premises. Landlord agrees to take such actions
and enter into and deliver to Tenant such documents as Tenant reasonably requests in order to effect and
memorialize the lease of the Additional Premises to Tenant.
3. TERM.
(a) The initial lease term will be ten (10) years (the “Initial Term”), commencing on February
1, 2024. The Initial Term will terminate on the tenth (10th) anniversary of the Initial Term.
(b) This Agreement will automatically renew for five (5) additional five (5) year term(s) (each
additional five (5) year term shall be defined as an “Extension Term”), upon the same terms and conditions
set forth herein unless Tenant notifies Landlord in writing of Tenant’s intention not to renew this Agreement
at least sixty (60) days prior to the expiration of the Initial Term or the then-existing Extension Term.
(c) Unless (i) Landlord or Tenant notifies the other in writing of its intention to terminate this
Agreement at least six (6) months prior to the expiration of the final Extension Term, or (ii) the Agreement is
terminated as otherwise permitted by this Agreement prior to the end of the final Extension Term, this
Agreement shall continue in force upon the same covenants, terms and conditions for a further term of one
(1) year, and for annual terms thereafter (“Annual Term”) until terminated by either party hereto by giving
to the other party hereto written notice of its intention to so terminate at least six (6) months prior to the end
of any such Annual Term. Monthly Rent during such Annual Terms shall be equal to the Rent paid for the
last month of the final Extension Term. If Tenant remains in possession of the Premises after the termination
of this Agreement, then Tenant will be deemed to be occupying the Premises on a month-to-month basis (the
“Holdover Term”), subject to the terms and conditions of this Agreement.
(d) The Initial Term, any Extension Terms, any Annual Terms and any Holdover Term are
collectively referred to as the “Term.”
4. RENT.
(a) Commencing on February 1, 2024 (the “Rent Commencement Date”), Tenant will pay
Landlord on or before the fifth (5th) day of each calendar month in advance, Four Thousand Eight Hundred
Fifty and No/100 Dollars ($4,850.00) (the “Rent”), at the address set forth above. The Rent shall continue
during the Term, subject to adjustment as provided herein: on each anniversary of the Rent Commencement
Date, including throughout any Extension Term exercised, the Rent will increase by three percent (3%) over
the Rent paid during the previous year, and every year thereafter. In any partial month occurring after the
Rent Commencement Date, the Rent will be prorated. The initial Rent payment will be forwarded by Tenant
to Landlord within ninety (90) days after the Rent Commencement Date. In addition to Rent, Tenant shall
owe Landlord a one-time signing bonus of Seven Thousand Five Hundred and No/100 Dollars ($7,500.00)
upon the full execution of this Agreement.
(b) Modification of Tenant’s Obligation to Pay – Rent Guarantee. Notwithstanding Tenant’s
obligations to pay Rent set forth under the Agreement, for a sixty (60) month period commencing February
1, 2024, and ending January 31, 2029, Tenant’s obligation to pay the entire Rent is guaranteed in full for such
period and such obligation will not be subject to offset or cancellation by Tenant. Following such sixty (60)
month period, for a sixty (60) month period commencing February 1, 2029 and ending January 31, 2034,
Tenant’s obligation to pay Rent is guaranteed in an amount of no less than 50% of the Rent due for such
period and such obligation will not be subject to offset or cancellation by Tenant. For purposes of this
Agreement, such one hundred twenty (120) month period shall be referred to as the “Rent Guarantee
Period”. The Termination Fee (as hereinafter defined) shall not apply and shall not be payable by Tenant if
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Tenant terminates as provided herein within the Rent Guarantee Period. Notwithstanding the foregoing, if
Landlord exercises any of Landlord’s rights to terminate the Agreement, if any, other than the Landlord’s
right to terminate the Agreement due to the default of Tenant under the terms of the Agreement beyond any
applicable grace period, Tenant will be released from any and all of its obligations to pay Rent during the
Rent Guarantee Period as of the effective date of the termination. In addition, Tenant shall be released from
any and all of its obligations to pay Rent during the Rent Guarantee Period if the following shall occur: (i)
Landlord is in breach of the Agreement, including but not limited to any default under the terms of the
Agreement beyond any applicable grace and cure period; (ii) there is a foreclosure of the Agreement which
results in a termination of the Agreement; or (iii) the Landlord shall require Tenant to relocate Tenant’s
equipment and facilities to a location that is not acceptable to Tenant in its reasonable business judgment if
allowed for in the Agreement. If the Agreement is further modified in the future with an obligation for Tenant
to pay additional Rent, the payment of Rent guarantee established in this paragraph will not be diminished or
limited, but such Rent guarantee will not extend to that future additional Rent obligation.
(c) All charges payable under this Agreement such as utilities and taxes shall be billed by
Landlord within one (1) year from the end of the calendar year in which the charges were incurred; any
charges beyond such period shall not be billed by Landlord, and shall not be payable by Tenant. The foregoing
shall not apply to monthly Rent which is due and payable without a requirement that it be billed by Landlord.
The provisions of this subsection shall survive the termination or expiration of this Agreement.
5. APPROVALS.
(a) Landlord agrees that Tenant's ability to use the Premises is contingent upon the suitability of
the Premises and Property for Tenant's Permitted Use and Tenant's ability to obtain and maintain all
governmental licenses, permits, approvals or other relief required of or deemed necessary or appropriate by
Tenant for its use of the Premises, including without limitation applications for zoning variances, zoning
ordinances, amendments, special use permits, and construction permits (collectively, the "Government
Approvals"). Landlord authorizes Tenant to prepare, execute and file all required applications to obtain
Government Approvals for Tenant’s Permitted Use under this Agreement and agrees to reasonably assist
Tenant with such applications and with obtaining and maintaining the Government Approvals. In addition,
Tenant shall have the right to initiate the ordering and/or scheduling of necessary utilities.
(b) Tenant, at Tenant’s sole cost and expense, has the right to obtain a title report or commitment
for a leasehold title policy from a title insurance company of its choice and to have the Property surveyed by
a surveyor of its choice.
(c) Tenant may also perform and obtain, at Tenant’s sole cost and expense, soil borings,
percolation tests, engineering procedures, environmental investigation or other tests or reports on, over, and
under the Property, necessary to determine if Tenant’s use of the Premises will be compatible with Tenant’s
engineering specifications, system, design, operations or Government Approvals.
6. TERMINATION. This Agreement may be terminated, without penalty or further liability, as
follows:
(a) by either party on thirty (30) days prior written notice, if the other party remains in default
under Section 15 of this Agreement after the applicable cure periods;
(b) by Tenant upon written notice to Landlord, if Tenant is unable to obtain, or maintain, any
required approval(s) or the issuance of a license or permit by any agency, board, court or other governmental
authority necessary for the construction or operation of the Communication Facility as now or hereafter
intended by Tenant; or if Tenant determines, in its sole discretion that the cost of or delay in obtaining or
retaining the same is commercially unreasonable;
(c) by Tenant, upon written notice to Landlord, if Tenant determines, in its sole discretion, due
to the title report results or survey results, that the condition of the Premises is unsatisfactory for its intended
uses;
(d) by Tenant upon written notice to Landlord for any reason or no reason, at any time prior to
commencement of construction by Tenant;
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(e) by Tenant upon sixty (60) days’ prior written notice to Landlord for any reason or no reason,
so long as Tenant pays Landlord a termination fee equal to six (6) months’ Rent, at the then-current rate (the
"Termination Fee"), provided, however, that no such termination fee will be payable on account of the
termination of this Agreement by Tenant under any termination provision contained in any other Section of
this Agreement, including the following: Section 5 Approvals, Section 6(a) Termination, Section 6(b)
Termination, Section 6(c) Termination, Section 6(d) Termination, Section 8 Interference, Section 11(d)
Environmental, Section 18 Condemnation or Section 19 Casualty; or,
(f) by Landlord upon any of the following events: (i) upon two (2) years prior written notice if
Landlord determines that after the Initial Term of this Agreement, or upon two (2) years prior written notice
before to the conclusion of any renewals of this Agreement, that the Tenant’s Permitted Use of the Premises
under this Agreement is no longer in the Landlord’s best interest, in its sole discretion; (ii) if Landlord
determines that Tenant’s Permitted Use of the Premises under this Agreement (including Tenant’s operation
of its communications equipment) is interfering with the rights of Landlord or other tenants currently on the
Property and that the issue cannot be remediated by Tenant; or (iii) if Tenant is in default of the terms of this
Agreement and the default has not been cured under Section 15.
7. INSURANCE. During the Term, Tenant, at Tenant’s sole cost and expense, will carry and maintain
in effect a commercial general liability insurance per ISO form CG 00 01 or its equivalent, insuring against
bodily injury and property damage. Said policy of commercial general liability insurance will provide a
combined single limit of One Million and No/100 Dollars ($1,000,000.00) per occurrence and in aggregate.
Tenant shall provide Landlord with a certificate of insurance evidencing such coverage which states that the
carrier has insured Tenant for the required insurance policies liabilities under this Lease. Tenant will provide
at least 30 days written notice to Landlord, of cancellation or non-renewal of any required coverage that is
not replaced.. Landlord shall be included to the policy as an additional insured by endorsement as respects
to this Agreement.
8. INTERFERENCE.
(a) Prior to or concurrent with the execution of this Agreement, Landlord has provided or will
provide Tenant with a list of radio frequency user(s) on the Property as of the Effective Date; provided,
however, it shall be Tenant’s sole responsibility to determine the actual radio frequencies used by such user(s).
Tenant warrants that its use of the Premises will not interfere with those existing radio frequency uses on the
Property, as long as the existing radio frequency user(s) operate and continue to operate within their respective
frequencies and in accordance with all applicable laws and regulations.
(b) Landlord will not grant, after the Effective Date, a lease, license or any other right to any
third party, if the exercise of such grant may in any way adversely affect or interfere with the Communication
Facility, the operations of Tenant or the rights of Tenant under this Agreement.
(c) Landlord will not, nor will Landlord permit its employees, tenants, licensees, invitees, agents
or independent contractors to interfere in any way with the Communication Facility, the operations of Tenant
or the rights of Tenant under this Agreement. Landlord will cause such interference to cease within twenty-
four (24) hours after receipt of notice of interference from Tenant. In the event any such interference does
not cease within the aforementioned cure period, Landlord shall cease all operations which are suspected of
causing interference (except for intermittent testing to determine the cause of such interference) until the
interference has been corrected. Tenant will not, nor will Tenant permit its employees, tenants, licensee,
invitees, agents, or independent contractors to interfere in any way with the operations of Landlord or other
tenants of the Water Tower or Premises, as long as the existing radio frequency user(s) operate and continue
to operate within their respective frequencies and in accordance with all applicable laws and regulations.
(d) For the purposes of this Agreement, “interference” may include, but is not limited to, any use
on the Property that causes electronic or physical obstruction with, or degradation of, the communications
signals from the Communication Facility.
(e) Tenant's installation, operation, and maintenance of its Communication Facilities shall not
damage or interfere with Landlord's Water Tower and/or the Property's operations or related repair and
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maintenance activities. Landlord, at all times during this Agreement, reserves the right to take any action it
deems necessary, in its sole discretion, to repair, maintain, alter or improve the Property in connection with
city operations as may be necessary, including leasing parts of the Water Tower and/or Property and
surrounding ground space to others.
(f) Tenant acknowledges and agrees that the primary purpose of the Water Tower is to provide water
storage for Landlord and its customers. Tenant understands that Landlord may have to interrupt Tenant’s use
of the Premises from time to time to service, maintain, or repair the Water Tower. Accordingly, Landlord
reserves the right at all times during this Agreement to take any action it deems necessary in its sole discretion
to repair, maintain, alter, or improve the Property and shall not be liable to Tenant for any temporary
interference with Tenant’s use as a result of actions necessary to carry out any such activities.
Notwithstanding the foregoing, Landlord agrees to provide Tenant with reasonable advance notice of any
planned activities, emergencies excepted, and to carry out such activities in a manner to minimize
interruptions with Tenant’s use.
9. Intentionally deleted.
10. WARRANTIES.
(a) Each of Tenant and Landlord (to the extent not a natural person) each acknowledge and
represent that it is duly organized, validly existing and in good standing and has the right, power, and authority
or capacity, as applicable, to enter into this Agreement and bind itself hereto through the party or individual
set forth as signatory for the party below.
(b) To the extent permitted by state or municipal law, and except as otherwise previously
disclosed by Landlord to Tenant prior to the date of this Agreement, Landlord represents, warrants and agrees
that: (i) Landlord solely owns the Property as a legal lot in fee simple, or controls the Property by lease or
license and solely owns the Water Tower; (ii) the Property is not and will not be encumbered by any liens,
restrictions, mortgages, covenants, conditions, easements, leases, or any other agreements of record or not of
record, which would adversely affect Tenant’s Permitted Use and enjoyment of the Premises under this
Agreement; (iii) Landlord grants to Tenant sole, actual, quiet and peaceful use, enjoyment and possession of
the Premises in accordance with the terms of this Agreement without hindrance or ejection by any persons
lawfully claiming under Landlord ; (iv) Landlord’s execution and performance of this Agreement will not
violate any laws, ordinances, covenants or the provisions of any mortgage, lease or other agreement binding
on Landlord; and (v) if the Property is or becomes encumbered by a deed to secure a debt, mortgage or other
security interest, then Landlord will provide promptly to Tenant a mutually agreeable subordination, non-
disturbance and attornment agreement executed by Landlord and the holder of such security interest in the
form attached hereto as Exhibit 10(b).
(c) Tenant currently leases a portion of the Property pursuant to the Prior Lease, and Tenant
acknowledges and agrees that Tenant is familiar with the condition of the Premises and agrees to accept the
physical condition of the Premises in “AS IS” condition. Tenant further acknowledges and agrees that Tenant
is relying solely on its own investigation of the Premises and not on any information provided to or to be
provided by Landlord. Tenant agrees to accept the Premises and waive all objections or claims against
Landlord arising from or related to the Premises, except for a breach of any representations, warranties, or
covenants set forth in this Lease.
11. ENVIRONMENTAL.
Notwithstanding the foregoing, Landlord represents that it has no knowledge of the presence of or
contamination by any hazardous substances on the Property in violation of any applicable federal, state, or
local law or regulation. Landlord and Tenant agree that each will be responsible for compliance with any and
all applicable governmental laws, rules, statutes, regulations, codes, ordinances, or principles of common law
regulating or imposing standards of liability or standards of conduct with regard to protection of the
environment or worker health and safety, as may now or at any time hereafter be in effect, to the extent such
apply to that party’s activity conducted in or on the Property.
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12. ACCESS. At all times throughout the Term of this Agreement, Tenant and its employees, agents,
and subcontractors, will require twenty-four (24) hour access, for pedestrian and vehicular access (“Access”)
to and over the Property, from an open and improved public road to the Premises, for the installation,
maintenance and operation of the Communication Facility and any utilities serving the Premises. There is a
sign at the access point that will need to be called to, to provide access to enter the Premises in the case of emergencies.
As may be described more fully in Exhibit 1, Landlord grants to Tenant an easement for such Access and
Landlord agrees to provide to Tenant such codes, keys and other instruments necessary for such Access.
Upon Tenant’s request, Landlord will execute a separate recordable easement evidencing this right. Landlord
shall execute a letter granting Tenant Access to the Property substantially in the form attached as Exhibit 12;
upon Tenant’s request, Landlord shall execute additional letters during the Term. If Tenant elects to utilize
an Unmanned Aircraft System (“UAS”) in connection with its installation, construction, monitoring, site
audits, inspections, maintenance, repair, modification, or alteration activities at the Property, Landlord hereby
grants Tenant, or any UAS operator acting on Tenant’s behalf, express permission to fly over the applicable
Property and Premises, and consents to the use of audio and video navigation and recording in connection
with the use of the UAS. Landlord acknowledges that in the event Tenant cannot obtain Access to the
Premises, Tenant shall incur significant damage. If Landlord fails to provide the Access granted by this
Section 12, such failure shall be a default under this Agreement.
13. REMOVAL/RESTORATION. All portions of the Communication Facility brought onto the
Property by Tenant will be and remain Tenant’s personal property and, at Tenant’s option, may be removed
by Tenant at any time during or after the Term. Landlord covenants and agrees that no part of the
Communication Facility constructed, erected or placed on the Premises by Tenant will become, or be
considered as being affixed to or a part of, the Property, it being the specific intention of Landlord that all
improvements of every kind and nature constructed, erected or placed by Tenant on the Premises will be and
remain the property of Tenant and may be removed by Tenant at any time during or after the Term. Tenant
will repair any damage to the Property resulting from Tenant’s removal activities. Any portions of the
Communication Facility that Tenant does not remove within one hundred twenty (120) days after the later of
the end of the Term and cessation of Tenant’s operations at the Premises shall be deemed abandoned and
owned by Landlord. Notwithstanding the foregoing, Tenant will not be responsible for the replacement of
any trees, shrubs or other vegetation.
14. MAINTENANCE/UTILITIES.
(a) Tenant will keep and maintain the Premises in good condition, reasonable wear and tear and
damage from the elements excepted. Landlord will maintain and repair the Property and access thereto, the
Water Tower, and all areas of the Premises where Tenant does not have exclusive control, in good and
tenantable condition, subject to reasonable wear and tear and damage from the elements. Landlord will be
responsible for maintenance of landscaping on the Property.
(b) Tenant will be responsible for paying on a monthly or quarterly basis all utilities charges for
electricity, telephone service or any other utility used or consumed by Tenant on the Premises. In the event
Tenant cannot secure its own metered electrical supply, Tenant will have the right, at its own cost and expense,
to sub-meter from Landlord. When sub-metering is required under this Agreement, Landlord will read the
meter and provide Tenant with an invoice and usage data on a monthly basis. Tenant shall reimburse Landlord
for such utility usage at the same rate charged to Landlord by the utility service provider. Landlord further
agrees to provide the usage data and invoice on forms provided by Tenant and to send such forms to such
address and/or agent designated by Tenant. Tenant will remit payment within sixty (60) days of receipt of
the usage data and required forms. Landlord shall maintain accurate and detailed records of all utility
expenses, invoices and payments applicable to Tenant’s reimbursement obligations hereunder. Within fifteen
(15) days after a request from Tenant, Landlord shall provide copies of such utility billing records to the
Tenant in the form of copies of invoices, contracts and cancelled checks. If the utility billing records reflect
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an overpayment by Tenant, Tenant shall have the right to deduct the amount of such overpayment from any
monies due to Landlord from Tenant.
(c) As noted in Section 4(c) above, any utility fee recovery by Landlord is limited to a twelve
(12) month period. If Tenant sub-meters electricity from Landlord, Landlord agrees to give Tenant at least
twenty-four (24) hours advance notice of any planned interruptions of said electricity. Landlord
acknowledges that Tenant provides a communication service which requires electrical power to operate and
must operate twenty-four (24) hours per day, seven (7) days per week. If the interruption is for an extended
period of time, in Tenant’s reasonable determination, Landlord agrees to allow Tenant the right to bring in a
temporary source of power for the duration of the interruption. Landlord will not be responsible for
interference with, interruption of or failure, beyond the reasonable control of Landlord, of such services to be
furnished or supplied by Landlord.
(d) Tenant will have the right to install utilities, at Tenant’s expense, and to improve present
utilities on the Property and the Premises. Landlord hereby grants to any service company providing utility
or similar services, including electric power and telecommunications, to Tenant an easement over the
Property, from an open and improved public road to the Premises, and upon the Premises, for the purpose of
constructing, operating and maintaining such lines, wires, circuits, and conduits, associated equipment
cabinets and such appurtenances thereto, as such service companies may from time to time require in order
to provide such services to the Premises. Upon Tenant’s or service company’s request, Landlord will execute
a separate recordable easement evidencing this grant, at no cost to Tenant or the service company.
15. DEFAULT AND RIGHT TO CURE.
(a) The following will be deemed a default by Tenant and a breach of this Agreement: (i) non-
payment of Rent if such Rent remains unpaid for more than thirty (30) days after written notice from Landlord
of such failure to pay; or (ii) Tenant’s failure to perform any other term or condition under this Agreement
within forty-five (45) days after written notice from Landlord specifying the failure. Delay in curing a default
will be excused if due to causes beyond the reasonable control of Tenant. If Tenant remains in default beyond
any applicable cure period, then Landlord will have the right to exercise any and all rights and remedies
available to it under law and equity.
(b) The following will be deemed a default by Landlord and a breach of this Agreement: (i)
Landlord’s failure to provide Access to the Premises as required by Section 12 within twenty-four (24) hours
after written notice of such failure; (ii) Landlord’s failure to cure an interference problem as required by
Section 8 within twenty-four (24) hours after written notice of such failure; or (iii) Landlord’s failure to
perform any term, condition or breach of any warranty or covenant under this Agreement within forty-five
(45) days after written notice from Tenant specifying the failure. Delay in curing a default will be excused if
due to causes beyond the reasonable control of Landlord. If Landlord remains in default beyond any
applicable cure period, Tenant will have: (i) the right to cure Landlord’s default and to deduct the reasonable
costs of such cure from any monies due to Landlord from Tenant, and (ii) any and all other rights available
to it under law and equity.
16. ASSIGNMENT/SUBLEASE. This Agreement may not be assigned or subleased without the prior
written consent of Landlord, which consent may be withheld for any reason or no reason in Landlord’s sole
discretion. Notwithstanding the foregoing, this Agreement may be assigned without Landlord consent to an
entity that controls, is controlled by, or is under the common control of Tenant, or to any entity resulting from
any merger or consolidation with Tenant, or to any partner of Tenant, or to any person or entity that acquires
all of the assets of Tenant as a going concern, provided that Tenant shall indemnify and hold Landlord
harmless. Notwithstanding anything contained herein to the contrary, Tenant acknowledges and agrees that
any permitted assignee or subtenant shall be required to comply with all applicable laws including all licensing
and/or permitting requirements imposed by all governmental entities having jurisdiction over the Premises.
17. NOTICES. All notices, requests and demands hereunder will be given by first class certified or
registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to
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be effective when properly sent and received, refused or returned undelivered. Notices will be addressed to
the parties hereto as follows:
If to Tenant: New Cingular Wireless PCS, LLC
Attn: Tower Asset Group - Lease Administration
Re: Cell Site #: GRANMI5603; Cell Site Name: Muskegon Nims (MI)
Fixed Asset #: 10124755
1025 Lenox Park Blvd NE
3rd Floor
Atlanta, GA 30319
With a copy to: New Cingular Wireless PCS, LLC
Attn.: Legal Dept – Network Operations
Re: Cell Site #: GRANMI5603; Cell Site Name: Muskegon Nims (MI)
Fixed Asset #: 10124755
208 S. Akard Street
Dallas, TX 75202-4206
The copy sent to the Legal Department is an administrative step which alone does not constitute legal notice.
If to Landlord: City of Muskegon
933 Terrace Street
Muskegon, MI 49443
Attn: Dave Baker
Either party hereto may change the place for the giving of notice to it by thirty (30) days’ prior written notice
to the other party hereto as provided herein.
18. CONDEMNATION. In the event Landlord receives notification of any condemnation proceedings
affecting the Property, Landlord will provide notice of the proceeding to Tenant within twenty-four (24)
hours. If a condemning authority takes all of the Property, or a portion sufficient, in Tenant’s sole
determination, to render the Premises unsuitable for Tenant, this Agreement will terminate as of the date the
title vests in the condemning authority. The parties will each be entitled to pursue their own separate awards
in the condemnation proceeds, which for Tenant will include, where applicable, the value of its
Communication Facility, moving expenses, prepaid Rent, and business dislocation expenses. Tenant will be
entitled to reimbursement for any prepaid Rent on a pro rata basis.
19. CASUALTY. Landlord will provide notice to Tenant of any casualty or other harm affecting the
Property within twenty-four (24) hours of the casualty or other harm. If any part of the Communication
Facility or the Property is damaged by casualty or other harm as to render the Premises unsuitable, in Tenant’s
sole determination, then Tenant may terminate this Agreement by providing written notice to Landlord, which
termination will be effective as of the date of such casualty or other harm. Upon such termination, Tenant
will be entitled to collect all insurance proceeds payable to Tenant on account thereof and to be reimbursed
for any prepaid Rent on a pro rata basis. Landlord agrees to permit Tenant to place temporary transmission
and reception facilities on the Property, but only until such time as Tenant is able to activate a replacement
transmission facility at another location; notwithstanding the termination of this Agreement, such temporary
facilities will be governed by all of the terms and conditions of this Agreement, including Rent. If Landlord
or Tenant undertakes to rebuild or restore the Premises and/or the Communication Facility, as applicable,
Landlord agrees to permit Tenant to place temporary transmission and reception facilities on the Property
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until the reconstruction of the Premises and/or the Communication Facility is completed. If Landlord
determines not to rebuild or restore the Property, Landlord will notify Tenant of such determination within
thirty (30) days after the casualty or other harm. If Landlord does not so notify Tenant and Tenant decides
not to terminate under this Section 19, then Landlord will promptly rebuild or restore any portion of the
Property interfering with or required for Tenant’s Permitted Use of the Premises to substantially the same
condition as existed before the casualty or other harm. Landlord agrees that the Rent shall be abated until the
Property and/or the Premises are rebuilt or restored, unless Tenant places temporary transmission and
reception facilities on the Property.
20. WAIVER OF LANDLORD’S LIENS. Landlord waives any and all lien rights it may have, statutory
or otherwise, concerning the Communication Facility or any portion thereof. The Communication Facility shall
be deemed personal property for purposes of this Agreement, regardless of whether any portion is deemed real
or personal property under applicable law; Landlord consents to Tenant’s right to remove all or any portion of
the Communication Facility from time to time in Tenant’s sole discretion and without Landlord’s consent.
21. TAXES.
(a) Landlord shall be responsible for (i) all taxes and assessments levied upon the lands,
improvements and other property of Landlord including any such taxes that may be calculated by a taxing
authority using any method, including the income method, (ii) all sales, use, license, value added,
documentary, stamp, gross receipts, registration, real estate transfer, conveyance, excise, recording, and other
similar taxes and fees imposed in connection with this Agreement, and (iii) all sales, use, license, value added,
documentary, stamp, gross receipts, registration, real estate transfer, conveyance, excise, recording, and other
similar taxes and fees imposed in connection with a sale of the Property or assignment of Rent payments by
Landlord. Tenant shall be responsible for (x) all property taxes, real or personal, directly attributable to its
occupancy and use of the Property, (y) any taxes and assessments attributable to and levied upon Tenant’s
leasehold improvements on the Premises if and as set forth in this Section 21 and (z) all sales, use, license,
value added, documentary, stamp, gross receipts, registration, real estate transfer, conveyance, excise,
recording, and other similar taxes and fees imposed in connection with an assignment of this Agreement or
sublease by Tenant. Nothing herein shall require Tenant to pay any inheritance, franchise, income, payroll,
excise, privilege, rent, capital stock, stamp, documentary, estate or profit tax, or any tax of similar nature, that
is or may be imposed upon Landlord.
(b) In the event Landlord receives a notice of assessment with respect to which taxes or assessments
are imposed on Tenant’s leasehold improvements on the Premises, Landlord shall provide Tenant with copies
of each such notice immediately upon receipt, but in no event later than thirty (30) days after the date of such
notice of assessment. If Landlord does not provide such notice or notices to Tenant in a timely manner and
Tenant’s rights with respect to such taxes are prejudiced by the delay, Landlord shall reimburse
Tenant for any increased costs directly resulting from the delay and Landlord shall be responsible for
payment of the tax or assessment set forth in the notice, and Landlord shall not have the right to reimbursement
of such amount from Tenant. If Landlord provides a notice of assessment to Tenant within such time period
and requests reimbursement from Tenant as set forth below, then Tenant shall reimburse Landlord for the tax
or assessments identified on the notice of assessment on Tenant’s leasehold improvements, which has been
paid by Landlord. If Landlord seeks reimbursement from Tenant, Landlord shall, no later than thirty (30)
days after Landlord’s payment of the taxes or assessments for the assessed tax year, provide Tenant with
written notice including evidence that Landlord has timely paid same, and Landlord shall provide to Tenant
any other documentation reasonably requested by Tenant to allow Tenant to evaluate the payment and to
reimburse Landlord.
(c) For any tax amount for which Tenant is responsible under this Agreement, Tenant shall have the
right to contest, in good faith, the validity or the amount thereof using such administrative, appellate or other
proceedings as may be appropriate in the jurisdiction, and may defer payment of such obligations, pay same
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under protest, or take such other steps as permitted by law. This right shall include the ability to institute any
legal, regulatory or informal action in the name of Landlord, Tenant, or both, with respect to the valuation of
the Premises. Landlord shall cooperate with respect to the commencement and prosecution of any such
proceedings and will execute any documents required therefor. The expense of any such proceedings shall
be borne by Tenant and any refunds or rebates secured as a result of Tenant’s action shall belong to Tenant,
to the extent the amounts were originally paid by Tenant. In the event Tenant notifies Landlord by the due
date for assessment of Tenant’s intent to contest the assessment, Landlord shall not pay the assessment
pending conclusion of the contest, unless required by applicable law.
(d) Landlord shall not split or cause the tax parcel on which the Premises are located to be split,
bifurcated, separated or divided without the prior written consent of Tenant, which consent shall not be
unreasonably withheld.
(e) Tenant shall have the right but not the obligation to pay any taxes due by Landlord hereunder if
Landlord fails to timely do so, in addition to any other rights or remedies of Tenant. In the event that Tenant
exercises its rights under this Section 21(e) due to such Landlord default, Tenant shall have the right to deduct
such tax amounts paid from any monies due to Landlord from Tenant as provided in Section 15(b), provided
that Tenant may exercise such right without having provided to Landlord notice and the opportunity to cure
per Section 15(b).
(f) Any tax-related notices shall be sent to Tenant in the manner set forth in Section 17. Promptly
after the Effective Date, Landlord shall provide the following address to the taxing authority for the
authority’s use in the event the authority needs to communicate with Tenant. In the event that Tenant’s tax
address changes by notice to Landlord, Landlord shall be required to provide Tenant’s new tax address to the
taxing authority or authorities.
(g) Notwithstanding anything to the contrary contained in this Section 21, Tenant shall have no
obligation to reimburse any tax or assessment for which the Landlord is reimbursed or rebated by a third
party.
22. SALE OF PROPERTY.
(a) Landlord may sell the Property or a portion thereof to a third party, provided: (i) the sale is
made subject to the terms of this Agreement; and (ii) if the sale does not include the assignment of Landlord’s
full interest in this Agreement, the purchaser must agree to perform, without requiring compensation from
Tenant or any subtenant, any obligation of Landlord under this Agreement, including Landlord’s obligation
to cooperate with Tenant as provided hereunder.
(b) If Landlord, at any time during the Term of this Agreement, decides to rezone or sell,
subdivide or otherwise transfer all or any part of the Premises, or all or any part of the Property, to a purchaser
other than Tenant, Landlord shall promptly notify Tenant in writing, and such rezoning, sale, subdivision or
transfer shall be subject to this Agreement and Tenant’s rights hereunder. In the event of a change in
ownership, transfer or sale of the Property, within ten (10) days of such transfer, Landlord or its successor
shall send the documents listed below in this Section 22(b) to Tenant. Until Tenant receives all such
documents, Tenant’s failure to make payments under this Agreement shall not be an event of default and
Tenant reserves the right to hold payments due under this Agreement.
i. Old deed to Property
ii. New deed to Property
iii. Bill of Sale or Transfer
iv. Copy of current Tax Bill
v. New IRS Form W-9
vi. Completed and Signed Tenant Payment Direction Form
vii. Full contact information for new Landlord including phone number(s)
(c) Landlord agrees not to sell, lease or use any areas of the Property for the installation,
operation or maintenance of other wireless communication facilities if such installation, operation or
11
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maintenance would interfere with Tenant’s Permitted Use or communications equipment as determined by
radio propagation tests performed by Tenant in its sole discretion. If the radio frequency propagation tests
demonstrate levels of interference unacceptable to Tenant, Landlord shall be prohibited from selling, leasing
or using any areas of the Property for purposes of any installation, operation or maintenance of any other
wireless communication facility or equipment.
(d) The provisions of this Section 22 shall in no way limit or impair the obligations of Landlord
under this Agreement, including interference and access obligations.
23. RIGHT OF FIRST REFUSAL. Notwithstanding the provisions contained in Section 22, if at any
time after the Effective Date, Landlord receives a bona fide written offer from a third party seeking any sale,
conveyance, assignment or transfer, whether in whole or in part, of any property interest in or related to the
Premises, including without limitation any offer seeking an assignment or transfer of the Rent payments
associated with this Agreement or an offer to purchase an easement with respect to the Premises (“Offer”),
Landlord shall immediately furnish Tenant with a copy of the Offer. Tenant shall have the right within thirty
(30) days after it receives such copy to match the financial terms of the Offer and agree in writing to match
such terms of the Offer. Such writing shall be in the form of a contract substantially similar to the Offer but
Tenant may assign its rights to a third party. If Tenant chooses not to exercise this right or fails to provide
written notice to Landlord within the thirty (30) day period, Landlord may sell, convey, assign or transfer
such property interest in or related to the Premises pursuant to the Offer, subject to the terms of this
Agreement. If Landlord attempts to sell, convey, assign or transfer such property interest in or related to the
Premises without complying with this Section 23, the sale, conveyance, assignment or transfer shall be void.
Tenant shall not be responsible for any failure to make payments under this Agreement and reserves the right
to hold payments due under this Agreement until Landlord complies with this Section 23. Tenant’s failure to
exercise the right of first refusal shall not be deemed a waiver of the rights contained in this Section 23 with
respect to any future proposed conveyances as described herein.
24. MISCELLANEOUS.
(a) Amendment/Waiver. This Agreement cannot be amended, modified or revised unless done
in writing and signed by Landlord and Tenant. No provision may be waived except in a writing signed by
both parties. The failure by a party to enforce any provision of this Agreement or to require performance by
the other party will not be construed to be a waiver, or in any way affect the right of either party to enforce
such provision thereafter.
(b) Memorandum/Short Form Lease. Contemporaneously with the execution of this
Agreement, the parties will execute a recordable Memorandum of Lease substantially in the form attached as
Exhibit 24(b). Either party may record this Memorandum of Lease at any time during the Term, in its
absolute discretion. Thereafter during the Term, either party will, at any time upon fifteen (15) business days’
prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum
of Lease.
(c) Limitation of Liability. Except for the indemnity obligations set forth in this Agreement,
and otherwise notwithstanding anything to the contrary in this Agreement, Tenant and Landlord each waives
any claims that each may have against the other with respect to consequential, incidental or special damages,
however caused, based on any theory of liability.
(d) Compliance with Law. Tenant agrees to comply with all federal, state and local laws, orders,
rules and regulations (“Laws”) applicable to Tenant’s use of the Communication Facility on the Property.
Landlord agrees to comply with all Laws relating to Landlord’s ownership and use of the Property and any
improvements on the Property.
(e) Bind and Benefit. The terms and conditions contained in this Agreement will run with the
Property and bind and inure to the benefit of the parties, their respective heirs, executors, administrators,
successors and assigns.
(f) Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof,
constitute the entire agreement of the parties hereto and will supersede all prior offers, negotiations and
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agreements with respect to the subject matter of this Agreement. Exhibits are numbered to correspond to the
Section wherein they are first referenced. Except as otherwise stated in this Agreement, each party shall bear
its own fees and expenses (including the fees and expenses of its agents, brokers, representatives, attorneys,
and accountants) incurred in connection with the negotiation, drafting, execution and performance of this
Agreement and the transactions it contemplates.
(g) Governing Law. This Agreement will be governed by the laws of the state in which the
Premises are located, without regard to conflicts of law.
(h) Interpretation. Unless otherwise specified, the following rules of construction and
interpretation apply: (i) captions are for convenience and reference only and in no way define or limit the
construction of the terms and conditions hereof; (ii) use of the term “including” will be interpreted to mean
“including but not limited to”; (iii) whenever a party’s consent is required under this Agreement, except as
otherwise stated in the Agreement or as same may be duplicative, such consent will not be unreasonably
withheld, conditioned or delayed; (iv) exhibits are an integral part of this Agreement and are incorporated by
reference into this Agreement; (v) use of the terms “termination” or “expiration” are interchangeable;
(vi) reference to a default will take into consideration any applicable notice, grace and cure periods; (vii) to
the extent there is any issue with respect to any alleged, perceived or actual ambiguity in this Agreement, the
ambiguity shall not be resolved on the basis of who drafted the Agreement; (viii) the singular use of words
includes the plural where appropriate; and (ix) if any provision of this Agreement is held invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall remain in full force if the overall purpose of
the Agreement is not rendered impossible and the original purpose, intent or consideration is not materially
impaired.
(i) Affiliates. All references to “Tenant” shall be deemed to include any Affiliate of New
Cingular Wireless PCS, LLC using the Premises for any Permitted Use or otherwise exercising the rights of
Tenant pursuant to this Agreement. “Affiliate” means with respect to a party to this Agreement, any person
or entity that (directly or indirectly) controls, is controlled by, or under common control with, that party.
“Control” of a person or entity means the power (directly or indirectly) to direct the management or policies
of that person or entity, whether through the ownership of voting securities, by contract, by agency or
otherwise.
(j) Survival. Any provisions of this Agreement relating to indemnification shall survive the
termination or expiration hereof. In addition, any terms and conditions contained in this Agreement that by
their sense and context are intended to survive the termination or expiration of this Agreement shall so survive.
(k) W-9. As a condition precedent to payment, Landlord agrees to provide Tenant with a
completed IRS Form W-9, or its equivalent, upon execution of this Agreement and at such other times as may
be reasonably requested by Tenant, including any change in Landlord’s name or address. A copy of the IRS
Form 1-9 in its current form is attached hereto as Exhibit 24(k).
(l) Execution/No Option. The submission of this Agreement to any party for examination or
consideration does not constitute an offer, reservation of or option for the Premises based on the terms set
forth herein. This Agreement will become effective as a binding Agreement only upon the handwritten legal
execution, acknowledgment and delivery hereof by Landlord and Tenant. This Agreement may be executed
in two (2) or more counterparts, all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties. All parties need not sign the
same counterpart.
(m) Attorneys’ Fees. In the event that any dispute between the parties related to this Agreement
should result in litigation, the prevailing party in such litigation shall be entitled to recover from the other
party all reasonable fees and expenses of enforcing any right of the prevailing party, including reasonable
attorneys’ fees and expenses. Prevailing party means the party determined by the court to have most nearly
prevailed even if such party did not prevail in all matters. This provision will not be construed to entitle any
party other than Landlord, Tenant and their respective Affiliates to recover their fees and expenses.
(n) WAIVER OF JURY TRIAL. EACH PARTY, TO THE EXTENT PERMITTED BY LAW,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING UNDER ANY THEORY OF LIABILITY ARISING OUT OF OR
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IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE TRANSACTIONS IT
CONTEMPLATES.
(o) No Additional Fees/Incidental Fees. Unless otherwise specified in this Agreement, all
rights and obligations set forth in the Agreement shall be provided by Landlord and/or Tenant, as the case
may be, at no additional cost. No unilateral fees or additional costs or expenses are to be applied by either
party to the other party, for any task or service including, but not limited to, review of plans, structural
analyses, consents, provision of documents or other communications between the parties.
(p) Further Acts. Upon request, Landlord will cause to be promptly and duly taken, executed,
acknowledged and delivered all such further acts, documents, and assurances as Tenant may request from
time to time in order to effectuate, carry out and perform all of the terms, provisions and conditions of this
Agreement and all transactions and Permitted Use contemplated by this Agreement.
(o) Estoppel. Landlord acknowledges that there are not any owed or outstanding rental
payments or fees due on the part of Tenant.
[SIGNATURES APPEAR ON NEXT PAGE]
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Page 53 of 399
IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the Effective
Date.
“LANDLORD”
City of Muskegon
a Michigan municipal corporation
By:
Print Name: Ken Johnson
Its: Mayor
Date:
By:
Print Name: Ann Meisch
Its: City Clerk
Date:
“TENANT”
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By:
Print Name:
Its:
Date:
[ACKNOWLEDGMENTS APPEAR ON NEXT TWO PAGES]
15
Page 54 of 399
TENANT ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ___________________________________ is
the person who appeared before me, and said person acknowledged that he/she signed this instrument, on
oath stated that he/she was authorized to execute the instrument and acknowledged it as the
____________________________ of AT&T Mobility Corporation, the Manager of New Cingular Wireless
PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party for the uses
and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
16
Page 55 of 399
LANDLORD ACKNOWLEDGMENT
STATE OF _________________________)
)
COUNTY OF _______________________)
I CERTIFY that on ______________ _____, 202__, _______________________________ [name of
representative] personally came before me and acknowledged under oath that he or she:
(a) is the ____________________ [title] of City of Muskegon, a Michigan municipal corporation,
the corporation named in the attached instrument;
(b) was authorized to execute this instrument on behalf of the corporation; and
(c) executed the instrument as the act of the corporation.
__________________________________________
Notary Public: _____________________________
My Commission Expires:_____________________
Page 56 of 399
EXHIBIT 1
DESCRIPTION OF PROPERTY AND PREMISES
Page of
to the Structure Lease Agreement dated , 202 , by and between City of Muskegon,
a Michigan municipal corporation, as Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited
liability company, as Tenant.
The Property is legally described as follows:
The Premises are described and/or depicted as follows:
Page 57 of 399
Notes:
1. THIS EXHIBIT MAY BE REPLACED BY A LAND SURVEY AND/OR CONSTRUCTION DRAWINGS OF THE PREMISES ONCE
RECEIVED BY TENANT.
2. ANY SETBACK OF THE PREMISES FROM THE PROPERTY’S BOUNDARIES SHALL BE THE DISTANCE REQUIRED BY THE
APPLICABLE GOVERNMENT AUTHORITIES.
3. WIDTH OF ACCESS ROAD SHALL BE THE WIDTH REQUIRED BY THE APPLICABLE GOVERNMENT AUTHORITIES,
INCLUDING POLICE AND FIRE DEPARTMENTS.
4. THE TYPE, NUMBER AND MOUNTING POSITIONS AND LOCATIONS OF ANTENNAS AND TRANSMISSION LINES ARE
ILLUSTRATIVE ONLY. ACTUAL TYPES, NUMBERS AND MOUNTING POSITIONS MAY VARY FROM WHAT IS SHOWN ABOVE.
Page 58 of 399
EXHIBIT 10(b)
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
[FOLLOWS ON NEXT PAGE]
Page 59 of 399
Recording Requested By
& When Recorded Return To:
Prepared by, and
after recording return to:
MD7, LLC
(469) 965-9850
950 W. Bethany Drive, Suite 700
Allen, TX 75013
APN: _______________
(Space Above This Line For Recorder’s Use Only)
Cell Site No.: GRANMI5603
Cell Site Name: Muskegon Nims (MI)
Fixed Asset No.: 10124755
State: Michigan
County: Muskegon
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(“Agreement”), dated as of the last of the signature dates below (the “Effective Date”), is entered into by and
among City of Muskegon, a Michigan municipal corporation, having a mailing address of 933 Terrace Street,
Muskegon, MI 49443 ("Lender"), _______________, a _______________, having a mailing address of
_______________ ("Landlord"), and New Cingular Wireless PCS, LLC, a Delaware limited liability company,
having a mailing address of 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta, GA 30319 ("Tenant").
RECITALS:
A. Tenant has entered into a certain Structure Lease Agreement dated , 202 , (the “Lease”)
with Landlord, covering property more fully described in Exhibit 1 attached hereto and made a part hereof
(the “Premises”); and
B. Lender has made a loan to Landlord in the original principal sum of
Dollars ($ ), which loan has been secured by a certain _______________dated _______________,
and recorded on , as Document Number in the Official Records of the
County Recorder of County, State of ______ (the “Deed of Trust”), upon that certain real
property located at , in the City of , County of , State of
____________ __________ [APN: ] ("Property"), a part of which Property contains the
Premises; and
C. Tenant desires to be assured of continued occupancy of the Premises under the terms of the Lease and subject
to the terms of this Agreement.
AGREEMENT
Page 60 of 399
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements herein
contained, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Lender hereby consents to the Lease to the extent that Lender’s consent is required, if at all,
pursuant to the Deed of Trust or any other agreement(s) pertaining to the Property.
2. So long as this Agreement will remain in full force and effect, the Lease is and will be subject
and subordinate to the lien and effect of the Deed of Trust insofar as it affects the real property and fixtures of
which the Premises forms a part (but not Tenant’s trade fixtures and other personal property), and to all renewals,
modifications, consolidations, replacements and extensions thereof, to the full extent of the principal sum secured
thereby and interest thereon, with the same force and effect as if the Deed of Trust had been executed, delivered,
and duly recorded among the above-mentioned public records, prior to the execution and delivery of the Lease.
3. In the event Lender takes possession of the Premises as mortgagee-in-possession or lender-in-
possession or its substantive equivalent, including but not limited to, by deed in lieu of foreclosure or foreclosure
of the Deed of Trust, Lender agrees not to affect or disturb Tenant’s right to possession of the Premises and any
of Tenant’s other rights under the Lease in the exercise of Lender's rights so long as Tenant is not then in default,
after applicable notice and/or grace periods, under any of the terms, covenants, or conditions of the Lease.
4. In the event that Lender succeeds to the interest of Landlord or other landlord under the Lease
and/or to title to the Premises, Lender and Tenant hereby agree to be bound to one another under all of the terms,
covenants and conditions of the Lease; accordingly, from and after such event, Lender and Tenant will have the
same remedies against one another for the breach of an agreement contained in the Lease as Tenant and Landlord
had before Lender succeeded to the interest of Landlord; provided, however, that Lender will not be:
(a) personally liable for any act or omission of any prior landlord (including
Landlord); or
(b) bound by any rent or additional rent which Tenant might have paid for
more than the payment period as set forth under the Lease (one month,
year etc.) in advance to any prior landlord (including Landlord).
5. In the event that Lender or anyone else acquires title to or the right to possession of the Premises
upon the foreclosure of the Deed of Trust, or upon the sale of the Premises by Lender or its successors or assigns
after foreclosure or acquisition of title in lieu thereof or otherwise, Tenant agrees not to seek to terminate the Lease
by reason thereof, but will remain bound unto the new owner so long as the new owner is bound to Tenant (subject
to paragraph 4 above) under all of the terms, covenants and conditions of the Lease.
6. Lender understands, acknowledges and agrees that notwithstanding anything to the contrary
contained in the Deed of Trust and/or any related financing documents, including, without limitation, any UCC-1
financing statements, Lender will acquire no interest in any furniture, equipment, trade fixtures and/or other
property installed by Tenant on the Property. Lender hereby expressly waives any interest which Lender may
have or acquire with respect to such furniture, equipment, trade fixtures and/or other property of Tenant now, or
hereafter, located on or affixed to the Property or any portion thereof and Lender hereby agrees that same do not
constitute realty regardless of the manner in which same are attached or affixed to the Property.
Page 61 of 399
7. This Agreement will be binding upon and will extend to and benefit the successors and assigns
of the parties hereto and to any assignees or subtenants of Tenant which are permitted under the Lease. The term
"Lender", when used in this Agreement will be deemed to include any person or entity which acquires title to or
the right to possession of the Premises by, through or under Lender and/or the Deed of Trust, whether directly or
indirectly.
8. This Agreement may be executed in two (2) or more counterpart originals, and when the original
counterpart signatures are assembled together, shall constitute one integrated instrument. All parties need not sign
the same counterpart.
9. This Agreement will be governed by the laws of the state in which the Premises are located
without regard to conflicts of law.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as of the last signature
date below.
"LANDLORD" "TENANT"
City of Muskegon, New Cingular Wireless PCS, LLC,
a Michigan municipal corporation a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By: By:
Name: Name:
Its: Its:
Date: , 20__ Date: , 20__
"LENDER"
_______________,
a _______________
By:
Name:
Its:
Date: , 20__
[ACKNOWLEDGMENTS APPEAR ON THE FOLLOWING THREE (3) PAGES]
Page 62 of 399
LANDLORD ACKNOWLEDGMENT
STATE OF _________________________)
)
COUNTY OF _______________________)
I CERTIFY that on ______________ _____, 202__, _______________________________ [name
of representative] personally came before me and acknowledged under oath that he or she:
(a) is the ____________________ [title] of City of Muskegon, a Michigan municipal
corporation, the corporation named in the attached instrument;
(b) was authorized to execute this instrument on behalf of the corporation; and
(c) executed the instrument as the act of the corporation.
__________________________________________
Notary Public: _____________________________
My Commission Expires:_____________________
Page 63 of 399
TENANT ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ___________________________________
is the person who appeared before me, and said person acknowledged that he/she signed this instrument,
on oath stated that he/she was authorized to execute the instrument and acknowledged it as the
____________________________ of AT&T Mobility Corporation, the Manager of New Cingular
Wireless PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party
for the uses and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
Page 64 of 399
LENDER ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ________________________________ is
the person who appeared before me, and said person acknowledged that said person signed this instrument,
on oath stated that said person was authorized to execute the instrument and acknowledged it as the
____________________ of , to be the free and
voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of
________________
My appointment expires:
Page 65 of 399
EXHIBIT 1
DESCRIPTION OF PROPERTY AND PREMISES
The Property is legally described as follows:
The Premises is legally described as follows:
[One (1) Page Depiction of the Premises Suitable for Recording in __________ County
Appears on Following Page ]
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EXHIBIT 11
ENVIRONMENTAL DISCLOSURE
Landlord represents and warrants that the Property, as of the Effective Date, is free of hazardous substances
except as follows:
None.
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EXHIBIT 12
STANDARD ACCESS LETTER
[FOLLOWS ON NEXT PAGE]
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{This Letter Goes On Landlord's Letterhead}
[Insert Date]
Building Staff / Security Staff
[Landlord, Lessee, Licensee]
[Street Address]
[City, State, Zip]
Re: Authorized Access granted to [ ]
Dear Building and Security Staff,
Please be advised that we have signed a lease with [ ] permitting [ ] to install, operate
and maintain telecommunications equipment at the property. The terms of the lease grant [ ]
and its representatives, employees, agents and subcontractors (“representatives”) 24 hour per day, 7 day per
week access to the leased area.
To avoid impact on telephone service during the day, [ ] representatives may be seeking access
to the property outside of normal business hours. [ ] representatives have been instructed to
keep noise levels at a minimum during their visit.
Please grant the bearer of a copy of this letter access to the property and to leased area. Thank you for your
assistance.
_______________________
Landlord Signature
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EXHIBIT 24(b)
MEMORANDUM OF LEASE
[FOLLOWS ON NEXT PAGE]
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PARCEL #: 24-129-400-0002-00
Prepared by, and
after recording return to:
MD7, LLC
(469) 965-9850
950 W. Bethany Drive, Suite 700
Allen, TX 75013
Cell Site No.: GRANMI5603
Cell Site Name: Muskegon Nims (MI)
Fixed Asset No.: 10124755
State: Michigan
County: Muskegon
MEMORANDUM
OF
LEASE
This Memorandum of Lease is entered into on this day of , 202 , by
and between City of Muskegon, a Michigan municipal corporation, having its principal office/residing at 933
Terrace Street, Muskegon, MI 49443 (hereinafter called “Landlord”), and New Cingular Wireless PCS, LLC, a
Delaware limited liability company, having a mailing address of 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta,
GA 30319 (“Tenant”).
1. Landlord and Tenant entered into a certain Structure Lease Agreement (“Agreement”) on the
day of , 202 , for the purpose of installing, operating and maintaining a
communication facility and other improvements. All of the foregoing is set forth in the Agreement.
2. The initial lease term will be ten (10) years commencing on February 1, 2024, with five (5) successive
automatic five (5) year options to renew.
3. The portion of the land being leased to Tenant and associated easements are described in Exhibit 1
annexed hereto.
4. The Agreement gives Tenant a right of first refusal in the event Landlord receives a bona fide written
offer from a third party seeking any sale, conveyance, assignment or transfer, whether in whole or in
part, of any property interest in or related to the Premises, including without limitation any offer
seeking an assignment or transfer of the Rent payments associated with the Agreement or an offer to
purchase an easement with respect to the Premises.
5. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed
as amending or modifying, any of the terms, conditions or provisions of the Agreement, all of which
are hereby ratified and affirmed. In the event of a conflict between the provisions of this
Memorandum of Lease and the provisions of the Agreement, the provisions of the Agreement shall
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control. The Agreement shall be binding upon and inure to the benefit of the parties and their
respective heirs, successors, and assigns, subject to the provisions of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first
above written.
LANDLORD: TENANT:
City of Muskegon, New Cingular Wireless PCS, LLC,
a Michigan municipal corporation a Delaware limited liability company
By: By: AT&T Mobility Corporation
Print Name: Its: Manager
Its:
Date: By:
Print Name:
Its:
Date:
[ACKNOWLEDGMENTS APPEAR ON TWO NEXT PAGES]
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LANDLORD ACKNOWLEDGMENT
STATE OF _________________________)
)
COUNTY OF _______________________)
I CERTIFY that on ______________ _____, 202__, _______________________________ [name of
representative] personally came before me and acknowledged under oath that he or she:
(a) is the ____________________ [title] of City of Muskegon, a Michigan municipal corporation,
the corporation named in the attached instrument;
(b) was authorized to execute this instrument on behalf of the corporation; and
(c) executed the instrument as the act of the corporation.
__________________________________________
Notary Public: _____________________________
My Commission Expires:_____________________
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TENANT ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ___________________________________ is the
person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated
that he/she was authorized to execute the instrument and acknowledged it as the
____________________________ of AT&T Mobility Corporation, the Manager of New Cingular Wireless
PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
12
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EXHIBIT 1 TO MEMORANDUM OF LEASE
DESCRIPTION OF PROPERTY AND PREMISES
Page of
to the Memorandum of Lease dated ________________, 20___, by and between City of Muskegon, a
Michigan municipal corporation, as Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited liability
company, as Tenant.
The Property is legally described as follows:
The Premises are described and/or depicted as follows:
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EXHIBIT 24(k)
IRS FORM W-9
Page 1 of 1
[IRS FORM W-9 (REVISED OCTOBER 2018)
APPEAR ON FOLLOWING PAGE]
14
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Marshall Water Tower Cellular Antenna
Lease Renewal
Submitted by: Dan VanderHeide, Public Works Department: Public Works
Director
Brief Summary:
Staff requests authorization to enter into a 10 year lease renewal agreement with up to 25 years of
extension options with New Cingular Wireless PCS, LLC for space on and near the Marshall water
tower for a cellular antenna and related equipment.
Detailed Summary & Background:
Commission authorized Maralat, LLC, a cellular antenna industry consultant, to enter into negotiations
on the City's behalf with AT&T for renewal of their lease on the Marshall water tower. Staff, legal
counsel and Maralat have been working with AT&T to finalize the terms of a lease extension and
have reached an agreement as presented in the attached lease agreement. The table below
summarizes the terms in both the prior lease and this proposed extension.
Component Prior Lease Proposed Renewal
Rental Rate $4,938.77 $4,850
Annual Escalation 3% 3%
Commencement Date N/A February 1, 2024
Termination Date September 30, 2018 January 31, 2059
Termination Fee (Initial 10-Year Term) None 100% of Rent for 5 Years, then 50%
Equipment Upgrade Fee None $325 per Month Per New Antenna
Administrative Signing Bonus None $7,500
The proposed lease is the same as the Nims water tower extension included on tonight's agenda.
Although the rental rate is slightly decreased at the start of the lease, Maralat ensures staff that it
reflects the best available rates and terms available to the City and the lease includes other items
such as a termination fee, an upgrade fee and an administrative signing bonus that make the slight
rent reduction less impactful overall, and the extension continues the 3% annual escalator.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Decrease infrastructure burden on residents, Sustainability in financial practices and infrastructure,
Increase revenue
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Goal/Action Item:
2027 GOAL 4: FINANCIAL INFRASTRUCTURE - Increase revenue
Amount Requested: Budgeted Item:
N/A Yes X No N/A
Fund(s) or Account(s): Budget Amendment Needed:
591 (Water) Yes No X N/A
Recommended Motion:
Authorize staff to enter into a 10 year lease renewal agreement with up to 25 years of extension
options with New Cingular Wireless PCS, LLC for space on and near the Marshall water tower for a
cellular antenna and related equipment.
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Other Division Heads X
Communication
Legal Review X
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Market: MI / IN
Cell Site Number: GRANMI5602
Cell Site Name: Muskegon Marshall WT
Fixed Asset Number: 10124756
STRUCTURE LEASE AGREEMENT
THIS STRUCTURE AGREEMENT (“Agreement”), dated as of the latter of the signature dates
below (the “Execution Date”) and effective _____________, 2024 (the “Effective Date”), is entered into by
City of Muskegon, a Michigan municipal corporation, having a mailing address of 933 Terrace Street,
Muskegon, MI 49443 (“Landlord”) and New Cingular Wireless PCS, LLC, a Delaware limited liability
company, having a mailing address of 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta, GA 30319 (“Tenant”).
BACKGROUND
Landlord owns or controls that certain plot, parcel or tract of land, as described on Exhibit 1,
improved with a water tower (the “Water Tower”), together with all rights and privileges arising in
connection therewith, located at 275 Marshall Street, in the County of Muskegon, State of Michigan
(collectively, the “Property”). Landlord desires to grant to Tenant the right to use a portion of the Property
in accordance with this Agreement.
Landlord and Tenant (or their predecessors-in-interest) entered into that certain Site Lease dated
October 1, 1998, as amended by that certain First Amendment to the Site Lease dated January 29, 2009, as
amended by that certain Second Amendment to the Site Lease dated August 17, 2012, as amended by that
certain Third Amendment to the Site Lease dated September 23, 2014, and as further amended by that certain
Fourth Amendment to the Site Lease dated November 10, 2014 (collectively, the “Prior Lease”), for the
Premises defined below and the term of the Prior Lease expired on September 30, 2018. Landlord and Tenant
agree that this Agreement shall be effective as of the Effective Date and as of the Effective Date, the Prior
Lease shall be terminated and of no further force and effect, and this Agreement replaces and supersedes the
Prior Lease.
The parties agree as follows:
1. LEASE OF PREMISES. Landlord hereby leases to Tenant a portion of the Property consisting of:
(a) approximately 100 square feet including the air space above such ground space, as described
on attached Exhibit 1, for the placement of Tenant’s Communication Facility;
(b) space for any structural steel or other improvements to support Tenant’s equipment
(collectively, the space referenced in (a) and (b) is the “Equipment Space”);
(c) that certain space on the Water Tower, as generally depicted on Exhibit 1, including the air
space above same, where Tenant shall have the right to install its antennas and other equipment (collectively,
the “Antenna Space”); and
(d) those certain areas where Tenant’s conduits, wires, cables, cable trays and other necessary
connections are located between the Equipment Space and the Antenna Space, and between the Equipment
Space and the electric power, telephone, and fuel sources for the Property (hereinafter collectively referred to
as the “Connection Space”). Landlord agrees that Tenant shall have the right to install connections between
Tenant’s equipment in the Equipment Space and Antenna Space; and between Tenant’s equipment in the
Equipment Space and the electric power, telephone, and fuel sources for the Property, and any other
improvements and will require written approval before installing a flammable fuel source such as natural gas or
propane, which consent may be withheld in Landlord’s sole discretion. Landlord further agrees that Tenant shall
have the right to install, replace and maintain utility lines, wires, poles, cables, conduits, pipes and other
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necessary connections over or along any right-of-way extending from the aforementioned public right-of-way
to the Premises. All new installations of equipment and services by Tenant at the Premises shall require prior
notice and approval by Landlord and Landlord’s inspections department, such approvals not to be
unreasonably withheld, conditioned or delayed. The Equipment Space, Antenna Space, and Connection
Space, are hereinafter collectively referred to as the “Premises.”
2. PERMITTED USE. Tenant, its personnel, invitees, contractors, agents, subtenants, or its authorized
sublessees, or assigns may use the Premises, at no additional cost or expense, for the transmission and
reception of any and all communications signals and, to modify, supplement, replace, upgrade, expand, or refurbish
the equipment, as provided herein, and/or the improvements thereon (collectively, the "Communications Facility") or
relocate the same within the Premises, at any time during the term of the Agreement, so long as these changes do
not exceed the structural capacity of the tower/structure at this height, or at Tenant's sole expense upgrade the
structural capacity, or in order to be in compliance with any current or future federal, state or local mandated
application, including but not limited to emergency 911 communication services or for any other reason.
Before Tenant commences any modification which increase the structural load on the tower/structure, Tenant
shall provide Landlord with a passing structural analysis. Tenant may operate the Communications Facility
at any frequency for which it has all requisite licenses and permits so long as these frequencies do not cause
an interference issue with an existing lawfully installed and properly operated tenant on the tower/structure.
Landlord shall reasonably cooperate in obtaining governmental and other use permits or approvals necessary
or desirable for the foregoing permitted use. As of the Effective Date of this Agreement, Tenant has the right to
install nine (9) antennas, as well as any antennae required for E911 purposes and/or for Tenant to keep its
Communications Facility in compliance with all applicable laws and regulations as required herein. Should Tenant
increase the quantity of antennas beyond nine (9), then Tenant shall increase its monthly rental payment to Landlord by
$325.00 for each additional antenna. Said rental increase shall commence on the 1st day of the month after Tenant
begins the equipment installation. This rental increase shall not apply to antennas added for E911 purposes or for Tenant
to keep the Communications Facility in compliance with any applicable law or regulations as required herein. If
Landlord does not comply with the terms of this section, in addition to any other rights it may have at law,
Tenant may terminate the Agreement and shall have no further liability to Landlord. If Landlord does not
comply with the terms of this section, Tenant will have the right to exercise any and all rights available to it
under law and equity, including the right to cure Landlord’s default and to deduct the costs of such cure from
any monies due to Landlord from Tenant. Landlord and Tenant agree that any portion of the Communication
Facility that may be conceptually described on Exhibit 1 will not be deemed to limit Tenant’s Permitted Use.
If Exhibit 1 includes drawings of the initial installation of the Communication Facility, Landlord’s execution
of this Agreement will signify Landlord’s approval of Exhibit 1. During the Term, Tenant cannot materially
interfere with or block Landlord's access with the main functions and day-to-day operations of the Water Tower or with
existing tenants as of the Effective Date. For a period of ninety (90) days following the start of construction,
Landlord grants Tenant, its subtenants, licensees and sublicensees, the right to use such portions of the
Landlord’s contiguous, adjoining or surrounding property (the “Surrounding Property”) as may reasonably
be required during construction and installation of the Communication Facility. Tenant has the right to install
and operate transmission cables from the equipment shelter or cabinet to the antennas, electric lines from the
main feed to the equipment shelter or cabinet and communication lines from the Property’s main entry point
to the equipment shelter or cabinet, install a generator and to make other improvements, alterations, upgrades
or additions appropriate for Tenant’s Permitted Use, including the right to construct a fence around the
Premises or equipment (so long as the fence does not unreasonably interfere with Landlord's existing use of the Water
Tower or the existing use of the Water Tower by tenants existing as of the Effective Date), install warning signs to
make individuals aware of risks, install protective barriers, install any other control measures reasonably
required by Tenant’s safety procedures or applicable law, and undertake any other appropriate means to secure
the Premises or equipment at Tenant’s expense. Tenant has the right, to install, modify, supplement, replace,
upgrade, expand the Communication Facility (including, for example, increasing the number of antennas or
adding microwave dishes) or relocate the Communication Facility within the Premises at any time during the
Term. Tenant will be allowed to make such alterations to the Property in order to ensure that the
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Communication Facility complies with all applicable federal, state or local laws, rules or regulations. In the
event Tenant desires to modify or upgrade the Communication Facility, in a manner that requires an additional
portion of the Property (the “Additional Premises”) for such modification or upgrade, Landlord agrees to
lease to Tenant the Additional Premises, upon the same terms and conditions set forth herein, except that the
Rent shall increase, in conjunction with the lease of the Additional Premises by the amount equivalent to the
then-current per square foot rental rate charged by Landlord to Tenant times the square footage of the
Additional Premises. Landlord agrees to take such actions and enter into and deliver to Tenant such
documents as Tenant reasonably requests in order to effect and memorialize the lease of the Additional
Premises to Tenant.
3. TERM.
(a) The initial lease term will be ten (10) years (the “Initial Term”), commencing on February
1, 2024. The Initial Term will terminate on the tenth (10th) anniversary of the Initial Term.
(b) This Agreement will automatically renew for five (5) additional five (5) year term(s) (each
additional five (5) year term shall be defined as an “Extension Term”), upon the same terms and conditions
set forth herein unless Tenant notifies Landlord in writing of Tenant’s intention not to renew this Agreement
at least sixty (60) days prior to the expiration of the Initial Term or the then-existing Extension Term.
(c) Unless (i) Landlord or Tenant notifies the other in writing of its intention to terminate this
Agreement at least six (6) months prior to the expiration of the final Extension Term, or (ii) the Agreement is
terminated as otherwise permitted by this Agreement prior to the end of the final Extension Term, this
Agreement shall continue in force upon the same covenants, terms and conditions for a further term of one
(1) year, and for annual terms thereafter (“Annual Term”) until terminated by either party hereto by giving
to the other party hereto written notice of its intention to so terminate at least six (6) months prior to the end
of any such Annual Term. Monthly Rent during such Annual Terms shall be equal to the Rent paid for the
last month of the final Extension Term. If Tenant remains in possession of the Premises after the termination
of this Agreement, then Tenant will be deemed to be occupying the Premises on a month-to-month basis (the
“Holdover Term”), subject to the terms and conditions of this Agreement.
(d) The Initial Term, any Extension Terms, any Annual Terms and any Holdover Term are
collectively referred to as the “Term.”
4. RENT.
(a) Commencing on February 1, 2024 (the “Rent Commencement Date”), Tenant will pay
Landlord on or before the fifth (5th) day of each calendar month in advance, Four Thousand Eight Hundred
Fifty and No/100 Dollars ($4,850.00) (the “Rent”), at the address set forth above. The Rent shall continue
during the Term, subject to adjustment as provided herein: on each anniversary of the Rent Commencement
Date, including throughout any Extension Term exercised, the Rent will increase by three percent (3%) over
the Rent paid during the previous year, and every year thereafter. In any partial month occurring after the
Rent Commencement Date, the Rent will be prorated. The initial Rent payment will be forwarded by Tenant
to Landlord within ninety (90) days after the Rent Commencement Date. In addition to Rent, Tenant shall
owe Landlord a one-time signing bonus of Seven Thousand Five Hundred and No/100 Dollars ($7,500.00) upon
the full execution of this Agreement.
(b) Modification of Tenant’s Obligation to Pay – Rent Guarantee. Notwithstanding Tenant’s
obligations to pay Rent set forth under the Agreement, for a sixty (60) month period commencing February
1, 2024, and ending January 31, 2029, Tenant’s obligation to pay the entire Rent is guaranteed in full for such
period and such obligation will not be subject to offset or cancellation by Tenant. Following such sixty (60)
month period, for a sixty (60) month period commencing February 1, 2029 and ending January 31, 2034,
Tenant’s obligation to pay Rent is guaranteed in an amount of no less than 50% of the Rent due for such
period and such obligation will not be subject to offset or cancellation by Tenant. For purposes of this
Agreement, such one hundred twenty (120) month period shall be referred to as the “Rent Guarantee
Period”. The Termination Fee (as hereinafter defined) shall not apply and shall not be payable by Tenant if Tenant
terminates as provided herein within the Rent Guarantee Period. Notwithstanding the foregoing, if Landlord
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exercises any of Landlord’s rights to terminate the Agreement, if any, other than the Landlord’s right to
terminate the Agreement due to the default of Tenant under the terms of the Agreement beyond any applicable
grace period, Tenant will be released from any and all of its obligations to pay Rent during the Rent Guarantee
Period as of the effective date of the termination. In addition, Tenant shall be released from any and all of its
obligations to pay Rent during the Rent Guarantee Period if the following shall occur: (i) Landlord is in breach
of the Agreement, including but not limited to any default under the terms of the Agreement beyond any
applicable grace and cure period; (ii) there is a foreclosure of the Agreement which results in a termination of
the Agreement; or (iii) the Landlord shall require Tenant to relocate Tenant’s equipment and facilities to a
location that is not acceptable to Tenant in its reasonable business judgment if allowed for in the Agreement.
If the Agreement is further modified in the future with an obligation for Tenant to pay additional Rent, the
payment of Rent guarantee established in this paragraph will not be diminished or limited, but such Rent
guarantee will not extend to that future additional Rent obligation.
(c) All charges payable under this Agreement such as utilities and taxes shall be billed by
Landlord within one (1) year from the end of the calendar year in which the charges were incurred; any
charges beyond such period shall not be billed by Landlord, and shall not be payable by Tenant. The foregoing
shall not apply to monthly Rent which is due and payable without a requirement that it be billed by Landlord.
The provisions of this subsection shall survive the termination or expiration of this Agreement.
5. APPROVALS.
(a) Landlord agrees that Tenant's ability to use the Premises is contingent upon the suitability of
the Premises and Property for Tenant's Permitted Use and Tenant's ability to obtain and maintain all
governmental licenses, permits, approvals or other relief required of or deemed necessary or appropriate by
Tenant for its use of the Premises, including without limitation applications for zoning variances, zoning
ordinances, amendments, special use permits, and construction permits (collectively, the "Government
Approvals"). Landlord authorizes Tenant to prepare, execute and file all required applications to obtain
Government Approvals for Tenant’s Permitted Use under this Agreement and agrees to reasonably assist
Tenant with such applications and with obtaining and maintaining the Government Approvals. In addition,
Tenant shall have the right to initiate the ordering and/or scheduling of necessary utilities.
(b) Tenant, at Tenant’s sole cost and expense, has the right to obtain a title report or commitment
for a leasehold title policy from a title insurance company of its choice and to have the Property surveyed by
a surveyor of its choice.
(c) Tenant may also perform and obtain, at Tenant’s sole cost and expense, soil borings,
percolation tests, engineering procedures, environmental investigation or other tests or reports on, over, and
under the Property, necessary to determine if Tenant’s use of the Premises will be compatible with Tenant’s
engineering specifications, system, design, operations or Government Approvals.
6. TERMINATION. This Agreement may be terminated, without penalty or further liability, as
follows:
(a) by either party on thirty (30) days prior written notice, if the other party remains in default
under Section 15 of this Agreement after the applicable cure periods;
(b) by Tenant upon written notice to Landlord, if Tenant is unable to obtain, or maintain, any
required approval(s) or the issuance of a license or permit by any agency, board, court or other governmental
authority necessary for the construction or operation of the Communication Facility as now or hereafter
intended by Tenant; or if Tenant determines, in its sole discretion that the cost of or delay in obtaining or
retaining the same is commercially unreasonable;
(c) by Tenant, upon written notice to Landlord, if Tenant determines, in its sole discretion, due
to the title report results or survey results, that the condition of the Premises is unsatisfactory for its intended
uses;
(d) by Tenant upon written notice to Landlord for any reason or no reason, at any time prior to
commencement of construction by Tenant;
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(e) by Tenant upon sixty (60) days’ prior written notice to Landlord for any reason or no reason,
so long as Tenant pays Landlord a termination fee equal to six (6) months’ Rent, at the then-current rate (the
"Termination Fee"), provided, however, that no such termination fee will be payable on account of the
termination of this Agreement by Tenant under any termination provision contained in any other Section of
this Agreement, including the following: Section 5 Approvals, Section 6(a) Termination, Section 6(b)
Termination, Section 6(c) Termination, Section 6(d) Termination, Section 8 Interference, Section 11(d)
Environmental, Section 18 Condemnation or Section 19 Casualty; or,
(f) by Landlord upon any of the following events: (i) upon two (2) years prior written notice if
Landlord determines that after the Initial Term of this Agreement, or upon two (2) years prior written notice
before to the conclusion of any renewals of this Agreement, that the Tenant’s Permitted Use of the Premises
under this Agreement is no longer in the Landlord’s best interest, in its sole discretion; (ii) if Landlord
determines that Tenant’s Permitted Use of the Premises under this Agreement (including Tenant’s operation
of its communications equipment) is interfering with the rights of Landlord or other tenants currently on the
Property and that the issue cannot be remediated by Tenant; or (iii) if Tenant is in default of the terms of this
Agreement and the default has not been cured under Section 15.
7. INSURANCE. During the Term, Tenant, at Tenant’s sole cost and expense, will carry and maintain
in effect a commercial general liability insurance per ISO form CG 00 01 or its equivalent, insuring against
bodily injury and property damage. Said policy of commercial general liability insurance will provide a
combined single limit of One Million and No/100 Dollars ($1,000,000.00) per occurrence and in aggregate.
Tenant shall provide Landlord with a certificate of insurance evidencing such coverage which states that the
carrier has insured Tenant for the required insurance policies liabilities under this Lease. Tenant will provide
at least 30 days written notice to Landlord, of cancellation or non-renewal of any required coverage that is
not replaced.. Landlord shall be included to the policy as an additional insured by endorsement as respects
to this Agreement.
8. INTERFERENCE.
(a) Prior to or concurrent with the execution of this Agreement, Landlord has provided or will
provide Tenant with a list of radio frequency user(s) on the Property as of the Effective Date; provided,
however, it shall be Tenant’s sole responsibility to determine the actual radio frequencies used by such user(s).
Tenant warrants that its use of the Premises will not interfere with those existing radio frequency uses on the
Property, as long as the existing radio frequency user(s) operate and continue to operate within their respective
frequencies and in accordance with all applicable laws and regulations.
(b) Landlord will not grant, after the Effective Date, a lease, license or any other right to any
third party, if the exercise of such grant may in any way adversely affect or interfere with the Communication
Facility, the operations of Tenant or the rights of Tenant under this Agreement.
(c) Landlord will not, nor will Landlord permit its employees, tenants, licensees, invitees, agents
or independent contractors to interfere in any way with the Communication Facility, the operations of Tenant
or the rights of Tenant under this Agreement. Landlord will cause such interference to cease within twenty-
four (24) hours after receipt of notice of interference from Tenant. In the event any such interference does
not cease within the aforementioned cure period, Landlord shall cease all operations which are suspected of
causing interference (except for intermittent testing to determine the cause of such interference) until the
interference has been corrected. Tenant will not, nor will Tenant permit its employees, tenants, licensee,
invitees, agents, or independent contractors to interfere in any way with the operations of Landlord or other
tenants of the Water Tower or Premises, as long as the existing radio frequency user(s) operate and continue
to operate within their respective frequencies and in accordance with all applicable laws and regulations.
(d) For the purposes of this Agreement, “interference” may include, but is not limited to, any use
on the Property that causes electronic or physical obstruction with, or degradation of, the communications
signals from the Communication Facility.
(e) Tenant's installation, operation, and maintenance of its Communication Facilities shall not
damage or interfere with Landlord's Water Tower and/or the Property's operations or related repair and
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maintenance activities. Landlord, at all times during this Agreement, reserves the right to take any action it
deems necessary, in its sole discretion, to repair, maintain, alter or improve the Property in connection with
city operations as may be necessary, including leasing parts of the Water Tower and/or Property and
surrounding ground space to others.
(f) Tenant acknowledges and agrees that the primary purpose of the Water Tower is to provide water
storage for Landlord and its customers. Tenant understands that Landlord may have to interrupt Tenant’s use
of the Premises from time to time to service, maintain, or repair the Water Tower. Accordingly, Landlord
reserves the right at all times during this Agreement to take any action it deems necessary in its sole discretion
to repair, maintain, alter, or improve the Property and shall not be liable to Tenant for any temporary
interference with Tenant’s use as a result of actions necessary to carry out any such activities.
Notwithstanding the foregoing, Landlord agrees to provide Tenant with reasonable advance notice of any
planned activities, emergencies excepted, and to carry out such activities in a manner to minimize
interruptions with Tenant’s use.
9. Intentionally deleted.
10. WARRANTIES.
(a) Each of Tenant and Landlord (to the extent not a natural person) each acknowledge and
represent that it is duly organized, validly existing and in good standing and has the right, power, and authority
or capacity, as applicable, to enter into this Agreement and bind itself hereto through the party or individual
set forth as signatory for the party below.
(b) To the extent permitted by state or municipal law, and except as otherwise previously
disclosed by Landlord to Tenant prior to the date of this Agreement, Landlord represents, warrants and agrees
that: (i) Landlord solely owns the Property as a legal lot in fee simple, or controls the Property by lease or
license and solely owns the Water Tower; (ii) the Property is not and will not be encumbered by any liens,
restrictions, mortgages, covenants, conditions, easements, leases, or any other agreements of record or not of
record, which would adversely affect Tenant’s Permitted Use and enjoyment of the Premises under this
Agreement; (iii) Landlord grants to Tenant sole, actual, quiet and peaceful use, enjoyment and possession of
the Premises in accordance with the terms of this Agreement without hindrance or ejection by any persons
lawfully claiming under Landlord ; (iv) Landlord’s execution and performance of this Agreement will not
violate any laws, ordinances, covenants or the provisions of any mortgage, lease or other agreement binding
on Landlord; and (v) if the Property is or becomes encumbered by a deed to secure a debt, mortgage or other
security interest, then Landlord will provide promptly to Tenant a mutually agreeable subordination, non-
disturbance and attornment agreement executed by Landlord and the holder of such security interest in the
form attached hereto as Exhibit 10(b).
(c) Tenant currently leases a portion of the Property pursuant to the Prior Lease, and Tenant
acknowledges and agrees that Tenant is familiar with the condition of the Premises and agrees to accept the
physical condition of the Premises in “AS IS” condition. Tenant further acknowledges and agrees that Tenant
is relying solely on its own investigation of the Premises and not on any information provided to or to be
provided by Landlord. Tenant agrees to accept the Premises and waive all objections or claims against
Landlord arising from or related to the Premises, except for a breach of any representations, warranties, or
covenants set forth in this Lease.
11. ENVIRONMENTAL.
Notwithstanding the foregoing, Landlord represents that it has no knowledge of the presence of or
contamination by any hazardous substances on the Property in violation of any applicable federal, state, or
local law or regulation. Landlord and Tenant agree that each will be responsible for compliance with any and
all applicable governmental laws, rules, statutes, regulations, codes, ordinances, or principles of common law
regulating or imposing standards of liability or standards of conduct with regard to protection of the
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environment or worker health and safety, as may now or at any time hereafter be in effect, to the extent such
apply to that party’s activity conducted in or on the Property.
12. ACCESS. At all times throughout the Term of this Agreement, Tenant and its employees, agents,
and subcontractors, will require twenty-four (24) hour access, for pedestrian and vehicular access (“Access”)
to and over the Property, from an open and improved public road to the Premises, for the installation,
maintenance and operation of the Communication Facility and any utilities serving the Premises. There is a
sign at the access point that will need to be called to, to provide access to enter the Premises in the case of emergencies.
As may be described more fully in Exhibit 1, Landlord grants to Tenant an easement for such Access and
Landlord agrees to provide to Tenant such codes, keys and other instruments necessary for such Access.
Upon Tenant’s request, Landlord will execute a separate recordable easement evidencing this right. Landlord
shall execute a letter granting Tenant Access to the Property substantially in the form attached as Exhibit 12;
upon Tenant’s request, Landlord shall execute additional letters during the Term. If Tenant elects to utilize
an Unmanned Aircraft System (“UAS”) in connection with its installation, construction, monitoring, site
audits, inspections, maintenance, repair, modification, or alteration activities at the Property, Landlord hereby
grants Tenant, or any UAS operator acting on Tenant’s behalf, express permission to fly over the applicable
Property and Premises, and consents to the use of audio and video navigation and recording in connection
with the use of the UAS. Landlord acknowledges that in the event Tenant cannot obtain Access to the
Premises, Tenant shall incur significant damage. If Landlord fails to provide the Access granted by this
Section 12, such failure shall be a default under this Agreement.
13. REMOVAL/RESTORATION. All portions of the Communication Facility brought onto the
Property by Tenant will be and remain Tenant’s personal property and, at Tenant’s option, may be removed
by Tenant at any time during or after the Term. Landlord covenants and agrees that no part of the
Communication Facility constructed, erected or placed on the Premises by Tenant will become, or be
considered as being affixed to or a part of, the Property, it being the specific intention of Landlord that all
improvements of every kind and nature constructed, erected or placed by Tenant on the Premises will be and
remain the property of Tenant and may be removed by Tenant at any time during or after the Term. Tenant
will repair any damage to the Property resulting from Tenant’s removal activities. Any portions of the
Communication Facility that Tenant does not remove within one hundred twenty (120) days after the later of
the end of the Term and cessation of Tenant’s operations at the Premises shall be deemed abandoned and
owned by Landlord. Notwithstanding the foregoing, Tenant will not be responsible for the replacement of
any trees, shrubs or other vegetation.
14. MAINTENANCE/UTILITIES.
(a) Tenant will keep and maintain the Premises in good condition, reasonable wear and tear and
damage from the elements excepted. Landlord will maintain and repair the Property and access thereto, the
Water Tower, and all areas of the Premises where Tenant does not have exclusive control, in good and
tenantable condition, subject to reasonable wear and tear and damage from the elements. Landlord will be
responsible for maintenance of landscaping on the Property.
(b) Tenant will be responsible for paying on a monthly or quarterly basis all utilities charges for
electricity, telephone service or any other utility used or consumed by Tenant on the Premises. In the event
Tenant cannot secure its own metered electrical supply, Tenant will have the right, at its own cost and expense,
to sub-meter from Landlord. When sub-metering is required under this Agreement, Landlord will read the
meter and provide Tenant with an invoice and usage data on a monthly basis. Tenant shall reimburse Landlord
for such utility usage at the same rate charged to Landlord by the utility service provider. Landlord further
agrees to provide the usage data and invoice on forms provided by Tenant and to send such forms to such
address and/or agent designated by Tenant. Tenant will remit payment within sixty (60) days of receipt of
the usage data and required forms. Landlord shall maintain accurate and detailed records of all utility
expenses, invoices and payments applicable to Tenant’s reimbursement obligations hereunder. Within fifteen
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(15) days after a request from Tenant, Landlord shall provide copies of such utility billing records to the
Tenant in the form of copies of invoices, contracts and cancelled checks. If the utility billing records reflect
an overpayment by Tenant, Tenant shall have the right to deduct the amount of such overpayment from any
monies due to Landlord from Tenant.
(c) As noted in Section 4(c) above, any utility fee recovery by Landlord is limited to a twelve
(12) month period. If Tenant sub-meters electricity from Landlord, Landlord agrees to give Tenant at least
twenty-four (24) hours advance notice of any planned interruptions of said electricity. Landlord
acknowledges that Tenant provides a communication service which requires electrical power to operate and
must operate twenty-four (24) hours per day, seven (7) days per week. If the interruption is for an extended
period of time, in Tenant’s reasonable determination, Landlord agrees to allow Tenant the right to bring in a
temporary source of power for the duration of the interruption. Landlord will not be responsible for
interference with, interruption of or failure, beyond the reasonable control of Landlord, of such services to be
furnished or supplied by Landlord.
(d) Tenant will have the right to install utilities, at Tenant’s expense, and to improve present
utilities on the Property and the Premises. Landlord hereby grants to any service company providing utility
or similar services, including electric power and telecommunications, to Tenant an easement over the
Property, from an open and improved public road to the Premises, and upon the Premises, for the purpose of
constructing, operating and maintaining such lines, wires, circuits, and conduits, associated equipment
cabinets and such appurtenances thereto, as such service companies may from time to time require in order
to provide such services to the Premises. Upon Tenant’s or service company’s request, Landlord will execute
a separate recordable easement evidencing this grant, at no cost to Tenant or the service company.
15. DEFAULT AND RIGHT TO CURE.
(a) The following will be deemed a default by Tenant and a breach of this Agreement: (i) non-
payment of Rent if such Rent remains unpaid for more than thirty (30) days after written notice from Landlord
of such failure to pay; or (ii) Tenant’s failure to perform any other term or condition under this Agreement
within forty-five (45) days after written notice from Landlord specifying the failure. Delay in curing a default
will be excused if due to causes beyond the reasonable control of Tenant. If Tenant remains in default beyond
any applicable cure period, then Landlord will have the right to exercise any and all rights and remedies
available to it under law and equity.
(b) The following will be deemed a default by Landlord and a breach of this Agreement: (i)
Landlord’s failure to provide Access to the Premises as required by Section 12 within twenty-four (24) hours
after written notice of such failure; (ii) Landlord’s failure to cure an interference problem as required by
Section 8 within twenty-four (24) hours after written notice of such failure; or (iii) Landlord’s failure to
perform any term, condition or breach of any warranty or covenant under this Agreement within forty-five
(45) days after written notice from Tenant specifying the failure. Delay in curing a default will be excused if
due to causes beyond the reasonable control of Landlord. If Landlord remains in default beyond any
applicable cure period, Tenant will have: (i) the right to cure Landlord’s default and to deduct the reasonable
costs of such cure from any monies due to Landlord from Tenant, and (ii) any and all other rights available
to it under law and equity.
16. ASSIGNMENT/SUBLEASE. This Agreement may not be assigned or subleased without the prior
written consent of Landlord, which consent may be withheld for any reason or no reason in Landlord’s sole
discretion. Notwithstanding the foregoing, this Agreement may be assigned without Landlord consent to an
entity that controls, is controlled by, or is under the common control of Tenant, or to any entity resulting from
any merger or consolidation with Tenant, or to any partner of Tenant, or to any person or entity that acquires
all of the assets of Tenant as a going concern, provided that Tenant shall indemnify and hold Landlord
harmless. Notwithstanding anything contained herein to the contrary, Tenant acknowledges and agrees that
any permitted assignee or subtenant shall be required to comply with all applicable laws including all licensing
and/or permitting requirements imposed by all governmental entities having jurisdiction over the Premises.
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17. NOTICES. All notices, requests and demands hereunder will be given by first class certified or
registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, to
be effective when properly sent and received, refused or returned undelivered. Notices will be addressed to
the parties hereto as follows:
If to Tenant: New Cingular Wireless PCS, LLC
Attn: Tower Asset Group - Lease Administration
Re: Cell Site #: GRANMI5602; Cell Site Name: Muskegon Marshall WT (MI)
Fixed Asset #: 10124756
1025 Lenox Park Blvd NE
3rd Floor
Atlanta, GA 30319
With a copy to: New Cingular Wireless PCS, LLC
Attn.: Legal Dept – Network Operations
Re: Cell Site #: GRANMI5602; Cell Site Name: Muskegon Marshall WT (MI)
Fixed Asset #: 10124756
208 S. Akard Street
Dallas, TX 75202-4206
The copy sent to the Legal Department is an administrative step which alone does not constitute legal notice.
If to Landlord: City of Muskegon
933 Terrace Street
Muskegon, MI 49443
Attn: Dave Baker
Either party hereto may change the place for the giving of notice to it by thirty (30) days’ prior written notice
to the other party hereto as provided herein.
18. CONDEMNATION. In the event Landlord receives notification of any condemnation proceedings
affecting the Property, Landlord will provide notice of the proceeding to Tenant within twenty-four (24)
hours. If a condemning authority takes all of the Property, or a portion sufficient, in Tenant’s sole
determination, to render the Premises unsuitable for Tenant, this Agreement will terminate as of the date the
title vests in the condemning authority. The parties will each be entitled to pursue their own separate awards
in the condemnation proceeds, which for Tenant will include, where applicable, the value of its
Communication Facility, moving expenses, prepaid Rent, and business dislocation expenses. Tenant will be
entitled to reimbursement for any prepaid Rent on a pro rata basis.
19. CASUALTY. Landlord will provide notice to Tenant of any casualty or other harm affecting the
Property within twenty-four (24) hours of the casualty or other harm. If any part of the Communication
Facility or the Property is damaged by casualty or other harm as to render the Premises unsuitable, in Tenant’s
sole determination, then Tenant may terminate this Agreement by providing written notice to Landlord, which
termination will be effective as of the date of such casualty or other harm. Upon such termination, Tenant
will be entitled to collect all insurance proceeds payable to Tenant on account thereof and to be reimbursed
for any prepaid Rent on a pro rata basis. Landlord agrees to permit Tenant to place temporary transmission
and reception facilities on the Property, but only until such time as Tenant is able to activate a replacement
transmission facility at another location; notwithstanding the termination of this Agreement, such temporary
facilities will be governed by all of the terms and conditions of this Agreement, including Rent. If Landlord
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or Tenant undertakes to rebuild or restore the Premises and/or the Communication Facility, as applicable,
Landlord agrees to permit Tenant to place temporary transmission and reception facilities on the Property
until the reconstruction of the Premises and/or the Communication Facility is completed. If Landlord
determines not to rebuild or restore the Property, Landlord will notify Tenant of such determination within
thirty (30) days after the casualty or other harm. If Landlord does not so notify Tenant and Tenant decides
not to terminate under this Section 19, then Landlord will promptly rebuild or restore any portion of the
Property interfering with or required for Tenant’s Permitted Use of the Premises to substantially the same
condition as existed before the casualty or other harm. Landlord agrees that the Rent shall be abated until the
Property and/or the Premises are rebuilt or restored, unless Tenant places temporary transmission and
reception facilities on the Property.
20. WAIVER OF LANDLORD’S LIENS. Landlord waives any and all lien rights it may have, statutory
or otherwise, concerning the Communication Facility or any portion thereof. The Communication Facility shall
be deemed personal property for purposes of this Agreement, regardless of whether any portion is deemed real
or personal property under applicable law; Landlord consents to Tenant’s right to remove all or any portion of
the Communication Facility from time to time in Tenant’s sole discretion and without Landlord’s consent.
21. TAXES.
(a) Landlord shall be responsible for (i) all taxes and assessments levied upon the lands,
improvements and other property of Landlord including any such taxes that may be calculated by a taxing
authority using any method, including the income method, (ii) all sales, use, license, value added,
documentary, stamp, gross receipts, registration, real estate transfer, conveyance, excise, recording, and other
similar taxes and fees imposed in connection with this Agreement, and (iii) all sales, use, license, value added,
documentary, stamp, gross receipts, registration, real estate transfer, conveyance, excise, recording, and other
similar taxes and fees imposed in connection with a sale of the Property or assignment of Rent payments by
Landlord. Tenant shall be responsible for (x) all property taxes, real or personal, directly attributable to its
occupancy and use of the Property, (y) any taxes and assessments attributable to and levied upon Tenant’s
leasehold improvements on the Premises if and as set forth in this Section 21 and (z) all sales, use, license,
value added, documentary, stamp, gross receipts, registration, real estate transfer, conveyance, excise,
recording, and other similar taxes and fees imposed in connection with an assignment of this Agreement or
sublease by Tenant. Nothing herein shall require Tenant to pay any inheritance, franchise, income, payroll,
excise, privilege, rent, capital stock, stamp, documentary, estate or profit tax, or any tax of similar nature, that
is or may be imposed upon Landlord.
(b) In the event Landlord receives a notice of assessment with respect to which taxes or assessments
are imposed on Tenant’s leasehold improvements on the Premises, Landlord shall provide Tenant with copies
of each such notice immediately upon receipt, but in no event later than thirty (30) days after the date of such
notice of assessment. If Landlord does not provide such notice or notices to Tenant in a timely manner and
Tenant’s rights with respect to such taxes are prejudiced by the delay, Landlord shall reimburse Tenant for
any increased costs directly resulting from the delay and Landlord shall be responsible for payment of the tax
or assessment set forth in the notice, and Landlord shall not have the right to reimbursement of such amount
from Tenant. If Landlord provides a notice of assessment to Tenant within such time period and requests
reimbursement from Tenant as set forth below, then Tenant shall reimburse Landlord for the tax or
assessments identified on the notice of assessment on Tenant’s leasehold improvements, which has been paid
by Landlord. If Landlord seeks reimbursement from Tenant, Landlord shall, no later than thirty (30) days
after Landlord’s payment of the taxes or assessments for the assessed tax year, provide Tenant with written
notice including evidence that Landlord has timely paid same, and Landlord shall provide to Tenant any other
documentation reasonably requested by Tenant to allow Tenant to evaluate the payment and to reimburse
Landlord.
(c) For any tax amount for which Tenant is responsible under this Agreement, Tenant shall have the
right to contest, in good faith, the validity or the amount thereof using such administrative, appellate or other
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proceedings as may be appropriate in the jurisdiction, and may defer payment of such obligations, pay same
under protest, or take such other steps as permitted by law. This right shall include the ability to institute any
legal, regulatory or informal action in the name of Landlord, Tenant, or both, with respect to the valuation of
the Premises. Landlord shall cooperate with respect to the commencement and prosecution of any such
proceedings and will execute any documents required therefor. The expense of any such proceedings shall
be borne by Tenant and any refunds or rebates secured as a result of Tenant’s action shall belong to Tenant,
to the extent the amounts were originally paid by Tenant. In the event Tenant notifies Landlord by the due
date for assessment of Tenant’s intent to contest the assessment, Landlord shall not pay the assessment
pending conclusion of the contest, unless required by applicable law.
(d) Landlord shall not split or cause the tax parcel on which the Premises are located to be split,
bifurcated, separated or divided without the prior written consent of Tenant, which consent shall not be
unreasonably withheld.
(e) Tenant shall have the right but not the obligation to pay any taxes due by Landlord hereunder if
Landlord fails to timely do so, in addition to any other rights or remedies of Tenant. In the event that Tenant
exercises its rights under this Section 21(e) due to such Landlord default, Tenant shall have the right to deduct
such tax amounts paid from any monies due to Landlord from Tenant as provided in Section 15(b), provided
that Tenant may exercise such right without having provided to Landlord notice and the opportunity to cure
per Section 15(b).
(f) Any tax-related notices shall be sent to Tenant in the manner set forth in Section 17. Promptly
after the Effective Date, Landlord shall provide the following address to the taxing authority for the
authority’s use in the event the authority needs to communicate with Tenant. In the event that Tenant’s tax
address changes by notice to Landlord, Landlord shall be required to provide Tenant’s new tax address to the
taxing authority or authorities.
(g) Notwithstanding anything to the contrary contained in this Section 21, Tenant shall have no
obligation to reimburse any tax or assessment for which the Landlord is reimbursed or rebated by a third
party.
22. SALE OF PROPERTY.
(a) Landlord may sell the Property or a portion thereof to a third party, provided: (i) the sale is
made subject to the terms of this Agreement; and (ii) if the sale does not include the assignment of Landlord’s
full interest in this Agreement, the purchaser must agree to perform, without requiring compensation from
Tenant or any subtenant, any obligation of Landlord under this Agreement, including Landlord’s obligation
to cooperate with Tenant as provided hereunder.
(b) If Landlord, at any time during the Term of this Agreement, decides to rezone or sell,
subdivide or otherwise transfer all or any part of the Premises, or all or any part of the Property, to a purchaser
other than Tenant, Landlord shall promptly notify Tenant in writing, and such rezoning, sale, subdivision or
transfer shall be subject to this Agreement and Tenant’s rights hereunder. In the event of a change in
ownership, transfer or sale of the Property, within ten (10) days of such transfer, Landlord or its successor
shall send the documents listed below in this Section 22(b) to Tenant. Until Tenant receives all such
documents, Tenant’s failure to make payments under this Agreement shall not be an event of default and
Tenant reserves the right to hold payments due under this Agreement.
i. Old deed to Property
ii. New deed to Property
iii. Bill of Sale or Transfer
iv. Copy of current Tax Bill
v. New IRS Form W-9
vi. Completed and Signed Tenant Payment Direction Form
vii. Full contact information for new Landlord including phone number(s)
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(c) Landlord agrees not to sell, lease or use any areas of the Property for the installation,
operation or maintenance of other wireless communication facilities if such installation, operation or
maintenance would interfere with Tenant’s Permitted Use or communications equipment as determined by
radio propagation tests performed by Tenant in its sole discretion. If the radio frequency propagation tests
demonstrate levels of interference unacceptable to Tenant, Landlord shall be prohibited from selling, leasing
or using any areas of the Property for purposes of any installation, operation or maintenance of any other
wireless communication facility or equipment.
(d) The provisions of this Section 22 shall in no way limit or impair the obligations of Landlord
under this Agreement, including interference and access obligations.
23. RIGHT OF FIRST REFUSAL. Notwithstanding the provisions contained in Section 22, if at any
time after the Effective Date, Landlord receives a bona fide written offer from a third party seeking any sale,
conveyance, assignment or transfer, whether in whole or in part, of any property interest in or related to the
Premises, including without limitation any offer seeking an assignment or transfer of the Rent payments
associated with this Agreement or an offer to purchase an easement with respect to the Premises (“Offer”),
Landlord shall immediately furnish Tenant with a copy of the Offer. Tenant shall have the right within thirty
(30) days after it receives such copy to match the financial terms of the Offer and agree in writing to match
such terms of the Offer. Such writing shall be in the form of a contract substantially similar to the Offer but
Tenant may assign its rights to a third party. If Tenant chooses not to exercise this right or fails to provide
written notice to Landlord within the thirty (30) day period, Landlord may sell, convey, assign or transfer
such property interest in or related to the Premises pursuant to the Offer, subject to the terms of this
Agreement. If Landlord attempts to sell, convey, assign or transfer such property interest in or related to the
Premises without complying with this Section 23, the sale, conveyance, assignment or transfer shall be void.
Tenant shall not be responsible for any failure to make payments under this Agreement and reserves the right
to hold payments due under this Agreement until Landlord complies with this Section 23. Tenant’s failure to
exercise the right of first refusal shall not be deemed a waiver of the rights contained in this Section 23 with
respect to any future proposed conveyances as described herein.
24. MISCELLANEOUS.
(a) Amendment/Waiver. This Agreement cannot be amended, modified or revised unless done
in writing and signed by Landlord and Tenant. No provision may be waived except in a writing signed by
both parties. The failure by a party to enforce any provision of this Agreement or to require performance by
the other party will not be construed to be a waiver, or in any way affect the right of either party to enforce
such provision thereafter.
(b) Memorandum/Short Form Lease. Contemporaneously with the execution of this
Agreement, the parties will execute a recordable Memorandum of Lease substantially in the form attached as
Exhibit 24(b). Either party may record this Memorandum of Lease at any time during the Term, in its
absolute discretion. Thereafter during the Term, either party will, at any time upon fifteen (15) business days’
prior written notice from the other, execute, acknowledge and deliver to the other a recordable Memorandum
of Lease.
(c) Limitation of Liability. Except for the indemnity obligations set forth in this Agreement,
and otherwise notwithstanding anything to the contrary in this Agreement, Tenant and Landlord each waives
any claims that each may have against the other with respect to consequential, incidental or special damages,
however caused, based on any theory of liability.
(d) Compliance with Law. Tenant agrees to comply with all federal, state and local laws, orders,
rules and regulations (“Laws”) applicable to Tenant’s use of the Communication Facility on the Property.
Landlord agrees to comply with all Laws relating to Landlord’s ownership and use of the Property and any
improvements on the Property.
(e) Bind and Benefit. The terms and conditions contained in this Agreement will run with the
Property and bind and inure to the benefit of the parties, their respective heirs, executors, administrators,
successors and assigns.
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(f) Entire Agreement. This Agreement and the exhibits attached hereto, all being a part hereof,
constitute the entire agreement of the parties hereto and will supersede all prior offers, negotiations and
agreements with respect to the subject matter of this Agreement. Exhibits are numbered to correspond to the
Section wherein they are first referenced. Except as otherwise stated in this Agreement, each party shall bear
its own fees and expenses (including the fees and expenses of its agents, brokers, representatives, attorneys,
and accountants) incurred in connection with the negotiation, drafting, execution and performance of this
Agreement and the transactions it contemplates.
(g) Governing Law. This Agreement will be governed by the laws of the state in which the
Premises are located, without regard to conflicts of law.
(h) Interpretation. Unless otherwise specified, the following rules of construction and
interpretation apply: (i) captions are for convenience and reference only and in no way define or limit the
construction of the terms and conditions hereof; (ii) use of the term “including” will be interpreted to mean
“including but not limited to”; (iii) whenever a party’s consent is required under this Agreement, except as
otherwise stated in the Agreement or as same may be duplicative, such consent will not be unreasonably
withheld, conditioned or delayed; (iv) exhibits are an integral part of this Agreement and are incorporated by
reference into this Agreement; (v) use of the terms “termination” or “expiration” are interchangeable;
(vi) reference to a default will take into consideration any applicable notice, grace and cure periods; (vii) to
the extent there is any issue with respect to any alleged, perceived or actual ambiguity in this Agreement, the
ambiguity shall not be resolved on the basis of who drafted the Agreement; (viii) the singular use of words
includes the plural where appropriate; and (ix) if any provision of this Agreement is held invalid, illegal or
unenforceable, the remaining provisions of this Agreement shall remain in full force if the overall purpose of
the Agreement is not rendered impossible and the original purpose, intent or consideration is not materially
impaired.
(i) Affiliates. All references to “Tenant” shall be deemed to include any Affiliate of New
Cingular Wireless PCS, LLC using the Premises for any Permitted Use or otherwise exercising the rights of
Tenant pursuant to this Agreement. “Affiliate” means with respect to a party to this Agreement, any person
or entity that (directly or indirectly) controls, is controlled by, or under common control with, that party.
“Control” of a person or entity means the power (directly or indirectly) to direct the management or policies
of that person or entity, whether through the ownership of voting securities, by contract, by agency or
otherwise.
(j) Survival. Any provisions of this Agreement relating to indemnification shall survive the
termination or expiration hereof. In addition, any terms and conditions contained in this Agreement that by
their sense and context are intended to survive the termination or expiration of this Agreement shall so survive.
(k) W-9. As a condition precedent to payment, Landlord agrees to provide Tenant with a
completed IRS Form W-9, or its equivalent, upon execution of this Agreement and at such other times as may
be reasonably requested by Tenant, including any change in Landlord’s name or address. A copy of the IRS
Form 1-9 in its current form is attached hereto as Exhibit 24(k).
(l) Execution/No Option. The submission of this Agreement to any party for examination or
consideration does not constitute an offer, reservation of or option for the Premises based on the terms set
forth herein. This Agreement will become effective as a binding Agreement only upon the handwritten legal
execution, acknowledgment and delivery hereof by Landlord and Tenant. This Agreement may be executed
in two (2) or more counterparts, all of which shall be considered one and the same agreement and shall become
effective when one or more counterparts have been signed by each of the parties. All parties need not sign the
same counterpart.
(m) Attorneys’ Fees. In the event that any dispute between the parties related to this Agreement
should result in litigation, the prevailing party in such litigation shall be entitled to recover from the other
party all reasonable fees and expenses of enforcing any right of the prevailing party, including reasonable
attorneys’ fees and expenses. Prevailing party means the party determined by the court to have most nearly
prevailed even if such party did not prevail in all matters. This provision will not be construed to entitle any
party other than Landlord, Tenant and their respective Affiliates to recover their fees and expenses.
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(n) WAIVER OF JURY TRIAL. EACH PARTY, TO THE EXTENT PERMITTED BY LAW,
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY
IN ANY ACTION OR PROCEEDING UNDER ANY THEORY OF LIABILITY ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE TRANSACTIONS IT
CONTEMPLATES.
(o) No Additional Fees/Incidental Fees. Unless otherwise specified in this Agreement, all
rights and obligations set forth in the Agreement shall be provided by Landlord and/or Tenant, as the case
may be, at no additional cost. No unilateral fees or additional costs or expenses are to be applied by either
party to the other party, for any task or service including, but not limited to, review of plans, structural
analyses, consents, provision of documents or other communications between the parties.
(p) Further Acts. Upon request, Landlord will cause to be promptly and duly taken, executed,
acknowledged and delivered all such further acts, documents, and assurances as Tenant may request from
time to time in order to effectuate, carry out and perform all of the terms, provisions and conditions of this
Agreement and all transactions and Permitted Use contemplated by this Agreement.
(o) Estoppel. Landlord acknowledges that there are not any owed or outstanding rental
payments or fees due on the part of Tenant.
[SIGNATURES APPEAR ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be effective as of the Effective
Date.
“LANDLORD”
City of Muskegon
a Michigan municipal corporation
By:
Print Name: Ken Johnson
Its: Mayor
Date:
By:
Print Name: Ann Meisch
Its: City Clerk
Date:
“TENANT”
New Cingular Wireless PCS, LLC,
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By:
Print Name:
Its:
Date:
[ACKNOWLEDGMENTS APPEAR ON NEXT TWO PAGES]
15
Page 94 of 399
TENANT ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ___________________________________ is
the person who appeared before me, and said person acknowledged that he/she signed this instrument, on
oath stated that he/she was authorized to execute the instrument and acknowledged it as the
____________________________ of AT&T Mobility Corporation, the Manager of New Cingular Wireless
PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party for the uses
and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
16
Page 95 of 399
LANDLORD ACKNOWLEDGMENT
STATE OF _________________________)
)
COUNTY OF _______________________)
I CERTIFY that on ______________ _____, 202__, _______________________________ [name of
representative] personally came before me and acknowledged under oath that he or she:
(a) is the ____________________ [title] of City of Muskegon, a Michigan municipal corporation,
the corporation named in the attached instrument;
(b) was authorized to execute this instrument on behalf of the corporation; and
(c) executed the instrument as the act of the corporation.
__________________________________________
Notary Public: _____________________________
My Commission Expires:_____________________
Structure Lease Agreement 5.1.2020
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EXHIBIT 1
DESCRIPTION OF PROPERTY AND PREMISES
Page of
to the Structure Lease Agreement dated , 202 , by and between City of Muskegon,
a Michigan municipal corporation, as Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited
liability company, as Tenant.
The Property is legally described as follows:
The Premises are described and/or depicted as follows:
Structure Lease Agreement 5.1.2020
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Notes:
1. THIS EXHIBIT MAY BE REPLACED BY A LAND SURVEY AND/OR CONSTRUCTION DRAWINGS OF THE PREMISES ONCE
RECEIVED BY TENANT.
2. ANY SETBACK OF THE PREMISES FROM THE PROPERTY’S BOUNDARIES SHALL BE THE DISTANCE REQUIRED BY THE
APPLICABLE GOVERNMENT AUTHORITIES.
3. WIDTH OF ACCESS ROAD SHALL BE THE WIDTH REQUIRED BY THE APPLICABLE GOVERNMENT AUTHORITIES,
INCLUDING POLICE AND FIRE DEPARTMENTS.
4. THE TYPE, NUMBER AND MOUNTING POSITIONS AND LOCATIONS OF ANTENNAS AND TRANSMISSION LINES ARE
ILLUSTRATIVE ONLY. ACTUAL TYPES, NUMBERS AND MOUNTING POSITIONS MAY VARY FROM WHAT IS SHOWN ABOVE.
Structure Lease Agreement 5.1.2020
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EXHIBIT 10(b)
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
[FOLLOWS ON NEXT PAGE]
Structure Lease Agreement 5.1.2020
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Recording Requested By
& When Recorded Return To:
Prepared by, and
after recording return to:
MD7, LLC
(469) 965-9850
950 W. Bethany Drive, Suite 700
Allen, TX 75013
APN: _______________
(Space Above This Line For Recorder’s Use Only)
Cell Site No.: GRANMI5602
Cell Site Name: Muskegon Marshall WT (MI)
Fixed Asset No.: 10124756
State: Michigan
County: Muskegon
SUBORDINATION, NON-DISTURBANCE
AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
(“Agreement”), dated as of the last of the signature dates below (the “Effective Date”), is entered into by and
among City of Muskegon, a Michigan municipal corporation, having a mailing address of 933 Terrace Street,
Muskegon, MI 49443 ("Lender"), _______________, a _______________, having a mailing address of
_______________ ("Landlord"), and New Cingular Wireless PCS, LLC, a Delaware limited liability company,
having a mailing address of 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta, GA 30319 ("Tenant").
RECITALS:
A. Tenant has entered into a certain Structure Lease Agreement dated , 202 , (the “Lease”)
with Landlord, covering property more fully described in Exhibit 1 attached hereto and made a part hereof
(the “Premises”); and
B. Lender has made a loan to Landlord in the original principal sum of
Dollars ($ ), which loan has been secured by a certain _______________dated _______________,
and recorded on , as Document Number in the Official Records of the
County Recorder of County, California (the “Deed of Trust”), upon that certain real
property located at , in the City of , County of , State of California
__________ [APN: ] ("Property"), a part of which Property contains the Premises; and
C. Tenant desires to be assured of continued occupancy of the Premises under the terms of the Lease and subject
to the terms of this Agreement.
AGREEMENT
Page 100 of 399
NOW, THEREFORE, in consideration of the mutual promises, covenants and agreements herein
contained, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Lender hereby consents to the Lease to the extent that Lender’s consent is required, if at all,
pursuant to the Deed of Trust or any other agreement(s) pertaining to the Property.
2. So long as this Agreement will remain in full force and effect, the Lease is and will be subject
and subordinate to the lien and effect of the Deed of Trust insofar as it affects the real property and fixtures of
which the Premises forms a part (but not Tenant’s trade fixtures and other personal property), and to all renewals,
modifications, consolidations, replacements and extensions thereof, to the full extent of the principal sum secured
thereby and interest thereon, with the same force and effect as if the Deed of Trust had been executed, delivered,
and duly recorded among the above-mentioned public records, prior to the execution and delivery of the Lease.
3. In the event Lender takes possession of the Premises as mortgagee-in-possession or lender-in-
possession or its substantive equivalent, including but not limited to, by deed in lieu of foreclosure or foreclosure
of the Deed of Trust, Lender agrees not to affect or disturb Tenant’s right to possession of the Premises and any
of Tenant’s other rights under the Lease in the exercise of Lender's rights so long as Tenant is not then in default,
after applicable notice and/or grace periods, under any of the terms, covenants, or conditions of the Lease.
4. In the event that Lender succeeds to the interest of Landlord or other landlord under the Lease
and/or to title to the Premises, Lender and Tenant hereby agree to be bound to one another under all of the terms,
covenants and conditions of the Lease; accordingly, from and after such event, Lender and Tenant will have the
same remedies against one another for the breach of an agreement contained in the Lease as Tenant and Landlord
had before Lender succeeded to the interest of Landlord; provided, however, that Lender will not be:
(a) personally liable for any act or omission of any prior landlord (including
Landlord); or
(b) bound by any rent or additional rent which Tenant might have paid for
more than the payment period as set forth under the Lease (one month,
year etc.) in advance to any prior landlord (including Landlord).
5. In the event that Lender or anyone else acquires title to or the right to possession of the Premises
upon the foreclosure of the Deed of Trust, or upon the sale of the Premises by Lender or its successors or assigns
after foreclosure or acquisition of title in lieu thereof or otherwise, Tenant agrees not to seek to terminate the Lease
by reason thereof, but will remain bound unto the new owner so long as the new owner is bound to Tenant (subject
to paragraph 4 above) under all of the terms, covenants and conditions of the Lease.
6. Lender understands, acknowledges and agrees that notwithstanding anything to the contrary
contained in the Deed of Trust and/or any related financing documents, including, without limitation, any UCC-1
financing statements, Lender will acquire no interest in any furniture, equipment, trade fixtures and/or other
property installed by Tenant on the Property. Lender hereby expressly waives any interest which Lender may
have or acquire with respect to such furniture, equipment, trade fixtures and/or other property of Tenant now, or
hereafter, located on or affixed to the Property or any portion thereof and Lender hereby agrees that same do not
constitute realty regardless of the manner in which same are attached or affixed to the Property.
Page 101 of 399
7. This Agreement will be binding upon and will extend to and benefit the successors and assigns
of the parties hereto and to any assignees or subtenants of Tenant which are permitted under the Lease. The term
"Lender", when used in this Agreement will be deemed to include any person or entity which acquires title to or
the right to possession of the Premises by, through or under Lender and/or the Deed of Trust, whether directly or
indirectly.
8. This Agreement may be executed in two (2) or more counterpart originals, and when the original
counterpart signatures are assembled together, shall constitute one integrated instrument. All parties need not sign
the same counterpart.
9. This Agreement will be governed by the laws of the state in which the Premises are located
without regard to conflicts of law.
IN WITNESS WHEREOF, the undersigned has caused this Agreement to be executed as of the last signature
date below.
"LANDLORD" "TENANT"
City of Muskegon, New Cingular Wireless PCS, LLC,
a Michigan municipal corporation a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By: By:
Name: Name:
Its: Its:
Date: , 20__ Date: , 20__
"LENDER"
_______________,
a _______________
By:
Name:
Its:
Date: , 20__
[ACKNOWLEDGMENTS APPEAR ON THE FOLLOWING THREE (3) PAGES]
Page 102 of 399
LANDLORD ACKNOWLEDGMENT
STATE OF _________________________)
)
COUNTY OF _______________________)
I CERTIFY that on ______________ _____, 202__, _______________________________ [name
of representative] personally came before me and acknowledged under oath that he or she:
(a) is the ____________________ [title] of City of Muskegon, a Michigan municipal
corporation, the corporation named in the attached instrument;
(b) was authorized to execute this instrument on behalf of the corporation; and
(c) executed the instrument as the act of the corporation.
__________________________________________
Notary Public: _____________________________
My Commission Expires:_____________________
Structure Lease Agreement 5.1.2020
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TENANT ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ___________________________________
is the person who appeared before me, and said person acknowledged that he/she signed this instrument,
on oath stated that he/she was authorized to execute the instrument and acknowledged it as the
____________________________ of AT&T Mobility Corporation, the Manager of New Cingular
Wireless PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party
for the uses and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
Structure Lease Agreement 5.1.2020
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LENDER ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ________________________________ is
the person who appeared before me, and said person acknowledged that said person signed this instrument,
on oath stated that said person was authorized to execute the instrument and acknowledged it as the
____________________ of , to be the free and
voluntary act of such party for the uses and purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of
________________
My appointment expires:
Structure Lease Agreement 5.1.2020
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EXHIBIT 1
DESCRIPTION OF PROPERTY AND PREMISES
The Property is legally described as follows:
The Premises is legally described as follows:
[One (1) Page Depiction of the Premises Suitable for Recording in __________ County
Appears on Following Page
Structure Lease Agreement 5.1.2020
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EXHIBIT 11
ENVIRONMENTAL DISCLOSURE
Landlord represents and warrants that the Property, as of the Effective Date, is free of hazardous substances
except as follows:
[INSERT AS APPLICABLE]
Structure Lease Agreement 5.1.2020
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EXHIBIT 12
STANDARD ACCESS LETTER
[FOLLOWS ON NEXT PAGE]
Structure Lease Agreement 5.1.2020
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{This Letter Goes On Landlord's Letterhead}
[Insert Date]
Building Staff / Security Staff
[Landlord, Lessee, Licensee]
[Street Address]
[City, State, Zip]
Re: Authorized Access granted to [ ]
Dear Building and Security Staff,
Please be advised that we have signed a lease with [ ] permitting [ ] to install, operate
and maintain telecommunications equipment at the property. The terms of the lease grant [ ]
and its representatives, employees, agents and subcontractors (“representatives”) 24 hour per day, 7 day per
week access to the leased area.
To avoid impact on telephone service during the day, [ ] representatives may be seeking access
to the property outside of normal business hours. [ ] representatives have been instructed to
keep noise levels at a minimum during their visit.
Please grant the bearer of a copy of this letter access to the property and to leased area. Thank you for your
assistance.
_______________________
Landlord Signature
Structure Lease Agreement 5.1.2020
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EXHIBIT 24(b)
MEMORANDUM OF LEASE
[FOLLOWS ON NEXT PAGE]
Structure Lease Agreement 5.1.2020
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PARCEL #: 61-24-205-007-0003-00, 61-24-205-005-00001-10
Prepared by, and
after recording return to:
MD7, LLC
(469) 965-9850
950 W. Bethany Drive, Suite 700
Allen, TX 75013
Cell Site No.: GRANMI5602
Cell Site Name: Muskegon Marshall WT (MI)
Fixed Asset No.: 10124756
State: Michigan
County: Muskegon
MEMORANDUM
OF
LEASE
This Memorandum of Lease is entered into on this day of , 202 , by
and between City of Muskegon, a Michigan municipal corporation, having its principal office/residing at 933
Terrace Street, Muskegon, MI 49443 (hereinafter called “Landlord”), and New Cingular Wireless PCS, LLC, a
Delaware limited liability company, having a mailing address of 1025 Lenox Park Blvd NE, 3rd Floor, Atlanta,
GA 30319 (“Tenant”).
1. Landlord and Tenant entered into a certain Structure Lease Agreement (“Agreement”) on the
day of , 202 , for the purpose of installing, operating and maintaining a
communication facility and other improvements. All of the foregoing is set forth in the Agreement.
2. The initial lease term will be ten (10) years commencing on February 1, 2024, with five (5) successive
automatic five (5) year options to renew.
3. The portion of the land being leased to Tenant and associated easements are described in Exhibit 1
annexed hereto.
4. The Agreement gives Tenant a right of first refusal in the event Landlord receives a bona fide written
offer from a third party seeking any sale, conveyance, assignment or transfer, whether in whole or in
part, of any property interest in or related to the Premises, including without limitation any offer
seeking an assignment or transfer of the Rent payments associated with the Agreement or an offer to
purchase an easement with respect to the Premises.
Structure Lease Agreement 5.1.2020
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5. This Memorandum of Lease is not intended to amend or modify, and shall not be deemed or construed
as amending or modifying, any of the terms, conditions or provisions of the Agreement, all of which
are hereby ratified and affirmed. In the event of a conflict between the provisions of this
Memorandum of Lease and the provisions of the Agreement, the provisions of the Agreement shall
control. The Agreement shall be binding upon and inure to the benefit of the parties and their
respective heirs, successors, and assigns, subject to the provisions of the Agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum of Lease as of the day and year first
above written.
LANDLORD: TENANT:
City of Muskegon, New Cingular Wireless PCS, LLC,
a Michigan municipal corporation a Delaware limited liability company
By: By: AT&T Mobility Corporation
Print Name: Its: Manager
Its:
Date: By:
Print Name:
Its:
Date:
[ACKNOWLEDGMENTS APPEAR ON TWO NEXT PAGES]
Structure Lease Agreement 5.1.2020
10
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LANDLORD ACKNOWLEDGMENT
STATE OF _________________________)
)
COUNTY OF _______________________)
I CERTIFY that on ______________ _____, 202__, _______________________________ [name of
representative] personally came before me and acknowledged under oath that he or she:
(a) is the ____________________ [title] of City of Muskegon, a Michigan municipal corporation,
the corporation named in the attached instrument;
(b) was authorized to execute this instrument on behalf of the corporation; and
(c) executed the instrument as the act of the corporation.
__________________________________________
Notary Public: _____________________________
My Commission Expires:_____________________
11
Structure Lease Agreement 5.1.2020
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TENANT ACKNOWLEDGMENT
STATE OF ________________ )
) SS.
COUNTY OF ______________ )
I certify that I know or have satisfactory evidence that ___________________________________ is the
person who appeared before me, and said person acknowledged that he/she signed this instrument, on oath stated
that he/she was authorized to execute the instrument and acknowledged it as the
____________________________ of AT&T Mobility Corporation, the Manager of New Cingular Wireless
PCS, LLC, a Delaware limited liability company, to be the free and voluntary act of such party for the uses and
purposes mentioned in the instrument.
DATED: _______________________________.
Notary Seal
(Signature of Notary)
(Legibly Print or Stamp Name of Notary)
Notary Public in and for the State of ___________
My appointment expires:
12
Structure Lease Agreement 5.1.2020
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EXHIBIT 1 TO MEMORANDUM OF LEASE
DESCRIPTION OF PROPERTY AND PREMISES
Page of
to the Memorandum of Lease dated ________________, 20___, by and between City of Muskegon, a
Michigan municipal corporation, as Landlord, and New Cingular Wireless PCS, LLC, a Delaware limited liability
company, as Tenant.
The Property is legally described as follows:
The Premises are described and/or depicted as follows:
13
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EXHIBIT 24(k)
IRS FORM W-9
Page 1 of 1
[IRS FORM W-9 (REVISED OCTOBER 2018)
APPEAR ON FOLLOWING PAGE]
14
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15
Structure Lease Agreement 5.1.2020
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Contract Award - 2024 Mill and Resurfacing
Project
Submitted by: Todd Myers, Deputy Director of Department: Public Works
Public Works
Brief Summary:
Staff requests approval to enter into a contract with Aphalt Paving Inc. in the amount of $189,324.70
and to approve Change Order No. 1 in the amount of $29,556 for a total award of $218,880.70 for the
repaving work on Irwin Ave., Wood St., Beach St., Glen/McGraft Ave., and Allen Ave.
Detailed Summary & Background:
Staff reviewed several areas of major streets in poor condition and solicited bids for repaving the
following streets:
- Wood St.: From Irwin Ave. north to Spring St. (approx. 225').
- Irwin Ave.: From Approx. 300' west of Wood St. to approx. 330' east of Wood St.
- Beach Street: From the "fork" in the road near Margaret Drake Elliot Park northerly approx. 1,125'
- Glen/McGraft: From Hackley Ave. to Addison St. (approx. 2,800').
- Allen Ave.: From Creston St. to Home St. (approx. 525').
City/DPW staff are planning to pave Allen Avenue, but the contractor will do the preparatory work.
Asphalt Paving, Inc. (API) was the low bidder in the amount of $189,324.70, with details shown on the
included bid tab. In addition to award of the contract as originally bid, staff is requesting
authorization for approval of the attached Change Order for an additional amount of $29,556.00 to
increase the area to be milled on the Glen/McGraft from Hackley Ave. to Addison St. by 1,960 SYD's
and the amount of paving by 250 tons of asphalt. Due the favorable prices received, staff would like
to widen the area to be milled and paved on Glen/McGraft.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 GOAL 4: FINANCIAL INFRASTRUCTURE - Maximized efficient use of existing infrastructure
Amount Requested: Budgeted Item:
$218,880.70 Yes X No N/A
Fund(s) or Account(s): Budget Amendment Needed:
Streets (202) Yes No X N/A
Page 118 of 399
Recommended Motion:
Authorize staff to enter into a contract with Aphalt Paving Inc. in the amount of $189,324.70 and to
approve Change Order No. 1 in the amount of $29,556 for a total award of $218,880.70 for the
repaving work on Irwin Ave., Wood St., Beach St., Glen/McGraft Ave., and Allen Ave.
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Other Division Heads
Communication
Legal Review
Page 119 of 399
City of Muskegon
2024 Mill and Resurfacing
Tabulation of Bids
Bidder Total Bid Amount
Asphalt Paving Inc. $ 189,324.70
Michigan Paving & Materials $ 215,455.00
TBD Constr. Services $ 219,650.00
Rieth-Riley Constr. Co., Inc. $ 321,055.00
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CITY OF MUSKEGON
DETAILED CONTRACT CHANGE REQUEST
CONTRACTOR CONTRACT DATE 8/28/2024
CHANGE ORDER
Asphalt Paving Inc. 2024 Milling and Resurfacing No. 1
ITEM OF WORK UNIT QUANTITY QUANTITY QUANTITY QUANTITY UNIT AMOUNT AMOUNT
DESCRIPTION, REASON, LOCATION OF CHANGE OF MEASURE PROPOSAL AS BUILT INCREASE + DECREASE - COST INCREASE DECREASE
1 Cold Milling HMA Surface Syd 7350 N.A. 1,960 $2.40 $4,704.00 $0.00
2 HMA, 4EML, 220 #/Syd Ton 890 N.A. 250 $99.42 $24,855.00 $0.00
3 $0.00 $0.00
4 $0.00 $0.00
CHANGE REQUEST EFFECIVE DATE: TOTALS $29,559.00 $0.00
ORIGINAL CONTRACT PRICE:
NET +/- $29,559.00
REVISED CONTRACT PRICE: $29,559.00
ENGINEERING DEPARTMENT CONTRACTOR APPROVAL CITY OF MUSKEGON APPROVAL
AUTHORIZED REPRESENTATIVE AND DATE AUTHORIZED REPRESENTATIVE AND DATE
PREPARED BY DATE PRINTED NAME AND TITLE PRINTED NAME AND TITLE
L:\DPW\Myers\2024 Mill & Resurfacing\Change Order No. 1 8/28/2024 Page
12:35 121
PM of 399
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Amendment for Engineering Services -
Olthoff Drive Extension Project
Submitted by: Todd Myers, Deputy Director of Department: Public Works
Public Works
Brief Summary:
Hubbell, Roth & Clark, Inc. (HRC) performed the design and construction engineering for the Olthoff
Drive Extension project. They have requested an additional $30,600 to be added to their contract
with the city as described herein.
Detailed Summary & Background:
HRC provided Design and Construction Engineering services for the Olthoff Drive Extension project.
There were various additional services provided including redesigning the sanitary sewer location,
adjusting the road grades to minimize coordination with the neighboring prison, and construction
duration lasting 15 weeks versus the originally proposed 8 weeks. Construction was originally planned
to be completed during the 2021 construction season but ended up being completed primarily in
2023 with the final paving completed in 2024. These changes were at the request of the primary
tenant of the industrial park expansion/road extension. These costs will paid for by a combination of
MEDC grant funds, MDOT grant funds, and the water/sewer funds. This is not a specifically budgeted
expense, but staff is confident the non-grant portions will fit within the existing budgets. Staff
recommends approval of the request.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 Goal 2: Economic Development Housing and Business
Amount Requested: Budgeted Item:
$30,600 Yes No X N/A
Fund(s) or Account(s): Budget Amendment Needed:
Grants (482) and Utilities (590/591) Yes No X N/A
Recommended Motion:
Authorize staff to approve the requested amendment from HRC, Inc. in the amount of $30,600.
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
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Information
Technology
Other Division Heads
Communication
Legal Review
Page 123 of 399
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Washwater Pump Replacement Valves
Submitted by: Joshua Parmer, Water Filtration Department: DPW- Water Filtration Plan
Brief Summary:
Staff is requesting authorization to contract with Northern Boiler Mechanical Contractors for valve
replacements on two Washwater Pump’s located at the City Water Filtration Plant.
Detailed Summary & Background:
The Filtration plant has 3 washwater pumps that are critical to the filtration process. These pumps
allow us to wash the filters as they build up filtered sediment, extending the life of the filter media by
back-flushing treated water through the filter media. Pumps #2 and #3 are original to the 1936
construction of the filtration plant including their foot and isolation valves. The "foot" valve sits down in
the finished water reservoir at the point where the washwater pump pulls water from the reservoir for
washing. The foot valve on washwater pump #3 has failed and needs replacement; currently
washwater Pump #3 is out of service, reducing the plant’s redundancy to properly operate filters.
The plan included with this item shows the foot valve and other proposed work as detailed below.
Staff solicited bids for the replacement of washwater pump #3's foot valve. As part of the bid
process staff requested an alternate bid to replace both foot valves, on washwater pump #2 as well
as #3. It is reasonable to assume the washwater pump #2 foot valve is not far behind #3 in terms of
failure. With the extent of work needed, it makes the most economic sense to replace both at the
same time to ensure long service life for both pieces of critical infrastructure.
Furthermore, the addition of a check valve after the pump discharge as well as a replaced isolation
valve were included in the pricing requested. The check valve will prevent backwash water from
flowing into the drinking water reservoir in the event of a foot valve failure. The aging isolation valve
has proven to be difficult to operate and is in need of replacement, and with this project it can be
replaced in a location that will allow easy access for future repairs.
A proposal for bids was posted and 2 mechanical contractors bids where received, Northern Boiler
and Franklin Holwerda Company. Staff recommends this project be awarded to Northern Boiler
Mechanical Contractors for the work described above based on their low bid and their experience
with similar work. The bid tab and other documents are included. This work fits within the filter plant
capital improvement budget, but it will need to take the place of other work shown in the plan due
to its urgency.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Sustainability in financial practices and infrastructure
Goal/Action Item:
2027 GOAL 4: FINANCIAL INFRASTRUCTURE - Reliable and efficient short and long term financial
Page 124 of 399
practices
Amount Requested: Budgeted Item:
$155,729 Yes X No N/A
Fund(s) or Account(s): Budget Amendment Needed:
591-901-801-092034 Yes No X N/A
Recommended Motion:
Authorize staff to contract with Northern Boiler Mechanical Contractors for $155,729 to perform foot,
isolation, and check valve replacements at the Water Filtration Plant.
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Other Division Heads
Communication
Legal Review
Page 125 of 399
Bid Tabulation
Bid Date: July 30, 2024 Bid Time (Local): 2:00 pm
Owner: City of Muskegon
Project Title: Water Filtration Plant – Washwater Pump Check Valve Addition
Project #: 2221055
Bid Addendum Base Bid Alternate No. 1 TOTAL with Alternate No. 2 TOTAL with
Contractor Bond No. 1 Amount Amount Alternate No. 1 Amount Alternate No. 2
Franklin Holwerda Company X X $65,000.00 $92,000.00 $157,000.00 $145,000.00 $210,000.00
Northern Boiler Mechanical
X X $55,757.00 $18,996.00 $74,753.00 $99,972.00 $155,729.00
Contractor
4910 Stariha Drive Muskegon, MI 49441 t. 231-798-0101 f. 231-798-0337 www.preinnewhof.com
page 1 of 2 S:\2023\2230492 City of Muskegon\CDS\bid tabulation 2024-07-30 WTP Wash Water Pump.docx
Page 126 of 399
4910 Stariha Drive Muskegon, MI 49441 t. 231-798-0101 f. 231-798-0337 www.preinnewhof.com
page 2 of 2 S:\2023\2230492 City of Muskegon\CDS\bid tabulation 2024-07-30 WTP Wash Water Pump.docx
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Water Filtration Plant Improvements
City of Muskegon
Muskegon County, Michigan
Washwater Pump Check Valve Addition
June 2024
2230492
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
TABLE OF CONTENTS
Division 0 – Procurement and Contracting Requirements
Division 1 – General Requirements
Division 2 – Existing Conditions
Division 9 – Finishes
Division 40 – Process Integration
PLANS
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PROCUREMENT AND CONTRACTING REQUIREMENTS
DIVISION 0
TABLE OF CONTENTS
SECTION TITLE
00 11 13 Advertisement
00 21 13 Instructions to Bidders
00 42 00 Bid Proposal
00 43 93 Bid Proposal Checklist
00 52 13 Agreement
00 61 13 Performance and Payment Bonds (to be furnished by Contractor)
00 72 00 General Conditions
00 73 00 Supplementary Conditions
00 73 16 Insurance Specifications
00 73 16.10 Insurance Certificates (to be furnished by Contractor)
Additional Notice of Requirement for Affirmative Action
Documents Anti-Kickback Act
Adopted Labor Standards Provisions
Non-Collusion Affidavit of Prime Bidder
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
SECTION 00 11 13
ADVERTISEMENT
Advertisement
Owner: City of Muskegon
Project Title: Washwater Pump Check Valve Addition
Project #: 2230492
1. RECEIPT OF BIDS
Sealed bids for the above project will be received by the City of Muskegon of 933 Terrace Street,
Muskegon, Michigan until:
2:00 pm (local time) on Tuesday, July 2, 2024
at which time the bids will be publicly opened and read aloud.
2. SCOPE OF PROJECT
The project consists of furnishing all material and constructing the following:
• Removal of the discharge piping associated with Washwater Pump #3 (WWP3) up to the
discharge tee.
• Installation of a new discharge isolation valve and discharge check valve;
• Reconstruction of the discharge piping and small diameter instrumentation piping;
• Removal of existing foot valve from WWP3 (Alternate No. 1), replacement of foot
valves at WWP2 and WWP3 suction piping (Alternate No. 2) including installation of
permanent pipe supports (both Alternates).
• All associated equipment, valves, piping, and mechanical work.
Including all necessary appurtenances, disinfection, and restoration.
3. EXAMINATION OF SPECIFICATIONS
Contract documents may be examined online at https://www.muskegon-mi.gov/muskegon/bid-
postings or at the offices of:
City of Muskegon, 933 Terrace Street, Muskegon, MI 49440
Prein&Newhof, 4910 Stariha Drive, Muskegon, MI 49441
Prein&Newhof, 3355 Evergreen Drive NE, Grand Rapids, MI 49525
And some local plan rooms.
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SECTION 00 11 13
ADVERTISEMENT
4. DEPOSIT FOR DRAWINGS AND SPECIFICATIONS
Drawings and specifications are available online at https://www.muskegon-
mi.gov/muskegon/bid-postings. Bidder assumes sole risk for any project specifications and
drawings, electronic or hard copy, obtained other than directly from the City of Muskegon. Hard
copy drawings and specifications are available for the fee of 40 dollars from the City of
Muskegon. Fees are payable by cash or check only and are not refunded.
The Bidder is to complete the Bid Proposal documents that are included in the Project
Specification book (online or hard copy), referring to the table of contents to identify the exact
order of these documents. Regardless of how the bid documents are received, a hard copy (paper
copy) of the Bid Proposal Documents must be submitted for bidding purposes. No electronically
submitted Proposals will be accepted. The Bid Proposal Documents include: Bid Proposal
Checklist, and Bid Proposal.
The Bidder must provide the signed Bid Proposal Documents in either type written or hand
written (in ink) form and clearly and completely set forth all required lump sum amounts, unit
prices or other costs in a legible and understandable manner. Illegibility of any work or figure in
the proposal may be sufficient cause for rejection of the proposal by the Owners. No
electronically submitted Proposals will be accepted.
Any conclusions or information obtained or derived from Contract Documents will be at the
user’s sole risk. Prein&Newhof will maintain in its Grand Rapids office the master copy (hard
copy) of the Contract Documents from which all electronic copies are based. In the case of any
contract discrepancy, the Master Copy (hard copy) shall be considered the controlling document.
5. FUNDING
The work to be performed under this contract will be financed and paid for by local funds.
6. BID SURETY
For bid surety requirements, see Section 00 21 13 Instructions to Bidders.
7. RIGHT TO REJECT BIDS
The Owner reserves the right to reject any or all bids and to waive any irregularities in bidding.
No bid may be withdrawn after the scheduled closing time for receiving bids for at least one
hundred twenty (120) days thereafter.
8. SITE INSPECTION
Access to the site will be limited to one occasion during the bid period. Access to the water
treatment plant for site inspection will be granted on Wednesday, June 19th at 10:00AM. Please
call Josh Parmer at 231-724-4104 to confirm attendance at the site inspection.
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SECTION 00 11 13
ADVERTISEMENT
9. EQUAL OPPORTUNITY CLAUSE
The Equal Employment Opportunity Clause required under Executive Order 11246, the
affirmative action commitment for disabled veterans and veterans of the Vietnam era, set forth in
41 CFR 60-250.4 the affirmative action clause for handicapped workers, set forth in 40 CFR 60-
741.4 and the related regulations of the Secretary of Labor, 40 CFR Chapter 60, are incorporated
by reference. Bidder certifies that it complies with the authorities cited above, and that it does not
maintain segregated facilities or permit its employees to perform services at locations where
segregated facilities are maintained, as required by 41 CFR 60-1.8
10. LOCAL PREFERENCE POLICY
The City Commission may give local preference on purchases and contractors to local
businesses. If a contractor or business is located within the city limits of the City of Muskegon, a
bid may be accepted at or within 2% of the lowest non-local bid. A contractor or business located
within the County of Muskegon, a bid may be accepted at or within 1% of the lowest non-local
bid.
Any contractor electing to pay prevailing wage to its employees may be granted an additional 1%
allowance, up to a maximum of 3%. Prevailing wage will be paid according to the newest wage
determination published by the U.S. Federal Government and agreed upon before awarding a
contract. Contractor will be required to sign an affidavit ensuring proper payment to employees.
11. ADDITIONAL DOCUMENTS
The following documents are included at the end of Division 0 of the Contract Documents:
- Notice of Requirement for Affirmative Action
- Anti-Kickback Act
- Adopted Labor Standards Provisions
- Non-Collusion Affidavit of Prime Bidder
The Non-Collusion Affidavit shall be completed by the bidder and submitted with the Proposal
documents.
12. COMMENCEMENT OF WORK
Construction activities within the water filtration plant are to begin after Labor Day of 2024. It is
the intent of the Owner to consider award of the contract to the successful bidder at the July 9,
2024 City Council Meeting.
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SECTION 00 11 13
ADVERTISEMENT
13. COMPLETION DATE
The project shall be completed in accordance with the following dates:
Substantial and Final Completion – March 15, 2025
Ann Marie Meisch
Muskegon City Clerk
933 Terrace Street
Muskegon, MI 49440
231-724-6705
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Project Number: 2230492
SECTION 00 21 13
INSTRUCTIONS TO BIDDERS
Instructions To Bidders
Owner: City of Muskegon
Project Title: Washwater Pump Check Valve Addition
Project #: 2230492
1. CONTRACT DOCUMENTS
The contract documents consist of material outlined in Article 9 of the Agreement. Each
Bidder shall carefully examine his copy of the contract documents for completeness. No
claim will be allowed on the basis that the contract documents are not complete.
2. INTERPRETATION OF THE CONTRACT DOCUMENTS
It is the intent of these contract documents to be clear, complete and consistent. If Bidder is
of the opinion that any portion of the contract documents is ambiguous, inconsistent or
contains errors or omissions Bidder shall, prior to submitting its bid, in writing request
Engineer to clarify that portion of the contract documents as an addendum. Requests must be
received by the Engineer at least four business days prior to the bid. This interpretation or
correction will be made a part of the contract documents as an addendum. Any such
addendum shall be mailed, faxed, e-mailed or delivered only to each person recorded as
having received/downloaded a copy of the contract documents directly from Prein&Newhof.
The last day an addendum will be issued is three (3) business days prior to the bid. Questions
to be addressed in the addendum will be received through 5:00 p.m. five (5) business days
prior to the bid.
Only written addenda issued by the Engineer shall be binding. Oral interpretations,
information or instructions by any office or employee of the Owner or Engineer are not
authorized and therefore are not binding.
Any conclusions or information obtained or derived from electronic media will be at the
user’s sole risk. Prein&Newhof’s responsibility is limited to only the printed copies (also
known as hard copies) that are delivered pursuant to the service under the contract with the
client.
3. BIDDERS INVESTIGATION
The Bidder will be responsible for inspecting the site of the proposed work to determine for
himself all conditions under which he will be obligated to work. It is also expected that he
will investigate and make his own determination concerning the available facilities for
receiving, transporting, handling and storing construction equipment and materials, and
concerning other local conditions that may affect his work.
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SECTION 00 21 13
INSTRUCTIONS TO BIDDERS
4. PROJECT FUNDING
Refer to Section 00 11 13 Advertisement to ensure compliance with funding requirements.
5. BID PROPOSAL PREPARATION
A. Name, Address and Legal Status of Bidder
The name and legal status of the Bidder, Corporation, Partnership or an Individual, shall
be stated in the Proposal. A corporation Bidder shall name the state in which its Articles
of Incorporation are held, and must give the title of the official having authority, under
the by-laws, to sign contracts. A partnership Bidder shall give the full names and
addresses of all partners. An L.L.C. Bidder shall provide the full names and addresses of
all members.
Anyone signing a proposal as an agent of another must submit, with his proposal, legal
evidence of his authority to act as an authorized agent of the party.
The place of residence of each Bidder, or the office address in the case of a firm or
company, with county and state, must be given after a signature.
B. Experience and Qualifications
It is the intention of the Owner to award this contract to a Bidder that will perform and
complete all work in compliance with the Contract Documents and in a workmanlike and
professional manner. Bids are therefore only solicited from responsible Bidders known to
be skilled, experienced and regularly engaged in work of similar character and magnitude
to that covered by these contract documents.
After the opening of bids, when so requested by the Owner or Engineer, the Bidder will
be required to provide documentation of the extent and nature of his experience in work
of this kind and to furnish references as to his experience on projects of similar types and
concerning contractor’s ability to timely and within budget perform work of the type
involved in this project. The successful Bidder shall submit a statement of his experience
and financial status, a list of all jobs he now has underway, with the volume and percent
completed. If the successful Bidder is an LLC, bidder shall provide, if requested, personal
guarantees of its members.
In addition to the above, when so requested, the Bidder shall meet with the Owner's
representatives and give further information in relation to his proposed construction plan,
methodology, and schedule of operations, in order to determine the Bidder’s
qualifications, ability to perform the Work, and timely complete the Work in accordance
with the contract requirements.
C. Bid Surety
Each proposal must be accompanied by a bid deposit in the form of a bid bond payable to
the Owner in the amount of not less than 5% of the total price for the Contract. The bond
shall be issued by an insurance company licensed to do business in the State of Michigan.
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
SECTION 00 21 13
INSTRUCTIONS TO BIDDERS
Any Bidder who has submitted a proposal to the Owner may withdraw his bid at any time
prior to the scheduled time for opening bids. No Bidder may withdraw his bid after the
opening for a period of one hundred twenty (120) days thereafter.
D. Return of Bid Deposits
The bid deposits of all Bidders, except the three lowest Bidders, will be returned within
seven days after the opening of the bids. The bid deposits of the three lowest Bidders will
be returned (1) within 48 hours after the contract shall have been awarded to the
successful Bidder, the signed agreement has been delivered, and the required bonds have
been approved by the Owner, or (2) after rejection of all bids.
E. Proposal Form
The Bidder is to complete the Bid Proposal Documents that are included in the Project
Specification book (online or hard copy), referring to the table of contents to identify the
exact order of these documents. Regardless of how the bid documents are received, a
hard copy (paper copy) of the Bid Proposal Documents must be submitted for bidding
purposes. No electronically-submitted Proposals will be accepted. The Bid Proposal
Documents include: Bid Proposal Checklist and Bid Proposal.
The Bidder must provide the signed Bid Proposal Documents in either type written or
hand written (in ink) form and clearly and completely set forth all required lump sum
amounts, unit prices or other costs in a legible and understandable manner. Illegibility of
any work or figure in the proposal may be sufficient cause for rejection of the proposal
by the Owners. No electronically-submitted Proposals will be accepted.
Any conclusions or information obtained or derived from Contract Documents will be at
the user’s sole risk. Prein&Newhof will maintain the master copy (hard copy), from
which all electronic copies are based in its Grand Rapids Office. In the case of any
contract discrepancy, the Master Copy (hard copy) shall be considered the controlling
document.
Three (3) copies of the proposal documents shall be submitted in a sealed envelope to:
City of Muskegon Clerk’s Office
933 Terrace Street
Muskegon, MI 49440
The envelope shall be clearly marked on the exterior denoting the name of the firm
submitting the proposal and the name of the particular RFP for which the proposal is
offered. Label for this RFP shall be “Proposal for City of Muskegon, Muskegon
County, Michigan, Washwater Pump Check Valve Addition” No electronically
submitted Proposals will be accepted.
F. Proposal Data
Proposals shall be carefully prepared in strict accordance with contract requirements and
these instructions and shall include all pertinent information required by the proposal
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SECTION 00 21 13
INSTRUCTIONS TO BIDDERS
form. Failure of the bidder to comply in any respect shall be grounds for rejection of the
bidder's proposal.
The proposal for work is on a lump sum basis.
No partial bids will be considered.
6. TIME AND LIQUIDATED DAMAGES
Bidder’s attention is directed to the completion date(s) as indicated in Section 00 11 13
Advertisement and to the liquidated damage and expense clauses in the Agreement.
7. BONDS AND INSURANCE
See General Conditions, Article 6; Supplementary Conditions Article 6 and Section 00 73 16
Insurance Specifications.
8. AWARD AND EXECUTION OF THE CONTRACT
The contract shall be deemed as having been awarded when formal Notice of Award shall
have been duly provided by the Owner upon the Bidder.
The Bidder to whom the contract shall have been awarded will be required to execute an
Agreement in the form included in the Contract Documents and to furnish sureties, insurance
policies and certificates all as required within fifteen (15) days after the award. In case of his
refusal or failure to do so, he will be considered to have abandoned all his rights and interest
in the award, and his bid deposit may be declared forfeited to the Owner and the work may
be awarded to another Bidder.
9. COORDINATION
Refer to Section 01 10 00 Summary of Work, Section 1.05 Work Sequence and
Coordination.
10. PERMITS
Bidder’s attention is directed to the required permits as indicated in Section 01 10 00
Summary of Work, Section 1.07 Permits.
11. UTILITIES
Refer to Section 01 10 00 Summary of Work, Section 1.09 Utilities.
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Project Number:2230492
SECTION 00 42 00
BID PROPOSAL
Bid Proposal
Owner: City of Muskegon
Owner Address: 933 Terrace St, Muskegon, MI 49440
Project Title: Washwater Pump Check Valve Addition
Bid Date & Time: July 2, 2024 at 2:00 PM Project #: 2230492
The undersigned, being familiar with the site, drawings, specifications, and related documents, proposes
to furnish all required labor, materials, tools and equipment to construct the project in accordance with
the lump sum on the following sheets.
Date Prepared:
Receipt of Addenda
Receipt of Addenda through is hereby acknowledged.
Summary of Bids
Total Bid $
The Owner reserves the right to accept or reject any or all bids and to waive any irregularities in the
bidding. No partial bids will be accepted.
Contractor's Signature
Contractor’s Name Telephone Number
Business Address City Zip Code
Signature Title Date
Seal (if bidder is a corporation)
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Bid Proposal
Owner: City of Muskegon
Owner Address: 933 Terrace St, Muskegon, MI 49440
Project Title: Washwater Pump Check Valve Addition
Bid Date & Time: July 2, 2024 at 2:00 PM Project #: 2230492
ALTERNATE ACTIVITIES
The Contractor shall provide supplemental cost data for the alternates outlined in Section 01 23 00
Alternates of the Project Specifications. The lump sum bid shall include those items specified as
“Base Bid”. The alternate pricing shall include all associated activities required for a complete
installation of that alternate.
The Owner may elect to choose any of the alternates listed below for which the Contractor shall
provide pricing and the contract amount will be adjusted accordingly.
Suction Piping Alternate No. 1
1. Suction Piping Alternate No. 1 consists of removing the existing foot valve from the
suction piping from Washwater Pump 3, and installing permanent pipe supports on the
suction piping. Refer to Section 01 10 00 Summary of Work for description of the split
between Owner and Contractor activities. Suction pipe accessories and pipe supports
shall be per Section 40 05 13 Process Piping.
Suction Piping Alternate No. 1, add _____________________________ lump sum
Suction Piping Alternate No. 2
2. Suction Piping Alternate No. 2 consists of removing the existing foot valve from the
suction piping from Washwater Pumps 2 and 3, cutting the suction piping and installing a
restrained flange adapter, installing new foot valves per Section 40 05 51 Process Valves,
and installing permanent pipe supports on the suction piping. Refer to Section 01 10 00
Summary of Work for description of the split between Owner and Contractor activities.
Suction pipe accessories and pipe supports shall be per Section 40 05 13 Process Piping.
Suction Piping Alternate No. 2, add _____________________________ lump sum
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Project Number: 2230492
SECTION 00 43 93
BID PROPOSAL CHECKLIST
Bid Proposal Checklist
Owner: City of Muskegon
Project Title: Washwater Pump Check Valve Addition
Project #: 2230492
This checklist is for the bidder's convenience and the Engineer's use. It should be reviewed
thoroughly before submitting a bid.
Bid submitted on time.
Bid surety properly completed and enclosed.
Addenda, if applicable, have been acknowledged and any revisions to the proposal
completed.
Bid proposal legally signed in ink.
Contract Prices are completed in ink.
All supplemental data required for equipment submitted as an alternate to Base Bid
equipment.
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SECTION 00 52 13
AGREEMENT
AGREEMENT BETWEEN OWNER AND CONTRACTOR
FOR CONSTRUCTION CONTRACT (STIPULATED PRICE)
This Agreement is by and between City of Muskegon, 933 Terrace St, Muskegon, MI 49440 (“Owner”)
and [Contractor Name & Address] (“Contractor”).
Terms used in this Agreement have the meanings stated in the General Conditions and the
Supplementary Conditions.
Owner and Contractor hereby agree as follows:
ARTICLE 1—WORK
1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents. The
Work is generally described as follows:
• Removal of the discharge piping associated with Washwater Pump #3 (WWP3) up to the
discharge tee.
• Installation of a new discharge isolation valve and discharge check valve;
• Reconstruction of the discharge piping and small diameter instrumentation piping;
• Removal of existing foot valve from WWP3 (Alternate No. 1), replacement of foot valves at
WWP2 and WWP3 suction piping (Alternate No. 2) including installation of permanent pipe
supports (both Alternates).
• All associated equipment, valves, piping, and mechanical work.
Including all necessary appurtenances, disinfection, and restoration.
EJCDC® C-520, Agreement between Owner and Contractor for Construction Contract (Stipulated Price).
Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies,
and American Society of Civil Engineers. All rights reserved.
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SECTION 00 52 13
AGREEMENT
ARTICLE 2—THE PROJECT
2.01 The Project, of which the Work under the Contract Documents is a part, is generally described as
follows: Water Filtration Plant Improvements – Washwater Pump Check Valve Addition
ARTICLE 3—ENGINEER
3.01 The Owner has retained Prein&Newhof, 4910 Stariha Drive, Muskegon, MI 49441 (“Engineer”)
to act as Owner’s representative, assume all duties and responsibilities of Engineer, and have
the rights and authority assigned to Engineer in the Contract.
3.02 The part of the Project that pertains to the Work has been designed by Prein&Newhof.
ARTICLE 4—CONTRACT TIMES
4.01 Time is of the Essence
A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness
for final payment as stated in the Contract Documents are of the essence of the Contract.
4.02 Contract Times: Dates
A. The Work will be substantially complete on or before March 15, 2025 and completed and
ready for final payment in accordance with Paragraph 15.06 of the General Conditions on or
before March 15, 2025.
4.03 Contract Times: Days
A. The Work will be substantially complete within [number] days after the date when the
Contract Times commence to run as provided in Paragraph 4.01 of the General Conditions,
and completed and ready for final payment in accordance with Paragraph 15.06 of the
General Conditions within [number] days after the date when the Contract Times
commence to run.
4.04 Milestones
A. Parts of the Work must be substantially completed on or before the following Milestone(s):
1. Milestone 1 [event & date/days]
2. Milestone 2 [event & date/days]
3. Milestone 3 [event & date/days]
4.05 Liquidated Damages
A. Contractor and Owner recognize that time is of the essence as stated in Paragraph 4.01
above and that Owner will suffer financial and other losses if the Work is not completed and
Milestones not achieved within the Contract Times, as duly modified. The parties also
recognize the delays, expense, and difficulties involved in proving, in a legal or arbitration
proceeding, the actual loss suffered by Owner if the Work is not completed on time.
Accordingly, instead of requiring any such proof, Owner and Contractor agree that as
liquidated damages for delay (but not as a penalty):
EJCDC® C-520, Agreement between Owner and Contractor for Construction Contract (Stipulated Price).
Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies,
and American Society of Civil Engineers. All rights reserved.
Page 2 of 9
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SECTION 00 52 13
AGREEMENT
1. Substantial Completion: Contractor shall pay Owner $500 for each day that expires after
the time (as duly adjusted pursuant to the Contract) specified above for Substantial
Completion, until the Work is substantially complete.
2. Completion of Remaining Work: After Substantial Completion, if Contractor shall
neglect, refuse, or fail to complete the remaining Work within the Contract Times (as
duly adjusted pursuant to the Contract) for completion and readiness for final payment,
Contractor shall pay Owner $500 for each day that expires after such time until the
Work is completed and ready for final payment.
3. Milestones: Contractor shall pay Owner $[number*] for each day that expires after the
time (as duly adjusted pursuant to the Contract) specified above for achievement of
Milestone 1, until Milestone 1 is achieved, or until the time specified for Substantial
Completion is reached, at which time the rate indicated in Paragraph 4.05.A.1 will apply,
rather than the Milestone rate.
4. Liquidated damages for failing to timely attain Milestones, Substantial Completion, and
final completion are not additive, and will not be imposed concurrently.
B. If Owner recovers liquidated damages for a delay in completion by Contractor, then such
liquidated damages are Owner’s sole and exclusive remedy for such delay, and Owner is
precluded from recovering any other damages, whether actual, direct, excess, or
consequential, for such delay, except for special damages (if any) specified in this
Agreement.
C. Bonus: Contractor and Owner further recognize the Owner will realize financial and other
benefits if the Work is completed prior to the time specified for Substantial Completion.
Accordingly, Owner and Contractor agree that as a bonus for early completion, Owner shall
pay Contractor $[number] for each day prior to the time specified above for Substantial
Completion (as duly adjusted pursuant to the Contract) that the Work is substantially
complete. The maximum value of the bonus will be limited to $[number].
4.06 Special Damages
A. Contractor shall reimburse Owner (1) for any fines or penalties imposed on Owner as a
direct result of the Contractor’s failure to attain Substantial Completion according to the
Contract Times, and (2) for the actual costs reasonably incurred by Owner for engineering,
construction observation, inspection, and administrative services needed after the time
specified in Paragraph 4.02 for Substantial Completion (as duly adjusted pursuant to the
Contract), until the Work is substantially complete.
B. After Contractor achieves Substantial Completion, if Contractor shall neglect, refuse, or fail
to complete the remaining Work within the Contract Times, Contractor shall reimburse
Owner for the actual costs reasonably incurred by Owner for engineering, construction
observation, inspection, and administrative services needed after the time specified in
Paragraph 4.02 for Work to be completed and ready for final payment (as duly adjusted
pursuant to the Contract), until the Work is completed and ready for final payment.
C. The special damages imposed in this paragraph are supplemental to any liquidated damages
for delayed completion established in this Agreement.
EJCDC® C-520, Agreement between Owner and Contractor for Construction Contract (Stipulated Price).
Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies,
and American Society of Civil Engineers. All rights reserved.
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Project Number: 2230492
SECTION 00 52 13
AGREEMENT
ARTICLE 5—CONTRACT PRICE
5.01 Owner shall pay Contractor for completion of the Work in accordance with the Contract
Documents, the amounts that follow, subject to adjustment under the Contract:
A. For all Work other than Unit Price Work, a lump sum of $[number].
All specific cash allowances are included in the above price in accordance with
Paragraph 13.02 of the General Conditions.
B. For all Unit Price Work, an amount equal to the sum of the extended prices (established for
each separately identified item of Unit Price Work by multiplying the unit price times the
actual quantity of that item).
Unit Price Work
Item Estimated Unit Extended
Description Unit
No. Quantity Price Price
$ $
$ $
$ $
$ $
$ $
Total of all Extended Prices for Unit Price Work (subject to final
$
adjustment based on actual quantities)
The extended prices for Unit Price Work set forth as of the Effective Date of the Contract are
based on estimated quantities. As provided in Paragraph 13.03 of the General Conditions,
estimated quantities are not guaranteed, and determinations of actual quantities and
classifications are to be made by Engineer.
C. Total of Lump Sum Amount and Unit Price Work (subject to final Unit Price adjustment)
$[number].
D. For all Work, at the prices stated in Contractor’s Bid, attached hereto as an exhibit.
ARTICLE 6—PAYMENT PROCEDURES
6.01 Submittal and Processing of Payments
A. Contractor shall submit Applications for Payment in accordance with Article 15 of the
General Conditions. Applications for Payment will be processed by Engineer as provided in
the General Conditions.
6.02 Progress Payments; Retainage
A. Owner shall make progress payments on the basis of Contractor’s Applications for Payment
on or about the 1st day of each month during performance of the Work as provided in
Paragraph 6.02.A.1 below, provided that such Applications for Payment have been
submitted in a timely manner and otherwise meet the requirements of the Contract. All
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AGREEMENT
such payments will be measured by the Schedule of Values established as provided in the
General Conditions (and in the case of Unit Price Work based on the number of units
completed) or, in the event there is no Schedule of Values, as provided elsewhere in the
Contract.
1. Prior to Substantial Completion, progress payments will be made in an amount equal to
the percentage indicated below but, in each case, less the aggregate of payments
previously made and less such amounts as Owner may withhold, including but not
limited to liquidated damages, in accordance with the Contract.
a. 90 percent of the value of the Work completed (with the balance being retainage).
1) If 50 percent or more of the Work has been completed, as determined by
Engineer, and if the character and progress of the Work have been satisfactory
to Owner and Engineer, then as long as the character and progress of the Work
remain satisfactory to Owner and Engineer, there will be no additional
retainage; and
b. 0 percent of cost of materials and equipment not incorporated in the Work (with
the balance being retainage).
B. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total
payments to Contractor to 98 percent of the Work completed, less such amounts set off by
Owner pursuant to Paragraph 15.01.E of the General Conditions, and less 100 percent of
Engineer’s estimate of the value of Work to be completed or corrected as shown on the
punch list of items to be completed or corrected prior to final payment.
6.03 Final Payment
A. Upon final completion and acceptance of the Work, Owner shall pay the remainder of the
Contract Price in accordance with Paragraph 15.06 of the General Conditions.
6.04 Consent of Surety
A. Owner will not make final payment, or return or release retainage at Substantial Completion
or any other time, unless Contractor submits written consent of the surety to such payment,
return, or release.
6.05 Interest
A. All amounts not paid when due will bear interest at the rate of 0 percent per annum.
ARTICLE 7—CONTRACT DOCUMENTS
7.01 Contents
A. The Contract Documents consist of all of the following:
1. This Agreement.
2. Bonds:
a. Performance bond (together with power of attorney).
b. Payment bond (together with power of attorney).
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Project Name: Washwater Pump Check Valve Addition
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SECTION 00 52 13
AGREEMENT
3. General Conditions.
4. Supplementary Conditions.
5. Specifications as listed in the table of contents of the project manual.
6. Drawings (not attached but incorporated by reference) consisting of 2 sheets with each
sheet bearing the following general title: Water Filtration Plant Improvements.
7. Addenda (numbers [number] to [number], inclusive).
8. Exhibits to this Agreement (enumerated as follows):
a. Contractor’s Bid (pages 1 to 2, inclusive)
b. Insurance Specifications (pages 1 to 11, inclusive).
c. The 2020 Standard Specifications for Construction adopted by the Michigan
Department of Transportation are hereby incorporated into these contract
documents.
9. The following which may be delivered or issued on or after the Effective Date of the
Contract and are not attached hereto:
a. Notice to Proceed.
b. Work Change Directives.
c. Change Orders.
d. Field Orders.
e. Warranty Bond, if any.
B. The Contract Documents listed in Paragraph 7.01.A are attached to this Agreement (except
as expressly noted otherwise above).
C. There are no Contract Documents other than those listed above in this Article 7.
D. The Contract Documents may only be amended, modified, or supplemented as provided in
the Contract.
ARTICLE 8—REPRESENTATIONS, CERTIFICATIONS, AND STIPULATIONS
8.01 Contractor’s Representations
A. In order to induce Owner to enter into this Contract, Contractor makes the following
representations:
1. Contractor has examined and carefully studied the Contract Documents, including
Addenda.
2. Contractor has visited the Site, conducted a thorough visual examination of the Site and
adjacent areas, and become familiar with the general, local, and Site conditions that
may affect cost, progress, and performance of the Work.
3. Contractor is familiar with all Laws and Regulations that may affect cost, progress, and
performance of the Work.
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SECTION 00 52 13
AGREEMENT
4. Contractor has carefully studied the reports of explorations and tests of subsurface
conditions at or adjacent to the Site and the drawings of physical conditions relating to
existing surface or subsurface structures at the Site that have been identified in the
Supplementary Conditions, with respect to the Technical Data in such reports and
drawings.
5. Contractor has carefully studied the reports and drawings relating to Hazardous
Environmental Conditions, if any, at or adjacent to the Site that have been identified in
the Supplementary Conditions, with respect to Technical Data in such reports and
drawings.
6. Contractor has considered the information known to Contractor itself; information
commonly known to contractors doing business in the locality of the Site; information
and observations obtained from visits to the Site; the Contract Documents; and the
Technical Data identified in the Supplementary Conditions or by definition, with respect
to the effect of such information, observations, and Technical Data on (a) the cost,
progress, and performance of the Work; (b) the means, methods, techniques,
sequences, and procedures of construction to be employed by Contractor; and
(c) Contractor’s safety precautions and programs.
7. Based on the information and observations referred to in the preceding paragraph,
Contractor agrees that no 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.
8. 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 indicated in the Contract Documents.
9. Contractor has given Engineer written notice of all conflicts, errors, ambiguities, or
discrepancies that Contractor has discovered in the Contract Documents, and of
discrepancies between Site conditions and the Contract Documents, and the written
resolution thereof by Engineer is acceptable to Contractor.
10. The Contract Documents are generally sufficient to indicate and convey understanding
of all terms and conditions for performance and furnishing of the Work.
11. Contractor’s entry into this Contract constitutes an incontrovertible representation by
Contractor that without exception all prices in the Agreement are premised upon
performing and furnishing the Work required by the Contract Documents.
8.02 Contractor’s Certifications
A. Contractor certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive
practices in competing for or in executing the Contract. For the purposes of this
Paragraph 8.02:
1. “corrupt practice” means the offering, giving, receiving, or soliciting of anything of value
likely to influence the action of a public official in the bidding process or in the Contract
execution;
2. “fraudulent practice” means an intentional misrepresentation of facts made (a) to
influence the bidding process or the execution of the Contract to the detriment of
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AGREEMENT
Owner, (b) to establish Bid or Contract prices at artificial non-competitive levels, or (c)
to deprive Owner of the benefits of free and open competition;
3. “collusive practice” means a scheme or arrangement between two or more Bidders,
with or without the knowledge of Owner, a purpose of which is to establish Bid prices at
artificial, non-competitive levels; and
4. “coercive practice” means harming or threatening to harm, directly or indirectly,
persons or their property to influence their participation in the bidding process or affect
the execution of the Contract.
8.03 Standard General Conditions
A. Owner stipulates that if the General Conditions that are made a part of this Contract are
EJCDC® C-700, Standard General Conditions for the Construction Contract (2018), published
by the Engineers Joint Contract Documents Committee, and if Owner is the party that has
furnished said General Conditions, then Owner has plainly shown all modifications to the
standard wording of such published document to the Contractor, through a process such as
highlighting or “track changes” (redline/strikeout), or in the Supplementary Conditions.
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
SECTION 00 52 13
AGREEMENT
IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement.
This Agreement will be effective on (which is the Effective Date of the Contract).
Owner: Contractor:
City of Muskegon
(typed or printed name of organization) (typed or printed name of organization)
By: By:
(individual’s signature) (individual’s signature)
Date: Date:
(date signed) (date signed)
Name: Name:
(typed or printed) (typed or printed)
Title: Title:
(typed or printed) (typed or printed)
(If Contractor is a corporation, a partnership, or a joint
venture, attach evidence of authority to sign.)
Attest: Attest:
(individual’s signature) (individual’s signature)
Title: Title:
(typed or printed) (typed or printed)
Address for giving notices: Address for giving notices:
933 Terrace St
Muskegon, MI 49440
Designated Representative: Designated Representative:
Name: Name:
(typed or printed) (typed or printed)
Title: Title:
(typed or printed) (typed or printed)
Address: Address:
Phone: Phone:
Email: Email:
(If Owner is a corporation, attach evidence of authority
to sign. If Owner is a public body, attach evidence of
License No.:
authority to sign and resolution or other documents (where applicable)
authorizing execution of this Agreement.)
State:
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PERFORMANCE BOND
Contractor Surety
Name: Name:
Address (principal place of business): Address (principal place of business):
Owner Contract
Name: City of Muskegon Description (name and location):
Mailing address (principal place of business): Water Filtration Plant Improvements –
Washwater Pump Check Valve Addition
933 Terrace St
Muskegon, MI 49440 Contract Price:
Effective Date of Contract:
Bond
Bond Amount:
Date of Bond:
(Date of Bond cannot be earlier than Effective Date of Contract)
Modifications to this Bond form:
☒ None ☐ See Paragraph 16
Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth in this
Performance Bond, do each cause this Performance Bond to be duly executed by an authorized officer,
agent, or representative.
Contractor as Principal Surety
(Full formal name of Contractor) (Full formal name of Surety) (corporate seal)
By: By:
(Signature) (Signature)(Attach Power of Attorney)
Name: Name:
(Printed or typed) (Printed or typed)
Title: Title:
Attest: Attest:
(Signature) (Signature)
Name: Name:
(Printed or typed) (Printed or typed)
Title: Title:
Notes: (1) Provide supplemental execution by any additional parties, such as joint venturers. (2) Any singular reference to
Contractor, Surety, Owner, or other party is considered plural where applicable.
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1. The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors,
administrators, successors, and assigns to the Owner for the performance of the Construction
Contract, which is incorporated herein by reference.
2. If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no
obligation under this Bond, except when applicable to participate in a conference as provided in
Paragraph 3.
3. If there is no Owner Default under the Construction Contract, the Surety’s obligation under this
Bond will arise after:
3.1. The Owner first provides notice to the Contractor and the Surety that the Owner is
considering declaring a Contractor Default. Such notice may indicate whether the Owner is
requesting a conference among the Owner, Contractor, and Surety to discuss the Contractor’s
performance. If the Owner does not request a conference, the Surety may, within five (5)
business days after receipt of the Owner’s notice, request such a conference. If the Surety
timely requests a conference, the Owner shall attend. Unless the Owner agrees otherwise, any
conference requested under this Paragraph 3.1 will be held within ten (10) business days of
the Surety’s receipt of the Owner’s notice. If the Owner, the Contractor, and the Surety agree,
the Contractor shall be allowed a reasonable time to perform the Construction Contract, but
such an agreement does not waive the Owner’s right, if any, subsequently to declare a
Contractor Default;
3.2. The Owner declares a Contractor Default, terminates the Construction Contract and notifies
the Surety; and
3.3. The Owner has agreed to pay the Balance of the Contract Price in accordance with the terms
of the Construction Contract to the Surety or to a contractor selected to perform the
Construction Contract.
4. Failure on the part of the Owner to comply with the notice requirement in Paragraph 3.1 does not
constitute a failure to comply with a condition precedent to the Surety’s obligations, or release the
Surety from its obligations, except to the extent the Surety demonstrates actual prejudice.
5. When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the
Surety’s expense take one of the following actions:
5.1. Arrange for the Contractor, with the consent of the Owner, to perform and complete the
Construction Contract;
5.2. Undertake to perform and complete the Construction Contract itself, through its agents or
independent contractors;
5.3. Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a
contract for performance and completion of the Construction Contract, arrange for a contract
to be prepared for execution by the Owner and a contractor selected with the Owners
concurrence, to be secured with performance and payment bonds executed by a qualified
surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the
amount of damages as described in Paragraph 7 in excess of the Balance of the Contract Price
incurred by the Owner as a result of the Contractor Default; or
5.4. Waive its right to perform and complete, arrange for completion, or obtain a new contractor,
and with reasonable promptness under the circumstances:
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5.4.1 After investigation, determine the amount for which it may be liable to the Owner
and, as soon as practicable after the amount is determined, make payment to the
Owner; or
5.4.2 Deny liability in whole or in part and notify the Owner, citing the reasons for denial.
6. If the Surety does not proceed as provided in Paragraph 5 with reasonable promptness, the Surety
shall be deemed to be in default on this Bond seven days after receipt of an additional written
notice from the Owner to the Surety demanding that the Surety perform its obligations under this
Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety
proceeds as provided in Paragraph 5.4, and the Owner refuses the payment, or the Surety has
denied liability, in whole or in part, without further notice, the Owner shall be entitled to enforce
any remedy available to the Owner.
7. If the Surety elects to act under Paragraph 5.1, 5.2, or 5.3, then the responsibilities of the Surety to
the Owner will not be greater than those of the Contractor under the Construction Contract, and the
responsibilities of the Owner to the Surety will not be greater than those of the Owner under the
Construction Contract. Subject to the commitment by the Owner to pay the Balance of the Contract
Price, the Surety is obligated, without duplication for:
7.1. the responsibilities of the Contractor for correction of defective work and completion of the
Construction Contract;
7.2. additional legal, design professional, and delay costs resulting from the Contractor’s Default,
and resulting from the actions or failure to act of the Surety under Paragraph 5; and
7.3. liquidated damages, or if no liquidated damages are specified in the Construction Contract,
actual damages caused by delayed performance or non-performance of the Contractor.
8. If the Surety elects to act under Paragraph 5.1, 5.3, or 5.4, the Surety’s liability is limited to the
amount of this Bond.
9. The Surety shall not be liable to the Owner or others for obligations of the Contractor that are
unrelated to the Construction Contract, and the Balance of the Contract Price will not be reduced or
set off on account of any such unrelated obligations. No right of action will accrue on this Bond to
any person or entity other than the Owner or its heirs, executors, administrators, successors, and
assigns.
10. The Surety hereby waives notice of any change, including changes of time, to the Construction
Contract or to related subcontracts, purchase orders, and other obligations.
11. Any proceeding, legal or equitable, under this Bond must be instituted in any court of competent
jurisdiction in the location in which the work or part of the work is located and must be instituted
within two years after a declaration of Contractor Default or within two years after the Contractor
ceased working or within two years after the Surety refuses or fails to perform its obligations under
this Bond, whichever occurs first. If the provisions of this paragraph are void or prohibited by law,
the minimum periods of limitations available to sureties as a defense in the jurisdiction of the suit
will be applicable.
12. Notice to the Surety, the Owner, or the Contractor must be mailed or delivered to the address
shown on the page on which their signature appears.
13. When this Bond has been furnished to comply with a statutory or other legal requirement in the
location where the construction was to be performed, any provision in this Bond conflicting with
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said statutory or legal requirement will be deemed deleted therefrom and provisions conforming to
such statutory or other legal requirement will be deemed incorporated herein. When so furnished,
the intent is that this Bond will be construed as a statutory bond and not as a common law bond.
14. Definitions
14.1. Balance of the Contract Price—The total amount payable by the Owner to the Contractor
under the Construction Contract after all proper adjustments have been made including
allowance for the Contractor for any amounts received or to be received by the Owner in
settlement of insurance or other claims for damages to which the Contractor is entitled,
reduced by all valid and proper payments made to or on behalf of the Contractor under the
Construction Contract.
14.2. Construction Contract—The agreement between the Owner and Contractor identified on the
cover page, including all Contract Documents and changes made to the agreement and the
Contract Documents.
14.3. Contractor Default—Failure of the Contractor, which has not been remedied or waived, to
perform or otherwise to comply with a material term of the Construction Contract.
14.4. Owner Default—Failure of the Owner, which has not been remedied or waived, to pay the
Contractor as required under the Construction Contract or to perform and complete or
comply with the other material terms of the Construction Contract.
14.5. Contract Documents—All the documents that comprise the agreement between the Owner
and Contractor.
15. If this Bond is issued for an agreement between a contractor and subcontractor, the term
Contractor in this Bond will be deemed to be Subcontractor and the term Owner will be deemed to
be Contractor.
16. Modifications to this Bond are as follows: None
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PAYMENT BOND
Contractor Surety
Name: Name:
Address (principal place of business): Address (principal place of business):
Owner Contract
Name: City of Muskegon Description (name and location):
Mailing address (principal place of business): Water Filtration Plant Improvements –
933 Terrace St Washwater Pump Check Valve Addition
Muskegon, MI 49440
Contract Price:
Effective Date of Contract:
Bond
Bond Amount:
Date of Bond:
(Date of Bond cannot be earlier than Effective Date of Contract)
Modifications to this Bond form:
☒ None ☐ See Paragraph 18
Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth in this
Payment Bond, do each cause this Payment Bond to be duly executed by an authorized officer, agent, or
representative.
Contractor as Principal Surety
(Full formal name of Contractor) (Full formal name of Surety) (corporate seal)
By: By:
(Signature) (Signature)(Attach Power of Attorney)
Name: Name:
(Printed or typed) (Printed or typed)
Title: Title:
Attest: Attest:
(Signature) (Signature)
Name: Name:
(Printed or typed) (Printed or typed)
Title: Title:
Notes: (1) Provide supplemental execution by any additional parties, such as joint venturers. (2) Any singular reference to
Contractor, Surety, Owner, or other party is considered plural where applicable.
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1. The Contractor and Surety, jointly and severally, bind themselves, their heirs, executors,
administrators, successors, and assigns to the Owner to pay for labor, materials, and equipment
furnished for use in the performance of the Construction Contract, which is incorporated herein by
reference, subject to the following terms.
2. If the Contractor promptly makes payment of all sums due to Claimants, and defends, indemnifies,
and holds harmless the Owner from claims, demands, liens, or suits by any person or entity seeking
payment for labor, materials, or equipment furnished for use in the performance of the
Construction Contract, then the Surety and the Contractor shall have no obligation under this Bond.
3. If there is no Owner Default under the Construction Contract, the Surety’s obligation to the Owner
under this Bond will arise after the Owner has promptly notified the Contractor and the Surety (at
the address described in Paragraph 13) of claims, demands, liens, or suits against the Owner or the
Owner’s property by any person or entity seeking payment for labor, materials, or equipment
furnished for use in the performance of the Construction Contract, and tendered defense of such
claims, demands, liens, or suits to the Contractor and the Surety.
4. When the Owner has satisfied the conditions in Paragraph 3, the Surety shall promptly and at the
Surety’s expense defend, indemnify, and hold harmless the Owner against a duly tendered claim,
demand, lien, or suit.
5. The Surety’s obligations to a Claimant under this Bond will arise after the following:
5.1. Claimants who do not have a direct contract with the Contractor
5.1.1. have furnished a written notice of non-payment to the Contractor, stating with
substantial accuracy the amount claimed and the name of the party to whom the
materials were, or equipment was, furnished or supplied or for whom the labor was
done or performed, within ninety (90) days after having last performed labor or last
furnished materials or equipment included in the Claim; and
5.1.2. have sent a Claim to the Surety (at the address described in Paragraph 13).
5.2. Claimants who are employed by or have a direct contract with the Contractor have sent a
Claim to the Surety (at the address described in Paragraph 13).
6. If a notice of non-payment required by Paragraph 5.1.1 is given by the Owner to the Contractor, that
is sufficient to satisfy a Claimant’s obligation to furnish a written notice of non-payment under
Paragraph 5.1.1.
7. When a Claimant has satisfied the conditions of Paragraph 5.1 or 5.2, whichever is applicable, the
Surety shall promptly and at the Surety’s expense take the following actions:
7.1. Send an answer to the Claimant, with a copy to the Owner, within sixty (60) days after receipt
of the Claim, stating the amounts that are undisputed and the basis for challenging any
amounts that are disputed; and
7.2. Pay or arrange for payment of any undisputed amounts.
7.3. The Surety’s failure to discharge its obligations under Paragraph 7.1 or 7.2 will not be deemed
to constitute a waiver of defenses the Surety or Contractor may have or acquire as to a Claim,
except as to undisputed amounts for which the Surety and Claimant have reached agreement.
If, however, the Surety fails to discharge its obligations under Paragraph 7.1 or 7.2, the Surety
shall indemnify the Claimant for the reasonable attorney’s fees the Claimant incurs thereafter
to recover any sums found to be due and owing to the Claimant.
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8. The Surety’s total obligation will not exceed the amount of this Bond, plus the amount of reasonable
attorney’s fees provided under Paragraph 7.3, and the amount of this Bond will be credited for any
payments made in good faith by the Surety.
9. Amounts owed by the Owner to the Contractor under the Construction Contract will be used for the
performance of the Construction Contract and to satisfy claims, if any, under any construction
performance bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that
all funds earned by the Contractor in the performance of the Construction Contract are dedicated to
satisfying obligations of the Contractor and Surety under this Bond, subject to the Owner’s priority
to use the funds for the completion of the work.
10. The Surety shall not be liable to the Owner, Claimants, or others for obligations of the Contractor
that are unrelated to the Construction Contract. The Owner shall not be liable for the payment of
any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligation
to make payments to or give notice on behalf of Claimants, or otherwise have any obligations to
Claimants under this Bond.
11. The Surety hereby waives notice of any change, including changes of time, to the Construction
Contract or to related subcontracts, purchase orders, and other obligations.
12. No suit or action will be commenced by a Claimant under this Bond other than in a court of
competent jurisdiction in the state in which the project that is the subject of the Construction
Contract is located or after the expiration of one year from the date (1) on which the Claimant sent a
Claim to the Surety pursuant to Paragraph 5.1.2 or 5.2, or (2) on which the last labor or service was
performed by anyone or the last materials or equipment were furnished by anyone under the
Construction Contract, whichever of (1) or (2) first occurs. If the provisions of this paragraph are void
or prohibited by law, the minimum period of limitation available to sureties as a defense in the
jurisdiction of the suit will be applicable.
13. Notice and Claims to the Surety, the Owner, or the Contractor must be mailed or delivered to the
address shown on the page on which their signature appears. Actual receipt of notice or Claims,
however accomplished, will be sufficient compliance as of the date received.
14. When this Bond has been furnished to comply with a statutory or other legal requirement in the
location where the construction was to be performed, any provision in this Bond conflicting with
said statutory or legal requirement will be deemed deleted here from and provisions conforming to
such statutory or other legal requirement will be deemed incorporated herein. When so furnished,
the intent is that this Bond will be construed as a statutory bond and not as a common law bond.
15. Upon requests by any person or entity appearing to be a potential beneficiary of this Bond, the
Contractor and Owner shall promptly furnish a copy of this Bond or shall permit a copy to be made.
16. Definitions
16.1. Claim—A written statement by the Claimant including at a minimum:
16.1.1. The name of the Claimant;
16.1.2. The name of the person for whom the labor was done, or materials or equipment
furnished;
16.1.3. A copy of the agreement or purchase order pursuant to which labor, materials, or
equipment was furnished for use in the performance of the Construction Contract;
16.1.4. A brief description of the labor, materials, or equipment furnished;
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16.1.5. The date on which the Claimant last performed labor or last furnished materials or
equipment for use in the performance of the Construction Contract;
16.1.6. The total amount earned by the Claimant for labor, materials, or equipment furnished
as of the date of the Claim;
16.1.7. The total amount of previous payments received by the Claimant; and
16.1.8. The total amount due and unpaid to the Claimant for labor, materials, or equipment
furnished as of the date of the Claim.
16.2. Claimant—An individual or entity having a direct contract with the Contractor or with a
subcontractor of the Contractor to furnish labor, materials, or equipment for use in the
performance of the Construction Contract. The term Claimant also includes any individual or
entity that has rightfully asserted a claim under an applicable mechanic’s lien or similar statute
against the real property upon which the Project is located. The intent of this Bond is to
include without limitation in the terms of “labor, materials, or equipment” that part of the
water, gas, power, light, heat, oil, gasoline, telephone service, or rental equipment used in the
Construction Contract, architectural and engineering services required for performance of the
work of the Contractor and the Contractor’s subcontractors, and all other items for which a
mechanic’s lien may be asserted in the jurisdiction where the labor, materials, or equipment
were furnished.
16.3. Construction Contract—The agreement between the Owner and Contractor identified on the
cover page, including all Contract Documents and all changes made to the agreement and the
Contract Documents.
16.4. Owner Default—Failure of the Owner, which has not been remedied or waived, to pay the
Contractor as required under the Construction Contract or to perform and complete or
comply with the other material terms of the Construction Contract.
16.5. Contract Documents—All the documents that comprise the agreement between the Owner
and Contractor.
17. If this Bond is issued for an agreement between a contractor and subcontractor, the term
Contractor in this Bond will be deemed to be Subcontractor and the term Owner will be deemed to
be Contractor.
18. Modifications to this Bond are as follows: None
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Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies,
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This document has important legal consequences; consultation with an attorney is encouraged with
respect to its use or modification. This document should be adapted to the particular circumstances of
the contemplated Project and the controlling Laws and Regulations.
STANDARD GENERAL CONDITIONS
OF THE CONSTRUCTION CONTRACT
Prepared By
Endorsed By
EJCDC® C-700, Standard General Conditions of the Construction Contract.
Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies,
and American Society of Civil Engineers. All rights reserved.
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Copyright© 2018
National Society of Professional Engineers
1420 King Street, Alexandria, VA 22314-2794
(703) 684-2882
www.nspe.org
American Council of Engineering Companies
1015 15th Street N.W., Washington, DC 20005
(202) 347-7474
www.acec.org
American Society of Civil Engineers
1801 Alexander Bell Drive, Reston, VA 20191-4400
(800) 548-2723
www.asce.org
The copyright for this EJCDC document is owned jointly by the three sponsoring organizations listed
above. The National Society of Professional Engineers is the Copyright Administrator for the EJCDC
documents; please direct all inquiries regarding EJCDC copyrights to NSPE.
NOTE: EJCDC publications may be purchased at www.ejcdc.org, or from any of the sponsoring
organizations above.
EJCDC® C-700, Standard General Conditions of the Construction Contract.
Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies,
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STANDARD GENERAL CONDITIONS
OF THE CONSTRUCTION CONTRACT
TABLE OF CONTENTS
Page
Article 1—Definitions and Terminology........................................................................................................ 1
1.01 Defined Terms ............................................................................................................................... 1
1.02 Terminology .................................................................................................................................. 6
Article 2—Preliminary Matters ..................................................................................................................... 7
2.01 Delivery of Performance and Payment Bonds; Evidence of Insurance......................................... 7
2.02 Copies of Documents .................................................................................................................... 7
2.03 Before Starting Construction ........................................................................................................ 8
2.04 Preconstruction Conference; Designation of Authorized Representatives .................................. 8
2.05 Acceptance of Schedules .............................................................................................................. 8
2.06 Electronic Transmittals ................................................................................................................. 9
Article 3—Contract Documents: Intent, Requirements, Reuse .................................................................... 9
3.01 Intent ............................................................................................................................................. 9
3.02 Reference Standards ................................................................................................................... 10
3.03 Reporting and Resolving Discrepancies ...................................................................................... 10
3.04 Requirements of the Contract Documents ................................................................................. 11
3.05 Reuse of Documents ................................................................................................................... 11
Article 4—Commencement and Progress of the Work .............................................................................. 12
4.01 Commencement of Contract Times; Notice to Proceed ............................................................. 12
4.02 Starting the Work ........................................................................................................................ 12
4.03 Reference Points ......................................................................................................................... 12
4.04 Progress Schedule ....................................................................................................................... 12
4.05 Delays in Contractor’s Progress .................................................................................................. 12
Article 5—Site; Subsurface and Physical Conditions; Hazardous Environmental Conditions .................... 14
5.01 Availability of Lands .................................................................................................................... 14
5.02 Use of Site and Other Areas ........................................................................................................ 14
5.03 Subsurface and Physical Conditions............................................................................................ 15
5.04 Differing Subsurface or Physical Conditions ............................................................................... 16
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5.05 Underground Facilities ................................................................................................................ 18
5.06 Hazardous Environmental Conditions at Site ............................................................................. 19
Article 6—Bonds and Insurance .................................................................................................................. 22
6.01 Performance, Payment, and Other Bonds .................................................................................. 22
6.02 Insurance—General Provisions ................................................................................................... 22
6.03 Contractor’s Insurance ................................................................................................................ 24
6.04 Builder’s Risk and Other Property Insurance .............................................................................. 25
6.05 Property Losses; Subrogation ..................................................................................................... 26
6.06 Receipt and Application of Property Insurance Proceeds .......................................................... 27
Article 7—Contractor’s Responsibilities ..................................................................................................... 27
7.01 Contractor’s Means and Methods of Construction .................................................................... 27
7.02 Supervision and Superintendence .............................................................................................. 28
7.03 Labor; Working Hours ................................................................................................................. 28
7.04 Services, Materials, and Equipment ........................................................................................... 28
7.05 “Or Equals” .................................................................................................................................. 29
7.06 Substitutes .................................................................................................................................. 30
7.07 Concerning Subcontractors and Suppliers .................................................................................. 31
7.08 Patent Fees and Royalties ........................................................................................................... 32
7.09 Permits ........................................................................................................................................ 33
7.10 Taxes ........................................................................................................................................... 33
7.11 Laws and Regulations .................................................................................................................. 33
7.12 Record Documents ...................................................................................................................... 34
7.13 Safety and Protection.................................................................................................................. 34
7.14 Hazard Communication Programs .............................................................................................. 35
7.15 Emergencies ................................................................................................................................ 35
7.16 Submittals ................................................................................................................................... 36
7.17 Contractor’s General Warranty and Guarantee ......................................................................... 38
7.18 Indemnification ........................................................................................................................... 39
7.19 Delegation of Professional Design Services ................................................................................ 40
Article 8—Other Work at the Site ............................................................................................................... 41
8.01 Other Work ................................................................................................................................. 41
8.02 Coordination ............................................................................................................................... 41
8.03 Legal Relationships...................................................................................................................... 42
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Article 9—Owner’s Responsibilities ............................................................................................................ 43
9.01 Communications to Contractor .................................................................................................. 43
9.02 Replacement of Engineer ............................................................................................................ 43
9.03 Furnish Data ................................................................................................................................ 43
9.04 Pay When Due ............................................................................................................................. 43
9.05 Lands and Easements; Reports, Tests, and Drawings ................................................................. 43
9.06 Insurance ..................................................................................................................................... 43
9.07 Change Orders ............................................................................................................................ 43
9.08 Inspections, Tests, and Approvals ............................................................................................... 44
9.09 Limitations on Owner’s Responsibilities ..................................................................................... 44
9.10 Undisclosed Hazardous Environmental Condition...................................................................... 44
9.11 Evidence of Financial Arrangements ........................................................................................... 44
9.12 Safety Programs .......................................................................................................................... 44
Article 10—Engineer’s Status During Construction .................................................................................... 44
10.01 Owner’s Representative.......................................................................................................... 44
10.02 Visits to Site ............................................................................................................................. 44
10.03 Resident Project Representative............................................................................................. 45
10.04 Engineer’s Authority ............................................................................................................... 45
10.05 Determinations for Unit Price Work ....................................................................................... 45
10.06 Decisions on Requirements of Contract Documents and Acceptability of Work ................... 45
10.07 Limitations on Engineer’s Authority and Responsibilities ...................................................... 45
10.08 Compliance with Safety Program............................................................................................ 46
Article 11—Changes to the Contract .......................................................................................................... 46
11.01 Amending and Supplementing the Contract .......................................................................... 46
11.02 Change Orders ........................................................................................................................ 46
11.03 Work Change Directives .......................................................................................................... 47
11.04 Field Orders ............................................................................................................................. 47
11.05 Owner-Authorized Changes in the Work ................................................................................ 47
11.06 Unauthorized Changes in the Work ........................................................................................ 48
11.07 Change of Contract Price ........................................................................................................ 48
11.08 Change of Contract Times ....................................................................................................... 49
11.09 Change Proposals .................................................................................................................... 49
11.10 Notification to Surety .............................................................................................................. 51
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Article 12—Claims ....................................................................................................................................... 51
12.01 Claims ...................................................................................................................................... 51
Article 13—Cost of the Work; Allowances; Unit Price Work ...................................................................... 52
13.01 Cost of the Work ..................................................................................................................... 52
13.02 Allowances .............................................................................................................................. 56
13.03 Unit Price Work ....................................................................................................................... 56
Article 14—Tests and Inspections; Correction, Removal, or Acceptance of Defective Work .................... 57
14.01 Access to Work ........................................................................................................................ 57
14.02 Tests, Inspections, and Approvals ........................................................................................... 57
14.03 Defective Work ....................................................................................................................... 58
14.04 Acceptance of Defective Work................................................................................................ 58
14.05 Uncovering Work .................................................................................................................... 59
14.06 Owner May Stop the Work ..................................................................................................... 59
14.07 Owner May Correct Defective Work....................................................................................... 59
Article 15—Payments to Contractor; Set-Offs; Completion; Correction Period ........................................ 60
15.01 Progress Payments .................................................................................................................. 60
15.02 Contractor’s Warranty of Title ................................................................................................ 63
15.03 Substantial Completion ........................................................................................................... 63
15.04 Partial Use or Occupancy ........................................................................................................ 64
15.05 Final Inspection ....................................................................................................................... 65
15.06 Final Payment.......................................................................................................................... 65
15.07 Waiver of Claims ..................................................................................................................... 66
15.08 Correction Period .................................................................................................................... 67
Article 16—Suspension of Work and Termination ..................................................................................... 68
16.01 Owner May Suspend Work ..................................................................................................... 68
16.02 Owner May Terminate for Cause ............................................................................................ 68
16.03 Owner May Terminate for Convenience................................................................................. 69
16.04 Contractor May Stop Work or Terminate ............................................................................... 69
Article 17—Final Resolution of Disputes .................................................................................................... 70
17.01 Methods and Procedures ........................................................................................................ 70
Article 18—Miscellaneous .......................................................................................................................... 70
18.01 Giving Notice ........................................................................................................................... 70
18.02 Computation of Times ............................................................................................................ 70
EJCDC® C-700, Standard General Conditions of the Construction Contract.
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18.03 Cumulative Remedies ............................................................................................................. 70
18.04 Limitation of Damages ............................................................................................................ 71
18.05 No Waiver ............................................................................................................................... 71
18.06 Survival of Obligations ............................................................................................................ 71
18.07 Controlling Law ....................................................................................................................... 71
18.08 Assignment of Contract .......................................................................................................... 71
18.09 Successors and Assigns ........................................................................................................... 71
18.10 Headings.................................................................................................................................. 71
EJCDC® C-700, Standard General Conditions of the Construction Contract.
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STANDARD GENERAL CONDITIONS
OF THE CONSTRUCTION CONTRACT
ARTICLE 1—DEFINITIONS AND TERMINOLOGY
1.01 Defined Terms
A. Wherever used in the Bidding Requirements or Contract Documents, a term printed with
initial capital letters, including the term’s singular and plural forms, will have the meaning
indicated in the definitions below. 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, executed by Owner and Contractor, that sets forth
the Contract Price and Contract Times, identifies the parties and the Engineer, and
designates the specific items that are Contract Documents.
3. Application for Payment—The document prepared by Contractor, in a form acceptable
to Engineer, to request progress or final payments, and which is to be accompanied by
such supporting documentation as is required by the Contract Documents.
4. Bid—The offer of a Bidder submitted on the prescribed form setting forth the prices for
the Work to be performed.
5. Bidder—An individual or entity that submits a Bid to Owner.
6. Bidding Documents—The Bidding Requirements, the proposed Contract Documents,
and all Addenda.
7. Bidding Requirements—The Advertisement or invitation to bid, Instructions to Bidders,
Bid Bond or other Bid security, if any, the Bid Form, and the Bid with any attachments.
8. Change Order—A document 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, or other revision to the Contract, issued on or after the Effective Date of
the Contract.
9. Change Proposal—A written request by Contractor, duly submitted in compliance with
the procedural requirements set forth herein, seeking an adjustment in Contract Price
or Contract Times; contesting an initial decision by Engineer concerning the
requirements of the Contract Documents or the acceptability of Work under the
Contract Documents; challenging a set-off against payments due; or seeking other relief
with respect to the terms of the Contract.
10. Claim
a. A demand or assertion by Owner directly to Contractor, duly submitted in
compliance with the procedural requirements set forth herein, seeking an
adjustment of Contract Price or Contract Times; contesting an initial decision by
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Engineer concerning the requirements of the Contract Documents or the
acceptability of Work under the Contract Documents; contesting Engineer’s decision
regarding a Change Proposal; seeking resolution of a contractual issue that Engineer
has declined to address; or seeking other relief with respect to the terms of the
Contract.
b. A demand or assertion by Contractor directly to Owner, duly submitted in
compliance with the procedural requirements set forth herein, contesting
Engineer’s decision regarding a Change Proposal, or seeking resolution of a
contractual issue that Engineer has declined to address.
c. A demand or assertion by Owner or Contractor, duly submitted in compliance with
the procedural requirements set forth herein, made pursuant to
Paragraph 12.01.A.4, concerning disputes arising after Engineer has issued a
recommendation of final payment.
d. A demand for money or services by a third party is not a Claim.
11. Constituent of Concern—Asbestos, petroleum, radioactive materials, polychlorinated
biphenyls (PCBs), lead-based paint (as defined by the HUD/EPA standard), hazardous
waste, and any substance, product, waste, or other material of any nature whatsoever
that is or becomes listed, regulated, or addressed pursuant to Laws and Regulations
regulating, relating to, or imposing liability or standards of conduct concerning, any
hazardous, toxic, or dangerous waste, substance, or material.
12. Contract—The entire and integrated written contract between Owner and Contractor
concerning the Work.
13. Contract Documents—Those items so designated in the Agreement, and which together
comprise the Contract.
14. Contract Price—The money that Owner has agreed to pay Contractor for completion of
the Work in accordance with the Contract Documents.
15. Contract Times—The number of days or the dates by which Contractor shall: (a) achieve
Milestones, if any; (b) achieve Substantial Completion; and (c) complete the Work.
16. Contractor—The individual or entity with which Owner has contracted for performance
of the Work.
17. Cost of the Work—See Paragraph 13.01 for definition.
18. Drawings—The part of the Contract that graphically shows the scope, extent, and
character of the Work to be performed by Contractor.
19. Effective Date of the Contract—The date, indicated in the Agreement, on which the
Contract becomes effective.
20. Electronic Document—Any Project-related correspondence, attachments to
correspondence, data, documents, drawings, information, or graphics, including but not
limited to Shop Drawings and other Submittals, that are in an electronic or digital
format.
21. Electronic Means—Electronic mail (email), upload/download from a secure Project
website, or other communications methods that allow: (a) the transmission or
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communication of Electronic Documents; (b) the documentation of transmissions,
including sending and receipt; (c) printing of the transmitted Electronic Document by
the recipient; (d) the storage and archiving of the Electronic Document by sender and
recipient; and (e) the use by recipient of the Electronic Document for purposes
permitted by this Contract. Electronic Means does not include the use of text
messaging, or of Facebook, Twitter, Instagram, or similar social media services for
transmission of Electronic Documents.
22. Engineer—The individual or entity named as such in the Agreement.
23. Field Order—A written order issued by Engineer which requires minor changes in the
Work but does not change the Contract Price or the Contract Times.
24. Hazardous Environmental Condition—The presence at the Site of Constituents of
Concern in such quantities or circumstances that may present a danger to persons or
property exposed thereto.
a. The presence at the Site of materials that are necessary for the execution of the
Work, or that are to be incorporated into the Work, and that are controlled and
contained pursuant to industry practices, Laws and Regulations, and the
requirements of the Contract, is not a Hazardous Environmental Condition.
b. The presence of Constituents of Concern that are to be removed or remediated as
part of the Work is not a Hazardous Environmental Condition.
c. The presence of Constituents of Concern as part of the routine, anticipated, and
obvious working conditions at the Site, is not a Hazardous Environmental Condition.
25. Laws and Regulations; Laws or Regulations—Any and all applicable laws, statutes, rules,
regulations, ordinances, codes, and binding decrees, resolutions, and orders of any and
all governmental bodies, agencies, authorities, and courts having jurisdiction.
26. Liens—Charges, security interests, or encumbrances upon Contract-related funds, real
property, or personal property.
27. Milestone—A principal event in the performance of the Work that the Contract requires
Contractor to achieve by an intermediate completion date, or by a time prior to
Substantial Completion of all the Work.
28. Notice of Award—The written notice by Owner to a Bidder of Owner’s acceptance of the
Bid.
29. Notice to Proceed—A written notice by Owner to Contractor fixing the date on which
the Contract Times will commence to run and on which Contractor shall start to perform
the Work.
30. Owner—The individual or entity with which Contractor has contracted regarding the
Work, and which has agreed to pay Contractor for the performance of the Work,
pursuant to the terms of the Contract.
31. Progress Schedule—A schedule, prepared and maintained by Contractor, describing the
sequence and duration of the activities comprising Contractor’s plan to accomplish the
Work within the Contract Times.
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32. Project—The total undertaking to be accomplished for Owner by engineers, contractors,
and others, including planning, study, design, construction, testing, commissioning, and
start-up, and of which the Work to be performed under the Contract Documents is a
part.
33. Resident Project Representative—The authorized representative of Engineer assigned to
assist Engineer at the Site. As used herein, the term Resident Project Representative
(RPR) includes any assistants or field staff of Resident Project Representative.
34. Samples—Physical examples of materials, equipment, or workmanship that are
representative of some portion of the Work and that establish the standards by which
such portion of the Work will be judged.
35. Schedule of Submittals—A schedule, prepared and maintained by Contractor, of
required submittals and the time requirements for Engineer’s review of the submittals.
36. 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.
37. Shop Drawings—All drawings, diagrams, illustrations, schedules, and other data or
information that are specifically prepared or assembled by or for Contractor and
submitted by Contractor to illustrate some portion of the Work. Shop Drawings,
whether approved or not, are not Drawings and are not Contract Documents.
38. 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, and
such other lands or areas furnished by Owner which are designated for the use of
Contractor.
39. Specifications—The part of the Contract that consists of written requirements for
materials, equipment, systems, standards, and workmanship as applied to the Work,
and certain administrative requirements and procedural matters applicable to the Work.
40. 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.
41. Submittal—A written or graphic document, prepared by or for Contractor, which the
Contract Documents require Contractor to submit to Engineer, or that is indicated as a
Submittal in the Schedule of Submittals accepted by Engineer. Submittals may include
Shop Drawings and Samples; schedules; product data; Owner-delegated designs;
sustainable design information; information on special procedures; testing plans; results
of tests and evaluations, source quality-control testing and inspections, and field or Site
quality-control testing and inspections; warranties and certifications; Suppliers’
instructions and reports; records of delivery of spare parts and tools; operations and
maintenance data; Project photographic documentation; record documents; and other
such documents required by the Contract Documents. Submittals, whether or not
approved or accepted by Engineer, are not Contract Documents. Change Proposals,
Change Orders, Claims, notices, Applications for Payment, and requests for
interpretation or clarification are not Submittals.
42. 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
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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 of such Work.
43. Successful Bidder—The Bidder to which the Owner makes an award of contract.
44. Supplementary Conditions—The part of the Contract that amends or supplements these
General Conditions.
45. Supplier—A manufacturer, fabricator, supplier, distributor, 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 a Subcontractor.
46. Technical Data
a. Those items expressly identified as Technical Data in the Supplementary Conditions,
with respect to either (1) existing subsurface conditions at or adjacent to the Site, or
existing physical conditions at or adjacent to the Site including existing surface or
subsurface structures (except Underground Facilities) or (2) Hazardous
Environmental Conditions at the Site.
b. If no such express identifications of Technical Data have been made with respect to
conditions at the Site, then Technical Data is defined, with respect to conditions at
the Site under Paragraphs 5.03, 5.04, and 5.06, as the data contained in boring logs,
recorded measurements of subsurface water levels, assessments of the condition of
subsurface facilities, laboratory test results, and other factual, objective information
regarding conditions at the Site that are set forth in any geotechnical,
environmental, or other Site or facilities conditions report prepared for the Project
and made available to Contractor.
c. Information and data regarding the presence or location of Underground Facilities
are not intended to be categorized, identified, or defined as Technical Data, and
instead Underground Facilities are shown or indicated on the Drawings.
47. Underground Facilities—All active or not-in-service underground lines, pipelines,
conduits, ducts, encasements, cables, wires, manholes, vaults, tanks, tunnels, or other
such facilities or systems at the Site, including but not limited to those facilities or
systems that produce, transmit, distribute, or convey telephone or other
communications, cable television, fiber optic transmissions, power, electricity, light,
heat, gases, oil, crude oil products, liquid petroleum products, water, steam, waste,
wastewater, storm water, other liquids or chemicals, or traffic or other control systems.
An abandoned facility or system is not an Underground Facility.
48. Unit Price Work—Work to be paid for on the basis of unit prices.
49. Work—The entire construction or the various separately identifiable parts thereof
required to be provided under the Contract Documents. Work includes and is the result
of performing or providing all labor, services, and documentation necessary to produce
such construction; furnishing, installing, and incorporating all materials and equipment
into such construction; and may include related services such as testing, start-up, and
commissioning, all as required by the Contract Documents.
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50. Work Change Directive—A written directive to Contractor issued on or after the
Effective Date of the Contract, signed by Owner and recommended by Engineer,
ordering an addition, deletion, or revision in the Work.
1.02 Terminology
A. The words and terms discussed in Paragraphs 1.02.B, C, D, and E are not defined terms that
require initial capital letters, but, when used in the Bidding Requirements or Contract
Documents, have the indicated meaning.
B. Intent of Certain Terms or Adjectives: 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 information in the Contract
Documents and with the design concept of the 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 Article 10 or any other provision of the Contract Documents.
C. Day: The word “day” means a calendar day of 24 hours measured from midnight to the next
midnight.
D. Defective: The word “defective,” when modifying the word “Work,” refers to Work that is
unsatisfactory, faulty, or deficient in that it:
1. does not conform to the Contract Documents;
2. does not meet the requirements of any applicable inspection, reference standard, test,
or approval referred to in the Contract Documents; or
3. 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 15.03 or Paragraph 15.04).
E. Furnish, Install, Perform, Provide
1. The word “furnish,” when used in connection with services, materials, or equipment,
means 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,
means 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, means to furnish and install said services, materials, or equipment complete
and ready for intended use.
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4. If the Contract Documents establish an obligation of Contractor with respect to specific
services, materials, or equipment, but do not expressly use any of the four words
“furnish,” “install,” “perform,” or “provide,” then Contractor shall furnish and install said
services, materials, or equipment complete and ready for intended use.
F. Contract Price or Contract Times: References to a change in “Contract Price or Contract
Times” or “Contract Times or Contract Price” or similar, indicate that such change applies to
(1) Contract Price, (2) Contract Times, or (3) both Contract Price and Contract Times, as
warranted, even if the term “or both” is not expressed.
G. Unless stated otherwise in the Contract Documents, words or phrases that 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 Performance and Payment Bonds; Evidence of Insurance
A. Performance and Payment Bonds: When Contractor delivers the signed counterparts of the
Agreement to Owner, Contractor shall also deliver to Owner the performance bond and
payment bond (if the Contract requires Contractor to furnish such bonds).
B. Evidence of Contractor’s Insurance: When Contractor delivers the signed counterparts of the
Agreement to Owner, Contractor shall also deliver to Owner, with copies to each additional
insured (as identified in the Contract), the certificates, endorsements, and other evidence of
insurance required to be provided by Contractor in accordance with Article 6, except to the
extent the Supplementary Conditions expressly establish other dates for delivery of specific
insurance policies.
C. Evidence of Owner’s Insurance: After receipt of the signed counterparts of the Agreement
and all required bonds and insurance documentation, Owner shall promptly deliver to
Contractor, with copies to each additional insured (as identified in the Contract), the
certificates and other evidence of insurance required to be provided by Owner under
Article 6.
2.02 Copies of Documents
A. Owner shall furnish to Contractor four printed copies of the Contract (including one fully
signed counterpart of the Agreement), and one copy in electronic portable document
format (PDF). Additional printed copies will be furnished upon request at the cost of
reproduction.
B. Owner shall maintain and safeguard at least one original printed record version of the
Contract, including Drawings and Specifications signed and sealed by Engineer and other
design professionals. Owner shall make such original printed record version of the Contract
available to Contractor for review. Owner may delegate the responsibilities under this
provision to Engineer.
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2.03 Before Starting Construction
A. Preliminary Schedules: Within 10 days after the Effective Date of the Contract (or as
otherwise required by the Contract Documents), 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;
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 subdivides 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.
2.04 Preconstruction Conference; Designation of Authorized Representatives
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 2.03.A, procedures for handling Shop Drawings, Samples, and other Submittals,
processing Applications for Payment, electronic or digital transmittals, and maintaining
required records.
B. At this conference Owner and Contractor each shall designate, in writing, a specific
individual to act as its authorized representative with respect to the services and
responsibilities under the Contract. Such individuals shall have the authority to transmit and
receive information, render decisions relative to the Contract, and otherwise act on behalf
of each respective party.
2.05 Acceptance of Schedules
A. At least 10 days before submission of the first Application for Payment a conference,
attended by Contractor, Engineer, and others as appropriate, will be held to review the
schedules submitted in accordance with Paragraph 2.03.A. No progress payment will be
made to Contractor until acceptable schedules are submitted to Engineer.
1. The Progress Schedule will be acceptable to Engineer if it provides an orderly
progression of the Work to completion within the Contract Times. Such acceptance will
not impose on Engineer responsibility for the Progress Schedule, for sequencing,
scheduling, or progress of the Work, nor interfere with or relieve Contractor from
Contractor’s full responsibility therefor.
2. Contractor’s Schedule of Submittals will be acceptable to Engineer if it provides a
workable arrangement for reviewing and processing the required submittals.
3. Contractor’s Schedule of Values will be acceptable to Engineer as to form and substance
if it provides a reasonable allocation of the Contract Price to the component parts of the
Work.
4. If a schedule is not acceptable, Contractor will have an additional 10 days to revise and
resubmit the schedule.
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2.06 Electronic Transmittals
A. Except as otherwise stated elsewhere in the Contract, the Owner, Engineer, and Contractor
may send, and shall accept, Electronic Documents transmitted by Electronic Means.
B. If the Contract does not establish protocols for Electronic Means, then Owner, Engineer, and
Contractor shall jointly develop such protocols.
C. Subject to any governing protocols for Electronic Means, when transmitting Electronic
Documents by Electronic Means, the transmitting party makes no representations as to
long-term compatibility, usability, or readability of the Electronic Documents resulting from
the recipient’s use of software application packages, operating systems, or computer
hardware differing from those used in the drafting or transmittal of the Electronic
Documents.
ARTICLE 3—CONTRACT DOCUMENTS: INTENT, REQUIREMENTS, REUSE
3.01 Intent
A. The Contract Documents are complementary; what is required by one Contract Document is
as binding as if required by all.
B. It is the intent of the Contract Documents to describe a functionally complete Project (or
part thereof) to be constructed in accordance with the Contract Documents.
C. Unless otherwise stated in the Contract Documents, if there is a discrepancy between the
electronic versions of the Contract Documents (including any printed copies derived from
such electronic versions) and the printed record version, the printed record version will
govern.
D. The Contract supersedes prior negotiations, representations, and agreements, whether
written or oral.
E. Engineer will issue clarifications and interpretations of the Contract Documents as provided
herein.
F. Any provision or part of the Contract Documents held to be void or unenforceable under
any Law or Regulation will be deemed stricken, and all remaining provisions will continue to
be valid and binding upon Owner and Contractor, which agree that the Contract Documents
will 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.
G. Nothing in the Contract Documents creates:
1. any contractual relationship between Owner or Engineer and any Subcontractor,
Supplier, or other individual or entity performing or furnishing any of the Work, for the
benefit of such Subcontractor, Supplier, or other individual or entity; or
2. any obligation on the part of Owner or Engineer to pay or to see to the payment of any
money due any such Subcontractor, Supplier, or other individual or entity, except as
may otherwise be required by Laws and Regulations.
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3.02 Reference Standards
A. Standards Specifications, Codes, Laws and Regulations
1. Reference in the Contract Documents to standard specifications, manuals, reference
standards, or codes of any technical society, organization, or association, or to Laws or
Regulations, whether such reference be specific or by implication, means the standard
specification, manual, reference standard, code, or Laws or Regulations in effect at the
time of opening of Bids (or on the Effective Date of the Contract if there were no Bids),
except as may be otherwise specifically stated in the Contract Documents.
2. No provision of any such standard specification, manual, reference standard, or code,
and no instruction of a Supplier, will be effective to change the duties or responsibilities
of Owner, Contractor, or Engineer from those set forth in the part of the Contract
Documents prepared by or for Engineer. No such provision or instruction shall be
effective to assign to Owner or Engineer any duty or authority to supervise or direct the
performance of the Work, or any duty or authority to undertake responsibility
inconsistent with the provisions of the part of the Contract Documents prepared by or
for Engineer.
3.03 Reporting and Resolving Discrepancies
A. Reporting Discrepancies
1. Contractor’s Verification of Figures and Field Measurements: Before undertaking each
part of the Work, Contractor shall carefully study the Contract Documents, and check
and verify pertinent figures and dimensions therein, particularly with respect to
applicable field measurements. Contractor shall promptly report in writing to Engineer
any conflict, error, ambiguity, or discrepancy that Contractor discovers, or has actual
knowledge of, and shall not proceed with any Work affected thereby until the conflict,
error, ambiguity, or discrepancy is resolved by a clarification or interpretation by
Engineer, or by an amendment or supplement to the Contract issued pursuant to
Paragraph 11.01.
2. Contractor’s Review of Contract Documents: If, before or during the performance of the
Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the
Contract Documents, or between the Contract Documents and (a) any applicable Law or
Regulation, (b) actual field conditions, (c) any standard specification, manual, reference
standard, or code, or (d) any instruction of any Supplier, then Contractor shall promptly
report it to Engineer in writing. Contractor shall not proceed with the Work affected
thereby (except in an emergency as required by Paragraph 7.15) until the conflict, error,
ambiguity, or discrepancy is resolved, by a clarification or interpretation by Engineer, or
by an amendment or supplement to the Contract issued pursuant to Paragraph 11.01.
3. Contractor shall not be liable to Owner or Engineer for failure to report any conflict,
error, ambiguity, or discrepancy in the Contract Documents unless Contractor had actual
knowledge thereof.
B. Resolving Discrepancies
1. Except as may be otherwise specifically stated in the Contract Documents, the
provisions of the part of the Contract Documents prepared by or for Engineer take
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precedence in resolving any conflict, error, ambiguity, or discrepancy between such
provisions of the Contract Documents and:
a. the provisions of any standard specification, manual, reference standard, or code, or
the instruction of any Supplier (whether or not specifically incorporated by
reference as a Contract Document); or
b. the provisions of any Laws or Regulations applicable to the performance of the
Work (unless such an interpretation of the provisions of the Contract Documents
would result in violation of such Law or Regulation).
3.04 Requirements of the Contract Documents
A. During the performance of the Work and until final payment, Contractor and Owner shall
submit to the Engineer in writing all matters in question concerning the requirements of the
Contract Documents (sometimes referred to as requests for information or interpretation—
RFIs), or relating to the acceptability of the Work under the Contract Documents, as soon as
possible after such matters arise. Engineer will be the initial interpreter of the requirements
of the Contract Documents, and judge of the acceptability of the Work.
B. Engineer will, with reasonable promptness, render a written clarification, interpretation, or
decision on the issue submitted, or initiate an amendment or supplement to the Contract
Documents. Engineer’s written clarification, interpretation, or decision will be final and
binding on Contractor, unless it appeals by submitting a Change Proposal, and on Owner,
unless it appeals by filing a Claim.
C. If a submitted matter in question concerns terms and conditions of the Contract Documents
that do not involve (1) the performance or acceptability of the Work under the Contract
Documents, (2) the design (as set forth in the Drawings, Specifications, or otherwise), or (3)
other engineering or technical matters, then Engineer will promptly notify Owner and
Contractor in writing that Engineer is unable to provide a decision or interpretation. If
Owner and Contractor are unable to agree on resolution of such a matter in question, either
party may pursue resolution as provided in Article 12.
3.05 Reuse of Documents
A. Contractor and its Subcontractors and Suppliers shall not:
1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or
other documents (or copies of any thereof) prepared by or bearing the seal of Engineer
or its consultants, including electronic media versions, or reuse any such Drawings,
Specifications, other documents, or copies thereof on extensions of the Project or any
other project without written consent of Owner and Engineer and specific written
verification or adaptation by Engineer; or
2. have or acquire any title or ownership rights in any other Contract Documents, reuse
any such Contract Documents for any purpose without Owner’s express written
consent, or violate any copyrights pertaining to such Contract Documents.
B. The prohibitions of this Paragraph 3.05 will survive final payment, or termination of the
Contract. Nothing herein precludes Contractor from retaining copies of the Contract
Documents for record purposes.
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ARTICLE 4—COMMENCEMENT AND PROGRESS OF THE WORK
4.01 Commencement of Contract Times; Notice to Proceed
A. The Contract Times will commence to run on the 30th day after the Effective Date of the
Contract 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
Contract. In no event will the Contract Times commence to run later than the 60th day after
the day of Bid opening or the 30th day after the Effective Date of the Contract, whichever
date is earlier.
4.02 Starting the Work
A. Contractor shall start to perform the Work on the date when the Contract Times commence
to run. No Work may be done at the Site prior to such date.
4.03 Reference Points
A. Owner shall provide engineering surveys to establish reference points for construction
which in Engineer’s judgment are necessary to enable Contractor to proceed with the Work.
Contractor shall be responsible for laying out the Work, shall protect and preserve the
established reference points and property monuments, and shall make no changes or
relocations without the prior written approval of Owner. Contractor shall report to Engineer
whenever any reference point or property monument is lost or destroyed or requires
relocation because of necessary changes in grades or locations, and shall be responsible for
the accurate replacement or relocation of such reference points or property monuments by
professionally qualified personnel.
4.04 Progress Schedule
A. Contractor shall adhere to the Progress Schedule established in accordance with
Paragraph 2.05 as it may be adjusted from time to time as provided below.
1. Contractor shall submit to Engineer for acceptance (to the extent indicated in
Paragraph 2.05) proposed adjustments in the Progress Schedule that will not result in
changing the Contract Times.
2. Proposed adjustments in the Progress Schedule that will change the Contract Times
must be submitted in accordance with the requirements of Article 11.
B. Contractor shall carry on the Work and adhere to the Progress Schedule during all disputes
or disagreements with Owner. No Work will be delayed or postponed pending resolution of
any disputes or disagreements, or during any appeal process, except as permitted by
Paragraph 16.04, or as Owner and Contractor may otherwise agree in writing.
4.05 Delays in Contractor’s Progress
A. If Owner, Engineer, or anyone for whom Owner is responsible, delays, disrupts, or interferes
with the performance or progress of the Work, then Contractor shall be entitled to an
equitable adjustment in Contract Price or Contract Times.
B. Contractor shall not be entitled to an adjustment in Contract Price or Contract Times for
delay, disruption, or interference caused by or within the control of Contractor. Delay,
disruption, and interference attributable to and within the control of a Subcontractor or
Supplier shall be deemed to be within the control of Contractor.
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C. If Contractor’s performance or progress is delayed, disrupted, or interfered with by
unanticipated causes not the fault of and beyond the control of Owner, Contractor, and
those for which they are responsible, then Contractor shall be entitled to an equitable
adjustment in Contract Times. Such an adjustment will be Contractor’s sole and exclusive
remedy for the delays, disruption, and interference described in this paragraph. Causes of
delay, disruption, or interference that may give rise to an adjustment in Contract Times
under this paragraph include but are not limited to the following:
1. Severe and unavoidable natural catastrophes such as fires, floods, epidemics, and
earthquakes;
2. Abnormal weather conditions;
3. Acts or failures to act of third-party utility owners or other third-party entities (other
than those third-party utility owners or other third-party entities performing other work
at or adjacent to the Site as arranged by or under contract with Owner, as contemplated
in Article 8); and
4. Acts of war or terrorism.
D. Contractor’s entitlement to an adjustment of Contract Times or Contract Price is limited as
follows:
1. Contractor’s entitlement to an adjustment of the Contract Times is conditioned on the
delay, disruption, or interference adversely affecting an activity on the critical path to
completion of the Work, as of the time of the delay, disruption, or interference.
2. Contractor shall not be entitled to an adjustment in Contract Price for any delay,
disruption, or interference if such delay is concurrent with a delay, disruption, or
interference caused by or within the control of Contractor. Such a concurrent delay by
Contractor shall not preclude an adjustment of Contract Times to which Contractor is
otherwise entitled.
3. Adjustments of Contract Times or Contract Price are subject to the provisions of
Article 11.
E. Each Contractor request or Change Proposal seeking an increase in Contract Times or
Contract Price must be supplemented by supporting data that sets forth in detail the
following:
1. The circumstances that form the basis for the requested adjustment;
2. The date upon which each cause of delay, disruption, or interference began to affect the
progress of the Work;
3. The date upon which each cause of delay, disruption, or interference ceased to affect
the progress of the Work;
4. The number of days’ increase in Contract Times claimed as a consequence of each such
cause of delay, disruption, or interference; and
5. The impact on Contract Price, in accordance with the provisions of Paragraph 11.07.
Contractor shall also furnish such additional supporting documentation as Owner or
Engineer may require including, where appropriate, a revised progress schedule indicating
all the activities affected by the delay, disruption, or interference, and an explanation of the
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effect of the delay, disruption, or interference on the critical path to completion of the
Work.
F. Delays, disruption, and interference to the performance or progress of the Work resulting
from the existence of a differing subsurface or physical condition, an Underground Facility
that was not shown or indicated by the Contract Documents, or not shown or indicated with
reasonable accuracy, and those resulting from Hazardous Environmental Conditions, are
governed by Article 5, together with the provisions of Paragraphs 4.05.D and 4.05.E.
G. Paragraph 8.03 addresses delays, disruption, and interference to the performance or
progress of the Work resulting from the performance of certain other work at or adjacent to
the Site.
ARTICLE 5—SITE; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL
CONDITIONS
5.01 Availability of Lands
A. Owner shall furnish the Site. Owner shall notify Contractor in writing of any encumbrances
or restrictions not of general application but specifically related to use of the Site with which
Contractor must comply in performing the Work.
B. Upon reasonable written request, Owner shall furnish Contractor with a current statement
of record legal title and legal description of the lands upon which permanent improvements
are to be made and Owner’s interest therein as necessary for giving notice of or filing a
mechanic’s or construction lien against such lands in accordance with applicable Laws and
Regulations.
C. Contractor shall provide for all additional lands and access thereto that may be required for
temporary construction facilities or storage of materials and equipment.
5.02 Use of Site and Other Areas
A. Limitation on Use of Site and Other Areas
1. Contractor shall confine construction equipment, temporary construction facilities, the
storage of materials and equipment, and the operations of workers to the Site, adjacent
areas that Contractor has arranged to use through construction easements or
otherwise, and other adjacent areas permitted by Laws and Regulations, and shall not
unreasonably encumber the Site and such other adjacent areas with construction
equipment or other materials or equipment. Contractor shall assume full responsibility
for (a) damage to the Site; (b) damage to any such other adjacent areas used for
Contractor’s operations; (c) damage to any other adjacent land or areas, or to
improvements, structures, utilities, or similar facilities located at such adjacent lands or
areas; and (d) for injuries and losses sustained by the owners or occupants of any such
land or areas; provided that such damage or injuries result from the performance of the
Work or from other actions or conduct of the Contractor or those for which Contractor
is responsible.
2. If a damage or injury claim is made by the owner or occupant of any such land or area
because of the performance of the Work, or because of other actions or conduct of the
Contractor or those for which Contractor is responsible, Contractor shall (a) take
immediate corrective or remedial action as required by Paragraph 7.13, or otherwise;
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(b) promptly attempt to settle the claim as to all parties through negotiations with such
owner or occupant, or otherwise resolve the claim by arbitration or other dispute
resolution proceeding, or in a court of competent jurisdiction; and (c) to the fullest
extent permitted by Laws and Regulations, indemnify and hold harmless Owner and
Engineer, and the officers, directors, members, partners, employees, agents,
consultants and subcontractors of each and any of them, from and against any such
claim, and against all costs, 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) arising out of or relating to any claim or
action, legal or equitable, brought by any such owner or occupant against Owner,
Engineer, or any other party indemnified hereunder to the extent caused directly or
indirectly, in whole or in part by, or based upon, Contractor’s performance of the Work,
or because of other actions or conduct of the Contractor or those for which Contractor
is responsible.
B. Removal of Debris During Performance of the Work: During the progress of the Work the
Contractor shall keep the Site and other adjacent areas free from accumulations of waste
materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish,
and other debris will conform to applicable Laws and Regulations.
C. Cleaning: Prior to Substantial Completion of the Work Contractor shall clean the Site and the
Work and make it ready for utilization by Owner. At the completion of the Work Contractor
shall remove from the Site and adjacent areas all tools, appliances, construction equipment
and machinery, and surplus materials and shall restore to original condition all property not
designated for alteration by the Contract Documents.
D. Loading of Structures: Contractor shall not load nor permit any part of any structure to be
loaded in any manner that will endanger the structure, nor shall Contractor subject any part
of the Work or adjacent structures or land to stresses or pressures that will endanger them.
5.03 Subsurface and Physical Conditions
A. Reports and Drawings: The Supplementary Conditions identify:
1. Those reports of explorations and tests of subsurface conditions at or adjacent to the
Site that contain Technical Data;
2. Those drawings of existing physical conditions at or adjacent to the Site, including those
drawings depicting existing surface or subsurface structures at or adjacent to the Site
(except Underground Facilities), that contain Technical Data; and
3. Technical Data contained in such reports and drawings.
B. Underground Facilities: Underground Facilities are shown or indicated on the Drawings,
pursuant to Paragraph 5.05, and not in the drawings referred to in Paragraph 5.03.A.
Information and data regarding the presence or location of Underground Facilities are not
intended to be categorized, identified, or defined as Technical Data.
C. Reliance by Contractor on Technical Data: Contractor may rely upon the accuracy of the
Technical Data expressly identified in the Supplementary Conditions with respect to such
reports and drawings, but such reports and drawings are not Contract Documents. If no such
express identification has been made, then Contractor may rely upon the accuracy of the
Technical Data as defined in Paragraph 1.01.A.46.b.
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D. Limitations of Other Data and Documents: Except for such reliance on Technical Data,
Contractor may not rely upon or make any claim against Owner or Engineer, or any of their
officers, directors, members, partners, employees, agents, consultants, or subcontractors,
with respect to:
1. the completeness of such reports and drawings for Contractor’s purposes, including, but
not limited to, any aspects of the means, methods, techniques, sequences, and
procedures of construction to be employed by Contractor, and safety precautions and
programs incident thereto;
2. other data, interpretations, opinions, and information contained in such reports or
shown or indicated in such drawings;
3. the contents of other Site-related documents made available to Contractor, such as
record drawings from other projects at or adjacent to the Site, or Owner’s archival
documents concerning the Site; or
4. any Contractor interpretation of or conclusion drawn from any Technical Data or any
such other data, interpretations, opinions, or information.
5.04 Differing Subsurface or Physical Conditions
A. Notice by Contractor: If Contractor believes that any subsurface or physical condition that is
uncovered or revealed at the Site:
1. is of such a nature as to establish that any Technical Data on which Contractor is entitled
to rely as provided in Paragraph 5.03 is materially inaccurate;
2. is of such a nature as to require a change in the Drawings or Specifications;
3. differs materially from that shown or indicated in the Contract Documents; or
4. is of an unusual nature, and differs materially from conditions ordinarily encountered
and generally recognized as inherent in work of the character provided for in the
Contract Documents;
then Contractor shall, promptly after becoming aware thereof and before further disturbing
the subsurface or physical conditions or performing any Work in connection therewith
(except in an emergency as required by Paragraph 7.15), notify Owner and Engineer in
writing about such condition. Contractor shall not further disturb such condition or perform
any Work in connection therewith (except with respect to an emergency) until receipt of a
written statement permitting Contractor to do so.
B. Engineer’s Review: After receipt of written notice as required by the preceding paragraph,
Engineer will promptly review the subsurface or physical condition in question; determine
whether it is necessary for Owner to obtain additional exploration or tests with respect to
the condition; conclude whether the condition falls within any one or more of the differing
site condition categories in Paragraph 5.04.A; obtain any pertinent cost or schedule
information from Contractor; prepare recommendations to Owner regarding the
Contractor’s resumption of Work in connection with the subsurface or physical condition in
question and the need for any change in the Drawings or Specifications; and advise Owner
in writing of Engineer’s findings, conclusions, and recommendations.
C. Owner’s Statement to Contractor Regarding Site Condition: After receipt of Engineer’s
written findings, conclusions, and recommendations, Owner shall issue a written statement
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to Contractor (with a copy to Engineer) regarding the subsurface or physical condition in
question, addressing the resumption of Work in connection with such condition, indicating
whether any change in the Drawings or Specifications will be made, and adopting or
rejecting Engineer’s written findings, conclusions, and recommendations, in whole or in
part.
D. Early Resumption of Work: If at any time Engineer determines that Work in connection with
the subsurface or physical condition in question may resume prior to completion of
Engineer’s review or Owner’s issuance of its statement to Contractor, because the condition
in question has been adequately documented, and analyzed on a preliminary basis, then the
Engineer may at its discretion instruct Contractor to resume such Work.
E. Possible Price and Times Adjustments
1. Contractor shall be entitled to an equitable adjustment in Contract Price or Contract
Times, to the extent that the existence of a differing subsurface or physical condition, or
any related delay, disruption, or interference, causes an increase or decrease in
Contractor’s cost of, or time required for, performance of the Work; subject, however,
to the following:
a. Such condition must fall within any one or more of the categories described in
Paragraph 5.04.A;
b. With respect to Work that is paid for on a unit price basis, any adjustment in
Contract Price will be subject to the provisions of Paragraph 13.03; and,
c. Contractor’s entitlement to an adjustment of the Contract Times is subject to the
provisions of Paragraphs 4.05.D and 4.05.E.
2. Contractor shall not be entitled to any adjustment in the Contract Price or Contract
Times with respect to a subsurface or physical condition if:
a. Contractor knew of the existence of such condition at the time Contractor made a
commitment to Owner with respect to Contract Price and Contract Times by the
submission of a Bid or becoming bound under a negotiated contract, or otherwise;
b. The existence of such condition reasonably could have been discovered or revealed
as a result of any examination, investigation, exploration, test, or study of the Site
and contiguous areas expressly required by the Bidding Requirements or Contract
Documents to be conducted by or for Contractor prior to Contractor’s making such
commitment; or
c. Contractor failed to give the written notice required by Paragraph 5.04.A.
3. If Owner and Contractor agree regarding Contractor’s entitlement to and the amount or
extent of any adjustment in the Contract Price or Contract Times, then any such
adjustment will be set forth in a Change Order.
4. Contractor may submit a Change Proposal regarding its entitlement to or the amount or
extent of any adjustment in the Contract Price or Contract Times, no later than 30 days
after Owner’s issuance of the Owner’s written statement to Contractor regarding the
subsurface or physical condition in question.
F. Underground Facilities; Hazardous Environmental Conditions: Paragraph 5.05 governs rights
and responsibilities regarding the presence or location of Underground Facilities.
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Paragraph 5.06 governs rights and responsibilities regarding Hazardous Environmental
Conditions. The provisions of Paragraphs 5.03 and 5.04 are not applicable to the presence or
location of Underground Facilities, or to Hazardous Environmental Conditions.
5.05 Underground Facilities
A. Contractor’s Responsibilities: Unless it is otherwise expressly provided in the Supplementary
Conditions, the cost of all of the following are included in the Contract Price, and Contractor
shall have full responsibility for:
1. reviewing and checking all information and data regarding existing Underground
Facilities at the Site;
2. complying with applicable state and local utility damage prevention Laws and
Regulations;
3. verifying the actual location of those Underground Facilities shown or indicated in the
Contract Documents as being within the area affected by the Work, by exposing such
Underground Facilities during the course of construction;
4. coordination of the Work with the owners (including Owner) of such Underground
Facilities, during construction; and
5. the safety and protection of all existing Underground Facilities at the Site, and repairing
any damage thereto resulting from the Work.
B. Notice by Contractor: If Contractor believes that an Underground Facility that is uncovered
or revealed at the Site was not shown or indicated on the Drawings, or was not shown or
indicated on the Drawings with reasonable accuracy, then Contractor shall, promptly after
becoming aware thereof and before further disturbing conditions affected thereby or
performing any Work in connection therewith (except in an emergency as required by
Paragraph 7.15), notify Owner and Engineer in writing regarding such Underground Facility.
C. Engineer’s Review: Engineer will:
1. promptly review the Underground Facility and conclude whether such Underground
Facility was not shown or indicated on the Drawings, or was not shown or indicated with
reasonable accuracy;
2. identify and communicate with the owner of the Underground Facility; prepare
recommendations to Owner (and if necessary issue any preliminary instructions to
Contractor) regarding the Contractor’s resumption of Work in connection with the
Underground Facility in question;
3. obtain any pertinent cost or schedule information from Contractor; determine the
extent, if any, to which a change is required in the Drawings or Specifications to reflect
and document the consequences of the existence or location of the Underground
Facility; and
4. advise Owner in writing of Engineer’s findings, conclusions, and recommendations.
During such time, Contractor shall be responsible for the safety and protection of such
Underground Facility.
D. Owner’s Statement to Contractor Regarding Underground Facility: After receipt of
Engineer’s written findings, conclusions, and recommendations, Owner shall issue a written
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statement to Contractor (with a copy to Engineer) regarding the Underground Facility in
question addressing the resumption of Work in connection with such Underground Facility,
indicating whether any change in the Drawings or Specifications will be made, and adopting
or rejecting Engineer’s written findings, conclusions, and recommendations in whole or in
part.
E. Early Resumption of Work: If at any time Engineer determines that Work in connection with
the Underground Facility may resume prior to completion of Engineer’s review or Owner’s
issuance of its statement to Contractor, because the Underground Facility in question and
conditions affected by its presence have been adequately documented, and analyzed on a
preliminary basis, then the Engineer may at its discretion instruct Contractor to resume such
Work.
F. Possible Price and Times Adjustments
1. Contractor shall be entitled to an equitable adjustment in the Contract Price or Contract
Times, to the extent that any existing Underground Facility at the Site that was not
shown or indicated on the Drawings, or was not shown or indicated with reasonable
accuracy, or any related delay, disruption, or interference, causes an increase or
decrease in Contractor’s cost of, or time required for, performance of the Work; subject,
however, to the following:
a. With respect to Work that is paid for on a unit price basis, any adjustment in
Contract Price will be subject to the provisions of Paragraph 13.03;
b. Contractor’s entitlement to an adjustment of the Contract Times is subject to the
provisions of Paragraphs 4.05.D and 4.05.E; and
c. Contractor gave the notice required in Paragraph 5.05.B.
2. If Owner and Contractor agree regarding Contractor’s entitlement to and the amount or
extent of any adjustment in the Contract Price or Contract Times, then any such
adjustment will be set forth in a Change Order.
3. Contractor may submit a Change Proposal regarding its entitlement to or the amount or
extent of any adjustment in the Contract Price or Contract Times, no later than 30 days
after Owner’s issuance of the Owner’s written statement to Contractor regarding the
Underground Facility in question.
4. The information and data shown or indicated on the Drawings with respect to existing
Underground Facilities at the Site is based on information and data (a) furnished by the
owners of such Underground Facilities, or by others, (b) obtained from available
records, or (c) gathered in an investigation conducted in accordance with the current
edition of ASCE 38, Standard Guideline for the Collection and Depiction of Existing
Subsurface Utility Data, by the American Society of Civil Engineers. If such information
or data is incorrect or incomplete, Contractor’s remedies are limited to those set forth in
this Paragraph 5.05.F.
5.06 Hazardous Environmental Conditions at Site
A. Reports and Drawings: The Supplementary Conditions identify:
1. those reports known to Owner relating to Hazardous Environmental Conditions that
have been identified at or adjacent to the Site;
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2. drawings known to Owner relating to Hazardous Environmental Conditions that have
been identified at or adjacent to the Site; and
3. Technical Data contained in such reports and drawings.
B. Reliance by Contractor on Technical Data Authorized: Contractor may rely upon the accuracy
of the Technical Data expressly identified in the Supplementary Conditions with respect to
such reports and drawings, but such reports and drawings are not Contract Documents. If no
such express identification has been made, then Contractor may rely on the accuracy of the
Technical Data as defined in Paragraph 1.01.A.46.b. Except for such reliance on Technical
Data, Contractor may not rely upon or make any claim against Owner or Engineer, or any of
their officers, directors, members, partners, employees, agents, consultants, or
subcontractors, with respect to:
1. the completeness of such reports and drawings for Contractor’s purposes, including, but
not limited to, any aspects of the means, methods, techniques, sequences and
procedures of construction to be employed by Contractor, and safety precautions and
programs incident thereto;
2. other data, interpretations, opinions, and information contained in such reports or
shown or indicated in such drawings; or
3. any Contractor interpretation of or conclusion drawn from any Technical Data or any
such other data, interpretations, opinions or information.
C. Contractor shall not be responsible for removing or remediating any Hazardous
Environmental Condition encountered, uncovered, or revealed at the Site unless such
removal or remediation is expressly identified in the Contract Documents to be within the
scope of the Work.
D. Contractor shall be responsible for controlling, containing, and duly removing all
Constituents of Concern brought to the Site by Contractor, Subcontractors, Suppliers, or
anyone else for whom Contractor is responsible, and for any associated costs; and for the
costs of removing and remediating any Hazardous Environmental Condition created by the
presence of any such Constituents of Concern.
E. If Contractor encounters, uncovers, or reveals a Hazardous Environmental Condition whose
removal or remediation is not expressly identified in the Contract Documents as being
within the scope of the Work, or if Contractor or anyone for whom Contractor is responsible
creates a Hazardous Environmental Condition, then Contractor shall immediately: (1) secure
or otherwise isolate such condition; (2) stop all Work in connection with such condition and
in any area affected thereby (except in an emergency as required by Paragraph 7.15); and
(3) notify Owner and Engineer (and promptly thereafter confirm such notice in writing).
Owner shall promptly consult with Engineer concerning the necessity for Owner to retain a
qualified expert to evaluate such condition or take corrective action, if any. Promptly after
consulting with Engineer, Owner shall take such actions as are necessary to permit Owner to
timely obtain required permits and provide Contractor the written notice required by
Paragraph 5.06.F. If Contractor or anyone for whom Contractor is responsible created the
Hazardous Environmental Condition in question, then Owner may remove and remediate
the Hazardous Environmental Condition, and impose a set-off against payments to account
for the associated costs.
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F. Contractor shall not resume Work in connection with such Hazardous Environmental
Condition or in any affected area until after Owner has obtained any required permits
related thereto, and delivered written notice to Contractor either (1) specifying that such
condition and any affected area is or has been rendered safe for the resumption of Work, or
(2) specifying any special conditions under which such Work may be resumed safely.
G. If Owner and Contractor cannot agree as to entitlement to or on the amount or extent, if
any, of any adjustment in Contract Price or Contract Times, as a result of such Work
stoppage, such special conditions under which Work is agreed to be resumed by Contractor,
or any costs or expenses incurred in response to the Hazardous Environmental Condition,
then within 30 days of Owner’s written notice regarding the resumption of Work, Contractor
may submit a Change Proposal, or Owner may impose a set-off. Entitlement to any such
adjustment is subject to the provisions of Paragraphs 4.05.D, 4.05.E, 11.07, and 11.08.
H. If, after receipt of such written notice, Contractor does not agree to resume such Work
based on a reasonable belief it is unsafe, or does not agree to resume such Work under such
special conditions, then Owner may order the portion of the Work that is in the area
affected by such condition to be deleted from the Work, following the contractual change
procedures in Article 11. Owner may have such deleted portion of the Work performed by
Owner’s own forces or others in accordance with Article 8.
I. To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold
harmless Contractor, Subcontractors, and Engineer, and the officers, directors, members,
partners, employees, agents, consultants, and subcontractors of each and any of them, from
and against all claims, costs, losses, and damages (including but not limited to all fees and
charges of engineers, architects, attorneys, and other professionals, and all court,
arbitration, or other dispute resolution costs) arising out of or relating to a Hazardous
Environmental Condition, provided that such Hazardous Environmental Condition (1) was
not shown or indicated in the Drawings, Specifications, or other Contract Documents,
identified as Technical Data entitled to limited reliance pursuant to Paragraph 5.06.B, or
identified in the Contract Documents to be included within the scope of the Work, and (2)
was not created by Contractor or by anyone for whom Contractor is responsible. Nothing in
this Paragraph 5.06.I obligates Owner to indemnify any individual or entity from and against
the consequences of that individual’s or entity’s own negligence.
J. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and
hold harmless Owner and Engineer, and the officers, directors, members, partners,
employees, agents, consultants, and subcontractors of each and any of them, from and
against all claims, costs, 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) arising out of or relating to the failure to
control, contain, or remove a Constituent of Concern brought to the Site by Contractor or by
anyone for whom Contractor is responsible, or to a Hazardous Environmental Condition
created by Contractor or by anyone for whom Contractor is responsible. Nothing in this
Paragraph 5.06.J obligates Contractor to indemnify any individual or entity from and against
the consequences of that individual’s or entity’s own negligence.
K. The provisions of Paragraphs 5.03, 5.04, and 5.05 do not apply to the presence of
Constituents of Concern or to a Hazardous Environmental Condition uncovered or revealed
at the Site.
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ARTICLE 6—BONDS AND INSURANCE
6.01 Performance, Payment, and Other Bonds
A. Contractor shall furnish a performance bond and a payment bond, each in an amount at
least equal to the Contract Price, as security for the faithful performance and payment of
Contractor’s obligations under the Contract. These bonds must remain in effect until one
year after the date when final payment becomes due or until completion of the correction
period specified in Paragraph 15.08, whichever is later, except as provided otherwise by
Laws or Regulations, the terms of a prescribed bond form, the Supplementary Conditions, or
other provisions of the Contract.
B. Contractor shall also furnish such other bonds (if any) as are required by the Supplementary
Conditions or other provisions of the Contract.
C. All bonds must be in the form included in the Bidding Documents or otherwise specified by
Owner prior to execution of the Contract, except as provided otherwise by Laws or
Regulations, and must be issued and signed by a surety named in “Companies Holding
Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable
Reinsuring Companies” as published in Department Circular 570 (as amended and
supplemented) by the Bureau of the Fiscal Service, U.S. Department of the Treasury. A bond
signed by an agent or attorney-in-fact must be accompanied by a certified copy of that
individual’s authority to bind the surety. The evidence of authority must show that it is
effective on the date the agent or attorney-in-fact signed the accompanying bond.
D. Contractor shall obtain the required bonds from surety companies that are duly licensed or
authorized, in the state or jurisdiction in which the Project is located, to issue bonds in the
required amounts.
E. If the surety on a bond furnished by Contractor is declared bankrupt or becomes insolvent,
or the surety ceases to meet the requirements above, then Contractor shall promptly notify
Owner and Engineer in writing and shall, within 20 days after the event giving rise to such
notification, provide another bond and surety, both of which must comply with the bond
and surety requirements above.
F. If Contractor has failed to obtain a required bond, Owner may exclude the Contractor from
the Site and exercise Owner’s termination rights under Article 16.
G. Upon request to Owner from any Subcontractor, Supplier, or other person or entity claiming
to have furnished labor, services, materials, or equipment used in the performance of the
Work, Owner shall provide a copy of the payment bond to such person or entity.
H. Upon request to Contractor from any Subcontractor, Supplier, or other person or entity
claiming to have furnished labor, services, materials, or equipment used in the performance
of the Work, Contractor shall provide a copy of the payment bond to such person or entity.
6.02 Insurance—General Provisions
A. Owner and Contractor shall obtain and maintain insurance as required in this article and in
the Supplementary Conditions.
B. All insurance required by the Contract to be purchased and maintained by Owner or
Contractor shall be obtained from insurance companies that are duly licensed or authorized
in the state or jurisdiction in which the Project is located to issue insurance policies for the
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required limits and coverages. Unless a different standard is indicated in the Supplementary
Conditions, all companies that provide insurance policies required under this Contract shall
have an A.M. Best rating of A-VII or better.
C. Alternative forms of insurance coverage, including but not limited to self-insurance and
“Occupational Accident and Excess Employer’s Indemnity Policies,” are not sufficient to
meet the insurance requirements of this Contract, unless expressly allowed in the
Supplementary Conditions.
D. Contractor shall deliver to Owner, with copies to each additional insured identified in the
Contract, certificates of insurance and endorsements establishing that Contractor has
obtained and is maintaining the policies and coverages required by the Contract. Upon
request by Owner or any other insured, Contractor shall also furnish other evidence of such
required insurance, including but not limited to copies of policies, documentation of
applicable self-insured retentions (if allowed) and deductibles, full disclosure of all relevant
exclusions, and evidence of insurance required to be purchased and maintained by
Subcontractors or Suppliers. In any documentation furnished under this provision,
Contractor, Subcontractors, and Suppliers may block out (redact) (1) any confidential
premium or pricing information and (2) any wording specific to a project or jurisdiction
other than those applicable to this Contract.
E. Owner shall deliver to Contractor, with copies to each additional insured identified in the
Contract, certificates of insurance and endorsements establishing that Owner has obtained
and is maintaining the policies and coverages required of Owner by the Contract (if any).
Upon request by Contractor or any other insured, Owner shall also provide other evidence
of such required insurance (if any), including but not limited to copies of policies,
documentation of applicable self-insured retentions (if allowed) and deductibles, and full
disclosure of all relevant exclusions. In any documentation furnished under this provision,
Owner may block out (redact) (1) any confidential premium or pricing information and (2)
any wording specific to a project or jurisdiction other than those relevant to this Contract.
F. Failure of Owner or Contractor to demand such certificates or other evidence of the other
party’s full compliance with these insurance requirements, or failure of Owner or Contractor
to identify a deficiency in compliance from the evidence provided, will not be construed as a
waiver of the other party’s obligation to obtain and maintain such insurance.
G. In addition to the liability insurance required to be provided by Contractor, the Owner, at
Owner’s option, may purchase and maintain Owner’s own liability insurance. Owner’s
liability policies, if any, operate separately and independently from policies required to be
provided by Contractor, and Contractor cannot rely upon Owner’s liability policies for any of
Contractor’s obligations to the Owner, Engineer, or third parties.
H. Contractor shall require:
1. Subcontractors to purchase and maintain worker’s compensation, commercial general
liability, and other insurance that is appropriate for their participation in the Project,
and to name as additional insureds Owner and Engineer (and any other individuals or
entities identified in the Supplementary Conditions as additional insureds on
Contractor’s liability policies) on each Subcontractor’s commercial general liability
insurance policy; and
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2. Suppliers to purchase and maintain insurance that is appropriate for their participation
in the Project.
I. If either party does not purchase or maintain the insurance required of such party by the
Contract, such party shall notify the other party in writing of such failure to purchase prior
to the start of the Work, or of such failure to maintain prior to any change in the required
coverage.
J. If Contractor has failed to obtain and maintain required insurance, Contractor’s entitlement
to enter or remain at the Site will end immediately, and Owner may impose an appropriate
set-off against payment for any associated costs (including but not limited to the cost of
purchasing necessary insurance coverage), and exercise Owner’s termination rights under
Article 16.
K. Without prejudice to any other right or remedy, if a party has failed to obtain required
insurance, the other party may elect (but is in no way obligated) to obtain equivalent
insurance to protect such other party’s interests at the expense of the party who was
required to provide such coverage, and the Contract Price will be adjusted accordingly.
L. Owner does not represent that insurance coverage and limits established in this Contract
necessarily will be adequate to protect Contractor or Contractor’s interests. Contractor is
responsible for determining whether such coverage and limits are adequate to protect its
interests, and for obtaining and maintaining any additional insurance that Contractor deems
necessary.
M. The insurance and insurance limits required herein will not be deemed as a limitation on
Contractor’s liability, or that of its Subcontractors or Suppliers, under the indemnities
granted to Owner and other individuals and entities in the Contract or otherwise.
N. All the policies of insurance required to be purchased and maintained under this Contract
will contain a provision or endorsement that the coverage afforded will not be canceled, or
renewal refused, until at least 10 days prior written notice has been given to the purchasing
policyholder. Within three days of receipt of any such written notice, the purchasing
policyholder shall provide a copy of the notice to each other insured and Engineer.
6.03 Contractor’s Insurance
A. Required Insurance: Contractor shall purchase and maintain Worker’s Compensation,
Commercial General Liability, and other insurance pursuant to the specific requirements of
the Supplementary Conditions.
B. General Provisions: The policies of insurance required by this Paragraph 6.03 as
supplemented must:
1. include at least the specific coverages required;
2. be written for not less than the limits provided, or those required by Laws or
Regulations, whichever is greater;
3. remain in effect at least until the Work is complete (as set forth in Paragraph 15.06.D),
and longer if expressly required elsewhere in this Contract, and at all times thereafter
when Contractor may be correcting, removing, or replacing defective Work as a
warranty or correction obligation, or otherwise, or returning to the Site to conduct
other tasks arising from the Contract;
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4. apply with respect to the performance of the Work, whether such performance is by
Contractor, any Subcontractor or Supplier, or by anyone directly or indirectly employed
by any of them to perform any of the Work, or by anyone for whose acts any of them
may be liable; and
5. include all necessary endorsements to support the stated requirements.
C. Additional Insureds: The Contractor’s commercial general liability, automobile liability,
employer’s liability, umbrella or excess, pollution liability, and unmanned aerial vehicle
liability policies, if required by this Contract, must:
1. include and list as additional insureds Owner and Engineer, and any individuals or
entities identified as additional insureds in the Supplementary Conditions;
2. include coverage for the respective officers, directors, members, partners, employees,
and consultants of all such additional insureds;
3. afford primary coverage to these additional insureds for all claims covered thereby
(including as applicable those arising from both ongoing and completed operations);
4. not seek contribution from insurance maintained by the additional insured; and
5. as to commercial general liability insurance, apply to additional insureds with respect to
liability caused in whole or in part by Contractor’s acts or omissions, or the acts and
omissions of those working on Contractor’s behalf, in the performance of Contractor’s
operations.
6.04 Builder’s Risk and Other Property Insurance
A. Builder’s Risk: Unless otherwise provided in the Supplementary Conditions, Contractor shall
purchase and maintain builder’s risk insurance upon the Work on a completed value basis,
in the amount of the Work’s full insurable replacement cost (subject to such deductible
amounts as may be provided in the Supplementary Conditions or required by Laws and
Regulations). The specific requirements applicable to the builder’s risk insurance are set
forth in the Supplementary Conditions.
B. Property Insurance for Facilities of Owner Where Work Will Occur: Owner is responsible for
obtaining and maintaining property insurance covering each existing structure, building, or
facility in which any part of the Work will occur, or to which any part of the Work will attach
or be adjoined. Such property insurance will be written on a special perils (all-risk) form, on
a replacement cost basis, providing coverage consistent with that required for the builder’s
risk insurance, and will be maintained until the Work is complete, as set forth in
Paragraph 15.06.D.
C. Property Insurance for Substantially Complete Facilities: Promptly after Substantial
Completion, and before actual occupancy or use of the substantially completed Work,
Owner will obtain property insurance for such substantially completed Work, and maintain
such property insurance at least until the Work is complete, as set forth in
Paragraph 15.06.D. Such property insurance will be written on a special perils (all-risk) form,
on a replacement cost basis, and provide coverage consistent with that required for the
builder’s risk insurance. The builder’s risk insurance may terminate upon written
confirmation of Owner’s procurement of such property insurance.
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D. Partial Occupancy or Use by Owner: If Owner will occupy or use a portion or portions of the
Work prior to Substantial Completion of all the Work, as provided in Paragraph 15.04, then
Owner (directly, if it is the purchaser of the builder’s risk policy, or through Contractor) will
provide advance notice of such occupancy or use to the builder’s risk insurer, and obtain an
endorsement consenting to the continuation of coverage prior to commencing such partial
occupancy or use.
E. Insurance of Other Property; Additional Insurance: If the express insurance provisions of the
Contract do not require or address the insurance of a property item or interest, then the
entity or individual owning such property item will be responsible for insuring it. If
Contractor elects to obtain other special insurance to be included in or supplement the
builder’s risk or property insurance policies provided under this Paragraph 6.04, it may do so
at Contractor’s expense.
6.05 Property Losses; Subrogation
A. The builder’s risk insurance policy purchased and maintained in accordance with
Paragraph 6.04 (or an installation floater policy if authorized by the Supplementary
Conditions), will contain provisions to the effect that in the event of payment of any loss or
damage the insurer will have no rights of recovery against any insureds thereunder, or
against Engineer or its consultants, or their officers, directors, members, partners,
employees, agents, consultants, or subcontractors.
1. Owner and Contractor waive all rights against each other and the respective officers,
directors, members, partners, employees, agents, consultants, and subcontractors of
each and any of them, for all losses and damages caused by, arising out of, or resulting
from any of the perils, risks, or causes of loss covered by such policies and any other
property insurance applicable to the Work; and, in addition, waive all such rights against
Engineer, its consultants, all individuals or entities identified in the Supplementary
Conditions as builder’s risk or installation floater insureds, and the officers, directors,
members, partners, employees, agents, consultants, and subcontractors of each and any
of them, under such policies for losses and damages so caused.
2. None of the above waivers extends to the rights that any party making such waiver may
have to the proceeds of insurance held by Owner or Contractor as trustee or fiduciary,
or otherwise payable under any policy so issued.
B. Any property insurance policy maintained by Owner covering any loss, damage, or
consequential loss to Owner’s existing structures, buildings, or facilities in which any part of
the Work will occur, or to which any part of the Work will attach or adjoin; to adjacent
structures, buildings, or facilities of Owner; or to part or all of the completed or substantially
completed Work, during partial occupancy or use pursuant to Paragraph 15.04, after
Substantial Completion pursuant to Paragraph 15.03, or after final payment pursuant to
Paragraph 15.06, will contain provisions to the effect that in the event of payment of any
loss or damage the insurer will have no rights of recovery against any insureds thereunder,
or against Contractor, Subcontractors, or Engineer, or the officers, directors, members,
partners, employees, agents, consultants, or subcontractors of each and any of them, and
that the insured is allowed to waive the insurer’s rights of subrogation in a written contract
executed prior to the loss, damage, or consequential loss.
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1. Owner waives all rights against Contractor, Subcontractors, and Engineer, and the
officers, directors, members, partners, employees, agents, consultants and
subcontractors of each and any of them, for all losses and damages caused by, arising
out of, or resulting from fire or any of the perils, risks, or causes of loss covered by such
policies.
C. The waivers in this Paragraph 6.05 include the waiver of rights due to business interruption,
loss of use, or other consequential loss extending beyond direct physical loss or damage to
Owner’s property or the Work caused by, arising out of, or resulting from fire or other
insured peril, risk, or cause of loss.
D. Contractor shall be responsible for assuring that each Subcontract contains provisions
whereby the Subcontractor waives all rights against Owner, Contractor, all individuals or
entities identified in the Supplementary Conditions as insureds, the Engineer and its
consultants, and the officers, directors, members, partners, employees, agents, consultants,
and subcontractors of each and any of them, for all losses and damages caused by, arising
out of, relating to, or resulting from fire or other peril, risk, or cause of loss covered by
builder’s risk insurance, installation floater, and any other property insurance applicable to
the Work.
6.06 Receipt and Application of Property Insurance Proceeds
A. Any insured loss under the builder’s risk and other policies of property insurance required
by Paragraph 6.04 will be adjusted and settled with the named insured that purchased the
policy. Such named insured shall act as fiduciary for the other insureds, and give notice to
such other insureds that adjustment and settlement of a claim is in progress. Any other
insured may state its position regarding a claim for insured loss in writing within 15 days
after notice of such claim.
B. Proceeds for such insured losses may be made payable by the insurer either jointly to
multiple insureds, or to the named insured that purchased the policy in its own right and as
fiduciary for other insureds, subject to the requirements of any applicable mortgage clause.
A named insured receiving insurance proceeds under the builder’s risk and other policies of
insurance required by Paragraph 6.04 shall maintain such proceeds in a segregated account,
and distribute such proceeds in accordance with such agreement as the parties in interest
may reach, or as otherwise required under the dispute resolution provisions of this Contract
or applicable Laws and Regulations.
C. If no other special agreement is reached, Contractor shall repair or replace the damaged
Work, using allocated insurance proceeds.
ARTICLE 7—CONTRACTOR’S RESPONSIBILITIES
7.01 Contractor’s Means and Methods of Construction
A. Contractor shall be solely responsible for the means, methods, techniques, sequences, and
procedures of construction.
B. If the Contract Documents note, or Contractor determines, that professional engineering or
other design services are needed to carry out Contractor’s responsibilities for construction
means, methods, techniques, sequences, and procedures, or for Site safety, then Contractor
shall cause such services to be provided by a properly licensed design professional, at
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Contractor’s expense. Such services are not Owner-delegated professional design services
under this Contract, and neither Owner nor Engineer has any responsibility with respect to
(1) Contractor’s determination of the need for such services, (2) the qualifications or
licensing of the design professionals retained or employed by Contractor, (3) the
performance of such services, or (4) any errors, omissions, or defects in such services.
7.02 Supervision and Superintendence
A. Contractor shall supervise, inspect, and direct the Work competently and efficiently,
devoting such attention thereto and applying such skills and expertise as may be necessary
to perform the Work in accordance with the Contract Documents.
B. At all times during the progress of the Work, Contractor shall assign a competent resident
superintendent who will not be replaced without written notice to Owner and Engineer
except under extraordinary circumstances.
7.03 Labor; Working Hours
A. Contractor shall provide competent, suitably qualified personnel to survey and lay out the
Work and perform construction as required by the Contract Documents. Contractor shall
maintain good discipline and order at the Site.
B. Contractor shall be fully responsible to Owner and Engineer for all acts and omissions of
Contractor’s employees; of Suppliers and Subcontractors, and their employees; and of any
other individuals or entities performing or furnishing any of the Work, just as Contractor is
responsible for Contractor’s own acts and omissions.
C. Except as otherwise required for the safety or protection of persons or the Work or property
at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents,
all Work at the Site will be performed during regular working hours, Monday through Friday.
Contractor will not perform Work on a Saturday, Sunday, or any legal holiday. Contractor
may perform Work outside regular working hours or on Saturdays, Sundays, or legal
holidays only with Owner’s written consent, which will not be unreasonably withheld.
7.04 Services, Materials, and Equipment
A. Unless otherwise specified in the Contract Documents, Contractor shall provide and assume
full responsibility for all services, materials, equipment, labor, transportation, construction
equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water,
sanitary facilities, temporary facilities, and all other facilities and incidentals necessary for
the performance, testing, start up, and completion of the Work, whether or not such items
are specifically called for in the Contract Documents.
B. All materials and equipment incorporated into the Work must be new and of good quality,
except as otherwise provided in the Contract Documents. All special warranties and
guarantees required by the Specifications will expressly run to the benefit of Owner. If
required by Engineer, Contractor shall furnish satisfactory evidence (including reports of
required tests) as to the source, kind, and quality of materials and equipment.
C. All materials and equipment must be stored, applied, installed, connected, erected,
protected, used, cleaned, and conditioned in accordance with instructions of the applicable
Supplier, except as otherwise may be provided in the Contract Documents.
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7.05 “Or Equals”
A. Contractor’s Request; Governing Criteria: Whenever an item of equipment or material is
specified or described in the Contract Documents by using the names of one or more
proprietary items or specific Suppliers, the Contract Price has been based upon Contractor
furnishing such item as specified. The specification or description of such an item is intended
to establish the type, function, appearance, and quality required. Unless the specification or
description contains or is followed by words reading that no like, equivalent, or “or equal”
item is permitted, Contractor may request that Engineer authorize the use of other items of
equipment or material, or items from other proposed Suppliers, under the circumstances
described below.
1. If Engineer in its sole discretion determines that an item of equipment or material
proposed by Contractor is functionally equal to that named and sufficiently similar so
that no change in related Work will be required, Engineer will deem it an “or equal”
item. For the purposes of this paragraph, a proposed item of equipment or material will
be considered functionally equal to an item so named if:
a. in the exercise of reasonable judgment Engineer determines that the proposed
item:
1) is at least equal in materials of construction, quality, durability, appearance,
strength, and design characteristics;
2) will reliably perform at least equally well the function and achieve the results
imposed by the design concept of the completed Project as a functioning whole;
3) has a proven record of performance and availability of responsive service; and
4) is not objectionable to Owner.
b. Contractor certifies that, if the proposed item is approved and incorporated into the
Work:
1) there will be no increase in cost to the Owner or increase in Contract Times; and
2) the item will conform substantially to the detailed requirements of the item
named in the Contract Documents.
B. Contractor’s Expense: Contractor shall provide all data in support of any proposed “or
equal” item at Contractor’s expense.
C. Engineer’s Evaluation and Determination: Engineer will be allowed a reasonable time to
evaluate each “or-equal” request. Engineer may require Contractor to furnish additional
data about the proposed “or-equal” item. Engineer will be the sole judge of acceptability.
No “or-equal” item will be ordered, furnished, installed, or utilized until Engineer’s review is
complete and Engineer determines that the proposed item is an “or-equal,” which will be
evidenced by an approved Shop Drawing or other written communication. Engineer will
advise Contractor in writing of any negative determination.
D. Effect of Engineer’s Determination: Neither approval nor denial of an “or-equal” request will
result in any change in Contract Price. The Engineer’s denial of an “or-equal” request will be
final and binding, and may not be reversed through an appeal under any provision of the
Contract.
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E. Treatment as a Substitution Request: If Engineer determines that an item of equipment or
material proposed by Contractor does not qualify as an “or-equal” item, Contractor may
request that Engineer consider the item a proposed substitute pursuant to Paragraph 7.06.
7.06 Substitutes
A. Contractor’s Request; Governing Criteria: Unless the specification or description of an item
of equipment or material required to be furnished under the Contract Documents contains
or is followed by words reading that no substitution is permitted, Contractor may request
that Engineer authorize the use of other items of equipment or material under the
circumstances described below. To the extent possible such requests must be made before
commencement of related construction at the Site.
1. Contractor shall submit sufficient information as provided below to allow Engineer to
determine if the item of material or equipment proposed is functionally equivalent to
that named and an acceptable substitute therefor. Engineer will not accept requests for
review of proposed substitute items of equipment or material from anyone other than
Contractor.
2. The requirements for review by Engineer will be as set forth in Paragraph 7.06.B, as
supplemented by the Specifications, and as Engineer may decide is appropriate under
the circumstances.
3. Contractor shall make written application to Engineer for review of a proposed
substitute item of equipment or material that Contractor seeks to furnish or use. The
application:
a. will certify that the proposed substitute item will:
1) perform adequately the functions and achieve the results called for by the
general design;
2) be similar in substance to the item specified; and
3) be suited to the same use as the item specified.
b. will state:
1) the extent, if any, to which the use of the proposed substitute item will
necessitate a change in Contract Times;
2) whether use of the proposed substitute item in the Work will require a change
in any of the Contract Documents (or in the provisions of any other direct
contract with Owner for other work on the Project) to adapt the design to the
proposed substitute item; and
3) whether incorporation or use of the proposed substitute item in connection
with the Work is subject to payment of any license fee or royalty.
c. will identify:
1) all variations of the proposed substitute item from the item specified; and
2) available engineering, sales, maintenance, repair, and replacement services.
d. will contain an itemized estimate of all costs or credits that will result directly or
indirectly from use of such substitute item, including but not limited to changes in
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Contract Price, shared savings, costs of redesign, and claims of other contractors
affected by any resulting change.
B. Engineer’s Evaluation and Determination: Engineer will be allowed a reasonable time to
evaluate each substitute request, and to obtain comments and direction from Owner.
Engineer may require Contractor to furnish additional data about the proposed substitute
item. Engineer will be the sole judge of acceptability. No substitute will be ordered,
furnished, installed, or utilized until Engineer’s review is complete and Engineer determines
that the proposed item is an acceptable substitute. Engineer’s determination will be
evidenced by a Field Order or a proposed Change Order accounting for the substitution itself
and all related impacts, including changes in Contract Price or Contract Times. Engineer will
advise Contractor in writing of any negative determination.
C. Special Guarantee: Owner may require Contractor to furnish at Contractor’s expense a
special performance guarantee or other surety with respect to any substitute.
D. Reimbursement of Engineer’s Cost: Engineer will record Engineer’s costs in evaluating a
substitute proposed or submitted by Contractor. Whether or not Engineer approves a
substitute so proposed or submitted by Contractor, Contractor shall reimburse Owner for
the reasonable charges of Engineer for evaluating each such proposed substitute.
Contractor shall also reimburse Owner for the reasonable charges of Engineer for making
changes in the Contract Documents (or in the provisions of any other direct contract with
Owner) resulting from the acceptance of each proposed substitute.
E. Contractor’s Expense: Contractor shall provide all data in support of any proposed substitute
at Contractor’s expense.
F. Effect of Engineer’s Determination: If Engineer approves the substitution request, Contractor
shall execute the proposed Change Order and proceed with the substitution. The Engineer’s
denial of a substitution request will be final and binding, and may not be reversed through
an appeal under any provision of the Contract. Contractor may challenge the scope of
reimbursement costs imposed under Paragraph 7.06.D, by timely submittal of a Change
Proposal.
7.07 Concerning Subcontractors and Suppliers
A. Contractor may retain Subcontractors and Suppliers for the performance of parts of the
Work. Such Subcontractors and Suppliers must be acceptable to Owner. The Contractor’s
retention of a Subcontractor or Supplier for the performance of parts of the Work will not
relieve Contractor’s obligation to Owner to perform and complete the Work in accordance
with the Contract Documents.
B. Contractor shall retain specific Subcontractors and Suppliers for the performance of
designated parts of the Work if required by the Contract to do so.
C. Subsequent to the submittal of Contractor’s Bid or final negotiation of the terms of the
Contract, Owner may not require Contractor to retain any Subcontractor or Supplier to
furnish or perform any of the Work against which Contractor has reasonable objection.
D. Prior to entry into any binding subcontract or purchase order, Contractor shall submit to
Owner the identity of the proposed Subcontractor or Supplier (unless Owner has already
deemed such proposed Subcontractor or Supplier acceptable during the bidding process or
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otherwise). Such proposed Subcontractor or Supplier shall be deemed acceptable to Owner
unless Owner raises a substantive, reasonable objection within 5 days.
E. Owner may require the replacement of any Subcontractor or Supplier. Owner also may
require Contractor to retain specific replacements; provided, however, that Owner may not
require a replacement to which Contractor has a reasonable objection. If Contractor has
submitted the identity of certain Subcontractors or Suppliers for acceptance by Owner, and
Owner has accepted it (either in writing or by failing to make written objection thereto),
then Owner may subsequently revoke the acceptance of any such Subcontractor or Supplier
so identified solely on the basis of substantive, reasonable objection after due investigation.
Contractor shall submit an acceptable replacement for the rejected Subcontractor or
Supplier.
F. If Owner requires the replacement of any Subcontractor or Supplier retained by Contractor
to perform any part of the Work, then Contractor shall be entitled to an adjustment in
Contract Price or Contract Times, with respect to the replacement; and Contractor shall
initiate a Change Proposal for such adjustment within 30 days of Owner’s requirement of
replacement.
G. No acceptance by Owner of any such Subcontractor or Supplier, whether initially or as a
replacement, will constitute a waiver of the right of Owner to the completion of the Work in
accordance with the Contract Documents.
H. On a monthly basis, Contractor shall submit to Engineer a complete list of all Subcontractors
and Suppliers having a direct contract with Contractor, and of all other Subcontractors and
Suppliers known to Contractor at the time of submittal.
I. Contractor shall be solely responsible for scheduling and coordinating the work of
Subcontractors and Suppliers.
J. The divisions and sections of the Specifications and the identifications of any Drawings do
not control Contractor in dividing the Work among Subcontractors or Suppliers, or in
delineating the Work to be performed by any specific trade.
K. All Work performed for Contractor by a Subcontractor or Supplier must be pursuant to an
appropriate contractual agreement that specifically binds the Subcontractor or Supplier to
the applicable terms and conditions of the Contract for the benefit of Owner and Engineer.
L. Owner may furnish to any Subcontractor or Supplier, to the extent practicable, information
about amounts paid to Contractor for Work performed for Contractor by the Subcontractor
or Supplier.
M. Contractor shall restrict all Subcontractors and Suppliers from communicating with Engineer
or Owner, except through Contractor or in case of an emergency, or as otherwise expressly
allowed in this Contract.
7.08 Patent Fees and Royalties
A. Contractor shall pay all license fees and royalties and assume all costs incident to the use in
the performance of the Work or the incorporation in the Work of any invention, design,
process, product, or device which is the subject of patent rights or copyrights held by others.
If an invention, design, process, product, or device is specified in the Contract Documents
for use in the performance of the Work and if, to the actual knowledge of Owner or
Engineer, its use is subject to patent rights or copyrights calling for the payment of any
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license fee or royalty to others, the existence of such rights will be disclosed in the Contract
Documents.
B. To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold
harmless Contractor, and its officers, directors, members, partners, employees, agents,
consultants, and subcontractors, from and against all claims, costs, 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) arising out
of or relating to any infringement of patent rights or copyrights incident to the use in the
performance of the Work or resulting from the incorporation in the Work of any invention,
design, process, product, or device specified in the Contract Documents, but not identified
as being subject to payment of any license fee or royalty to others required by patent rights
or copyrights.
C. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and
hold harmless Owner and Engineer, and the officers, directors, members, partners,
employees, agents, consultants and subcontractors of each and any of them, from and
against all claims, costs, 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) arising out of or relating to any infringement of
patent rights or copyrights incident to the use in the performance of the Work or resulting
from the incorporation in the Work of any invention, design, process, product, or device not
specified in the Contract Documents.
7.09 Permits
A. Unless otherwise provided in the Contract Documents, Contractor shall obtain and pay for
all construction permits, licenses, and certificates of occupancy. Owner shall assist
Contractor, when necessary, in obtaining such permits and licenses. Contractor shall pay all
governmental charges and inspection fees necessary for the prosecution of the Work which
are applicable at the time of the submission of Contractor’s Bid (or when Contractor became
bound under a negotiated contract). Owner shall pay all charges of utility owners for
connections for providing permanent service to the Work.
7.10 Taxes
A. Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid by
Contractor in accordance with the Laws and Regulations of the place of the Project which
are applicable during the performance of the Work.
7.11 Laws and Regulations
A. Contractor shall give all notices required by and shall comply with all Laws and Regulations
applicable to the performance of the Work. Neither Owner nor Engineer shall be responsible
for monitoring Contractor’s compliance with any Laws or Regulations.
B. If Contractor performs any Work or takes any other action knowing or having reason to
know that it is contrary to Laws or Regulations, Contractor shall bear all resulting costs and
losses, and shall indemnify and hold harmless Owner and Engineer, and the officers,
directors, members, partners, employees, agents, consultants, and subcontractors of each
and any of them, from and against all claims, costs, 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) arising out of or relating to
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such Work or other action. It is not Contractor’s responsibility to make certain that the Work
described in the Contract Documents is in accordance with Laws and Regulations, but this
does not relieve Contractor of its obligations under Paragraph 3.03.
C. Owner or Contractor may give written notice to the other party of any changes after the
submission of Contractor’s Bid (or after the date when Contractor became bound under a
negotiated contract) in Laws or Regulations having an effect on the cost or time of
performance of the Work, including but not limited to changes in Laws or Regulations
having an effect on procuring permits and on sales, use, value-added, consumption, and
other similar taxes. If Owner and Contractor are unable to agree on entitlement to or on the
amount or extent, if any, of any adjustment in Contract Price or Contract Times resulting
from such changes, then within 30 days of such written notice Contractor may submit a
Change Proposal, or Owner may initiate a Claim.
7.12 Record Documents
A. Contractor shall maintain in a safe place at the Site one printed record copy of all Drawings,
Specifications, Addenda, Change Orders, Work Change Directives, Field Orders, written
interpretations and clarifications, and approved Shop Drawings. Contractor shall keep such
record documents in good order and annotate them to show changes made during
construction. These record documents, together with all approved Samples, will be available
to Engineer for reference. Upon completion of the Work, Contractor shall deliver these
record documents to Engineer.
7.13 Safety and Protection
A. Contractor shall be solely responsible for initiating, maintaining, and supervising all safety
precautions and programs in connection with the Work. Such responsibility does not relieve
Subcontractors of their responsibility for the safety of persons or property in the
performance of their work, nor for compliance with applicable safety Laws and Regulations.
B. Contractor shall designate a qualified and experienced safety representative whose duties
and responsibilities are the prevention of Work-related accidents and the maintenance and
supervision of safety precautions and programs.
C. Contractor shall take all necessary precautions for the safety of, and shall provide the
necessary protection to prevent damage, injury, or loss to:
1. all persons on the Site or who may be affected by the Work;
2. all the Work and materials and equipment to be incorporated therein, whether in
storage on or off the Site; and
3. other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks,
pavements, roadways, structures, other work in progress, utilities, and Underground
Facilities not designated for removal, relocation, or replacement in the course of
construction.
D. All damage, injury, or loss to any property referred to in Paragraph 7.13.C.2 or 7.13.C.3
caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor, Supplier,
or any other individual or entity directly or indirectly employed by any of them to perform
any of the Work, or anyone for whose acts any of them may be liable, shall be remedied by
Contractor at its expense (except damage or loss attributable to the fault of Drawings or
Specifications or to the acts or omissions of Owner or Engineer or anyone employed by any
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of them, or anyone for whose acts any of them may be liable, and not attributable, directly
or indirectly, in whole or in part, to the fault or negligence of Contractor or any
Subcontractor, Supplier, or other individual or entity directly or indirectly employed by any
of them).
E. Contractor shall comply with all applicable Laws and Regulations relating to the safety of
persons or property, or to the protection of persons or property from damage, injury, or
loss; and shall erect and maintain all necessary safeguards for such safety and protection.
F. Contractor shall notify Owner; the owners of adjacent property; the owners of Underground
Facilities and other utilities (if the identity of such owners is known to Contractor); and other
contractors and utility owners performing work at or adjacent to the Site, in writing, when
Contractor knows that prosecution of the Work may affect them, and shall cooperate with
them in the protection, removal, relocation, and replacement of their property or work in
progress.
G. Contractor shall comply with the applicable requirements of Owner’s safety programs, if
any. Any Owner’s safety programs that are applicable to the Work are identified or included
in the Supplementary Conditions or Specifications.
H. Contractor shall inform Owner and Engineer of the specific requirements of Contractor’s
safety program with which Owner’s and Engineer’s employees and representatives must
comply while at the Site.
I. Contractor’s duties and responsibilities for safety and protection will continue until all the
Work is completed, Engineer has issued a written notice to Owner and Contractor in
accordance with Paragraph 15.06.C that the Work is acceptable, and Contractor has left the
Site (except as otherwise expressly provided in connection with Substantial Completion).
J. Contractor’s duties and responsibilities for safety and protection will resume whenever
Contractor or any Subcontractor or Supplier returns to the Site to fulfill warranty or
correction obligations, or to conduct other tasks arising from the Contract Documents.
7.14 Hazard Communication Programs
A. Contractor shall be responsible for coordinating any exchange of safety data sheets
(formerly known as material safety data sheets) or other hazard communication information
required to be made available to or exchanged between or among employers at the Site in
accordance with Laws or Regulations.
7.15 Emergencies
A. In emergencies affecting the safety or protection of persons or the Work or property at the
Site or adjacent thereto, Contractor is obligated to act to prevent damage, injury, or loss.
Contractor shall give Engineer prompt written notice if Contractor believes that any
significant changes in the Work or variations from the Contract Documents have been
caused by an emergency, or are required as a result of Contractor’s response to an
emergency. If Engineer determines that a change in the Contract Documents is required
because of an emergency or Contractor’s response, a Work Change Directive or Change
Order will be issued.
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7.16 Submittals
A. Shop Drawing and Sample Requirements
1. Before submitting a Shop Drawing or Sample, Contractor shall:
a. review and coordinate the Shop Drawing or Sample with other Shop Drawings and
Samples and with the requirements of the Work and the Contract Documents;
b. determine and verify:
1) all field measurements, quantities, dimensions, specified performance and
design criteria, installation requirements, materials, catalog numbers, and
similar information with respect to the Submittal;
2) the suitability of all materials and equipment offered with respect to the
indicated application, fabrication, shipping, handling, storage, assembly, and
installation pertaining to the performance of the Work; and
3) all information relative to Contractor’s responsibilities for means, methods,
techniques, sequences, and procedures of construction, and safety precautions
and programs incident thereto;
c. confirm that the Submittal is complete with respect to all related data included in
the Submittal.
2. Each Shop Drawing or Sample must bear a stamp or specific written certification that
Contractor has satisfied Contractor’s obligations under the Contract Documents with
respect to Contractor’s review of that Submittal, and that Contractor approves the
Submittal.
3. With each Shop Drawing or Sample, Contractor shall give Engineer specific written
notice of any variations that the Submittal may have from the requirements of the
Contract Documents. This notice must be set forth in a written communication separate
from the Submittal; and, in addition, in the case of a Shop Drawing by a specific notation
made on the Shop Drawing itself.
B. Submittal Procedures for Shop Drawings and Samples: Contractor shall label and submit
Shop Drawings and Samples to Engineer for review and approval in accordance with the
accepted Schedule of Submittals.
1. Shop Drawings
a. Contractor shall submit the number of copies required in the Specifications.
b. Data shown on the Shop Drawings must be complete with respect to quantities,
dimensions, specified performance and design criteria, materials, and similar data to
show Engineer the services, materials, and equipment Contractor proposes to
provide, and to enable Engineer to review the information for the limited purposes
required by Paragraph 7.16.C.
2. Samples
a. Contractor shall submit the number of Samples required in the Specifications.
b. Contractor shall clearly identify each Sample as to material, Supplier, pertinent data
such as catalog numbers, the use for which intended and other data as Engineer
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may require to enable Engineer to review the Submittal for the limited purposes
required by Paragraph 7.16.C.
3. Where a Shop Drawing or Sample is required by the Contract Documents or the
Schedule of Submittals, any related Work performed prior to Engineer’s review and
approval of the pertinent submittal will be at the sole expense and responsibility of
Contractor.
C. Engineer’s Review of Shop Drawings and Samples
1. Engineer will provide timely review of Shop Drawings and Samples in accordance with
the accepted Schedule of Submittals. Engineer’s review and approval will be only to
determine if the items covered by the Submittals will, after installation or incorporation
in the Work, comply with the requirements of the Contract Documents, and be
compatible with the design concept of the completed Project as a functioning whole as
indicated by the Contract Documents.
2. Engineer’s review and approval will not extend to means, methods, techniques,
sequences, or procedures of construction, or to safety precautions or programs incident
thereto.
3. Engineer’s review and approval of a separate item as such will not indicate approval of
the assembly in which the item functions.
4. Engineer’s review and approval of a Shop Drawing or Sample will not relieve Contractor
from responsibility for any variation from the requirements of the Contract Documents
unless Contractor has complied with the requirements of Paragraph 7.16.A.3 and
Engineer has given written approval of each such variation by specific written notation
thereof incorporated in or accompanying the Shop Drawing or Sample. Engineer will
document any such approved variation from the requirements of the Contract
Documents in a Field Order or other appropriate Contract modification.
5. Engineer’s review and approval of a Shop Drawing or Sample will not relieve Contractor
from responsibility for complying with the requirements of Paragraphs 7.16.A and B.
6. Engineer’s review and approval of a Shop Drawing or Sample, or of a variation from the
requirements of the Contract Documents, will not, under any circumstances, change the
Contract Times or Contract Price, unless such changes are included in a Change Order.
7. Neither Engineer’s receipt, review, acceptance, or approval of a Shop Drawing or
Sample will result in such item becoming a Contract Document.
8. Contractor shall perform the Work in compliance with the requirements and
commitments set forth in approved Shop Drawings and Samples, subject to the
provisions of Paragraph 7.16.C.4.
D. Resubmittal Procedures for Shop Drawings and Samples
1. Contractor shall make corrections required by Engineer and shall return the required
number of corrected copies of Shop Drawings and submit, as required, new Samples for
review and approval. Contractor shall direct specific attention in writing to revisions
other than the corrections called for by Engineer on previous Submittals.
2. Contractor shall furnish required Shop Drawing and Sample submittals with sufficient
information and accuracy to obtain required approval of an item with no more than two
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resubmittals. Engineer will record Engineer’s time for reviewing a third or subsequent
resubmittal of a Shop Drawing or Sample, and Contractor shall be responsible for
Engineer’s charges to Owner for such time. Owner may impose a set-off against
payments due Contractor to secure reimbursement for such charges.
3. If Contractor requests a change of a previously approved Shop Drawing or Sample,
Contractor shall be responsible for Engineer’s charges to Owner for its review time, and
Owner may impose a set-off against payments due Contractor to secure reimbursement
for such charges, unless the need for such change is beyond the control of Contractor.
E. Submittals Other than Shop Drawings, Samples, and Owner-Delegated Designs
1. The following provisions apply to all Submittals other than Shop Drawings, Samples, and
Owner-delegated designs:
a. Contractor shall submit all such Submittals to the Engineer in accordance with the
Schedule of Submittals and pursuant to the applicable terms of the Contract
Documents.
b. Engineer will provide timely review of all such Submittals in accordance with the
Schedule of Submittals and return such Submittals with a notation of either
Accepted or Not Accepted. Any such Submittal that is not returned within the time
established in the Schedule of Submittals will be deemed accepted.
c. Engineer’s review will be only to determine if the Submittal is acceptable under the
requirements of the Contract Documents as to general form and content of the
Submittal.
d. If any such Submittal is not accepted, Contractor shall confer with Engineer
regarding the reason for the non-acceptance, and resubmit an acceptable
document.
2. Procedures for the submittal and acceptance of the Progress Schedule, the Schedule of
Submittals, and the Schedule of Values are set forth in Paragraphs 2.03. 2.04, and 2.05.
F. Owner-delegated Designs: Submittals pursuant to Owner-delegated designs are governed
by the provisions of Paragraph 7.19.
7.17 Contractor’s General Warranty and Guarantee
A. Contractor warrants and guarantees to Owner that all Work will be in accordance with the
Contract Documents and will not be defective. Engineer is entitled to rely on Contractor’s
warranty and guarantee.
B. Owner’s rights under this warranty and guarantee are in addition to, and are not limited by,
Owner’s rights under the correction period provisions of Paragraph 15.08. The time in which
Owner may enforce its warranty and guarantee rights under this Paragraph 7.17 is limited
only by applicable Laws and Regulations restricting actions to enforce such rights; provided,
however, that after the end of the correction period under Paragraph 15.08:
1. Owner shall give Contractor written notice of any defective Work within 60 days of the
discovery that such Work is defective; and
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2. Such notice will be deemed the start of an event giving rise to a Claim under
Paragraph 12.01.B, such that any related Claim must be brought within 30 days of the
notice.
C. Contractor’s warranty and guarantee hereunder excludes defects or damage caused by:
1. abuse, or improper modification, maintenance, or operation, by persons other than
Contractor, Subcontractors, Suppliers, or any other individual or entity for whom
Contractor is responsible; or
2. normal wear and tear under normal usage.
D. Contractor’s obligation to perform and complete the Work in accordance with the Contract
Documents is absolute. None of the following will constitute an acceptance of Work that is
not in accordance with the Contract Documents, a release of Contractor’s obligation to
perform the Work in accordance with the Contract Documents, or a release of Owner’s
warranty and guarantee rights under this Paragraph 7.17:
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 Completion by Engineer or any payment
related thereto by Owner;
4. Use or occupancy of the Work or any part thereof by Owner;
5. Any review and approval of a Shop Drawing or Sample submittal;
6. The issuance of a notice of acceptability by Engineer;
7. The end of the correction period established in Paragraph 15.08;
8. Any inspection, test, or approval by others; or
9. Any correction of defective Work by Owner.
E. If the Contract requires the Contractor to accept the assignment of a contract entered into
by Owner, then the specific warranties, guarantees, and correction obligations contained in
the assigned contract will govern with respect to Contractor’s performance obligations to
Owner for the Work described in the assigned contract.
7.18 Indemnification
A. To the fullest extent permitted by Laws and Regulations, and in addition to any other
obligations of Contractor under the Contract or otherwise, Contractor shall indemnify and
hold harmless Owner and Engineer, and the officers, directors, members, partners,
employees, agents, consultants and subcontractors of each and any of them, from losses,
damages, costs, and judgments (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) arising from third-party claims or actions relating to or
resulting from the performance or furnishing of the Work, provided that any such claim,
action, loss, cost, judgment or damage is attributable to bodily injury, sickness, disease, or
death, or to damage to or destruction of tangible property (other than the Work itself),
including the loss of use resulting therefrom, but only to the extent caused by any negligent
act or omission of Contractor, any Subcontractor, any Supplier, or any individual or entity
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directly or indirectly employed by any of them to perform any of the Work, or anyone for
whose acts any of them may be liable.
B. In any and all claims against Owner or Engineer, or any of their officers, directors, members,
partners, employees, agents, consultants, or subcontractors, by any employee (or the
survivor or personal representative of such employee) of Contractor, any Subcontractor, any
Supplier, or any individual or entity directly or indirectly employed by any of them to
perform any of the Work, or anyone for whose acts any of them may be liable, the
indemnification obligation under Paragraph 7.18.A will not be limited in any way by any
limitation on the amount or type of damages, compensation, or benefits payable by or for
Contractor or any such Subcontractor, Supplier, or other individual or entity under workers’
compensation acts, disability benefit acts, or other employee benefit acts.
7.19 Delegation of Professional Design Services
A. Owner may require Contractor to provide professional design services for a portion of the
Work by express delegation in the Contract Documents. Such delegation will specify the
performance and design criteria that such services must satisfy, and the Submittals that
Contractor must furnish to Engineer with respect to the Owner-delegated design.
B. Contractor shall cause such Owner-delegated professional design services to be provided
pursuant to the professional standard of care by a properly licensed design professional,
whose signature and seal must appear on all drawings, calculations, specifications,
certifications, and Submittals prepared by such design professional. Such design professional
must issue all certifications of design required by Laws and Regulations.
C. If a Shop Drawing or other Submittal related to the Owner-delegated design is prepared by
Contractor, a Subcontractor, or others for submittal to Engineer, then such Shop Drawing or
other Submittal must bear the written approval of Contractor’s design professional when
submitted by Contractor to Engineer.
D. Owner and Engineer shall be entitled to rely upon the adequacy, accuracy, and
completeness of the services, certifications, and approvals performed or provided by the
design professionals retained or employed by Contractor under an Owner-delegated design,
subject to the professional standard of care and the performance and design criteria stated
in the Contract Documents.
E. Pursuant to this Paragraph 7.19, Engineer’s review, approval, and other determinations
regarding design drawings, calculations, specifications, certifications, and other Submittals
furnished by Contractor pursuant to an Owner-delegated design will be only for the
following limited purposes:
1. Checking for conformance with the requirements of this Paragraph 7.19;
2. Confirming that Contractor (through its design professionals) has used the performance
and design criteria specified in the Contract Documents; and
3. Establishing that the design furnished by Contractor is consistent with the design
concept expressed in the Contract Documents.
F. Contractor shall not be responsible for the adequacy of performance or design criteria
specified by Owner or Engineer.
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G. Contractor is not required to provide professional services in violation of applicable Laws
and Regulations.
ARTICLE 8—OTHER WORK AT THE SITE
8.01 Other Work
A. In addition to and apart from the Work under the Contract Documents, the Owner may
perform other work at or adjacent to the Site. Such other work may be performed by
Owner’s employees, or through contracts between the Owner and third parties. Owner may
also arrange to have third-party utility owners perform work on their utilities and facilities at
or adjacent to the Site.
B. If Owner performs other work at or adjacent to the Site with Owner’s employees, or
through contracts for such other work, then Owner shall give Contractor written notice
thereof prior to starting any such other work. If Owner has advance information regarding
the start of any third-party utility work that Owner has arranged to take place at or adjacent
to the Site, Owner shall provide such information to Contractor.
C. Contractor shall afford proper and safe access to the Site to each contractor that performs
such other work, each utility owner performing other work, and Owner, if Owner is
performing other work with Owner’s employees, and provide a reasonable opportunity for
the introduction and storage of materials and equipment and the execution of such other
work.
D. Contractor shall do all cutting, fitting, and patching of the Work that may be required to
properly connect or otherwise make its several parts come together and properly integrate
with such other work. Contractor shall not endanger any work of others by cutting,
excavating, or otherwise altering such work; provided, however, that Contractor may cut or
alter others' work with the written consent of Engineer and the others whose work will be
affected.
E. If the proper execution or results of any part of Contractor’s Work depends upon work
performed by others, Contractor shall inspect such other work and promptly report to
Engineer in writing any delays, defects, or deficiencies in such other work that render it
unavailable or unsuitable for the proper execution and results of Contractor’s Work.
Contractor’s failure to so report will constitute an acceptance of such other work as fit and
proper for integration with Contractor’s Work except for latent defects and deficiencies in
such other work.
F. The provisions of this article are not applicable to work that is performed by third-party
utilities or other third-party entities without a contract with Owner, or that is performed
without having been arranged by Owner. If such work occurs, then any related delay,
disruption, or interference incurred by Contractor is governed by the provisions of
Paragraph 4.05.C.3.
8.02 Coordination
A. If Owner intends to contract with others for the performance of other work at or adjacent to
the Site, to perform other work at or adjacent to the Site with Owner’s employees, or to
arrange to have utility owners perform work at or adjacent to the Site, the following will be
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set forth in the Supplementary Conditions or provided to Contractor prior to the start of any
such other work:
1. The identity of the individual or entity that will have authority and responsibility for
coordination of the activities among the various contractors;
2. An itemization of the specific matters to be covered by such authority and
responsibility; and
3. The extent of such authority and responsibilities.
B. Unless otherwise provided in the Supplementary Conditions, Owner shall have sole
authority and responsibility for such coordination.
8.03 Legal Relationships
A. If, in the course of performing other work for Owner at or adjacent to the Site, the Owner’s
employees, any other contractor working for Owner, or any utility owner that Owner has
arranged to perform work, causes damage to the Work or to the property of Contractor or
its Subcontractors, or delays, disrupts, interferes with, or increases the scope or cost of the
performance of the Work, through actions or inaction, then Contractor shall be entitled to
an equitable adjustment in the Contract Price or the Contract Times. Contractor must
submit any Change Proposal seeking an equitable adjustment in the Contract Price or the
Contract Times under this paragraph within 30 days of the damaging, delaying, disrupting,
or interfering event. The entitlement to, and extent of, any such equitable adjustment will
take into account information (if any) regarding such other work that was provided to
Contractor in the Contract Documents prior to the submittal of the Bid or the final
negotiation of the terms of the Contract, and any remedies available to Contractor under
Laws or Regulations concerning utility action or inaction. When applicable, any such
equitable adjustment in Contract Price will be conditioned on Contractor assigning to Owner
all Contractor’s rights against such other contractor or utility owner with respect to the
damage, delay, disruption, or interference that is the subject of the adjustment.
Contractor’s entitlement to an adjustment of the Contract Times or Contract Price is subject
to the provisions of Paragraphs 4.05.D and 4.05.E.
B. Contractor shall take reasonable and customary measures to avoid damaging, delaying,
disrupting, or interfering with the work of Owner, any other contractor, or any utility owner
performing other work at or adjacent to the Site.
1. If Contractor fails to take such measures and as a result damages, delays, disrupts, or
interferes with the work of any such other contractor or utility owner, then Owner may
impose a set-off against payments due Contractor, and assign to such other contractor
or utility owner the Owner’s contractual rights against Contractor with respect to the
breach of the obligations set forth in this Paragraph 8.03.B.
2. When Owner is performing other work at or adjacent to the Site with Owner’s
employees, Contractor shall be liable to Owner for damage to such other work, and for
the reasonable direct delay, disruption, and interference costs incurred by Owner as a
result of Contractor’s failure to take reasonable and customary measures with respect
to Owner’s other work. In response to such damage, delay, disruption, or interference,
Owner may impose a set-off against payments due Contractor.
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C. If Contractor damages, delays, disrupts, or interferes with the work of any other contractor,
or any utility owner performing other work at or adjacent to the Site, through Contractor’s
failure to take reasonable and customary measures to avoid such impacts, or if any claim
arising out of Contractor’s actions, inactions, or negligence in performance of the Work at or
adjacent to the Site is made by any such other contractor or utility owner against
Contractor, Owner, or Engineer, then Contractor shall (1) promptly attempt to settle the
claim as to all parties through negotiations with such other contractor or utility owner, or
otherwise resolve the claim by arbitration or other dispute resolution proceeding or at law,
and (2) indemnify and hold harmless Owner and Engineer, and the officers, directors,
members, partners, employees, agents, consultants and subcontractors of each and any of
them from and against any such claims, and against all costs, 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) arising out of or
relating to such damage, delay, disruption, or interference.
ARTICLE 9—OWNER’S RESPONSIBILITIES
9.01 Communications to Contractor
A. Except as otherwise provided in these General Conditions, Owner shall issue all
communications to Contractor through Engineer.
9.02 Replacement of Engineer
A. Owner may at its discretion appoint an engineer to replace Engineer, provided Contractor
makes no reasonable objection to the replacement engineer. The replacement engineer’s
status under the Contract Documents will be that of the former Engineer.
9.03 Furnish Data
A. Owner shall promptly furnish the data required of Owner under the Contract Documents.
9.04 Pay When Due
A. Owner shall make payments to Contractor when they are due as provided in the Agreement.
9.05 Lands and Easements; Reports, Tests, and Drawings
A. Owner’s duties with respect to providing lands and easements are set forth in
Paragraph 5.01.
B. Owner’s duties with respect to providing engineering surveys to establish reference points
are set forth in Paragraph 4.03.
C. Article 5 refers to Owner’s identifying and making available to Contractor copies of reports
of explorations and tests of conditions at the Site, and drawings of physical conditions
relating to existing surface or subsurface structures at the Site.
9.06 Insurance
A. Owner’s responsibilities, if any, with respect to purchasing and maintaining liability and
property insurance are set forth in Article 6.
9.07 Change Orders
A. Owner’s responsibilities with respect to Change Orders are set forth in Article 11.
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9.08 Inspections, Tests, and Approvals
A. Owner’s responsibility with respect to certain inspections, tests, and approvals is set forth in
Paragraph 14.02.B.
9.09 Limitations on Owner’s Responsibilities
A. The Owner shall not supervise, direct, or have control or authority over, nor be responsible
for, Contractor’s means, methods, techniques, sequences, or procedures of construction, or
the safety precautions and programs incident thereto, or for any failure of Contractor to
comply with Laws and Regulations applicable to the performance of the Work. Owner will
not be responsible for Contractor’s failure to perform the Work in accordance with the
Contract Documents.
9.10 Undisclosed Hazardous Environmental Condition
A. Owner’s responsibility in respect to an undisclosed Hazardous Environmental Condition is
set forth in Paragraph 5.06.
9.11 Evidence of Financial Arrangements
A. Upon request of Contractor, Owner shall furnish Contractor reasonable evidence that
financial arrangements have been made to satisfy Owner’s obligations under the Contract
(including obligations under proposed changes in the Work).
9.12 Safety Programs
A. While at the Site, Owner’s employees and representatives shall comply with the specific
applicable requirements of Contractor’s safety programs of which Owner has been
informed.
B. Owner shall furnish copies of any applicable Owner safety programs to Contractor.
ARTICLE 10—ENGINEER’S STATUS DURING CONSTRUCTION
10.01 Owner’s Representative
A. Engineer will be Owner’s representative during the construction period. The duties and
responsibilities and the limitations of authority of Engineer as Owner’s representative
during construction are set forth in the Contract.
10.02 Visits to Site
A. Engineer will make visits to the Site at intervals appropriate to the various stages of
construction as Engineer deems necessary in order to observe, as an experienced and
qualified design professional, the progress that has been made and the quality of the
various aspects of Contractor’s executed Work. Based on information obtained during such
visits and observations, Engineer, for the benefit of Owner, will determine, in general, if the
Work is proceeding in accordance with the Contract Documents. Engineer will not be
required to make exhaustive or continuous inspections on the Site to check the quality or
quantity of the Work. Engineer’s efforts will be directed toward providing for Owner a
greater degree of confidence that the completed Work will conform generally to the
Contract Documents. On the basis of such visits and observations, Engineer will keep Owner
informed of the progress of the Work and will endeavor to guard Owner against defective
Work.
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B. Engineer’s visits and observations are subject to all the limitations on Engineer’s authority
and responsibility set forth in Paragraph 10.07. Particularly, but without limitation, during or
as a result of Engineer’s visits or observations of Contractor’s Work, Engineer will not
supervise, direct, control, or have authority over or be responsible for Contractor’s means,
methods, techniques, sequences, or procedures of construction, or the safety precautions
and programs incident thereto, or for any failure of Contractor to comply with Laws and
Regulations applicable to the performance of the Work.
10.03 Resident Project Representative
A. If Owner and Engineer have agreed that Engineer will furnish a Resident Project
Representative to represent Engineer at the Site and assist Engineer in observing the
progress and quality of the Work, then the authority and responsibilities of any such
Resident Project Representative will be as provided in the Supplementary Conditions, and
limitations on the responsibilities thereof will be as provided in the Supplementary
Conditions and in Paragraph 10.07.
B. If Owner designates an individual or entity who is not Engineer’s consultant, agent, or
employee to represent Owner at the Site, then the responsibilities and authority of such
individual or entity will be as provided in the Supplementary Conditions.
10.04 Engineer’s Authority
A. Engineer has the authority to reject Work in accordance with Article 14.
B. Engineer’s authority as to Submittals is set forth in Paragraph 7.16.
C. Engineer’s authority as to design drawings, calculations, specifications, certifications and
other Submittals from Contractor in response to Owner’s delegation (if any) to Contractor of
professional design services, is set forth in Paragraph 7.19.
D. Engineer’s authority as to changes in the Work is set forth in Article 11.
E. Engineer’s authority as to Applications for Payment is set forth in Article 15.
10.05 Determinations for Unit Price Work
A. Engineer will determine the actual quantities and classifications of Unit Price Work
performed by Contractor as set forth in Paragraph 13.03.
10.06 Decisions on Requirements of Contract Documents and Acceptability of Work
A. Engineer will render decisions regarding the requirements of the Contract Documents, and
judge the acceptability of the Work, pursuant to the specific procedures set forth herein for
initial interpretations, Change Proposals, and acceptance of the Work. In rendering such
decisions and judgments, Engineer will not show partiality to Owner or Contractor, and will
not be liable to Owner, Contractor, or others in connection with any proceedings,
interpretations, decisions, or judgments conducted or rendered in good faith.
10.07 Limitations on Engineer’s Authority and Responsibilities
A. Neither Engineer’s authority or responsibility under this Article 10 or under any other
provision of the Contract, nor any decision made by Engineer in good faith either to exercise
or not exercise such authority or responsibility or the undertaking, exercise, or performance
of any authority or responsibility by Engineer, will create, impose, or give rise to any duty in
contract, tort, or otherwise owed by Engineer to Contractor, any Subcontractor, any
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Supplier, any other individual or entity, or to any surety for or employee or agent of any of
them.
B. Engineer will not supervise, direct, control, or have authority over or be responsible for
Contractor’s means, methods, techniques, sequences, or procedures of construction, or the
safety precautions and programs incident thereto, or for any failure of Contractor to comply
with Laws and Regulations applicable to the performance of the Work. Engineer will not be
responsible for Contractor’s failure to perform the Work in accordance with the Contract
Documents.
C. Engineer will not be responsible for the acts or omissions of Contractor or of any
Subcontractor, any Supplier, or of any other individual or entity performing any of the Work.
D. Engineer’s review of the final Application for Payment and accompanying documentation,
and all maintenance and operating instructions, schedules, guarantees, bonds, certificates
of inspection, tests and approvals, and other documentation required to be delivered by
Contractor under Paragraph 15.06.A, will only be to determine generally that their content
complies with the requirements of, and in the case of certificates of inspections, tests, and
approvals, that the results certified indicate compliance with the Contract Documents.
E. The limitations upon authority and responsibility set forth in this Paragraph 10.07 also apply
to the Resident Project Representative, if any.
10.08 Compliance with Safety Program
A. While at the Site, Engineer’s employees and representatives will comply with the specific
applicable requirements of Owner’s and Contractor’s safety programs of which Engineer has
been informed.
ARTICLE 11—CHANGES TO THE CONTRACT
11.01 Amending and Supplementing the Contract
A. The Contract may be amended or supplemented by a Change Order, a Work Change
Directive, or a Field Order.
B. If an amendment or supplement to the Contract includes a change in the Contract Price or
the Contract Times, such amendment or supplement must be set forth in a Change Order.
C. All changes to the Contract that involve (1) the performance or acceptability of the Work,
(2) the design (as set forth in the Drawings, Specifications, or otherwise), or (3) other
engineering or technical matters, must be supported by Engineer’s recommendation. Owner
and Contractor may amend other terms and conditions of the Contract without the
recommendation of the Engineer.
11.02 Change Orders
A. Owner and Contractor shall execute appropriate Change Orders covering:
1. Changes in Contract Price or Contract Times which are agreed to by the parties,
including any undisputed sum or amount of time for Work actually performed in
accordance with a Work Change Directive;
2. Changes in Contract Price resulting from an Owner set-off, unless Contractor has duly
contested such set-off;
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3. Changes in the Work which are: (a) ordered by Owner pursuant to Paragraph 11.05,
(b) required because of Owner’s acceptance of defective Work under Paragraph 14.04
or Owner’s correction of defective Work under Paragraph 14.07, or (c) agreed to by the
parties, subject to the need for Engineer’s recommendation if the change in the Work
involves the design (as set forth in the Drawings, Specifications, or otherwise) or other
engineering or technical matters; and
4. Changes that embody the substance of any final and binding results under:
Paragraph 11.03.B, resolving the impact of a Work Change Directive; Paragraph 11.09,
concerning Change Proposals; Article 12, Claims; Paragraph 13.02.D, final adjustments
resulting from allowances; Paragraph 13.03.D, final adjustments relating to
determination of quantities for Unit Price Work; and similar provisions.
B. If Owner or Contractor refuses to execute a Change Order that is required to be executed
under the terms of Paragraph 11.02.A, it will be deemed to be of full force and effect, as if
fully executed.
11.03 Work Change Directives
A. A Work Change Directive will not change the Contract Price or the Contract Times but is
evidence that the parties expect that the modification ordered or documented by a Work
Change Directive will be incorporated in a subsequently issued Change Order, following
negotiations by the parties as to the Work Change Directive’s effect, if any, on the Contract
Price and Contract Times; or, if negotiations are unsuccessful, by a determination under the
terms of the Contract Documents governing adjustments, expressly including
Paragraph 11.07 regarding change of Contract Price.
B. If Owner has issued a Work Change Directive and:
1. Contractor believes that an adjustment in Contract Times or Contract Price is necessary,
then Contractor shall submit any Change Proposal seeking such an adjustment no later
than 30 days after the completion of the Work set out in the Work Change Directive.
2. Owner believes that an adjustment in Contract Times or Contract Price is necessary,
then Owner shall submit any Claim seeking such an adjustment no later than 60 days
after issuance of the Work Change Directive.
11.04 Field Orders
A. Engineer may authorize minor changes in the Work if the changes do not involve an
adjustment in the Contract Price or the Contract Times and are compatible with the design
concept of the completed Project as a functioning whole as indicated by the Contract
Documents. Such changes will be accomplished by a Field Order and will be binding on
Owner and also on Contractor, which shall perform the Work involved promptly.
B. If Contractor believes that a Field Order justifies an adjustment in the Contract Price or
Contract Times, then before proceeding with the Work at issue, Contractor shall submit a
Change Proposal as provided herein.
11.05 Owner-Authorized Changes in the Work
A. Without invalidating the Contract and without notice to any surety, Owner may, at any time
or from time to time, order additions, deletions, or revisions in the Work. Changes involving
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the design (as set forth in the Drawings, Specifications, or otherwise) or other engineering or
technical matters will be supported by Engineer’s recommendation.
B. Such changes in the Work may be accomplished by a Change Order, if Owner and Contractor
have agreed as to the effect, if any, of the changes on Contract Times or Contract Price; or
by a Work Change Directive. Upon receipt of any such document, Contractor shall promptly
proceed with the Work involved; or, in the case of a deletion in the Work, promptly cease
construction activities with respect to such deleted Work. Added or revised Work must be
performed under the applicable conditions of the Contract Documents.
C. Nothing in this Paragraph 11.05 obligates Contractor to undertake work that Contractor
reasonably concludes cannot be performed in a manner consistent with Contractor’s safety
obligations under the Contract Documents or Laws and Regulations.
11.06 Unauthorized Changes in the Work
A. Contractor shall not be entitled to an increase in the Contract Price or an extension of the
Contract Times with respect to any work performed that is not required by the Contract
Documents, as amended, modified, or supplemented, except in the case of an emergency as
provided in Paragraph 7.15 or in the case of uncovering Work as provided in
Paragraph 14.05.C.2.
11.07 Change of Contract Price
A. The Contract Price may only be changed by a Change Order. Any Change Proposal for an
adjustment in the Contract Price must comply with the provisions of Paragraph 11.09. Any
Claim for an adjustment of Contract Price must comply with the provisions of Article 12.
B. An adjustment in the Contract Price will be determined as follows:
1. Where the Work involved is covered by unit prices contained in the Contract
Documents, then by application of such unit prices to the quantities of the items
involved (subject to the provisions of Paragraph 13.03);
2. Where the Work involved is not covered by unit prices contained in the Contract
Documents, then by a mutually agreed lump sum (which may include an allowance for
overhead and profit not necessarily in accordance with Paragraph 11.07.C.2); or
3. Where the Work involved is not covered by unit prices contained in the Contract
Documents and the parties do not reach mutual agreement to a lump sum, then on the
basis of the Cost of the Work (determined as provided in Paragraph 13.01) plus a
Contractor’s fee for overhead and profit (determined as provided in Paragraph 11.07.C).
C. Contractor’s Fee: When applicable, the Contractor’s fee for overhead and profit will be
determined as follows:
1. A mutually acceptable fixed fee; or
2. If a fixed fee is not agreed upon, then a fee based on the following percentages of the
various portions of the Cost of the Work:
a. For costs incurred under Paragraphs 13.01.B.1 and 13.01.B.2, the Contractor’s fee
will be 15 percent;
b. For costs incurred under Paragraph 13.01.B.3, the Contractor’s fee will be 5 percent;
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c. Where one or more tiers of subcontracts are on the basis of Cost of the Work plus a
fee and no fixed fee is agreed upon, the intent of Paragraphs 11.07.C.2.a and
11.07.C.2.b is that the Contractor’s fee will be based on: (1) a fee of 15 percent of
the costs incurred under Paragraphs 13.01.B.1 and 13.01.B.2 by the Subcontractor
that actually performs the Work, at whatever tier, and (2) with respect to
Contractor itself and to any Subcontractors of a tier higher than that of the
Subcontractor that actually performs the Work, a fee of 5 percent of the amount
(fee plus underlying costs incurred) attributable to the next lower tier
Subcontractor; provided, however, that for any such subcontracted Work the
maximum total fee to be paid by Owner will be no greater than 27 percent of the
costs incurred by the Subcontractor that actually performs the Work;
d. No fee will be payable on the basis of costs itemized under Paragraphs 13.01.B.4,
13.01.B.5, and 13.01.C;
e. The amount of credit to be allowed by Contractor to Owner for any change which
results in a net decrease in Cost of the Work will be the amount of the actual net
decrease in Cost of the Work and a deduction of an additional amount equal to
5 percent of such actual net decrease in Cost of the Work; and
f. When both additions and credits are involved in any one change or Change
Proposal, the adjustment in Contractor’s fee will be computed by determining the
sum of the costs in each of the cost categories in Paragraph 13.01.B (specifically,
payroll costs, Paragraph 13.01.B.1; incorporated materials and equipment costs,
Paragraph 13.01.B.2; Subcontract costs, Paragraph 13.01.B.3; special consultants
costs, Paragraph 13.01.B.4; and other costs, Paragraph 13.01.B.5) and applying to
each such cost category sum the appropriate fee from Paragraphs 11.07.C.2.a
through 11.07.C.2.e, inclusive.
11.08 Change of Contract Times
A. The Contract Times may only be changed by a Change Order. Any Change Proposal for an
adjustment in the Contract Times must comply with the provisions of Paragraph 11.09. Any
Claim for an adjustment in the Contract Times must comply with the provisions of Article 12.
B. Delay, disruption, and interference in the Work, and any related changes in Contract Times,
are addressed in and governed by Paragraph 4.05.
11.09 Change Proposals
A. Purpose and Content: Contractor shall submit a Change Proposal to Engineer to request an
adjustment in the Contract Times or Contract Price; contest an initial decision by Engineer
concerning the requirements of the Contract Documents or relating to the acceptability of
the Work under the Contract Documents; challenge a set-off against payment due; or seek
other relief under the Contract. The Change Proposal will specify any proposed change in
Contract Times or Contract Price, or other proposed relief, and explain the reason for the
proposed change, with citations to any governing or applicable provisions of the Contract
Documents. Each Change Proposal will address only one issue, or a set of closely related
issues.
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B. Change Proposal Procedures
1. Submittal: Contractor shall submit each Change Proposal to Engineer within 30 days
after the start of the event giving rise thereto, or after such initial decision.
2. Supporting Data: The Contractor shall submit supporting data, including the proposed
change in Contract Price or Contract Time (if any), to the Engineer and Owner within
15 days after the submittal of the Change Proposal.
a. Change Proposals based on or related to delay, interruption, or interference must
comply with the provisions of Paragraphs 4.05.D and 4.05.E.
b. Change proposals related to a change of Contract Price must include full and
detailed accounts of materials incorporated into the Work and labor and equipment
used for the subject Work.
The supporting data must be accompanied by a written statement that the supporting
data are accurate and complete, and that any requested time or price adjustment is the
entire adjustment to which Contractor believes it is entitled as a result of said event.
3. Engineer’s Initial Review: Engineer will advise Owner regarding the Change Proposal,
and consider any comments or response from Owner regarding the Change Proposal. If
in its discretion Engineer concludes that additional supporting data is needed before
conducting a full review and making a decision regarding the Change Proposal, then
Engineer may request that Contractor submit such additional supporting data by a date
specified by Engineer, prior to Engineer beginning its full review of the Change Proposal.
4. Engineer’s Full Review and Action on the Change Proposal: Upon receipt of Contractor’s
supporting data (including any additional data requested by Engineer), Engineer will
conduct a full review of each Change Proposal and, within 30 days after such receipt of
the Contractor’s supporting data, either approve the Change Proposal in whole, deny it
in whole, or approve it in part and deny it in part. Such actions must be in writing, with a
copy provided to Owner and Contractor. If Engineer does not take action on the Change
Proposal within 30 days, then either Owner or Contractor may at any time thereafter
submit a letter to the other party indicating that as a result of Engineer’s inaction the
Change Proposal is deemed denied, thereby commencing the time for appeal of the
denial under Article 12.
5. Binding Decision: Engineer’s decision is final and binding upon Owner and Contractor,
unless Owner or Contractor appeals the decision by filing a Claim under Article 12.
C. Resolution of Certain Change Proposals: If the Change Proposal does not involve the design
(as set forth in the Drawings, Specifications, or otherwise), the acceptability of the Work, or
other engineering or technical matters, then Engineer will notify the parties in writing that
the Engineer is unable to resolve the Change Proposal. For purposes of further resolution of
such a Change Proposal, such notice will be deemed a denial, and Contractor may choose to
seek resolution under the terms of Article 12.
D. Post-Completion: Contractor shall not submit any Change Proposals after Engineer issues a
written recommendation of final payment pursuant to Paragraph 15.06.B.
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11.10 Notification to Surety
A. If the provisions of any bond require notice to be given to a surety of any change affecting
the general scope of the Work or the provisions of the Contract Documents (including, but
not limited to, Contract Price or Contract Times), the giving of any such notice will be
Contractor’s responsibility. The amount of each applicable bond will be adjusted to reflect
the effect of any such change.
ARTICLE 12—CLAIMS
12.01 Claims
A. Claims Process: The following disputes between Owner and Contractor are subject to the
Claims process set forth in this article:
1. Appeals by Owner or Contractor of Engineer’s decisions regarding Change Proposals;
2. Owner demands for adjustments in the Contract Price or Contract Times, or other relief
under the Contract Documents;
3. Disputes that Engineer has been unable to address because they do not involve the
design (as set forth in the Drawings, Specifications, or otherwise), the acceptability of
the Work, or other engineering or technical matters; and
4. Subject to the waiver provisions of Paragraph 15.07, any dispute arising after Engineer
has issued a written recommendation of final payment pursuant to Paragraph 15.06.B.
B. Submittal of Claim: The party submitting a Claim shall deliver it directly to the other party to
the Contract promptly (but in no event later than 30 days) after the start of the event giving
rise thereto; in the case of appeals regarding Change Proposals within 30 days of the
decision under appeal. The party submitting the Claim shall also furnish a copy to the
Engineer, for its information only. The responsibility to substantiate a Claim rests with the
party making the Claim. In the case of a Claim by Contractor seeking an increase in the
Contract Times or Contract Price, Contractor shall certify that the Claim is made in good
faith, that the supporting data are accurate and complete, and that to the best of
Contractor’s knowledge and belief the amount of time or money requested accurately
reflects the full amount to which Contractor is entitled.
C. Review and Resolution: The party receiving a Claim shall review it thoroughly, giving full
consideration to its merits. The two parties shall seek to resolve the Claim through the
exchange of information and direct negotiations. The parties may extend the time for
resolving the Claim by mutual agreement. All actions taken on a Claim will be stated in
writing and submitted to the other party, with a copy to Engineer.
D. Mediation
1. At any time after initiation of a Claim, Owner and Contractor may mutually agree to
mediation of the underlying dispute. The agreement to mediate will stay the Claim
submittal and response process.
2. If Owner and Contractor agree to mediation, then after 60 days from such agreement,
either Owner or Contractor may unilaterally terminate the mediation process, and the
Claim submittal and decision process will resume as of the date of the termination. If
the mediation proceeds but is unsuccessful in resolving the dispute, the Claim submittal
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and decision process will resume as of the date of the conclusion of the mediation, as
determined by the mediator.
3. Owner and Contractor shall each pay one-half of the mediator’s fees and costs.
E. Partial Approval: If the party receiving a Claim approves the Claim in part and denies it in
part, such action will be final and binding unless within 30 days of such action the other
party invokes the procedure set forth in Article 17 for final resolution of disputes.
F. Denial of Claim: If efforts to resolve a Claim are not successful, the party receiving the Claim
may deny it by giving written notice of denial to the other party. If the receiving party does
not take action on the Claim within 90 days, then either Owner or Contractor may at any
time thereafter submit a letter to the other party indicating that as a result of the inaction,
the Claim is deemed denied, thereby commencing the time for appeal of the denial. A denial
of the Claim will be final and binding unless within 30 days of the denial the other party
invokes the procedure set forth in Article 17 for the final resolution of disputes.
G. Final and Binding Results: If the parties reach a mutual agreement regarding a Claim,
whether through approval of the Claim, direct negotiations, mediation, or otherwise; or if a
Claim is approved in part and denied in part, or denied in full, and such actions become final
and binding; then the results of the agreement or action on the Claim will be incorporated in
a Change Order or other written document to the extent they affect the Contract, including
the Work, the Contract Times, or the Contract Price.
ARTICLE 13—COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK
13.01 Cost of the Work
A. Purposes for Determination of Cost of the Work: The term Cost of the Work means the sum
of all costs necessary for the proper performance of the Work at issue, as further defined
below. The provisions of this Paragraph 13.01 are used for two distinct purposes:
1. To determine Cost of the Work when Cost of the Work is a component of the Contract
Price, under cost-plus-fee, time-and-materials, or other cost-based terms; or
2. When needed to determine the value of a Change Order, Change Proposal, Claim, set-
off, or other adjustment in Contract Price. When the value of any such adjustment is
determined on the basis of Cost of the Work, Contractor is entitled only to those
additional or incremental costs required because of the change in the Work or because
of the event giving rise to the adjustment.
B. Costs Included: Except as otherwise may be agreed to in writing by Owner, costs included in
the Cost of the Work will be in amounts no higher than those commonly incurred in the
locality of the Project, will not include any of the costs itemized in Paragraph 13.01.C, and
will include only the following items:
1. Payroll costs for employees in the direct employ of Contractor in the performance of the
Work under schedules of job classifications agreed upon by Owner and Contractor in
advance of the subject Work. Such employees include, without limitation,
superintendents, foremen, safety managers, safety representatives, and other
personnel employed full time on the Work. Payroll costs for employees not employed
full time on the Work will be apportioned on the basis of their time spent on the Work.
Payroll costs include, but are not limited to, salaries and wages plus the cost of fringe
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benefits, which include social security contributions, unemployment, excise, and payroll
taxes, workers’ compensation, health and retirement benefits, sick leave, and vacation
and holiday pay applicable thereto. The expenses of performing Work outside of regular
working hours, on Saturday, Sunday, or legal holidays, will be included in the above to
the extent authorized by Owner.
2. Cost of all materials and equipment furnished and incorporated in the Work, including
costs of transportation and storage thereof, and Suppliers’ field services required in
connection therewith. All cash discounts accrue to Contractor unless Owner deposits
funds with Contractor with which to make payments, in which case the cash discounts
will accrue to Owner. All trade discounts, rebates, and refunds and returns from sale of
surplus materials and equipment will accrue to Owner, and Contractor shall make
provisions so that they may be obtained.
3. Payments made by Contractor to Subcontractors for Work performed by
Subcontractors. If required by Owner, Contractor shall obtain competitive bids from
subcontractors acceptable to Owner and Contractor and shall deliver such bids to
Owner, which will then determine, with the advice of Engineer, which bids, if any, will
be acceptable. If any subcontract provides that the Subcontractor is to be paid on the
basis of Cost of the Work plus a fee, the Subcontractor’s Cost of the Work and fee will
be determined in the same manner as Contractor’s Cost of the Work and fee as
provided in this Paragraph 13.01.
4. Costs of special consultants (including but not limited to engineers, architects, testing
laboratories, surveyors, attorneys, and accountants) employed or retained for services
specifically related to the Work.
5. Other costs consisting of the following:
a. The proportion of necessary transportation, travel, and subsistence expenses of
Contractor’s employees incurred in discharge of duties connected with the Work.
b. Cost, including transportation and maintenance, of all materials, supplies,
equipment, machinery, appliances, office, and temporary facilities at the Site, which
are consumed in the performance of the Work, and cost, less market value, of such
items used but not consumed which remain the property of Contractor.
1) In establishing included costs for materials such as scaffolding, plating, or
sheeting, consideration will be given to the actual or the estimated life of the
material for use on other projects; or rental rates may be established on the
basis of purchase or salvage value of such items, whichever is less. Contractor
will not be eligible for compensation for such items in an amount that exceeds
the purchase cost of such item.
c. Construction Equipment Rental
1) Rentals of all construction equipment and machinery, and the parts thereof, in
accordance with rental agreements approved by Owner as to price (including
any surcharge or special rates applicable to overtime use of the construction
equipment or machinery), and the costs of transportation, loading, unloading,
assembly, dismantling, and removal thereof. All such costs will be in accordance
with the terms of said rental agreements. The rental of any such equipment,
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machinery, or parts must cease when the use thereof is no longer necessary for
the Work.
2) Costs for equipment and machinery owned by Contractor or a Contractor-
related entity will be paid at a rate shown for such equipment in the equipment
rental rate book specified in the Supplementary Conditions. An hourly rate will
be computed by dividing the monthly rates by 176. These computed rates will
include all operating costs.
3) With respect to Work that is the result of a Change Order, Change Proposal,
Claim, set-off, or other adjustment in Contract Price (“changed Work”), included
costs will be based on the time the equipment or machinery is in use on the
changed Work and the costs of transportation, loading, unloading, assembly,
dismantling, and removal when directly attributable to the changed Work. The
cost of any such equipment or machinery, or parts thereof, must cease to
accrue when the use thereof is no longer necessary for the changed Work.
d. Sales, consumer, use, and other similar taxes related to the Work, and for which
Contractor is liable, as imposed by Laws and Regulations.
e. Deposits lost for causes other than negligence of Contractor, any Subcontractor, or
anyone directly or indirectly employed by any of them or for whose acts any of
them may be liable, and royalty payments and fees for permits and licenses.
f. Losses and damages (and related expenses) caused by damage to the Work, not
compensated by insurance or otherwise, sustained by Contractor in connection with
the performance of the Work (except losses and damages within the deductible
amounts of builder’s risk or other property insurance established in accordance with
Paragraph 6.04), provided such losses and damages have resulted from causes other
than the negligence of Contractor, any Subcontractor, or anyone directly or
indirectly employed by any of them or for whose acts any of them may be liable.
Such losses include settlements made with the written consent and approval of
Owner. No such losses, damages, and expenses will be included in the Cost of the
Work for the purpose of determining Contractor’s fee.
g. The cost of utilities, fuel, and sanitary facilities at the Site.
h. Minor expenses such as communication service at the Site, express and courier
services, and similar petty cash items in connection with the Work.
i. The costs of premiums for all bonds and insurance that Contractor is required by the
Contract Documents to purchase and maintain.
C. Costs Excluded: The term Cost of the Work does not include any of the following items:
1. Payroll costs and other compensation of Contractor’s officers, executives, principals,
general managers, engineers, architects, estimators, attorneys, auditors, accountants,
purchasing and contracting agents, expediters, timekeepers, clerks, and other personnel
employed by Contractor, whether at the Site or in Contractor’s principal or branch office
for general administration of the Work and not specifically included in the agreed upon
schedule of job classifications referred to in Paragraph 13.01.B.1 or specifically covered
by Paragraph 13.01.B.4. The payroll costs and other compensation excluded here are to
be considered administrative costs covered by the Contractor’s fee.
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2. The cost of purchasing, renting, or furnishing small tools and hand tools.
3. Expenses of Contractor’s principal and branch offices other than Contractor’s office at
the Site.
4. Any part of Contractor’s capital expenses, including interest on Contractor’s capital
employed for the Work and charges against Contractor for delinquent payments.
5. Costs due to the negligence of Contractor, any Subcontractor, or anyone directly or
indirectly employed by any of them or for whose acts any of them may be liable,
including but not limited to, the correction of defective Work, disposal of materials or
equipment wrongly supplied, and making good any damage to property.
6. Expenses incurred in preparing and advancing Claims.
7. Other overhead or general expense costs of any kind and the costs of any item not
specifically and expressly included in Paragraph 13.01.B.
D. Contractor’s Fee
1. When the Work as a whole is performed on the basis of cost-plus-a-fee, then:
a. Contractor’s fee for the Work set forth in the Contract Documents as of the
Effective Date of the Contract will be determined as set forth in the Agreement.
b. for any Work covered by a Change Order, Change Proposal, Claim, set-off, or other
adjustment in Contract Price on the basis of Cost of the Work, Contractor’s fee will
be determined as follows:
1) When the fee for the Work as a whole is a percentage of the Cost of the Work,
the fee will automatically adjust as the Cost of the Work changes.
2) When the fee for the Work as a whole is a fixed fee, the fee for any additions or
deletions will be determined in accordance with Paragraph 11.07.C.2.
2. When the Work as a whole is performed on the basis of a stipulated sum, or any other
basis other than cost-plus-a-fee, then Contractor’s fee for any Work covered by a
Change Order, Change Proposal, Claim, set-off, or other adjustment in Contract Price on
the basis of Cost of the Work will be determined in accordance with
Paragraph 11.07.C.2.
E. Documentation and Audit: Whenever the Cost of the Work for any purpose is to be
determined pursuant to this Article 13, Contractor and pertinent Subcontractors will
establish and maintain records of the costs in accordance with generally accepted
accounting practices. Subject to prior written notice, Owner will be afforded reasonable
access, during normal business hours, to all Contractor’s accounts, records, books,
correspondence, instructions, drawings, receipts, vouchers, memoranda, and similar data
relating to the Cost of the Work and Contractor’s fee. Contractor shall preserve all such
documents for a period of three years after the final payment by Owner. Pertinent
Subcontractors will afford such access to Owner, and preserve such documents, to the same
extent required of Contractor.
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13.02 Allowances
A. It is understood that Contractor has included in the Contract Price all allowances so named
in the Contract Documents and shall cause the Work so covered to be performed for such
sums and by such persons or entities as may be acceptable to Owner and Engineer.
B. Cash Allowances: Contractor agrees that:
1. the cash allowances include the cost to Contractor (less any applicable trade discounts)
of materials and equipment required by the allowances to be delivered at the Site, and
all applicable taxes; and
2. Contractor’s costs for unloading and handling on the Site, labor, installation, overhead,
profit, and other expenses contemplated for the cash allowances have been included in
the Contract Price and not in the allowances, and no demand for additional payment for
any of the foregoing will be valid.
C. Owner’s Contingency Allowance: Contractor agrees that an Owner’s contingency allowance,
if any, is for the sole use of Owner to cover unanticipated costs.
D. Prior to final payment, an appropriate Change Order will be issued as recommended by
Engineer to reflect actual amounts due Contractor for Work covered by allowances, and the
Contract Price will be correspondingly adjusted.
13.03 Unit Price Work
A. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work,
initially the Contract Price will be deemed to include for all Unit Price Work an amount equal
to the sum of the unit price for each separately identified item of Unit Price Work times the
estimated quantity of each item as indicated in the Agreement.
B. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for
the purpose of comparison of Bids and determining an initial Contract Price. Payments to
Contractor for Unit Price Work will be based on actual quantities.
C. Each unit price will be deemed to include an amount considered by Contractor to be
adequate to cover Contractor’s overhead and profit for each separately identified item.
D. Engineer will determine the actual quantities and classifications of Unit Price Work
performed by Contractor. Engineer will review with Contractor the Engineer’s preliminary
determinations on such matters before rendering a written decision thereon (by
recommendation of an Application for Payment or otherwise). Engineer’s written decision
thereon will be final and binding (except as modified by Engineer to reflect changed factual
conditions or more accurate data) upon Owner and Contractor, and the final adjustment of
Contract Price will be set forth in a Change Order, subject to the provisions of the following
paragraph.
E. Adjustments in Unit Price
1. Contractor or Owner shall be entitled to an adjustment in the unit price with respect to
an item of Unit Price Work if:
a. the quantity of the item of Unit Price Work performed by Contractor differs
materially and significantly from the estimated quantity of such item indicated in
the Agreement; and
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b. Contractor’s unit costs to perform the item of Unit Price Work have changed
materially and significantly as a result of the quantity change.
2. The adjustment in unit price will account for and be coordinated with any related
changes in quantities of other items of Work, and in Contractor’s costs to perform such
other Work, such that the resulting overall change in Contract Price is equitable to
Owner and Contractor.
3. Adjusted unit prices will apply to all units of that item.
ARTICLE 14—TESTS AND INSPECTIONS; CORRECTION, REMOVAL, OR ACCEPTANCE OF DEFECTIVE
WORK
14.01 Access to Work
A. Owner, Engineer, their consultants and other representatives and personnel of Owner,
independent testing laboratories, and authorities having jurisdiction have access to the Site
and the Work at reasonable times for their observation, inspection, and testing. Contractor
shall provide them proper and safe conditions for such access and advise them of
Contractor’s safety procedures and programs so that they may comply with such procedures
and programs as applicable.
14.02 Tests, Inspections, and Approvals
A. Contractor shall give Engineer timely notice of readiness of the Work (or specific parts
thereof) for all required inspections and tests, and shall cooperate with inspection and
testing personnel to facilitate required inspections and tests.
B. Owner shall retain and pay for the services of an independent inspector, testing laboratory,
or other qualified individual or entity to perform all inspections and tests expressly required
by the Contract Documents to be furnished and paid for by Owner, except that costs
incurred in connection with tests or inspections of covered Work will be governed by the
provisions of Paragraph 14.05.
C. If Laws or Regulations of any public body having jurisdiction require any Work (or part
thereof) specifically to be inspected, tested, or approved by an employee or other
representative of such public body, Contractor shall assume full responsibility for arranging
and obtaining such inspections, tests, or approvals, pay all costs in connection therewith,
and furnish Engineer the required certificates of inspection or approval.
D. Contractor shall be responsible for arranging, obtaining, and paying for all inspections and
tests required:
1. by the Contract Documents, unless the Contract Documents expressly allocate
responsibility for a specific inspection or test to Owner;
2. to attain Owner’s and Engineer’s acceptance of materials or equipment to be
incorporated in the Work;
3. by manufacturers of equipment furnished under the Contract Documents;
4. for testing, adjusting, and balancing of mechanical, electrical, and other equipment to
be incorporated into the Work; and
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5. for acceptance of materials, mix designs, or equipment submitted for approval prior to
Contractor’s purchase thereof for incorporation in the Work.
Such inspections and tests will be performed by independent inspectors, testing
laboratories, or other qualified individuals or entities acceptable to Owner and Engineer.
E. If the Contract Documents require the Work (or part thereof) to be approved by Owner,
Engineer, or another designated individual or entity, then Contractor shall assume full
responsibility for arranging and obtaining such approvals.
F. If any Work (or the work of others) that is to be inspected, tested, or approved is covered by
Contractor without written concurrence of Engineer, Contractor shall, if requested by
Engineer, uncover such Work for observation. Such uncovering will be at Contractor’s
expense unless Contractor had given Engineer timely notice of Contractor’s intention to
cover the same and Engineer had not acted with reasonable promptness in response to such
notice.
14.03 Defective Work
A. Contractor’s Obligation: It is Contractor’s obligation to assure that the Work is not defective.
B. Engineer’s Authority: Engineer has the authority to determine whether Work is defective,
and to reject defective Work.
C. Notice of Defects: Prompt written notice of all defective Work of which Owner or Engineer
has actual knowledge will be given to Contractor.
D. Correction, or Removal and Replacement: Promptly after receipt of written notice of
defective Work, Contractor shall correct all such defective Work, whether or not fabricated,
installed, or completed, or, if Engineer has rejected the defective Work, remove it from the
Project and replace it with Work that is not defective.
E. Preservation of Warranties: When correcting defective Work, Contractor shall take no action
that would void or otherwise impair Owner’s special warranty and guarantee, if any, on said
Work.
F. Costs and Damages: In addition to its correction, removal, and replacement obligations with
respect to defective Work, Contractor shall pay all claims, costs, losses, and damages arising
out of or relating to defective Work, including but not limited to the cost of the inspection,
testing, correction, removal, replacement, or reconstruction of such defective Work, fines
levied against Owner by governmental authorities because the Work is defective, and the
costs of repair or replacement of work of others resulting from defective Work. Prior to final
payment, if Owner and Contractor are unable to agree as to the measure of such claims,
costs, losses, and damages resulting from defective Work, then Owner may impose a
reasonable set-off against payments due under Article 15.
14.04 Acceptance of Defective Work
A. If, instead of requiring correction or removal and replacement of defective Work, Owner
prefers to accept it, Owner may do so (subject, if such acceptance occurs prior to final
payment, to Engineer’s confirmation that such acceptance is in general accord with the
design intent and applicable engineering principles, and will not endanger public safety).
Contractor shall pay all claims, costs, losses, and damages attributable to Owner’s
evaluation of and determination to accept such defective Work (such costs to be approved
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by Engineer as to reasonableness), and for the diminished value of the Work to the extent
not otherwise paid by Contractor. If any such acceptance occurs prior to final payment, the
necessary revisions in the Contract Documents with respect to the Work will be
incorporated in a Change Order. If the parties are unable to agree as to the decrease in the
Contract Price, reflecting the diminished value of Work so accepted, then Owner may
impose a reasonable set-off against payments due under Article 15. If the acceptance of
defective Work occurs after final payment, Contractor shall pay an appropriate amount to
Owner.
14.05 Uncovering Work
A. Engineer has the authority to require additional inspection or testing of the Work, whether
or not the Work is fabricated, installed, or completed.
B. If any Work is covered contrary to the written request of Engineer, then Contractor shall, if
requested by Engineer, uncover such Work for Engineer’s observation, and then replace the
covering, all at Contractor’s expense.
C. If Engineer considers it necessary or advisable that covered Work be observed by Engineer
or inspected or tested by others, then Contractor, at Engineer’s request, shall uncover,
expose, or otherwise make available for observation, inspection, or testing as Engineer may
require, that portion of the Work in question, and provide all necessary labor, material, and
equipment.
1. If it is found that the uncovered Work is defective, Contractor shall be responsible for all
claims, costs, losses, and damages arising out of or relating to such uncovering,
exposure, observation, inspection, and testing, and of satisfactory replacement or
reconstruction (including but not limited to all costs of repair or replacement of work of
others); and pending Contractor’s full discharge of this responsibility the Owner shall be
entitled to impose a reasonable set-off against payments due under Article 15.
2. If the uncovered Work is not found to be defective, Contractor shall be allowed an
increase in the Contract Price or an extension of the Contract Times, directly
attributable to such uncovering, exposure, observation, inspection, testing,
replacement, and reconstruction. If the parties are unable to agree as to the amount or
extent thereof, then Contractor may submit a Change Proposal within 30 days of the
determination that the Work is not defective.
14.06 Owner May Stop the Work
A. If the Work is defective, or Contractor fails to supply sufficient skilled workers or suitable
materials or equipment, or fails to perform the Work in such a way that the completed
Work will conform to the Contract Documents, then Owner may order Contractor to stop
the Work, or any portion thereof, until the cause for such order has been eliminated;
however, this right of Owner to stop the Work will not give rise to any duty on the part of
Owner to exercise this right for the benefit of Contractor, any Subcontractor, any Supplier,
any other individual or entity, or any surety for, or employee or agent of any of them.
14.07 Owner May Correct Defective Work
A. If Contractor fails within a reasonable time after written notice from Engineer to correct
defective Work, or to remove and replace defective Work as required by Engineer, then
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Owner may, after 7 days’ written notice to Contractor, correct or remedy any such
deficiency.
B. In exercising the rights and remedies under this Paragraph 14.07, Owner shall proceed
expeditiously. In connection with such corrective or remedial action, Owner may exclude
Contractor from all or part of the Site, take possession of all or part of the Work and
suspend Contractor’s services related thereto, and incorporate in the Work all materials and
equipment stored at the Site or for which Owner has paid Contractor but which are stored
elsewhere. Contractor shall allow Owner, Owner’s representatives, agents and employees,
Owner’s other contractors, and Engineer and Engineer’s consultants access to the Site to
enable Owner to exercise the rights and remedies under this paragraph.
C. All claims, costs, losses, and damages incurred or sustained by Owner in exercising the rights
and remedies under this Paragraph 14.07 will be charged against Contractor as set-offs
against payments due under Article 15. Such claims, costs, losses and damages will include
but not be limited to all costs of repair, or replacement of work of others destroyed or
damaged by correction, removal, or replacement of Contractor’s defective Work.
D. Contractor shall not be allowed an extension of the Contract Times because of any delay in
the performance of the Work attributable to the exercise by Owner of Owner’s rights and
remedies under this Paragraph 14.07.
ARTICLE 15—PAYMENTS TO CONTRACTOR; SET-OFFS; COMPLETION; CORRECTION PERIOD
15.01 Progress Payments
A. Basis for Progress Payments: The Schedule of Values established as provided in Article 2 will
serve as the basis for progress payments and will be incorporated into a form of Application
for Payment acceptable to Engineer. Progress payments for Unit Price Work will be based on
the number of units completed during the pay period, as determined under the provisions
of Paragraph 13.03. Progress payments for cost-based Work will be based on Cost of the
Work completed by Contractor during the pay period.
B. Applications for Payments
1. At least 20 days before the date established in the Agreement for each progress
payment (but not more often than once a month), Contractor shall submit to Engineer
for review an Application for Payment filled out and signed by Contractor covering the
Work completed as of the date of the Application and accompanied by such supporting
documentation as is required by the Contract Documents.
2. If payment is requested on the basis of materials and equipment not incorporated in the
Work but delivered and suitably stored at the Site or at another location agreed to in
writing, the Application for Payment must also be accompanied by: (a) a bill of sale,
invoice, copies of subcontract or purchase order payments, or other documentation
establishing full payment by Contractor for the materials and equipment; (b) at Owner’s
request, documentation warranting that Owner has received the materials and
equipment free and clear of all Liens; and (c) evidence that the materials and equipment
are covered by appropriate property insurance, a warehouse bond, or other
arrangements to protect Owner’s interest therein, all of which must be satisfactory to
Owner.
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3. Beginning with the second Application for Payment, each Application must include an
affidavit of Contractor stating that all previous progress payments received by
Contractor have been applied to discharge Contractor’s legitimate obligations
associated with prior Applications for Payment.
4. The amount of retainage with respect to progress payments will be as stipulated in the
Agreement.
C. Review of Applications
1. Engineer will, within 10 days after receipt of each Application for Payment, including
each resubmittal, either indicate in writing a recommendation of payment and present
the Application to Owner, or return the Application 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.
2. Engineer’s recommendation of any payment requested in an Application for Payment
will constitute a representation by Engineer to Owner, based on Engineer’s observations
of the executed Work as an experienced and qualified design professional, and on
Engineer’s review of the Application for Payment and the accompanying data and
schedules, that to the best of Engineer’s knowledge, information and belief:
a. the Work has progressed to the point indicated;
b. the quality of the Work is generally in accordance with the Contract Documents
(subject to an evaluation of the Work as a functioning whole prior to or upon
Substantial Completion, the results of any subsequent tests called for in the
Contract Documents, a final determination of quantities and classifications for Unit
Price Work under Paragraph 13.03, and any other qualifications stated in the
recommendation); and
c. the conditions precedent to Contractor’s being entitled to such payment appear to
have been fulfilled in so far as it is Engineer’s responsibility to observe the Work.
3. By recommending any such payment Engineer will not thereby be deemed to have
represented that:
a. inspections made to check the quality or the quantity of the Work as it has been
performed have been exhaustive, extended to every aspect of the Work in progress,
or involved detailed inspections of the Work beyond the responsibilities specifically
assigned to Engineer in the Contract; or
b. there may not be other matters or issues between the parties that might entitle
Contractor to be paid additionally by Owner or entitle Owner to withhold payment
to Contractor.
4. Neither Engineer’s review of Contractor’s Work for the purposes of recommending
payments nor Engineer’s recommendation of any payment, including final payment, will
impose responsibility on Engineer:
a. to supervise, direct, or control the Work;
b. for the means, methods, techniques, sequences, or procedures of construction, or
the safety precautions and programs incident thereto;
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c. for Contractor’s failure to comply with Laws and Regulations applicable to
Contractor’s performance of the Work;
d. to make any examination to ascertain how or for what purposes Contractor has
used the money paid by Owner; or
e. to determine that title to any of the Work, materials, or equipment has passed to
Owner free and clear of any Liens.
5. Engineer may refuse to recommend the whole or any part of any payment if, in
Engineer’s opinion, it would be incorrect to make the representations to Owner stated
in Paragraph 15.01.C.2.
6. Engineer will recommend reductions in payment (set-offs) necessary in Engineer’s
opinion to protect Owner from loss because:
a. the Work is defective, requiring correction or replacement;
b. the Contract Price has been reduced by Change Orders;
c. Owner has been required to correct defective Work in accordance with
Paragraph 14.07, or has accepted defective Work pursuant to Paragraph 14.04;
d. Owner has been required to remove or remediate a Hazardous Environmental
Condition for which Contractor is responsible; or
e. Engineer has actual knowledge of the occurrence of any of the events that would
constitute a default by Contractor and therefore justify termination for cause under
the Contract Documents.
D. Payment Becomes Due
1. Ten days after presentation of the Application for Payment to Owner with Engineer’s
recommendation, the amount recommended (subject to any Owner set-offs) will
become due, and when due will be paid by Owner to Contractor.
E. Reductions in Payment by Owner
1. In addition to any reductions in payment (set-offs) recommended by Engineer, Owner is
entitled to impose a set-off against payment based on any of the following:
a. Claims have been made against Owner based on Contractor’s conduct in the
performance or furnishing of the Work, or Owner has incurred costs, losses, or
damages resulting from Contractor’s conduct in the performance or furnishing of
the Work, including but not limited to claims, costs, losses, or damages from
workplace injuries, adjacent property damage, non-compliance with Laws and
Regulations, and patent infringement;
b. Contractor has failed to take reasonable and customary measures to avoid damage,
delay, disruption, and interference with other work at or adjacent to the Site;
c. Contractor has failed to provide and maintain required bonds or insurance;
d. Owner has been required to remove or remediate a Hazardous Environmental
Condition for which Contractor is responsible;
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e. Owner has incurred extra charges or engineering costs related to submittal reviews,
evaluations of proposed substitutes, tests and inspections, or return visits to
manufacturing or assembly facilities;
f. The Work is defective, requiring correction or replacement;
g. Owner has been required to correct defective Work in accordance with
Paragraph 14.07, or has accepted defective Work pursuant to Paragraph 14.04;
h. The Contract Price has been reduced by Change Orders;
i. An event has occurred that would constitute a default by Contractor and therefore
justify a termination for cause;
j. Liquidated or other damages have accrued as a result of Contractor’s failure to
achieve Milestones, Substantial Completion, or final completion of the Work;
k. Liens have been filed in connection with the Work, except where Contractor has
delivered a specific bond satisfactory to Owner to secure the satisfaction and
discharge of such Liens; or
l. Other items entitle Owner to a set-off against the amount recommended.
2. If Owner imposes any set-off against payment, whether based on its own knowledge or
on the written recommendations of Engineer, Owner will give Contractor immediate
written notice (with a copy to Engineer) stating the reasons for such action and the
specific amount of the reduction, and promptly pay Contractor any amount remaining
after deduction of the amount so withheld. Owner shall promptly pay Contractor the
amount so withheld, or any adjustment thereto agreed to by Owner and Contractor, if
Contractor remedies the reasons for such action. The reduction imposed will be binding
on Contractor unless it duly submits a Change Proposal contesting the reduction.
3. Upon a subsequent determination that Owner’s refusal of payment was not justified,
the amount wrongfully withheld will be treated as an amount due as determined by
Paragraph 15.01.D.1 and subject to interest as provided in the Agreement.
15.02 Contractor’s Warranty of Title
A. Contractor warrants and guarantees that title to all Work, materials, and equipment
furnished under the Contract will pass to Owner free and clear of (1) all Liens and other title
defects, and (2) all patent, licensing, copyright, or royalty obligations, no later than 7 days
after the time of payment by Owner.
15.03 Substantial Completion
A. When Contractor considers the entire Work ready for its intended use Contractor shall
notify Owner and Engineer in writing that the entire Work is substantially complete and
request that Engineer issue a certificate of Substantial Completion. Contractor shall at the
same time submit to Owner and Engineer an initial draft of punch list items to be completed
or corrected before final payment.
B. Promptly after Contractor’s notification, Owner, Contractor, and Engineer shall make an
inspection of the Work to determine the status of completion. If Engineer does not consider
the Work substantially complete, Engineer will notify Contractor in writing giving the
reasons therefor.
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C. If Engineer considers the Work substantially complete, Engineer will deliver to Owner a
preliminary certificate of Substantial Completion which will fix the date of Substantial
Completion. Engineer shall attach to the certificate a punch list of items to be completed or
corrected before final payment. Owner shall have 7 days after receipt of the preliminary
certificate during which to make written objection to Engineer as to any provisions of the
certificate or attached punch list. If, after considering the objections to the provisions of the
preliminary certificate, Engineer concludes that the Work is not substantially complete,
Engineer will, within 14 days after submission of the preliminary certificate to Owner, notify
Contractor in writing that the Work is not substantially complete, stating the reasons
therefor. If Owner does not object to the provisions of the certificate, or if despite
consideration of Owner’s objections Engineer concludes that the Work is substantially
complete, then Engineer will, within said 14 days, execute and deliver to Owner and
Contractor a final certificate of Substantial Completion (with a revised punch list of items to
be completed or corrected) reflecting such changes from the preliminary certificate as
Engineer believes justified after consideration of any objections from Owner.
D. At the time of receipt of the preliminary certificate of Substantial Completion, Owner and
Contractor will confer regarding Owner’s use or occupancy of the Work following
Substantial Completion, review the builder’s risk insurance policy with respect to the end of
the builder’s risk coverage, and confirm the transition to coverage of the Work under a
permanent property insurance policy held by Owner. Unless Owner and Contractor agree
otherwise in writing, Owner shall bear responsibility for security, operation, protection of
the Work, property insurance, maintenance, heat, and utilities upon Owner’s use or
occupancy of the Work.
E. After Substantial Completion the Contractor shall promptly begin work on the punch list of
items to be completed or corrected prior to final payment. In appropriate cases Contractor
may submit monthly Applications for Payment for completed punch list items, following the
progress payment procedures set forth above.
F. Owner shall have the right to exclude Contractor from the Site after the date of Substantial
Completion subject to allowing Contractor reasonable access to remove its property and
complete or correct items on the punch list.
15.04 Partial Use or Occupancy
A. Prior to Substantial Completion of all the Work, Owner may use or occupy any substantially
completed part of the Work which has specifically been identified in the Contract
Documents, or which Owner, Engineer, and Contractor agree constitutes a separately
functioning and usable part of the Work that can be used by Owner for its intended purpose
without significant interference with Contractor’s performance of the remainder of the
Work, subject to the following conditions:
1. At any time, Owner may request in writing that Contractor permit Owner to use or
occupy any such part of the Work that Owner believes to be substantially complete. If
and when Contractor agrees that such part of the Work is substantially complete,
Contractor, Owner, and Engineer will follow the procedures of Paragraph 15.03.A
through 15.03.E for that part of the Work.
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2. At any time, Contractor may notify Owner and Engineer in writing that Contractor
considers any such part of the Work substantially complete and request Engineer to
issue a certificate of Substantial Completion for that part of the Work.
3. Within a reasonable time after either such request, Owner, Contractor, and Engineer
shall make an inspection of that part of the Work to determine its status of completion.
If Engineer does not consider that part of the Work to be substantially complete,
Engineer will notify Owner and Contractor in writing giving the reasons therefor. If
Engineer considers that part of the Work to be substantially complete, the provisions of
Paragraph 15.03 will apply with respect to certification of Substantial Completion of that
part of the Work and the division of responsibility in respect thereof and access thereto.
4. No use or occupancy or separate operation of part of the Work may occur prior to
compliance with the requirements of Paragraph 6.04 regarding builder’s risk or other
property insurance.
15.05 Final Inspection
A. Upon written notice from Contractor that the entire Work or an agreed portion thereof is
complete, Engineer will promptly make a final inspection with Owner and Contractor and
will notify Contractor in writing of all particulars in which this inspection reveals that the
Work, or agreed portion thereof, is incomplete or defective. Contractor shall immediately
take such measures as are necessary to complete such Work or remedy such deficiencies.
15.06 Final Payment
A. Application for Payment
1. 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, schedules, guarantees, bonds,
certificates or other evidence of insurance, certificates of inspection, annotated record
documents (as provided in Paragraph 7.12), and other documents, Contractor may make
application for final payment.
2. The final Application for Payment must be accompanied (except as previously delivered)
by:
a. all documentation called for in the Contract Documents;
b. consent of the surety, if any, to final payment;
c. satisfactory evidence that all title issues have been resolved such that title to all
Work, materials, and equipment has passed to Owner free and clear of any Liens or
other title defects, or will so pass upon final payment.
d. a list of all duly pending Change Proposals and Claims; and
e. complete and legally effective releases or waivers (satisfactory to Owner) of all Lien
rights arising out of the Work, and of Liens filed in connection with the Work.
3. In lieu of the releases or waivers of Liens specified in Paragraph 15.06.A.2 and as
approved by Owner, Contractor may furnish receipts or releases in full and an affidavit
of Contractor that: (a) the releases and receipts include all labor, services, material, and
equipment for which a Lien could be filed; and (b) all payrolls, material and equipment
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bills, and other indebtedness connected with the Work for which Owner might in any
way be responsible, or which might in any way result in liens or other burdens on
Owner's property, have been paid or otherwise satisfied. If any Subcontractor or
Supplier fails to furnish such a release or receipt in full, Contractor may furnish a bond
or other collateral satisfactory to Owner to indemnify Owner against any Lien, or Owner
at its option may issue joint checks payable to Contractor and specified Subcontractors
and Suppliers.
B. Engineer’s Review of Final Application and Recommendation of Payment: If, on the basis of
Engineer’s observation of the Work 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 Work has been completed and
Contractor’s other obligations under the Contract have been fulfilled, Engineer will, within
10 days after receipt of the final Application for Payment, indicate in writing Engineer’s
recommendation of final payment and present the final Application for Payment to Owner
for payment. Such recommendation will account for any set-offs against payment that are
necessary in Engineer’s opinion to protect Owner from loss for the reasons stated above
with respect to progress payments. 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.
C. Notice of Acceptability: In support of its recommendation of payment of the final
Application for Payment, Engineer will also give written notice to Owner and Contractor that
the Work is acceptable, subject to stated limitations in the notice and to the provisions of
Paragraph 15.07.
D. Completion of Work: The Work is complete (subject to surviving obligations) when it is ready
for final payment as established by the Engineer’s written recommendation of final payment
and issuance of notice of the acceptability of the Work.
E. Final Payment Becomes Due: Upon receipt from Engineer of the final Application for
Payment and accompanying documentation, Owner shall set off against the amount
recommended by Engineer for final payment any further sum to which Owner is entitled,
including but not limited to set-offs for liquidated damages and set-offs allowed under the
provisions of this Contract with respect to progress payments. Owner shall pay the resulting
balance due to Contractor within 30 days of Owner’s receipt of the final Application for
Payment from Engineer.
15.07 Waiver of Claims
A. By making final payment, Owner waives its claim or right to liquidated damages or other
damages for late completion by Contractor, except as set forth in an outstanding Claim,
appeal under the provisions of Article 17, set-off, or express reservation of rights by Owner.
Owner reserves all other claims or rights after final payment.
B. The acceptance of final payment by Contractor will constitute a waiver by Contractor of all
claims and rights against Owner other than those pending matters that have been duly
submitted as a Claim, or appealed under the provisions of Article 17.
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15.08 Correction Period
A. If within one year after the date of Substantial Completion (or such longer period of time as
may be prescribed by the Supplementary Conditions or the terms of any applicable special
guarantee required by the Contract Documents), Owner gives Contractor written notice that
any Work has been found to be defective, or that Contractor’s repair of any damages to the
Site or adjacent areas has been found to be defective, then after receipt of such notice of
defect Contractor shall promptly, without cost to Owner and in accordance with Owner’s
written instructions:
1. correct the defective repairs to the Site or such adjacent areas;
2. correct such defective Work;
3. remove the defective Work from the Project and replace it with Work that is not
defective, if the defective Work has been rejected by Owner, and
4. satisfactorily correct or repair or remove and replace any damage to other Work, to the
work of others, or to other land or areas resulting from the corrective measures.
B. Owner shall give any such notice of defect within 60 days of the discovery that such Work or
repairs is defective. If such notice is given within such 60 days but after the end of the
correction period, the notice will be deemed a notice of defective Work under
Paragraph 7.17.B.
C. If, after receipt of a notice of defect within 60 days and within the correction period,
Contractor does not promptly comply with the terms of Owner’s written instructions, or in
an emergency where delay would cause serious risk of loss or damage, Owner may have the
defective Work corrected or repaired or may have the rejected Work removed and replaced.
Contractor shall pay all costs, 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) arising out of or relating to such correction or
repair or such removal and replacement (including but not limited to all costs of repair or
replacement of work of others). Contractor’s failure to pay such costs, losses, and damages
within 10 days of invoice from Owner will be deemed the start of an event giving rise to a
Claim under Paragraph 12.01.B, such that any related Claim must be brought within 30 days
of the failure to pay.
D. In special circumstances where a particular item of equipment is placed in continuous
service before Substantial Completion of all the Work, the correction period for that item
may start to run from an earlier date if so provided in the Specifications.
E. Where defective Work (and damage to other Work resulting therefrom) has been corrected
or removed and replaced under this paragraph, the correction period hereunder with
respect to such Work will be extended for an additional period of one year after such
correction or removal and replacement has been satisfactorily completed.
F. Contractor’s obligations under this paragraph are in addition to all other obligations and
warranties. The provisions of this paragraph are not to be construed as a substitute for, or a
waiver of, the provisions of any applicable statute of limitation or repose.
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ARTICLE 16—SUSPENSION OF WORK AND TERMINATION
16.01 Owner May Suspend Work
A. At any time and without cause, Owner may suspend the Work or any portion thereof for a
period of not more than 90 consecutive days by written notice to Contractor and Engineer.
Such notice will fix the date on which Work will be resumed. Contractor shall resume the
Work on the date so fixed. Contractor shall be entitled to an adjustment in the Contract
Price or an extension of the Contract Times directly attributable to any such suspension. Any
Change Proposal seeking such adjustments must be submitted no later than 30 days after
the date fixed for resumption of Work.
16.02 Owner May Terminate for Cause
A. The occurrence of any one or more of the following events will constitute a default by
Contractor and justify termination for cause:
1. Contractor’s persistent failure to perform the Work in accordance with the Contract
Documents (including, but not limited to, failure to supply sufficient skilled workers or
suitable materials or equipment, or failure to adhere to the Progress Schedule);
2. Failure of Contractor to perform or otherwise to comply with a material term of the
Contract Documents;
3. Contractor’s disregard of Laws or Regulations of any public body having jurisdiction; or
4. Contractor’s repeated disregard of the authority of Owner or Engineer.
B. If one or more of the events identified in Paragraph 16.02.A occurs, then after giving
Contractor (and any surety) 10 days’ written notice that Owner is considering a declaration
that Contractor is in default and termination of the Contract, Owner may proceed to:
1. declare Contractor to be in default, and give Contractor (and any surety) written notice
that the Contract is terminated; and
2. enforce the rights available to Owner under any applicable performance bond.
C. Subject to the terms and operation of any applicable performance bond, if Owner has
terminated the Contract for cause, Owner may exclude Contractor from the Site, take
possession of the Work, incorporate in the Work all materials and equipment stored at the
Site or for which Owner has paid Contractor but which are stored elsewhere, and complete
the Work as Owner may deem expedient.
D. Owner may not proceed with termination of the Contract under Paragraph 16.02.B if
Contractor within 7 days of receipt of notice of intent to terminate begins to correct its
failure to perform and proceeds diligently to cure such failure.
E. If Owner proceeds as provided in Paragraph 16.02.B, Contractor shall not be entitled to
receive any further payment until the Work is completed. If the unpaid balance of the
Contract Price exceeds the cost to complete the Work, including all related claims, costs,
losses, and damages (including but not limited to all fees and charges of engineers,
architects, attorneys, and other professionals) sustained by Owner, such excess will be paid
to Contractor. If the cost to complete the Work including such related claims, costs, losses,
and damages exceeds such unpaid balance, Contractor shall pay the difference to Owner.
Such claims, costs, losses, and damages incurred by Owner will be reviewed by Engineer as
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to their reasonableness and, when so approved by Engineer, incorporated in a Change
Order. When exercising any rights or remedies under this paragraph, Owner shall not be
required to obtain the lowest price for the Work performed.
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, or any rights or remedies of Owner against Contractor or any surety
under any payment bond or performance bond. Any retention or payment of money due
Contractor by Owner will not release Contractor from liability.
G. If and to the extent that Contractor has provided a performance bond under the provisions
of Paragraph 6.01.A, the provisions of that bond will govern over any inconsistent provisions
of Paragraphs 16.02.B and 16.02.D.
16.03 Owner May Terminate for Convenience
A. Upon 7 days’ written notice to Contractor and Engineer, Owner may, without cause and
without prejudice to any other right or remedy of Owner, terminate the Contract. In such
case, Contractor shall be paid for (without duplication of any items):
1. completed and acceptable Work executed in accordance with the Contract Documents
prior to the effective date of termination, including fair and reasonable sums for
overhead and profit on such Work;
2. 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 Work, plus fair and reasonable sums for overhead and
profit on such expenses; and
3. other reasonable expenses directly attributable to termination, including costs incurred
to prepare a termination for convenience cost proposal.
B. Contractor shall not be paid for any loss of anticipated profits or revenue, post-termination
overhead costs, or other economic loss arising out of or resulting from such termination.
16.04 Contractor May Stop Work or Terminate
A. If, through no act or fault of Contractor, (1) the Work is suspended for more than 90
consecutive days by Owner or under an order of court or other public authority, or (2)
Engineer fails to act on any Application for Payment within 30 days after it is submitted, or
(3) Owner fails for 30 days to pay Contractor any sum finally determined to be due, then
Contractor may, upon 7 days’ written notice to Owner and Engineer, and provided Owner or
Engineer do not remedy such suspension or failure within that time, terminate the contract
and recover from Owner payment on the same terms as provided in Paragraph 16.03.
B. In lieu of terminating the Contract and without prejudice to any other right or remedy, if
Engineer has failed to act on an Application for Payment within 30 days after it is submitted,
or Owner has failed for 30 days to pay Contractor any sum finally determined to be due,
Contractor may, 7 days after written notice to Owner and Engineer, stop the Work until
payment is made of all such amounts due Contractor, including interest thereon. The
provisions of this paragraph are not intended to preclude Contractor from submitting a
Change Proposal for an adjustment in Contract Price or Contract Times or otherwise for
expenses or damage directly attributable to Contractor’s stopping the Work as permitted by
this paragraph.
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ARTICLE 17—FINAL RESOLUTION OF DISPUTES
17.01 Methods and Procedures
A. Disputes Subject to Final Resolution: The following disputed matters are subject to final
resolution under the provisions of this article:
1. A timely appeal of an approval in part and denial in part of a Claim, or of a denial in full,
pursuant to Article 12; and
2. Disputes between Owner and Contractor concerning the Work, or obligations under the
Contract Documents, that arise after final payment has been made.
B. Final Resolution of Disputes: For any dispute subject to resolution under this article, Owner
or Contractor may:
1. elect in writing to invoke the dispute resolution process provided for in the
Supplementary Conditions;
2. agree with the other party to submit the dispute to another dispute resolution process;
or
3. if no dispute resolution process is provided for in the Supplementary Conditions or
mutually agreed to, give written notice to the other party of the intent to submit the
dispute to a court of competent jurisdiction.
ARTICLE 18—MISCELLANEOUS
18.01 Giving Notice
A. Whenever any provision of the Contract requires the giving of written notice to Owner,
Engineer, or Contractor, it will be deemed to have been validly given only if delivered:
1. in person, by a commercial courier service or otherwise, to the recipient’s place of
business;
2. by registered or certified mail, postage prepaid, to the recipient’s place of business; or
3. by e-mail to the recipient, with the words “Formal Notice” or similar in the e-mail’s
subject line.
18.02 Computation of Times
A. When any period of time is referred to in the Contract by days, it will be computed to
exclude the first and include the last day of such period. If the last day of any such period
falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable
jurisdiction, such day will be omitted from the computation.
18.03 Cumulative Remedies
A. The duties and obligations imposed by these General Conditions and the rights and
remedies available hereunder to the parties hereto are in addition to, and are not to be
construed in any way as a limitation of, any rights and remedies available to any or all of
them which are otherwise imposed or available by Laws or Regulations, by special warranty
or guarantee, or by other provisions of the Contract. The provisions of this paragraph will be
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as effective as if repeated specifically in the Contract Documents in connection with each
particular duty, obligation, right, and remedy to which they apply.
18.04 Limitation of Damages
A. With respect to any and all Change Proposals, Claims, disputes subject to final resolution,
and other matters at issue, neither Owner nor Engineer, nor any of their officers, directors,
members, partners, employees, agents, consultants, or subcontractors, shall be liable to
Contractor for any claims, costs, losses, or damages sustained by Contractor on or in
connection with any other project or anticipated project.
18.05 No Waiver
A. A party’s non-enforcement of any provision will not constitute a waiver of that provision,
nor will it affect the enforceability of that provision or of the remainder of this Contract.
18.06 Survival of Obligations
A. All representations, indemnifications, warranties, and guarantees made in, required by, or
given in accordance with the Contract, as well as all continuing obligations indicated in the
Contract, will survive final payment, completion, and acceptance of the Work or termination
of the Contract or of the services of Contractor.
18.07 Controlling Law
A. This Contract is to be governed by the law of the state in which the Project is located.
18.08 Assignment of Contract
A. Unless expressly agreed to elsewhere in the Contract, no assignment by a party to this
Contract of any rights under or interests in the Contract will be binding on the other party
without the written consent of the party sought to be bound; and, specifically but without
limitation, money that may become due and money that is due may not be assigned without
such consent (except to the extent that the effect of this restriction may be limited by law),
and unless specifically stated to the contrary in any written consent to an assignment, no
assignment will release or discharge the assignor from any duty or responsibility under the
Contract.
18.09 Successors and Assigns
A. Owner and Contractor each binds itself, its successors, assigns, and legal representatives to
the other party hereto, its successors, assigns, and legal representatives in respect to all
covenants, agreements, and obligations contained in the Contract Documents.
18.10 Headings
A. Article and paragraph headings are inserted for convenience only and do not constitute
parts of these General Conditions.
EJCDC® C-700, Standard General Conditions of the Construction Contract.
Copyright© 2018 National Society of Professional Engineers, American Council of Engineering Companies,
and American Society of Civil Engineers. All rights reserved.
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SUPPLEMENTARY CONDITIONS
Water Filtration Plant Improvements – Washwater Pump Check Valve Addition
TABLE OF CONTENTS
Page
Table of Contents.................................................................................................. 00800-1
Caption and Introductory Statements …………....................................................... 00800-3
SC-1.01 Defined Terms ............................................................................... 00800-3
SC-1.02 Terminology ……………………………………………………………………………… 00800-3
SC-2.03 Before Starting Construction ......................................................... 00800-4
SC-2.05 Acceptance of Schedules ………...................................................... 00800-4
SC-3.01 Intent ……………………………………………………………………………………….. 00800-5
SC-3.02 Reference Standards ………………………………………………………………… 00800-5
SC-3.03 Reporting and Resolving Discrepancies ....................................... 00800-6
SC-4.01 Commencement of Contract Times; Notice to Proceed ................ 00800-6
SC-4.05 Delays in Contractor’s Progress …………………………………………………. 00800-6
SC-5.03 Subsurface and Physical Conditions ........................................... 00800-7
SC-5.04 Differing Subsurface or Physical Conditions ............................... 00800-9
SC-5.05 Underground Facilities .................................................................. 00800-10
SC-5.06 Hazardous Environmental Conditions at Site .............................. 00800-14
SC-6.02 Insurance—General Provisions...................................................... 00800-15
SC-6.03 Contractor’s Insurance ....................... ........................................... 00800-15
SC-6.04 Builder’s Risk and Other Property Insurance .................................. 00800-15
SC-6.05 Property Losses; Subrogation …………………..………………………………… 00800-15
SC-6.06 Receipt and Application of Property Insurance Proceeds …………… 00800-16
SC-7.01 Contractor’s Means and Methods of Construction.......................... 00800-16
SC-7.05 “Or-Equals”...................................................................................... 00800-16
SC-7.06 Substitutes …………………………………………………………………………………. 00800-16
SC-7.07 Concerning Subcontractors and Suppliers ...................................... 00800-17
SC-7.08 Patent Fees and Royalties.............................................................. 00800-17
SC-7.11 Laws and Regulations ..................................................................... 00800-17
SC-7.13 Safety and Protection ..................................................................... 00800-18
SC-7.16 Submittals ...................................................................................... 00800-18
SC-7.17 Contractor’s General Warranty and Guarantee ............................... 00800-18
SC-7.19 Delegation of Professional Design Services...................................... 00800-19
SC-9.06 Insurance …………………………………………………………………………………….. 00800-20
SC-10.01 Owner's Representative ................................................................... 00800-20
SC-10.02 Visits to Site ..................................................................................... 00800-20
SC-10.03 Resident Project Representative …................................................... 00800-20
SC-10.07 Limitations on Engineer’s Authority and Responsibilities.............. 00800-22
SC-15.01 Progress Payments.......................................................................... 00800-22
SC-15.04 Partial Use or Occupancy …………………………………………………………… 00800-23
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SC-15.07 Waiver of Claims ………..................................................................... 00800-23
SC-17.01 Methods and Procedures ............................................................... 00800-23
SC-18.01 Giving Notice ……………………………………………………………………………… 00800-24
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Caption and Introductory Statements
Supplementary Conditions
These Supplementary Conditions amend or supplement the Standard General Conditions of the
Construction Contract, EJCDC C-700 (2018 Edition). All provisions which are not so amended or
supplemented remain in full force and effect.
Unless otherwise noted, the terms used in these Supplementary Conditions have the meanings
stated in the General Conditions. Additional terms used in these Supplementary Conditions
have the meanings stated below, which are applicable to both the singular and plural thereof.
The address system used in these Supplementary Conditions is the same as the address system
used in the General Conditions, with the prefix “SC” added thereto.
ADDITIONS, DELETIONS AND CHANGES TO GENERAL CONDITIONS
ARTICLE 1 - DEFINITIONS AND TERMINOLOGY
SC-1.01 Defined Terms
SC-1.01 Add the following new paragraph immediately after Paragraph 1.01.A.22:
22.1 Falsework--temporary construction work on which a main work is
wholly or partly built and/or supported until the main work is strong
enough to support itself.
SC-1.01 Add the following new paragraph immediately after Paragraph 1.01.A.32:
32.1 Project Manual – the written documents prepared
for, or made available for, procuring and constructing the Work,
including but not limited to the Bidding Documents or other
construction procurement documents, geotechnical and existing
conditions information, the Agreement, bond forms, General
Conditions, Supplementary Conditions, and Specifications. The
contents of the Project Manual may be bound in one or more
volumes.
SC-1.02 Terminology
SC-1.02 Add the following new sentence immediately after the last sentence in Paragraph
1.02.B:
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The use of any such term or adjective is not intended to and shall not be
effective to relieve the Contractor of responsibility to comply with all Laws and
Regulations applicable to the performance of the Work, or to perform the
Work in accordance with the provisions of Article 7, or to comply with any
other provision of the Contract Documents.
ARTICLE 2 - PRELIMINARY MATTERS
SC-2.03 Before Starting Construction
SC-2.03 Delete Paragraph 2.03.A in its entirety and insert the following in its place:
A. Preliminary Schedules: Within 10 days after the Effective Date of the
Agreement, Contractor shall submit to Owner and Engineer for timely
review:
1. A preliminary Progress Schedule indicating the times (number 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 subdivides 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.
SC-2.05 Acceptance of Schedules
SC-2.05 Delete Paragraph 2.05.A in its entirety and insert the following in its place:
A. Upon Owner’s, Engineer’s or Contractor's request at least ten days before
submission of the first Application for Payment a conference, attended by
Contractor, Owner, Engineer and others as appropriate, will be held to
review for acceptability to Owner as provided below the schedules submitted
in accordance with paragraph 2.03.A. If a schedule is not acceptable,
Contractor shall have an additional ten days to make corrections and
adjustments and to complete and resubmit the schedules. Upon notice by
Owner, no progress payment shall be made to Contractor until acceptable
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schedules are submitted and accepted by Owner.
1. The Progress Schedule will be acceptable to Owner if it provides an
orderly progression of the Work to completion within any specified
Milestones and the Contract Time, and if acceptable to Engineer. Such
acceptance will not impose on Owner or Engineer responsibility for the
Progress Schedule, for sequencing, scheduling, or progress of the Work
nor interfere with or relieve Contractor from Contractor's full
responsibility therefor.
2. Contractor’s Schedule of Submittals will be acceptable to Owner if
acceptable to Engineer and if it provides a workable arrangement for
reviewing and processing the required submittals.
3. Contractor's Schedule of Values will be acceptable to Owner as to form
and substance if it is acceptable to Engineer and if it provides a
reasonable allocation of the Contract Price to component parts of the
Work.
ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE
SC-3.01 Intent
SC-3.01 Add the following new sentence immediately after the last sentence in
Paragraph 3.01.B:
Any labor, documentation, services, materials, or equipment that
reasonably may be inferred from the Contract Documents or from
prevailing custom or trade usage as being required to produce the
indicated result will be provided whether or not specifically called for, at
no additional cost to Owner.
SC-3.02 Reference Standards
SC-3.02.A.2 Delete Paragraph 3.02.A.2 in its entirety and insert the following in its
place:
No provision of any such standard specification, manual, reference
standard, or code, or any instruction of a Supplier, shall be effective to change
the duties or responsibilities of Owner, Contractor, or Engineer, or any of their
subcontractors, consultants, agents, or employees, from those set forth in the
part of the Contract Documents prepared by or for Engineer. No such provision
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or instruction shall be effective to assign to Owner, Engineer, or any of their
officers, directors, members, partners, employees, agents, consultants, or
subcontractors, any duty or authority to supervise or direct the performance of
the work or any duty or authority to undertake responsibility inconsistent with
the provisions of the part of the Contract Documents prepared by or for
Engineer.
SC-3.03 Reporting and Resolving Discrepancies
A. Reporting Discrepancies
SC-3.03 Delete Sub-Paragraph 3.03.A.3 in its entirety and insert the
following in its place:
3. Contractor shall not be entitled to any
increase in the Contract Amount or Contract Time for any
conflicts, errors, ambiguities or discrepancies in the Contract
Documents that were known, or that should have been known to
Contractor, or which could have been discovered by Contractor as
part of its review of the bidding requirements and Contract
Documents prior to bidding or its review of the Contract
Documents prior to undertaking any part of the Work.
ARTICLE 4 – COMMENCEMENT AND PROGRESS OF THE WORK
SC-4.01 Commencement of Contract Times; Notice to Proceed
SC-4.01 Delete Paragraph 4.01.A in its entirety and insert the following in its place:
A. The Contract Times will commence to run on the day indicated in the
Notice to Proceed.
SC-4.05 Delays in Contractor’s Progress
SC-4.05 Add the following new paragraph immediately after Paragraph 4.05.G
H. Contractor must submit any Change Proposal seeking an adjustment in
Contract Price or Contract Times under Paragraph 4.05 within 30 days of the
commencement of the delaying, disrupting, or interfering event.
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ARTICLE 5 - SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL
CONDITIONS
SC-5.03 Subsurface and Physical Conditions
SC-5.03.A Delete Paragraph 5.03.A in its entirety and insert the following in its
place:
A. Reports and Drawings: The Contract Documents may identify:
1. Those soil borings, plans, drawings, surveys or other
reports of explorations of subsurface conditions at or
contiguous to the Site that Engineer has used in preparing
the Contract Documents;
2. Those drawings of physical conditions in or relating to
existing surface or subsurface structures at or contiguous
to the Site, (Except Underground Facilities) that Engineer
has used in preparing the Contract Documents; and
3. Technical Data contained in such Reports and Drawings.
The soil borings, plans, drawings, surveys, technical data, and
other documents referenced in Paragraphs 5.03.A.1, 2 and 3 are
collectively called “Reports and Drawings.”
SC-5.03.C Delete Paragraph 5.03.C in its entirety and insert the following in its
place:
C. Reliance by Contractor Not Authorized. Contractor may not rely
upon the Reports and Drawings referenced in 5.03.A or make any
claim against Owner, Engineer, or any of Owner’s or Engineer's
Consultants or Subcontractors related to the Reports and
Drawings. This limitation includes but is not limited to:
1. The accuracy or completeness of such Reports and
Drawings for Contractor’s purposes, including, but not
limited to, any aspects of the means, methods, techniques,
sequences, and procedures of construction to be
employed by Contractor, and safety precautions and
programs incident thereto; or
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2. The accuracy or completeness of other data,
interpretations, opinions, and information contained in,
shown on, or indicated in the Reports and Drawings; or
3. Any Contractor interpretation of or conclusion drawn from
any of the Reports and Drawings or any other Technical
Data, data, interpretations, opinions or information
referenced in the Reports and Drawings.
The Reports and Drawings, including the information contained
therein, are offered to the Contractor only as information relied
upon by Engineer in the preparation of the Contract Documents,
and the Contractor is solely responsible for confirming actual
conditions. Neither the Engineer nor the Owner, nor the
Consultants or Subcontractors of either have any responsibility for
any conclusion, interpretation or analysis contained therein or
made by the Contractor based upon the Contractor’s review of
the Reports and Drawings.
Neither Owner nor Engineer has any responsibility for and does
not warrant that the soils or water table encountered during
construction will be as shown in the Reports and Drawings.
SC-5.03.D Delete Paragraph 5.03.D in its entirety and insert the following in
its place:
D. Contractor warrants that before submitting a bid
the Contractor has determined the soil and subsoil
conditions, including the water table elevation and
the conditions to be encountered by Contractor in
the performance of the Work and that said
conditions and factors have been evaluated by
Contractor and incorporated into his Contract with
Owner. Contractor further warrants that the
Contractor is fully aware of the soil conditions,
subsoil conditions, water table and all applicable
State and Federal Regulations related to the
excavation, removal, transportation, placement
and relocation of the materials involved in the
Work to be performed by the Contractor and that
Contractor will complete the Work under whatever
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conditions he may encounter or create without
extra cost, expense to or claim against the Owner
or Engineer, their Consultants or Subcontractors.
Contractor has identified all locations where the
Contractor's operations are near public roadways,
the properties of railroads or contiguous physical
structures. Work shall not take place until
Contractor has made all arrangements necessary to
identify the location and/or elevation of the
roadways, the properties of railroads or contiguous
physical structures and foundation or
appurtenances and has taken all necessary steps to
protect the roadways, the properties of railroads or
contiguous physical structures from damage.
Contractor is solely responsible for any and all
damage to roadways, the properties of railroads or
contiguous physical structures and any personal
injury, death or property damage or consequential
damages arising from Contractor’s operations.
SC-5.04 Differing Subsurface or Physical Conditions
SC-5.04.A Delete Paragraph 5.04.A in its entirety and insert the following in its
place:
A. Notice by Contractor: If Contractor believes that any subsurface
or physical condition that is uncovered or revealed either:
1. is of such a nature as to require a change in the Contract
Documents; or
2. is of an unusual nature and differs materially from
conditions ordinarily encountered and generally
recognized as inherent in work of the character provided
for in the Contract Documents;
then Contractor shall, within 48 hours after becoming aware
thereof and before further disturbing the subsurface or physical
conditions or performing any Work in connection therewith
(except in an emergency as required by paragraph 7.15), notify
Owner and Engineer in writing about such condition. Contractor
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shall not further disturb such condition or perform any Work in
connection therewith (except as aforesaid) until receipt of written
order to do so. If notice as provided in the section is not given, no
change in Contract Price shall be considered or allowed.
SC-5.04.B Delete Paragraph 5.04.B in its entirety and insert the following in its
place:
B. Engineer’s Review: After receipt of written notice as required by
Paragraph 5.04.A, Engineer will review the information provide by
Contractor. If Engineer, in Engineer’s sole discretion, determines that
additional explorations and/or tests are needed to evaluate
Contractor’s belief that there are differing subsurface or physical
conditions, then Contractor, at Contractor’s sole expense, shall
promptly undertake those additional explorations and/or tests, and
provide the results to Engineer. Engineer will then review the
information provided by Contractor along with any other information
Engineer believes is pertinent, and advise Owner in writing (with a
copy to Contractor) of Engineer’s findings, conclusions and
recommendations.
If after receipt of written notice as required by Paragraph 5.04.A,
Engineer, in Engineer’s sole discretion, determines that additional
explorations and/or tests are not needed to evaluate Contractor’s
belief that there are differing subsurface or physical conditions,
Engineer will review the information provided by Contractor, along
with any other information Engineer believes is pertinent, and advise
Owner in writing (with copy to Contractor) of Engineer’s findings,
conclusions and recommendations.
Owner reserves the right at its own expense to undertake additional
exploration and/or testing. This reservation in no way waives the
responsibility of the Contractor to undertake additional explorations
and/or tests, if required, as set forth above.
SC-5.05 Underground Facilities
SC-5.05.A Delete Paragraph 5.05.A in its entirety and insert the following in its place:
A. Contractor’s Responsibilities: The information and data shown or
indicated in the Contract Documents with respect to existing
Underground Facilities at or adjacent to the Site is based on
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information and data furnished to Owner or Engineer by the
owners of such Underground Facilities, including Owner, or by
others.
1. The Underground Facilities shown on or indicated in the
Contract Documents are located according to the
information available to the Engineer at the time of the
preparation of the Contract Documents. Neither the
Engineer nor the Owner guarantee the accuracy or
completeness of any such information or data, including
but not limited to information provided by the Owner;
2. The Contractor is solely responsible for identifying the
actual location of all Underground Facilities and shall verify
the location and/or elevations of the Underground
Facilities prior to undertaking construction;
3. At all locations where the Contractor’s operations are
near, will cross or contact Underground Facilities, no part
of the Work shall commence until Contractor has made all
arrangements necessary to identify the location and/or
elevation of the Underground Facility, including contacting
MISS DIG, has notified the owner of the Underground
Facility, and has taken all necessary steps to protect the
Underground Facility from damage.
4. The cost of all of the following will be included in the
Contract Price, and Contractor shall have full responsibility
for:
a. reviewing and checking all information and data
regarding Underground Facilities at the Site;
b. complying with applicable state and local utility
damage prevention Laws and Regulations;
c. locating all Underground Facilities shown or
indicated in the Contract Documents;
d. verifying the actual location of those Underground
Facilities shown or indicated in the Contract
Documents as being within the area affected by the
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Work, by exposing such Underground Facilities
during the course of construction;
e. coordination of the Work with the owners of such
Underground Facilities, including Owner, during
construction;
f. the safety and protection of all such Underground
Facilities and related above ground structures,
including but not limited to shoring, bracing,
supporting and maintenance of all Underground
Facilities and related above ground structures
affected by the Contractor’s operations;
g. repairing any damage to Underground Facilities
and related above ground structures resulting from
the Work; and
h. any personal injury, death or property damage or
consequential damages arising from Contractor’s
Work.
5. In the event of the interruption of or damage to an
Underground Facility as the result of Contractor’s
operations, the Contractor shall immediately notify the
Underground Facility owner and shall take all steps
necessary to cooperate with and assist the Underground
Facility owner in the restoration and repair of the
Underground Facility. Said repair work shall be continuous
and shall not result in any delay of the Project or increased
cost or expense to Owner, or claim against Owner,
Engineer or their Consultants.
SC-5.05.B Delete Paragraph 5.05.B in its entirety and insert the following in its place:
B. Notice by Contractor: If an Underground Facility is uncovered or
revealed at or adjacent to the Site which was not shown or
indicated in the Contract Documents, Contractor shall, promptly
after becoming aware thereof and before further disturbing
conditions affected thereby or performing any Work in
connection therewith (except in an emergency as required
paragraph 7.15), identify the owner of such Underground Facility
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and give written notice to that owner and to Owner and Engineer.
SC-5.05.C Delete Paragraph 5.05.C in its entirety and insert the following in its place:
C. Engineer’s Review: Engineer will review the Underground Facility
and determine the extent, if any, to which a change is required in
the Contract Documents to reflect and document the
consequences of the existence or location of the Underground
Facility. If Engineer concludes that a change in the Contract
Documents is required, Engineer shall prepare recommendations
to the Owner regarding the Contractor’s resumption of Work in
connection with the Underground Facility in question; determine
the extent, if any, to which a change is required in the Drawings or
Specifications to reflect and document the consequences of the
existence or location of the Underground Facility; and advise
Owner in writing of Engineer’s findings, conclusions, and
recommendations. At all times, Contractor shall be solely
responsible for the safety and protection of such Underground
Facility.
SC-5.05.F. Delete Paragraph 5.05.F.1 in its entirety and insert the following in its place:
F. Possible Price and Times Adjustment
1. Contractor shall be entitled to an equitable adjustment in the
Contract Price or Contract Times, to the extent that they are
attributable to the existence or location of any Underground
Facility that was not shown or indicated in the Contract
Documents, subject to the following:
a. Contractor did not know of and could not reasonably have
been expected to be aware of or to have anticipated the
existence or actual location of the Underground Facility in
question;
b. With respect to Work that is paid for on a unit price basis,
any adjustment in Contract Price will be subject to the
provisions of Paragraph 13.03;
c. Contractor’s entitlement to an adjustment of the Contract
Times is subject to the provisions of Paragraphs 4.05.D and
4.05.E; and
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d. Contractor gave the notice required in Paragraph 5.05.B.
SC-5.06 Hazardous Environmental Conditions at Site
SC-5.06.A Delete Paragraph 5.06.A in its entirety and insert the following in its
place:
A. Reports and Drawings: The Supplementary Conditions identify:
1. The following reports regarding Hazardous Environmental
Conditions at the Site were utilized by the Engineer in the
preparation of the Contract Documents:
a. None
2. The following drawings regarding Hazardous Environmental
Conditions at the Site were utilized by the Engineer in the
preparation of the Contract Documents:
a. None
3. Technical Data contained in such Reports and Drawings.
SC-5.06.B Delete Paragraph 5.06.B in its entirety and insert the following in its
place:
B. Reliance by Contractor Not Authorized: Contractor may not make
any Claim against Owner, Engineer or the Consultants of either with
respect to:
1. The completeness of such reports, drawings and/or Technical
Data, for Contractor’s purposes, including, but not limited to, any
aspects of the means, methods, techniques, sequences and procedures
of construction to be employed by Contractor, the cost of Work and
safety precautions and programs incident thereto; or
2. The accuracy of any Technical Data, or any other data,
interpretations, opinions and information contained in such reports or
shown or indicated on such drawings; or
3. Any Contractor interpretation of or conclusion drawn from any
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such report, drawing or Technical Data.
ARTICLE 6 - BONDS AND INSURANCE
6.02 Insurance—General Provisions
SC-6.02 Delete Paragraph 6.02.A in its entirety and insert the
following in its place:
A. Owner and Contractor shall obtain and maintain insurance as required
in this Article and in the Insurance Specification.
SC-6.02 Delete Paragraphs 6.02.B through 6.02.N in their entirety
and replace with Insurance Specification.
6.03 Contractor’s Insurance
SC-6.03 Delete Paragraph 6.03.A in its entirety and insert the
following in its place:
A. Required Insurance: Contractor shall purchase and maintain Worker’s
Compensation, Commercial General Liability, and other insurance
pursuant to the specific requirements of the Insurance Specification.
SC-6.03 Delete Paragraphs 6.03.B through 6.03.C in their entirety
and replace with Insurance Specification.
6.04 Builder’s Risk and Other Property Insurance
SC-6.04 Delete the last sentence of Paragraph 6.04.A and insert the following in its
place:
The specific requirements applicable to the builder’s risk insurance are set
forth in the Insurance Specification.
SC-6.04 Delete Paragraphs 6.04.B through 6.04.E in their entirety and replace with
Insurance Specification.
6.05 Property Losses; Subrogation
SC-6.05 Delete Paragraphs 6.05.A through 6.05.D in their entirety and replace with
Insurance Specification.
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6.06 Receipt and Application of Property Insurance Proceeds
SC-6.06 Delete Paragraphs 6.06.A through 6.06.C in their entirety and replace with
Insurance Specification.
ARTICLE 7 - CONTRACTOR’S RESPONSIBILITIES
SC-7.01 Contractor’s Means and Methods of Construction
SC-7.01.A Add the following new sentence immediately after the last sentence in
7.01.A:
Nothing in the design, specifications or Contract Documents shall be
deemed to constitute a specific means, method, technique, sequence, or
procedure of construction. Contractor shall be solely responsible for
ensuring that the completed Work conforms accurately to the Contract
Documents.
SC-7.05 “Or-Equals”
SC-7.05.A Add the following sub-paragraph immediately after Paragraph
7.05.A.1.b.2:
3) the item will be functionally equal to the named item of material
or equipment. Contractor warrants and assumes sole
responsibility for the adequacy, performance and functioning of
the “or-equal” material or equipment.
SC-7.06 Substitutes
SC-7.06.A.3.f Add the following sub-paragraph immediately following
paragraph 7.06.A.3.d:
f. Contractor warrants that, if approved and incorporated
into the Work, the "substitute item" will be functionally
equal to the named item of material or equipment.
Contractor assumes sole responsibility for the adequacy,
performance and functioning of the “substitute” item of
material or equipment.
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SC-7.07 Concerning Subcontractors and Suppliers
SC-7.07.D Delete Paragraph 7.07.D in its entirety and replace with the following
paragraph:
D. No later than two (2) business days after the bid opening, the Contractor
shall submit to the Owner and Engineer for acceptance a list of the
names and addresses of the Contractor’s Subcontractors, Suppliers and
such other individuals and entities as the Owner requests.
SC-7.07 Add the following sub-paragraphs immediately following
paragraph 7.07.M:
N. Contractor shall require all Subcontractors, prior to commencement of
any Work by the Subcontractor, to secure and keep in force the
insurance coverages set forth in and required by the Insurance
Specification.
O. Contractor shall be fully responsible to Owner and Engineer for all acts
and omissions of the Subcontractors and Suppliers, whether initially or
as a replacement, performing or furnishing any of the Work just as
Contractor is responsible for Contractor’s own acts and omissions.
SC-7.08 Patent Fees and Royalties
SC-7.08.B Delete paragraph 7.08.B in its entirety.
SC-7.11 Laws and Regulations
SC-7.11.D Add the following new paragraph immediately after Paragraph 7.11.C:
D. Contractor shall be solely responsible for compliance with all Federal and
State Occupational Safety and Health Act (“OSHA”) requirements related to
the Work and the Site, including, if applicable, the requirements of the
Michigan Occupational Safety and Health Act (“MIOSHA”). Neither Owner
nor Engineer shall have any responsibility for construction site safety or
OSHA or MIOSHA compliance. Contractor will indemnify and hold harmless
Owner and Engineer from all claims, costs, fees, fines, penalties and
expenses (including but not limited to all fees and charges of engineers,
architects, attorneys and other professionals and all court, administrative
proceeding, and dispute resolution costs) related in any way to claims related
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to construction site safety, OSHA or MIOSHA violations or charges.
SC-7.13 Safety and Protection
SC-7.13.A Amend the first sentence of Paragraph 7.13.A to read as follows:
A. Contractor shall be solely responsible for initiating, maintaining and
supervising all safety precautions and programs in connection with the
Work, including but not limited to the enforcement of safety
precautions and programs of all Subcontractors.
SC-7.13.D Amend Paragraph 7.13.D to read as follows:
E. All damage, injury, or loss to any property referred to in Paragraph
7.13.C.2 or 7.13.C.3 caused, directly or indirectly, in whole or in part, by
Contractor, any Subcontractor, Supplier, or any other individual or entity
directly or indirectly employed by any of them to perform any of the
Work, or anyone for whose acts any of them may be liable, shall be
remedied by Contractor at its expense.
SC-7.16 Submittals
SC-7.16.B.1 Amend paragraph 7.16.B.1.a to read as follows:
a. Contractor shall submit to Engineer for approval eight (8) copies of all
shop drawings.
SC-7.16.B.2 Amend paragraph 7.16.B.2.a to read as follows:
a. Contractor shall submit to Engineer for approval eight (8) duplicates of
each Sample.
SC-7.16.E Add the following new paragraph immediately after Paragraph 7.16.E.1.d:
e. Contractor shall submit to Engineer for approval eight (8) duplicates of
each submittal.
SC-7.17 Contractor's General Warranty and Guarantee
SC-7.17.A Delete Paragraph 7.17.A in its entirety and replace with the following
paragraph:
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Contractor warrants and guarantees to Owner that all Work will be in
accordance with the Contract Documents and will not be defective. Engineer
and its officers, directors, members, partners, employees, agents,
consultants, and subcontractors shall be entitled to rely on Contractor’s
warranty and guarantee. Contractor’s warranty and guaranty that all Work
will be in accordance with the Contract Documents and will not be defective
includes but is not limited to all materials and equipment incorporated into
the Work. Unless a longer duration is required by the Project Specifications,
Contractor’s warranty and guaranty that all Work will be in accordance with
the Contract Documents and will not be defective will extend for at least one
year after the date of Substantial Completion.
SC-7.17.D.8 Amend paragraph 7.17.D.8 to read as follows:
8. Any inspection, test, review, or approval by Engineer, the Resident
Project Representative (if one is assigned to the Site), or by others;
SC-7.17.D.9 Amend Paragraph 7.17.D.9 to read as follows:
9. Any correction of defective Work by Owner; or
SC-7.17.D.10 Add the following new paragraph immediately after Paragraph 7.17.D.9:
10. Any acceptance by Owner, or any failure to do so.
SC-7.19 Delegation of Professional Design Services
SC-7.19.B Add the following new sentence immediately after the last sentence in
7.19.B:
The design professional must be licensed in the state or states where the
Project is located.
SC-7.19.D Delete Paragraph 7.19.D in its entirety and replace with the following
paragraph:
Owner and Engineer shall be entitled to rely upon the adequacy, accuracy,
and completeness of the services, certifications, drawings, calculations,
specifications, Submittals, and approvals performed or provided by the
design professionals retained or employed by Contractor under an Owner-
delegated design, subject to the professional standard of care and the
performance and design criteria stated in the Contract Documents.
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ARTICLE 9 – OWNER’S RESPONSIBILITIES
SC-9.06 Insurance
SC-9.06.A. Delete Paragraph 9.06.A in its entirety and replace with the following
paragraph:
A. Owner’s responsibilities, if any, with respect to purchasing and maintaining
liability and property insurance are set forth in the Insurance Specifications.
ARTICLE 10 - ENGINEER’S STATUS DURING CONSTRUCTION
SC-10.01 Owner’s Representative
SC-10.01.A Delete Paragraph 10.01.A in its entirety and insert the following in its place:
A. Engineer will be Owner’s representative during the construction period.
The Engineer will have authority to act on behalf of the Owner only to
the extent provided in the Contract Documents. The authority and
responsibilities of the Engineer as set forth in the Contract Documents
shall not be restricted, extended or otherwise modified without the
written consent of the Engineer and the Owner. Nothing in the Contract
Documents shall create for the benefit of the Contractor, any
Subcontractor, Supplier or other individual or entity, any contractual
relationship between Engineers and any such Contractor, Subcontractor,
Supplier or other individual or entity.
SC-10.02 Visits to Site
SC-10.02.A Amend Paragraph 10.02.A by striking the following words from the first
sentence:
“at intervals appropriate to the various stages of construction”
SC-10.03 Resident Project Representative
SC-10.03.C Add the following new paragraphs immediately after Paragraph 10.03.C:
C. If Engineer furnishes a Resident Project Representative (RPR), the RPR
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will be Engineer’s employee or agent at the Site. The RPR's authority and
responsibility is expressly limited to making observations of the progress
that has been made and the quality of the various aspects of
Contractor’s executed Work, and reporting same to Engineer. RPR will
not be required to make exhaustive or continuous observations or
inspections on the Site to check the quality or quantity of the Work.
RPR’s efforts will be directed toward providing for Owner a greater
degree of confidence that the completed Work will conform generally to
the Contract Documents. In addition to the limitations set forth in
Paragraph 10.07, The RPR does not have the authority or responsibility
to:
1. Authorize any deviation from the Contract Documents or
substitution of materials or equipment (including “or-
equal” items).
2. Exceed limitations of Engineer’s authority as set forth in
the Contract Documents.
3. Undertake any of the responsibilities of Contractor,
Subcontractors, Suppliers, or Contractor’s superintendent.
4. Advise on, issue directions relative to, or assume control
over any aspect of the means, methods, techniques,
sequences or procedures of Contractor’s work.
5. Advise on, issue directions regarding, or assume control
over safety practices, precautions, and programs in
connection with the activities or operations of Owner or
Contractor.
6. Participate in specialized field or laboratory tests or
inspections conducted off-site by others except as
specifically authorized by Engineer.
7. Accept Shop Drawing or Sample submittals.
8. Authorize Owner to occupy the Project in whole or in part.
9. Interpret for Contractor or Owner any provision of the
Contract Documents.
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10. Stop the Work for any reason.
SC-10.07 Limitations on Engineer’s Authority and Responsibilities.
SC-10.07.B Add the following sentence immediately after the last sentence in Paragraph
10.07.B:
Engineer may not stop the work or interfere with the progress of the Work.
No decision made by the Engineer in good faith either to exercise or not
exercise any authority or responsibility delegated to Engineer in the Contract
Documents or the undertaking, exercise, or performance of any authority or
responsibility by Engineer shall be construed as interference with the
progress of the Work. Engineer shall have no authority or responsibility to
recommend alternate or possible safety activities or changes for the safety of
the project, Contractor, Subcontractors, Suppliers, Owner, employees, third
persons or their property.
SC-10.07.F Add the following new paragraph immediately after Paragraph 10.07.E:
F. Engineer will not be responsible for Contractor’s failure to pay
Subcontractors, Suppliers, employees, taxes, fees, permits, patent fees,
copyright fees, royalties, licenses or monies due to any individual or
entity.
SC-15.01 Progress Payments
SC-15.01.C Delete Paragraph 15.01.C.3.a and insert the following in its place:
a. Inspections made to check the quality or the quantity of the Work as it
has been performed have been exhaustive, extended to every aspect of
the Work in progress, or involved detailed inspections of the Work; or
SC-15.01.C Delete the period at the end of the sentence in Paragraph 15.01.C.4.e and
insert the following in its place:
, or
SC-15.01.C Add the following new paragraphs immediately after Paragraph 15.01.C.4.e:
f. for Contractor’s failure to construct the Work or any part of the Work in
conformance with the Contract Documents, or
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g. for defective Work.
SC-15.04 Partial Use or Occupancy
SC-15.04 Delete Paragraph 15.04.A.4 in its entirety and insert the following in its place:
4. No use or occupancy or separate operation of part of the Work may
occur prior to compliance with the requirements of the Insurance
Specifications regarding builder’s risk or other property insurance.
SC-15.07 Waiver of Claims
SC-15.07.A Delete Paragraph 15.07.A in its entirety and insert the following in its place:
A. The making of final payment will not constitute a waiver by Owner of
claims or rights against Contractor. Owner expressly reserves claims and
rights arising (1) from unsettled Liens, (2) from defective Work, (3) from
Contractor’s failure to comply with the Contract Documents or the
terms of any special guarantees specified therein, (4) from outstanding
Claims by Owner, (5) from Contractor’s continuing obligations under the
Contract Documents, and (6) from late completion by Contractor,
including without limitation liquidated damages or other damage.
ARTICLE 17 – FINAL RESOULTION OF DISPUTES
SC-17.01 Methods and Procedures
SC-17.01.B Delete Paragraph 17.01.B.1 in its entirety and insert the following in its place:
1. At Owner’s sole option, Owner may demand in writing arbitration of the
dispute;
SC-17.01.C Add the following new paragraph immediately after Paragraph 17.01.B
SC-17.01.C Arbitration of Claims at Election of Owner
1. If the Owner elects in writing to demand arbitration as set forth in
Paragraph 17.01.1, the dispute will be decided by arbitration in
accordance with the rules of the American Arbitration Association in
effect as of the Effective Date of the Agreement
2. The demand for arbitration will be filed in writing with the Contractor
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and with the selected arbitrator, and a copy will be sent to Engineer for
information.
3. The award rendered by the arbitrator(s) shall be consistent with the
agreement of the parties, in writing, and include: (i) a concise breakdown
of the award; and (ii) a written explanation of the award specifically citing
the Contract Document provisions deemed applicable and relied on in
making the award.
4. The award will be final. Judgment may be entered upon it in any court
having jurisdiction thereof, and it will not be subject to modification or
appeal except as provided by the controlling law governing vacating or
modifying an arbitration award.
5. The fees and expenses of the arbitrators and any arbitration service shall
be shared equally by Owner and Contractor.
ARTICLE 18 – MISCELLANEOUS
18.01 Giving Notice
SC-18.01 Delete Paragraph 18.01.A.3 in its entirety.
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INSURANCE SPECIFICATION
Insurance Required to be Purchased and Maintained by the Contractor
Contractor shall comply with all requirements of this Insurance Specification. Contractor shall
purchase and maintain (i.e. keep in force) insurance which conforms to the requirements of this
Insurance Specification.
1.1 Insurance—General Provisions
1.1.1 Contractor shall obtain and maintain insurance as required in this Insurance
Specification.
1.1.2 All insurance required by the Contract to be purchased and maintained by
Contractor shall be obtained from insurance companies that are duly licensed or
authorized, in the state or jurisdiction in which the Project is located, to issue
insurance policies for the required limits and coverage’s. Unless a different
standard is indicated in the Supplementary Conditions, all companies that
provide insurance policies required under this Contract shall have an A.M. Best
rating of A-VII or better.
1.1.3 Contractor shall deliver to Owner, with copies to each named insured and
additional insured (as identified in this Insurance Specification, in the
Supplementary Conditions, or elsewhere in the Contract), certificates of
insurance establishing that Contractor has obtained and is maintaining the
policies, coverage’s, and endorsements required by the Contract. Upon request
by Owner or any other insured, Contractor shall also furnish other evidence of
such required insurance, including but not limited to copies of policies and
endorsements, and documentation of applicable self-insured retentions and
deductibles. Contractor may block out (redact) any confidential premium or
pricing information contained in any policy or endorsement furnished under this
provision.
1.1.4 Failure of Owner to demand such certificates or other evidence of the
Contractor’s full compliance with these insurance requirements, or failure of
Owner to identify a deficiency in compliance from the evidence provided, shall
not be construed as a waiver of the Contractor’s obligation to obtain and
maintain such insurance.
1.1.5 If Contractor does not purchase or maintain all of the insurance required of
Contractor by the Contract, Contractor shall notify the other party in writing of
such failure to purchase prior to the start of the Work, or of such failure to
maintain prior to any change in the required coverage.
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1.1.6 If Contractor has failed to obtain and maintain required insurance, Owner may
exclude the Contractor from the Site, impose an appropriate set-off against
payment, and exercise Owner’s termination rights under Article 16 of the
General Conditions of the Contract.
1.1.7 Without prejudice to any other right or remedy, if Contractor has failed to obtain
required insurance, Owner may elect to obtain equivalent insurance to protect
Owner’s interests at the expense of the Contractor, and the Contract Price shall
be adjusted accordingly.
1.1.8 Owner does not represent that insurance coverage and limits established in this
Contract necessarily will be adequate to protect Contractor or Contractor’s
interests.
1.1.9 The insurance and insurance limits required herein shall not be deemed as a
limitation on Contractor’s liability under the indemnities granted to Owner and
other individuals and entities in the Contract.
1.2 Contractor’s Insurance - Liability
1.2.1 Owner’s & Contractor’s Protective Liability: Contractor shall purchase and
maintain an Owner’s & Contractor’s Protective Liability Policy (“OCP” Policy).
The OCP policy shall name the Owner, the Engineer, their consultants, agents,
and employees, as the insureds (hereinafter collectively called the “named
insureds”). The OCP policy will protect the named insureds for any actual or
alleged liability arising out of the work performed by the Contractor, the
Subcontractor(s), or Suppliers, on this Project. The OCP policy will provide
primary, non-contributing coverage.
1.2.2 Workers’ Compensation and Employer’s Liability: Contractor shall purchase
and maintain workers’ compensation and employer’s liability insurance for:
1.2.2.1 Claims under workers’ compensation, disability benefits, and
other similar employee benefit acts.
1.2.2.2 United States Longshoreman and Harbor Workers’ Compensation
Act and Jones Act coverage (if applicable).
1.2.2.3 Claims for damages because of bodily injury, occupational
sickness or disease, or death of Contractor’s employees (by stop-
gap endorsement in monopolist worker’s compensation states).
1.2.2.4 Foreign voluntary worker compensation (if applicable).
1.2.3 Commercial General Liability—Claims Covered: Contractor shall purchase and
maintain commercial general liability insurance, covering all operations by or on
behalf of Contractor, on an occurrence basis, against:
1.2.3.1 Claims for damages because of bodily injury, sickness or disease,
or death of any person other than Contractor’s employees.
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1.2.3.2 Claims for damages insured by reasonably available personal
injury liability coverage.
1.2.3.3 Claims for damages, other than to the Work itself, because of
injury to or destruction of tangible property wherever located,
including loss of use resulting therefrom.
1.2.4 Commercial General Liability—Form and Content: Contractor’s commercial
liability policy shall be written on a 1996 (or later) ISO commercial general
liability form (occurrence form) and include the following coverage’s and
endorsements:
1.2.4.1 Products and completed operations coverage: Such insurance
shall be maintained for three years after final payment.
1.2.4.2 Contractor shall furnish Owner and each other additional insured
(as identified in the Supplementary Conditions or elsewhere in the
Contract) evidence of continuation of such insurance at final
payment and three years thereafter.
1.2.4.3 Blanket contractual liability coverage, to the extent permitted by
law, including but not limited to coverage of Contractor’s
contractual indemnity obligations in Paragraph 7.18.
1.2.4.4 Premises/operations liability.
1.2.4.5 Personal and advertising injury.
1.2.4.6 Broad form property damage coverage.
1.2.4.7 Severability of interest (the CGL policy shall apply to each named
insured as if that named insured was the only named insured and
the policy shall apply separately to each insured against whom
claim is made or suit is brought).
1.2.4.8 Underground, explosion, and collapse coverage.
1.2.4.9 Personal injury coverage, including employees (with no
exclusions pertaining to employment).
1.2.4.10 Additional insured endorsements that include both ongoing
operations and products and completed operations coverage
through ISO Endorsements CG 20 10 10 01 and CG 20 37 10 01
(together); or CG 20 10 07 04 and CG 20 37 07 04 (together); or
their equivalent.
1.2.4.11 For design professional additional insureds, ISO Endorsement CG
20 32 07 04, “Additional Insured—Engineers, Architects or
Surveyors Not Engaged by the Named Insured” or its equivalent.
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1.2.5 Automobile liability: Contractor shall purchase and maintain comprehensive
automobile liability insurance against claims for damages because of bodily
injury or death of any person or property damage arising out of the ownership,
maintenance, or use of any motor vehicle, including owned, non-owned, and
hired motor vehicles. In light of standard policy provisions concerning (a) loading
and unloading, and (b) definitions pertaining to motor vehicles licensed for road
use versus unlicensed or self-propelled construction equipment, it is
recommended that the comprehensive automobile liability insurance policy and
the commercial general liability policy be written by the same insurance carrier,
though not necessarily in one the policy. The comprehensive automobile liability
policy shall be written on an occurrence basis.
1.2.6 Umbrella or excess liability: Contractor shall purchase and maintain umbrella or
excess liability insurance written over the underlying employer’s liability,
commercial general liability, aviation liability and automobile liability insurance
described in the paragraphs above and in Section 1.2.10 below. The coverage
afforded shall be at least as set for in Section 1.5.6. But if no box is checked in
Section 1.5.6, then the umbrella/excess liability coverage limits will be
$2,000,000 per occurrence and $2,000,000 general aggregate. The umbrella or
excess liability insurance policy(ies) shall be an occurrence policy(ies)
1.2.7 Contractor’s pollution liability insurance: Contractor shall purchase and
maintain a policy covering third-party injury and property damage claims,
including clean-up costs, as a result of pollution conditions arising from
Contractor’s operations and completed operations. This insurance shall be
maintained for no less than three years after final completion.
1.2.8 Railroad Protective Liability: Contractor shall purchase and maintain a Railroad
Protective Liability policy, where such an exposure exists, to provide coverage in
the name of each railroad company having jurisdiction over rights-of-way across
which Work under the Contract Documents is to be performed. The form of the
policy and the limits of liability shall be determined by the railroad company(ies)
involved.
1.2.9 Contractor’s professional liability insurance: If Contractor will provide or furnish
professional services under this Contract, through a delegation of professional
design services or otherwise, then Contractor shall purchase and maintain
applicable professional liability insurance. This insurance shall provide protection
against claims arising out of performance of professional design or related
services, and caused by a negligent error, omission, or act for which the insured
party is legally liable. It shall be maintained throughout the duration of the
Contract and for a minimum of two years after Substantial Completion. If such
professional design services are performed by a Subcontractor, and not by
Contractor itself, then the requirements of this paragraph may be satisfied
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through the purchasing and maintenance of such insurance by such
Subcontractor.
1.2.10 Aviation Liability Insurance: If required on this project as indicated by a check
mark in Section 1.5.10, Contractor shall procure and maintain for the duration of
the Contract insurance against claims for injuries to persons or damage to
property which may arise from or in connection with the ownership,
maintenance or use of Manned or Unmanned Aerial Vehicles, including but not
limited to drone(s).
1.2.10.1 Minimum Scope and Limit of Insurance: Aviation Liability
Insurance on an “occurrence” basis, including products and
completed operations, property damage, bodily injury with limits
no less than $1,000,000 per occurrence, and $2,000,000 in the
aggregate. This coverage may also be provided by endorsement to
the Contractor’s Commercial General Liability policy.
1.3 The policies of insurance required to be purchased and maintained by the Contractor
shall:
1.3.1 Additional insureds: The Contractor’s commercial general liability, automobile
liability, umbrella or excess, pollution liability policies and aviation liability
insurance, shall include and list as additional insureds the Owner and Engineer,
and the following individuals and entities:
Name Address Telephone
Prein& Newhof 4910 Stariha Drive, Muskegon, MI 49441 231-(798) 0101
The additional insured coverage shall include coverage for the respective
officers, directors, members, partners, employees, agents, consultants, and
subcontractors of each and every additional insureds; and the insurance
afforded to these additional insureds shall provide primary coverage for all
claims covered thereby (including as applicable those arising from both ongoing
and completed operations) on a non-contributory basis. Contractor shall obtain
all necessary endorsements to support these requirements. Each additional
insured endorsement shall state that each additional insured is entitled to the
same rights as the named insured in the event of cancellation, including but not
limited to prior notice of cancellation.
1.3.2 Deductible Liability: Any and all deductibles in the polices described in this
Insurance Specification shall be assumed by, for the account of, and be the sole
responsibility of Contractor. The amount of any deductible is subject to approval
by the Owner.
1.3.3 Insurance will be primary: The insurance required to be purchased and
maintained by the Contractor under this Insurance Specification shall be primary
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(i.e. pay first) as respects any insurance, self-insurance or self-retention
maintained by the Owner, Engineer, and any other insureds. Any insurance, self-
insurance or self-retention maintained by the Owner, Engineer, or any other
insureds, shall be in excess of the insurance purchased and maintained by the
Contractor under this Insurance Specification, and shall not contribute with it.
1.3.4 Coverages: Include at least the specific coverage’s provided in this Insurance
Specification.
1.3.5 Minimum Limits: Be written for not less than the limits of liability provided
in this Insurance Specification and in the Supplementary Conditions, or required
by Laws or Regulations, whichever is greater.
1.3.6 Notice of Cancellation: Contain a provision or endorsement that the
coverage afforded will not be canceled, materially changed, or renewal refused
until at least ten (10) days prior written notice has been given to Contractor.
Within three (3) days of receipt of any such written notice, Contractor shall
provide a copy of the notice to Owner, Engineer, and each other insured under
the policy.
1.3.7 Duration: Remain in effect at least until final payment (and longer if
expressly required in this Insurance Specification or the Supplementary
Conditions) and at all times thereafter when Contractor may be correcting,
removing, or replacing defective Work as a warranty or correction obligation,
or otherwise, or returning to the Site to conduct other tasks arising from the
Contract Documents.
1.3.8 Be appropriate for the Work being performed and provide protection to
Contractor, Owner, Engineer, and any other additional insured, from claims that
may arise out of or result from Contractor’s, Sub-contractor’s or Supplier’s
performance of the Work, or any individual or entity directly or indirectly
employed by any of them to perform any of the Work or anyone for whose acts
any of them may be liable.
1.3.9 The coverage requirements for specific policies of insurance must be met by
such policies, and not by reference to excess or umbrella insurance provided in
other policies.
1.4 Contractor’s Insurance - Property
Builder’s Risk: If required on this project as indicated by a check mark in Section 1.5.7,
Contractor shall purchase and maintain builder’s risk insurance upon the Work on a
completed value basis, in the amount of the full insurable replacement cost thereof
(subject to such deductible amounts as may be provided in this Insurance Specification,
or the Supplementary Conditions or required by Laws and Regulations). This insurance
shall:
1.4.1.1 Include the interests of Owner, Contractor, Subcontractors, Engineer, and the
officers, directors, partners, employees, agents, consultants and
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subcontractors, of any of them, and any other individuals or entities required
by this Insurance Specification and/or the Supplementary Conditions to be
insured under such builder’s risk policy. Each of whom shall be listed as a
named insured (the parties required to be insured shall collectively be referred
to as “insureds”).
1.4.1.2 Be written on a builder’s risk “all risk” policy form that shall at least include
insurance for physical loss or damage to the Work, temporary buildings,
falsework, and materials and equipment in transit, and shall insure against at
least the following perils or causes of loss: fire; lightning; windstorm; riot; civil
commotion; terrorism; vehicle impact; aircraft; smoke; theft; vandalism and
malicious mischief; mechanical breakdown, boiler explosion, and artificially
generated electric current; earthquake; volcanic activity, and other earth
movement; flood; collapse; explosion; debris removal; demolition occasioned
by enforcement of Laws and Regulations; water damage (other than that
caused by flood); and such other perils or causes of loss as may be specifically
required by this Insurance Specification and/or the Supplementary Conditions.
If insurance against mechanical breakdown, boiler explosion, and artificially
generated electric current; earthquake; volcanic activity, and other earth
movement; or flood, are not commercially available under builder’s risk
policies, by endorsement or otherwise, such insurance may be provided
through other insurance policies acceptable to Owner and Contractor.
1.4.1.3 Cover, as insured property, at least the following: (a) the Work and all
materials, supplies, machinery, apparatus, equipment, fixtures, and other
property of a similar nature that are to be incorporated into or used in the
preparation, fabrication, construction, erection, or completion of the Work,
including Owner-furnished or assigned property; (b) spare parts inventory
required within the scope of the Contract; and (c) temporary works which are
not intended to form part of the permanent constructed Work but which are
intended to provide working access to the Site, or to the Work under
construction, or which are intended to provide temporary support for the
Work under construction, including scaffolding, form work, fences, shoring,
falsework, and temporary structures.
1.4.1.4 Cover expenses incurred in the repair or replacement of any insured property
(including but not limited to fees and charges of engineers and architects).
1.4.1.5 Extend to cover damage or loss to insured property while in temporary storage
at the Site or in a storage location outside the Site (but not including property
stored at the premises of a manufacturer or Supplier).
1.4.1.6 Extend to cover damage or loss to insured property while in transit.
1.4.1.7 Allow for partial occupation or use of the Work by Owner, such that those
portions of the Work that are not yet occupied or used by Owner shall remain
covered by the builder’s risk insurance.
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1.4.1.8 Allow for the waiver of the insurer’s subrogation rights, as set forth below.
1.4.1.9 Provide primary coverage for all losses and damages caused by the perils or
causes of loss covered.
1.4.1.10 Not include a co-insurance clause.
1.4.1.11 Include an exception for ensuing losses from physical damage or loss with
respect to any defective workmanship, design, or materials exclusions.
1.4.1.12 Include performance/hot testing and start-up.
1.4.1.13 Be maintained in effect until final payment is made unless otherwise agreed to
in writing by Owner, Contractor, and Engineer, with 30 days written notice to
each other Insured.
1.4.2 Notice of Cancellation or Change: All the policies of insurance (and the certificates or
other evidence thereof) required to be purchased and maintained in accordance with
this section shall contain a provision or endorsement that the coverage afforded will not
be canceled or materially changed or renewal refused until at least ten (10) days prior
written notice has been given to the purchasing policyholder. Within three (3) days of
receipt of any such written notice, the purchasing policyholder shall provide a copy of
the notice to each other insured.
1.4.3 Deductibles: Contractor shall pay for costs not covered because of the application of a
policy deductible.
1.4.4 Partial Occupancy or Use by Owner: If Owner will occupy or use a portion or portions
of the Work prior to Substantial Completion of all the Work as provided in Paragraph
15.04 of the General Conditions of the Contract, then Owner, through Contractor, will
provide notice of such occupancy or use to the builder’s risk insurer. The builder’s risk
insurance shall not be canceled or permitted to lapse on account of any such partial use
or occupancy; rather, those portions of the Work that are occupied or used by Owner
may come off the builder’s risk policy, while those portions of the Work not yet
occupied or used by Owner shall remain covered by the builder’s risk insurance.
1.4.5 Additional Insurance: If Contractor elects to obtain other special insurance to be
included in or supplement the builder’s risk or property insurance policies provided
under this section, it may do so at Contractor’s expense.
1.4.6 Insurance of Other Property: If the express insurance provisions of the Contract do not
require or address the insurance of a property item or interest, such as tools,
construction equipment, or other personal property owned by Contractor, a
Subcontractor, or an employee of Contractor or a Subcontractor, then the entity or
individual owning such property item will be responsible for deciding whether to insure
it, and if so in what amount.
1.4.7 Waiver of Rights: All policies purchased in accordance with this Section 1.4, expressly
including the builder’s risk policy, shall contain provisions to the effect that in the event
of payment of any loss or damage the insurers will have no rights of recovery against
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any insureds thereunder, or against Engineer or its consultants, or their officers,
directors, members, partners, employees, agents, consultants, or subcontractors.
Owner and Contractor waive all rights against each other and the respective officers,
directors, members, partners, employees, agents, consultants, and subcontractors of
each and any of them, for all losses and damages caused by, arising out of, or resulting
from any of the perils or causes of loss covered by such policies and any other property
insurance applicable to the Work; and, in addition, waive all such rights against
Engineer, its consultants, all Subcontractors, all individuals or entities identified in this
Insurance Specification, or the Supplementary Conditions as insureds, and the officers,
directors, members, partners, employees, agents, consultants, and subcontractors of
each and any of them, under such policies for losses and damages so caused. None of
the above waivers shall extend to the rights that any party making such waiver may
have to the proceeds of insurance held by Owner or Contractor as trustee or fiduciary,
or otherwise payable under any policy so issued.
1.4.8 Sub-Contractors Waiver of Rights
Contractor shall be responsible for assuring that the agreement under which a
Subcontractor performs a portion of the Work contains provisions whereby the
Subcontractor waives all rights against Owner, Contractor, all individuals or entities
identified in this Insurance Specification or the Supplementary Conditions, as insureds,
the Engineer and its consultants, and the officers, directors, members, partners,
employees, agents, consultants, and subcontractors of each and any of them, for all
losses and damages caused by, arising out of, relating to, or resulting from any of the
perils or causes of loss covered by builder’s risk insurance and any other property
insurance applicable to the Work.
1.4.9 Receipt and Application of Property Insurance Proceeds
Any insured loss under the builder’s risk and other policies of insurance required by this
section will be adjusted and settled with the named insured that purchased the policy.
Such named insured shall act as fiduciary for the other insureds, and give notice to such
other insureds that adjustment and settlement of a claim is in progress. Any other
insured may state its position regarding a claim for insured loss in writing within 15 days
after notice of such claim.
Proceeds for such insured losses may be made payable by the insurer either jointly to
multiple insureds, or to the named insured that purchased the policy in its own right and
as fiduciary for other insureds, subject to the requirements of any applicable mortgage
clause. A named insured receiving insurance proceeds under the builder’s risk and other
policies of insurance required by this section shall distribute such proceeds in
accordance with such agreement as the parties in interest may reach, or as otherwise
required under the dispute resolution provisions of the Contract or applicable Laws and
Regulations.
Page 9 of 11
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If no other special agreement is reached, the damaged Work shall be repaired or
replaced, the money so received applied on account thereof, and the Work and the cost
thereof covered by Change Order, if needed.
1.5 Minimum limits
1.5.1 The minimum limits for the insurance required by this Insurance Specification
shall provide coverage for not less than the following amounts or greater where
required by Laws or Regulations:
1.5.2 Owner’s & Contractor’s Protective Liability Policy
1.5.2.1 Each Occurrence $1,000,000
1.5.2.2 General – Aggregate $2,000,000
1.5.3 Contractor’s Commercial General Liability Policy
1.5.3.1 General – Aggregate $2,000,000
1.5.3.2 Products – Completed
Operations Aggregate $2,000,000
1.5.3.3 Personal and Advertising Injury $1,000,000
1.5.3.4 Each Occurrence $1,000,000
1.5.3.5 Fire damage $50,000
1.5.3.6 Medical Expense $5,000
1.5.4 Comprehensive Automobile Liability Policy (In accordance with Michigan’s
No Fault Statute)
1.5.4.1 Combined Single Limit of $1,000,000
1.5.5 Worker’s Compensation and Employer’s Liability Policy
1.5.5.1 Michigan Statutory
Limits
1.5.5.2 Employer’s Liability
1.5.5.2.1 Each accident $ 500,000
1.5.5.2.2 Disease – each employee $ 500,000
1.5.5.2.3 Disease – policy limit $ 500,000
1.5.5.3 Federal, if applicable (e.g. FELA, Statutory
Longshoreman’s, etc. . . .) Limits
Page 10 of 11
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1.5.5 Excess or Umbrella Liability Policy
Unless increased limits are required as checked below, the limits shall be:
1.5.6.1 General Aggregate $2,000,000
1.5.6.2 Each Occurrence $2,000,000
Owner may select increased limits for this project as checked below; otherwise,
the above limits shall apply if neither below option is checked:
Option One ☐
1.5.6.1 General Aggregate $5,000,000
1.5.6.2 Each Occurrence $5,000,000
Option Two ☐
1.5.6.1 General Aggregate $10,000,000
1.5.6.2 Each Occurrence $10,000,000
1.5.7 Builder’s Risk “all risk” policy Full
Replacement
☒ Check if required Cost
1.5.8 Contractor’s Pollution Liability Policy $1,000,000
1.5.9 Railroad Protective Liability $
☐ Check if required $
1.5.10 Aviation Liability Insurance
☐ Check if required
1.5.10.1 General – Aggregate $2,000,000
1.5.10.2 Products – Completed
Operations Aggregate $2,000,000
1.5.10.4 Each Occurrence $1,000,000
1.5.11 Other insurance
☐ Check if required (List Type) $
Page 11 of 11
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OP ID: JF
CERTIFICATE OF LIABILITY INSURANCE
DATE (MM/DD/YYYY)
_
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to
the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the
certificate holder in lieu of such endorsement(s).
CONTACT
PRODUCER Phone: NAME:
- PHONE FAX
- Fax: (A/C, No, Ext): (A/C, No):
- E-MAIL
ADDRESS:
- PRODUCER
CUSTOMER ID #: _
INSURER(S) AFFORDING COVERAGE NAIC #
INSURED Owner's Name and Address INSURER A :
INSURANCE COMPANY_ AM BEST FINANCIAL
- INSURER B :
-
INSURER C :
SA
INSURER D :
INSURER E :
INSURER F :
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR ADDL SUBR POLICY EFF POLICY EXP
LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER (MM/DD/YYYY) (MM/DD/YYYY) LIMITS
GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000
--
DAMAGE TO RENTED
COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence) $
- CLAIMS-MADE OCCUR MED EXP (Any one person) $
X
X Owner's & Contractor's Prot PERSONAL & ADV INJURY $
-
M
GENERAL AGGREGATE $ 2,000,000
-
GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $
PRO- $
POLICY JECT LOC
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT
$
(Ea accident)
ANY AUTO
BODILY INJURY (Per person) $
ALL OWNED AUTOS
BODILY INJURY (Per accident) $
SCHEDULED AUTOS
PROPERTY DAMAGE
PL
$
HIRED AUTOS (Per accident)
NON-OWNED AUTOS $
$
UMBRELLA LIAB OCCUR EACH OCCURRENCE $
EXCESS LIAB CLAIMS-MADE AGGREGATE $
DEDUCTIBLE $
RETENTION $ $
WORKERS COMPENSATION WC STATU- OTH-
AND EMPLOYERS' LIABILITY TORY LIMITS ER
Y/N
ANY PROPRIETOR/PARTNER/EXECUTIVE E.L. EACH ACCIDENT $
OFFICER/MEMBER EXCLUDED? N/A
(Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $
If yes, describe under
E
DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required)
CERTIFICATE HOLDER CANCELLATION
- SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
Contractor's Name and Address ACCORDANCE WITH THE POLICY PROVISIONS.
AUTHORIZED REPRESENTATIVE
© 1988-2009 ACORD CORPORATION. All rights reserved.
ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD
Page 13 of 14 Page 290 of 399
OP ID: JF
CERTIFICATE OF LIABILITY INSURANCE
DATE (MM/DD/YYYY)
_
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED
REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER.
IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to
the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the
certificate holder in lieu of such endorsement(s).
CONTACT
PRODUCER Phone: NAME:
- PHONE FAX
- Fax: (A/C, No, Ext): (A/C, No):
- E-MAIL
ADDRESS:
- PRODUCER
CUSTOMER ID #: _
INSURER(S) AFFORDING COVERAGE NAIC #
INSURED Contractor's Name and Address INSURER A :
INSURANCE COMPANY_ AM BEST FINANCIAL
- INSURER B :
-
INSURER C :
SA
INSURER D :
INSURER E :
INSURER F :
COVERAGES CERTIFICATE NUMBER: REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
INSR ADDL SUBR POLICY EFF POLICY EXP
LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER (MM/DD/YYYY) (MM/DD/YYYY) LIMITS
GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000
- X- 100,000
DAMAGE TO RENTED
COMMERCIAL GENERAL LIABILITY PREMISES (Ea occurrence) $
CLAIMS-MADE X OCCUR MED EXP (Any one person) $ 5,000
PERSONAL & ADV INJURY $ 1,000,000
M
GENERAL AGGREGATE $ 2,000,000
GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP/OP AGG $ 2,000,000
POLICY X JECT
PRO- $
LOC
AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT
(Ea accident)
$ 1,000,000
- X ANY AUTO
BODILY INJURY (Per person) $
X ALL OWNED AUTOS
BODILY INJURY (Per accident) $
X SCHEDULED AUTOS
PROPERTY DAMAGE
PL
X
$
HIRED AUTOS (Per accident)
X NON-OWNED AUTOS $
$
X UMBRELLA LIAB X OCCUR EACH OCCURRENCE $ 2,000,000
EXCESS LIAB CLAIMS-MADE AGGREGATE $ 2,000,000
-
DEDUCTIBLE $
RETENTION $ $
WORKERS COMPENSATION
AND EMPLOYERS' LIABILITY
X WC STATU-
TORY LIMITS
OTH-
ER
Y/N
- ANY PROPRIETOR/PARTNER/EXECUTIVE
N/A
E.L. EACH ACCIDENT $ 500,000
OFFICER/MEMBER EXCLUDED?
(Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $ 500,000
If yes, describe under
500,000
E
DESCRIPTION OF OPERATIONS below E.L. DISEASE - POLICY LIMIT $
- Builder's Risk "ALL RISK" PROPERTY CONTENTS Full Replacement Cost
POLLUTION LIABILITY $1,000,000
DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required)
Name of Additional Insured
CERTIFICATE HOLDER CANCELLATION
- SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS.
Owner's Name and Address
AUTHORIZED REPRESENTATIVE
© 1988-2009 ACORD CORPORATION. All rights reserved.
ACORD 25 (2009/09) The ACORD name and logo are registered marks of ACORD
Page 14 of 14 Page 291 of 399
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AFFIRMATIVE ACTION
NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION
TO INSURE EQUAL EMPLOYMENT OPPORTUNITY AND
PROHIBITING DISCRIMINATION IN EMPLOYMENT
(Federal Executive Order 11243)
Michigan: Elliot-Larson Civil Rights Act
The attention of bidders is particularly called to the requirements for ensuring that employees and
applicants for employment are not discriminated against.
During the performance of this contract, the contractor agrees as follows:
The contractor will not discriminate against any employee or applicant for employment because of
religion, race, color, national origin, age, sex, height, weight, familial status, marital status, disability,
sexual orientation or gender identity, or status as a Vietnam Era Veteran. The contractor will take
affirmative action to ensure that applicants are employed and that employees are treated fairly during
employment, without regard to their religion, race, color, national origin, age, sex, height, weight,
familial status, marital status, disability, sexual orientation or gender identity, or veteran background.
Such action shall include, but not be limited to, the following: employment, promotion, demotion, or
transfer; recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of
compensation; selection for training, including apprenticeship.
LOCAL EMPLOYMENT EFFORT
The City of Muskegon requires that the contractor must hire local trades and labor employees from the
City of Muskegon, County of Muskegon and/or this SMSA (Standard Metropolitan Statistical Area) for
the duration of this project, insofar as these are available to perform the necessary work. Supervisory
and/or technical staff officials are exempt from this requirement.
LABOR STANDARDS PROVISION
EMPLOYMENT AND PREVAILING WAGE AND SALARY REQUIREMENTS
The attention of bidders is particularly called to the requirements covered in these documents
concerning the payment of not less than the prevailing wage and salary rates specified, and in regard to
conditions of employment with respect to certain categories and classifications of employees.
All laborers and mechanics employed by this contract shall be paid unconditionally and not less than
once each week, and without subsequent deduction or the rebate on any account (except such payroll
deductions as are permitted by the applicable regulations issued by the City of Muskegon).
1 of 2
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NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION
Executive Order 11246
1. The Bidder’s attention is called to the “Equal Opportunity Clause” and the “Standard Adopted Equal
Employment Specifications”. set forth in Part 3, Section II, of these Documents.
2. The goals and the timetables for minority and female participation, expressed in percentage terms for
the Contractor’s aggregate workforce in each trade on all construction work in the covered area, are as
follows:
GOALS FOR PARTICIPATION IN EACH TRADE
TRADE MINORITY FEMALE
ALL 14% 6.9%
These goals are applicable to all the Contractor’s construction work (whether or not it is Federal or
Federally-assisted) performed in the covered area. If the Contractor performs construction work in a
geographical area located outside of the covered area, it shall apply the goals established for such
geographical area where the work is actually performed. With regard to this second area, the Contractor
also is subject to the goals for both its federally involved and non-federally involved construction.
The Contractor’s compliance with the Executive Order and regulations in 41 CFR Part 60-4 shall be
based on its implementation of the Equal Opportunity Clause, specific affirmative action obligations
required by the specifications set forth in 41 CFR 60-4.3(a), and its efforts to meet the goals. The hours
of minority and female employment and training must be substantially uniform throughout the length
of the Contract, and in each trade, and the Contractor shall make a good faith effort to employ
minorities and women evenly on each of its projects. The transfer of minority or female employees or
trainees from contractor to contractor or from project to project for the sole purpose of meeting the
contractor’s goals shall be a violation of the Contract, the Executive Order, and the regulations in 41
CFR Part 60-4. Compliance with the goals will be measured against the total work hours performed.
3. The Contractor shall provide written notification to the Director of the Office of Federal Contract
Compliance Programs within 10 working days of award of any construction subcontract in excess of
$10,000 at any tier for construction work under the Contract resulting from this solicitation. The
notification shall list the name, address and telephone number of the subcontractor; employer
identification number of the subcontractor; estimated dollar amount of the subcontract; estimated
starting and completion dates of the subcontract; and the geographical area in which the contract is to
be performed.
4. As used in this Notice, and in the Contract resulting from this solicitation, the “covered area” is the
City of Muskegon, County of Muskegon, and State of Michigan.
2
3 of 2
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3.9 ANTI-KICKBACK ACT
NOTICE TO CONTRACTORS: The Contractor shall comply with the applicable regulations of the
Secretary of Labor, United States Department of Labor, made pursuant to the Copeland Anti-Kickback Act (Title 40
U.S.C., Section 276c), and any amendment or modifications thereof, shall cause appropriate provisions to be inserted
in subcontracts to insure compliance therewith by all subcontractors subject thereto, and shall be responsible for the
submission of affidavits required by subcontractor thereunder, except as said Secretary of Labor may specifically
provide for reasonable limitations, variations, tolerance, and exemptions from the requirements thereof.
Copeland “Anti-Kickback” Act Policy
The Copeland “Anti-Kickback” Act prohibits contractors or subcontractors engaged in building construction or repair
from persuading an employee to give up any part of the compensation to which he or she is entitled under his or her
employment contract.
NOTICE TO MUNICIPAL EMPLOYEES: Any employee who offers or approves the offer of a business
consideration must ensure that it is ethical and proper in all respects. The offer of a business consideration cannot
reasonably be interpreted as an attempt to gain an unfair business advantage or otherwise reflect negatively on the
reputation of the City of Muskegon and/or the recipient. The business consideration shall not violate this anti-kickback
policy.
The City of Muskegon’s (Muskegon) staff, representatives, and contractors are prohibited from receiving
unreasonable compensation from grantors, grantees, contractors, applicants, or any other person or individual for the
purpose of receiving preferential treatment of any kind. The guidelines below define Muskegon’s policy toward
kickbacks and the penalties for offering kickbacks to Muskegon employees, representatives or contractors.
Definition: “Kickback” for the purposes of this policy (excluding de minimis gifts), means substantial money, fees,
commission, gifts, gratuity, object of value, or offer of employment, which is provided or offered, directly or
indirectly, to any City of Muskegon employee, contractor or contracted employee, vendor or vendor employee, or
consultant for the purpose of improperly obtaining or rewarding favorable treatment in connection with a City of
Muskegon project or contract.
This policy prohibits any person or organization from:
Providing or attempting to provide or offering to provide kickbacks;
Soliciting, accepting or attempting to accept kickbacks; or
Including, directly or indirectly, the amount of kickbacks in any contract awarded by City of Muskegon, contractors,
or subcontractors.
Any employee found to be in violation of this policy will be subject to an investigation by the City of Muskegon’s
Compliance Officer to determine if the policy was infringed upon.
Depending on the results of the investigation, appropriate discipline will be determined. The employee may be
subject to civil or criminal penalties as provided under U.S. law.
Any applicant, grantee, contractor, consultant, or vendor in violation of this policy will be prohibited from
participation in any City of Muskegon project, contract, or activity and may be subject to additional civil or criminal
penalties as provided under U.S. law (Title 40 U.S.C., Section 276c).
Muskegon reserves the right to recover damages from any person who knowingly engages in such prohibited conduct
and from any person whose employee, contractor, or subcontracted employee provides, accepts, or charges a kickback.
75
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3.7 ADOPTED LABOR STANDARDS PROVISIONS
The following clause is applicable unless this contract is exempt under the rules and regulations of the Secretary of
Labor issued pursuant to Executive Order No. 11246 of September 24, 1965 (30FR 12319), as amended. During the
performance of this contract, the contractor agrees as follows:
(1) The contractor will not discriminate against any employee or applicant for employment because of race, color,
religion, sex or natural origin. The contractor will take affirmative action to ensure that applicants are employed,
and that employees are treated during employment, without regard to their race, color, religion, sex, or national
origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, or
transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous
place, available to employees and applicants for employment, notices to be provided by the contraction officer
setting for the provisions of this nondiscrimination clause.
(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor,
state that qualified applicants will receive consideration for employment without regard to race, color, religion,
sex, or national origin.
(3) The contractor will send to each labor union or representative of workers with which he has a collective bargaining
agreement or other contract or understanding, a notice to be provided by the agency contracting officer, advising
the labor union or workers’ representative of the contractor’s commitments under Section 202 of Executive Order
No. 1246 of September 24, 1695, and shall post copies of the notice in conspicuous places available to employees
and applicants for employment.
(4) The contractor will comply with all provisions of Executive Order No. 11246 of September 24, 1965, and of the
rules, regulations, and relevant orders of the Secretary of Labor.
(5) The contractor will furnish all information and reports required by Executive Order No. 11246 of September 24,
1965, and by the rules, regulations and orders of the Secretary of Labor, or pursuant thereto, and will permit
access to his books, records, and accounts by the contracting agency and the Secretary of Labor for the purposes
of investigation to ascertain compliance with such rules, regulations, and orders.
(6) In the event of the contractor’s noncompliance with the nondiscrimination clauses of this contract or with any of
such rules, regulations or orders, this contract may be canceled, terminated, or suspended in whole or in part and
the contractor may be declared ineligible for further Government contracts in accordance with the procedures
authorized in Executive Order No. 11246 of September 24, 1965, and such other sanctions may be imposed and
remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or
order of the Secretary of Labor, or as otherwise provided by law.
(7) The contractor will include the provision of paragraphs (1) through (7) in every subcontract or purchase order
unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to Section 204 of
Executive Order No. 11246 of September 24, 1965, so that such provisions will be binding upon each
subcontractor or vendor. The contractor will take such action with respect to and subcontract or purchase order
as may be directed by the Secretary of Labor as a means of enforcing such provisions including sanctions for
noncompliance: Provide, however, that in the event the contractor becomes involved in, or is threatened with,
litigation with a subcontractor or vendor as a result of such direction. The contractor may request the United States
to enter into such litigation to protect the interests of the United States.
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1.5 NON-COLLUSION AFFIDAVIT OF PRIME BIDDER
State of )
) ss.
County of )
, being first duly sworn, deposes
and says that:
1. He/She is ______
(owner, partner, officer, representative, agent)
of , the Bidder that has submitted the attached Bid
to the City of Muskegon;
2. He/She is fully informed respecting the preparation and contents of the attached Bid and of all
pertinent circumstances thereto;
3. Such Bid is genuine and is not a collusive or sham Bid;
4. Neither said Bidder nor any of his/her officers, partners, owners, agents, representatives, employees
or parties in interest, including this affiant, has in any way colluded, conspired, connived or agreed,
directly or indirectly, with any other Bidder, firm or person to submit a collusive or sham Bid in
connection with the Contract for which the attached Bid has been submitted, or to refrain from
bidding in connection with such Contract; nor has in any manner, directly or indirectly, sought by
agreement, collusion, communication or conference with any other Bidder, firm or person to fix
the price or prices in the attached Bid or any other bid; nor to fix any overhead, profit or cost
element of the Bid price or the bid price of any other bidder; nor to secure through any collusion,
conspiracy, connivance or unlawful agreement any advantage against the City of Muskegon or any
person interested in the proposed Contract; and
5. The price or prices quoted in the attached Bid are fair and proper, and are not tainted by any
collusion, conspiracy, connivance or unlawful agreement on the part of the Bidder or any part of
its agents, representatives, owners, employees or parties in interest, including this affiant.
Signature
Printed Name and Title
Subscribed and sworn to before me
This day of , 20
Title
My Commission expires
21
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
GENERAL REQUIREMENTS
DIVISION 1
TABLE OF CONTENTS
SECTION TITLE
01 10 00 Summary of Work
01 23 00 Alternates
01 31 19 Project Meetings
01 33 00 Submittals
01 51 00 Temporary Utilities
01 75 00 Starting and Adjusting
Page 1
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
SECTION 01 10 00
SUMMARY OF WORK
PART 1 - GENERAL
1.01 GENERAL
A. Related Sections: Some Sections of the Specifications (Divisions 1 through 40) may include a
paragraph titled “Related Sections.” This paragraph is an aid to the Project Manual user and is not
intended to include all Sections that may be related. It is the Contractor’s obligation to coordinate
all Sections whether indicated under “Related Sections” or not.
1.02 SUMMARY OF WORK
A. The work covered by the Contract Documents consists of improvement to the Water Filtration
Plant, located at 1900 Beach St, Muskegon, MI 49441. Included in this work is furnishing all
supervision, labor, materials, equipment, activities and related costs necessary for completing the
improvements. Work includes but is not limited to:
• Removal of the discharge piping associated with Washwater Pump 3 (WWP3) up to the
discharge tee.
• Installation of a new discharge isolation valve and discharge check valve;
• Reconstruction of the discharge piping and small diameter instrumentation piping;
• Alternate No. 1 - Removal of existing foot valve from WWP3, including installation of
permanent pipe supports;
• Alternate No. 2 - Replacement of foot valves at Washwater Pump 2 (WWP2) and
WWP3 suction piping including installation of permanent pipe supports;
• All associated equipment, valves, piping, and mechanical work.
Including all necessary appurtenances, disinfection, and restoration.
B. The Contractor shall visit the site of the work and shall completely inform himself relative to
construction hazards and procedure, labor, and all other conditions and factors, local and
otherwise, which would affect execution and completion of the work and its cost. Such
considerations shall include the arrangement and condition of the existing structures and facilities,
the availability and cost of labor and facilities for transportation, handling and storage of materials
and equipment. All such factors shall be properly investigated and considered in the preparation of
the Contractor's proposal. There will be no subsequent financial adjustment for lack of such prior
information.
C. The Contractor shall guarantee all equipment and work for one year from the date of substantial
completion.
D. Phasing:
1. The existing Washwater Pump 1 (WWP1) and 2 (WWP2) shall remain in operation
throughout the project, except for work that is required to be done within the finished
water reservoirs as part of Alternate Nos. 1 and/or 2.
2. The proposed isolation butterfly valve on the WWP 3 discharge piping shall be installed
during a period when no backwash pump is required to operate. Contractor shall
coordinate with the Owner to determine appropriate time for installation of the isolation
valve. Refer to the project sequencing notes on the Drawings.
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SECTION 01 10 00
SUMMARY OF WORK
3. WWP3 shall not be started and trial operation shall not commence until satisfactory
disinfection per Section 40 05 13 is attained.
4. If either Alternate is taken, work will be required to be done within Finished Water
Reservoir 2. Prior to Contractor mobilization to the site, the Owner will isolate and drain
the reservoir to the lowest possible level, which may leave approximately 12-18 inches of
water in the bottom of the reservoir. The Contractor shall complete work and clean the
work area after the conclusion of the work. The Owner will provide bacteriological
testing of the reservoir internal surfaces after Contractor disinfection of the reservoir.
1.03 STANDARD SPECIFICATIONS
Where a standard construction method or contract procedure is not specifically covered by the Contract
Documents or shown on the plan, the most recent edition of the Michigan Department of Transportation
(MDOT) Standard Specifications for Construction shall apply. Specific references made in these
documents will be abbreviated as follows: MDOT 000.00.
1.04 CONTRACTOR USE OF SITE AND PREMISES
A. Limit use of site and premises to allow Owner access to and operation of all existing treatment
facilities.
B. The water filtration plant facilities shall remain operational during the entire project to assure the
treated water requirements of the distribution system are met. Construction shall proceed and
Contractor shall coordinate with the Owner such that satisfactory operation of the Filtration Plant
is maintained.
It is not possible to remove the Filtration Plant from service during the work. Contractor may
coordinate with the Owner to have flows reduced or adjusted in particular areas of the plant to the
extent possible.
The Contractor shall not encumber the site with material and equipment that would interfere with
operation.
C. Access to Site
1. During construction, all roadways, streets, alleys, and loading docks may not be
obstructed unless special permission is received from Owner.
D. Construction Operations: Limited to areas noted on Drawings. Limits of construction shall be
confined to property owned by the Owner. Contractor shall coordinate access, site utilization, and
work area limits with the Owner.
E. Time Restrictions for Performing Work: Work shall be performed during normal business hours.
No night or weekend or Holiday work allowed unless permission is received from the Owner.
F. Utility Outages and Shutdowns: Any utility outages required shall be approved in advance by the
Owner. Temporary utilities shall be provided by the Contractor to ensure the full functionality of
the facility during temporary outages.
G. During performance of the work, the Contractor shall, at all times, keep the site or sites of the
work and adjacent premises as free from material, debris and rubbish as is practical and shall
remove it from any portion of the sites, if in the opinion of the Engineer, such material, debris or
rubbish constitutes a nuisance or is objectionable.
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SECTION 01 10 00
SUMMARY OF WORK
At the conclusion of the work, all erection plant tools, temporary structures and materials
belonging to the Contractor shall be promptly removed from the construction site and he shall
remove and promptly dispose of all water, dirt, rubbish or any other foreign substances.
The Contractor shall thoroughly clean all equipment and materials installed by him and shall
deliver such materials and equipment undamaged in a bright, clean, polished and new-appearing
condition.
Areas of work shall be clean and dust free prior to beginning operation of new equipment.
1.05 WORK SEQUENCE AND COORDINATION
A. The Contractor shall maintain the Owner’s ability to operate its Filtration Plant at all times during
the construction process. Contractor shall provide all temporary pumping, power, etc necessary as
a result of work by the Contractor.
B. All equipment and materials shall be on site or securely stored and insured by Contractor prior to
commencement of any on site construction activities.
C. The Contractor shall be responsible for sequencing construction operations in an efficient manner
and to minimize the length of service interruptions. Contractors shall coordinate and cooperate
with each other such that the necessary work items and dates can be met.
D. The Contractor may submit a written proposal for changing elements of the sequence of events.
Any changes to the sequence of events shall be reviewed and approved by the Owner and
Engineer in writing prior to initiation of such by the Contractor.
E. If either Alternate is taken and work is required in the finished water reservoir, the Contractor
shall coordinate timing of work with Owner to ensure the reservoir can be taken out of service.
F. Suggested construction sequencing of the major items of work can be found on the Plans.
1.06 PROGRESS SCHEDULE
To enable the work to be laid out and prosecuted in an orderly and expeditious manner, the Contractor shall
submit to the Engineer a proposed progress schedule within 20 days after the signing of the Contract. This
schedule shall indicate the construction starting date and completion date for each of the various operations
to be performed under this Contract. This schedule shall be in the form of a bar chart or of a network
diagram showing, in a visual and logical manner, the various work functions or activities necessary to
complete the work under this Contract, and the critical relationships between these activities. Activities
conducted to insure operational status of the water filtration plant shall be outlined. Required interruption
of service to complete activities under this contract shall be addressed in a manner that includes scope of
work, preparation tasks prior to service interruption that will minimize down time, estimate of duration of
service interruption, and activities that will be requested of the Owner. The Engineer and the Owner will
review the proposed progress schedule to determine conformity to the Contract Documents. If such
conformity is demonstrated, the Engineer will accept the proposed schedule.
During the course of the Contract, the Contractor shall submit to the Engineer every 60 days a revised
progress schedule indicating any anticipated change from the original progress schedule. The revised
schedule shall include provisions for performing work authorized under approved Change Orders. If the
Engineer determines that the modifications in the revised progress schedule are reasonable and that they
conform to the Contract Documents, the Engineer will accept the revised schedule.
If the Contractor fails to adhere to the approved progress schedule as revised, he shall promptly adopt such
other or additional means and methods of construction as will make up for the time lost, and will assure
completion in accordance with such schedule.
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SUMMARY OF WORK
Once construction has commenced it shall continue through to completion without interruption.
1.07 PERMITS
A. General: The Contractor shall obtain all permits necessary for construction of this project not
obtained by the Owner. The Contractor shall pay for any charges or bonds required by agencies
for permits, inspections or similar charges to construct this project as shown on the Drawings.
1.08 DATUM PLANE
All elevations indicated or specified refer to the NAVD 1988 datum and are expressed in feet and decimal
parts thereof, or in feet and inches.
Retrofit activity shall integrate new facilities with existing. Existing facility dimension data was established
by field measurement. The Contractor shall field verify actual site conditions.
1.09 UTILITIES
A. The Contractor shall immediately notify the Owner of any contact with or damage to Underground
Utilities. Contractor shall be solely responsible for the safety, protection of, and repairing any
damage done to any Work, surface and subsurface structures and utilities at no additional cost.
1.10 PROTECTION OF NATURAL RESOURCES
A. The Contractor shall not permit any sand or debris of any kind to enter the existing ditches,
streams, storm sewers, trench drains or culverts.
1.11 PROTECTION OF ADJACENT STRUCTURES AND LANDSCAPING
The Contractor shall be entirely responsible for all damage to water pipes, electric conduits or cables,
drains, sewers, gas mains, poles, telephone and telegraph lines, railroad bridges and tracks, streets,
pavements, sidewalks, curbs, fences, street and highway bridges and culverts, building foundations,
retaining walls or other structures of any kind met with during the progress of the work, and shall be liable
for damages to public or private property resulting therefrom.
The cost of protection, replacement in their original positions and conditions or payment for damages
thereto of pipe lines and structures affected by the work and the removal, relocation and rebuilding of pipe
lines and structures called for on the Drawings or specified shall be deemed included in the contract lump
sum. No additional payment will be made therefor.
The Contractor shall, at all times in performance of the work, employ approved methods and exercise
reasonable care and skill so as to avoid unnecessary delay, injury, damage or destruction of public utility
installations and structures; and shall, at all times in the performance of the work, avoid unnecessary
interference with, or interruption of, public utility services, and shall cooperate fully with the Owner and
utility owners thereof to that end.
All pipe lines carrying liquid shall be adequately protected from freezing. All fire hydrants, valves and
appurtenances on the various water systems shall be maintained in service, and temporary connections shall
be provided where necessary.
Any fence, or part thereof, that is damaged or removed during the course of the work shall be replaced or
repaired by the Contractor and shall be left in as good a condition as before the start of work. The manner
in which the fence is repaired or replaced and the materials used in such work shall be subject to the
approval of the Engineer. The cost of all labor, materials, equipment, and work for the replacement or
repair of any fence shall be deemed included in the appropriate Contract Item or Items, or if no specific
Item is provided therefor, as part of the overhead cost of the work, and no additional payment will be made
therefore.
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SECTION 01 10 00
SUMMARY OF WORK
1.12 PERFORMANCE TEST AND TRIAL OPERATION
Performance tests of the backwash pump with the proposed piping and valve improvements will be
required and will be made in the presence of the Owner, Contractor, and Engineer. All areas where work
has been performed shall be thoroughly cleaned before beginning any performance tests. Operating
personnel and power will be provided by the Owner. If any part of the work does not meet Owner and
Engineer specifications, the Contractor shall correct the situation to the approval of the Engineer. The
Contractor shall provide personnel and bear all costs of correcting any malfunctions in the work under this
Contract.
1.13 DISINFECTION
Contractor shall take precautions to prevent contaminating the clear well during Alternate work activity in
the clear well. Clean clothing and boot covers shall be used during all work in the clear well. Proposed
piping and the existing clear well shall be disinfected and tested. Coordination of disinfection activity shall
be the responsibility of the Contractor.
Disinfection of the existing clear well shall be conducted by the Contractor. The Contractor shall be
responsible for cleaning water facilities to the satisfaction of the Owner and Engineer prior to commencing
disinfection. Disinfection of completed construction will be done by Contractor prior to placement in
operation. Application of chlorine, sampling, and testing will be in conformance with AWWA Standard
C653-20 Disinfection of Water Treatment Plants. Contractor shall submit a disinfection plan to the Owner
and Engineer for review.
Bacteriological testing must include two consecutive safe samples tank 24 hours apart. Bacteriological test
samples will be secured by the Owner and analyzed at the WTP. More details on the disinfection process
and where it fits into the work sequence can be found on the sequencing page of the plans.
1.14 WARRANTY
The Contractor shall warranty and guarantee all equipment and work for a minimum of one year from the
dates of substantial completion. Greater warranty duration may be required by the project specifications for
specific equipment and/or work.
1.15 SAFETY
The Contractor is solely responsible for safety in accordance with the General Conditions. For work in the
Clear well, Contractor is responsible for all work, entry, and exit requirements in compliance with
MiOSHA.
PART 2 - PRODUCTS
*** Not Used ***
PART 3 - EXECUTION
*** Not Used ***
END OF SECTION
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
SECTION 01 23 00
ALTERNATES
PART 1 - GENERAL
1.01 SECTION INCLUDES
A. Administrative and procedural requirements for Alternates.
1.02 SEQUENCING AND SCHEDULING
A. Coordinate related Work and modify or adjust adjacent Work as necessary to ensure that Work
affected by each accepted Alternate is complete and fully integrated into the project.
B. Schedule: A "Schedule of Alternates" is included at the end of this Section. Specification Sections
referenced in the Schedule contain requirements for materials and methods necessary to achieve
the Work described under each Alternate.
1. Include as part of each Alternate, miscellaneous devices, accessory objects and similar
items incidental to or required for a complete installation whether or not mentioned as
part of the Alternate.
PART 2 - PRODUCTS
Not Applicable
PART 3 - EXECUTION
3.01 SCHEDULE OF ALTERNATES
Contractor shall supply an additional price in the Proposal for each of the following Alternates:
A. Alternate No. 1 consists of removing the existing foot valve from the suction piping from
Washwater Pump 3, and installing permanent pipe supports on the suction piping. Refer to Section
01 10 00 Summary of Work for description of the split between Owner and Contractor activities.
Suction pipe accessories and pipe supports shall be per Section 40 05 13 Process Piping.
B. Alternate No. 2 consists of removing the existing foot valve from the suction piping from
Washwater Pumps 2 and 3, cutting the suction piping and installing a restrained flange adapter,
installing new foot valves per Section 40 05 51 Process Valves, and installing permanent pipe
supports on the suction piping. Refer to Section 01 10 00 Summary of Work for description of the
split between Owner and Contractor activities. Suction pipe accessories and pipe supports shall be
per Section 40 05 13 Process Piping.
END OF SECTION
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Project Number: 2230492
SECTION 01 31 19
PROJECT MEETINGS
PART 1 - GENERAL
1.01 GENERAL:
Project meetings for coordination of Contractor activity with the operation of the Water Filtration plant will
be held as detailed in this section with additional meetings as requested by the Owner or Engineer, as
dependent on the staging requirements for specific portions of the project. Meetings will be held at a
location chosen by the Owner.
1.02 PRE-CONSTRUCTION MEETING
A. Schedule: Meeting shall be prior to the start of work at a time and place designated by the
Engineer. Contractor shall be required to attend with major Subcontractors.
1.03 PROGRESS MEETINGS
A. Schedule: Meetings will be scheduled at a time and place designated by the Engineer. Contractor
shall attend all progress meeting and shall have Subcontractors attend as relevant to the current
status of the project.
PART 2 - PRODUCTS
*** Not Applicable ***
PART 3 - EXECUTION
*** Not Applicable ***
END OF SECTION
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Project Number: 2230492
SECTION 01 33 00
SUBMITTALS
PART 1 - GENERAL
1.01 SECTION INCLUDES
A. Data to be furnished by the Contractor.
1.02 CONSTRUCTION PROGRESS SCHEDULE
A. See requirements for Contractor submission of a construction progress schedule in Section 01 10
00 – “Summary of Work.”
1.03 SHOP DRAWINGS, PRODUCT DATA, AND SAMPLES
A. General: Where required by the Specifications, the Contractor shall submit descriptive information
which will enable the Engineer to advise the Owner whether the Contractor's proposed materials,
equipment, or methods of work are in general conformance to the design concept and in
compliance with the Drawings and Specifications. The information to be submitted shall consist of
drawings, specifications, descriptive data, certificates, samples, test results and such other
information, all as specifically required in the Specifications. Shop drawings shall be in
accordance with the General Conditions and Supplementary Conditions and the requirements
outlined herein.
B. Submittal Content and Format: Submittals shall be numbered consecutively and distinctly present
the following:
1. All working and erection dimensions.
2. Arrangements and sectional views.
3. Necessary details, including complete information for making connections between work
under this Contract and work under other Contracts.
4. Electrical wiring connections between all equipment furnished under the Contract,
including all internal wiring between internal components of equipment and controls.
5. Kinds of materials and finishes.
6. Parts lists and description thereof.
7. Drawings for mechanical and electrical equipment shall present, where applicable, such
data as dimensions, weight, and performance characteristics. These data shall show
conformance with the performance characteristics and other criteria incorporated in the
Contract Documents.
C. Contractor Responsibility
1. Contractor shall be responsible for the accuracy and completeness of the information
contained in each submittal and shall assure that the material, equipment or method of
work shall be as described in the submittal. The Contractor shall verify that the material
and equipment described in each submittal conform to the requirements of the
Specifications and Drawings. If the information shows deviations from the Specifications
or Drawings, the Contractor shall insure that there is no conflict with other submittals and
notify the Engineer in each case where submittal may affect the work of another
Contractor or the Owner. The Contractor shall insure coordination of submittals among
the related crafts and Subcontractors.
2. The Contractor shall be responsible to check and verify all field measurements, all
dimensions on shop and setting drawings and all schedules required for the work of all
the various trades.
3. The Contractor may authorize in writing a material or equipment supplier to deal directly
with the Engineer or with the Owner with regard to a submittal. These dealings shall be
limited to contract interpretations.
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SUBMITTALS
4. The Contractor shall stamp each submittal with stamp, initialed and signed, certifying to
review of the submittal by the Contractor, verification of field measurements and
compliance with Contract Documents.
D. Transmittal Procedure
1. Submittals shall be submitted promptly in accordance with dates in proposals, approved
schedules and in such sequence that there is no delay in the Work or the work of any
other Contractor. Submittals may be submitted by mail or electronically per the
requirements listed below.
2. Submittals regarding material and equipment shall be accompanied by clear identification
of the equipment and any variations from these Specifications.
3. A unique number, sequentially arranged, shall be noted on the transmittal form
accompanying each item's submittal. Original submittal numbers shall have the following
format "XXX-Y:; where "XXX is the originally assigned submittal number, and "Y" is a
sequential letter assigned for resubmittals, i.e., A, B, or C being the 1st, 2nd and 3rd
resubmittals, respectively. Submittal 025-B, for example, is the second resubmittal of
submittal 25.
E. Electronic Transmittal Procedure – Submittals shall be submitted electronically via the
Prein&Newhof Plan Room in accordance with the above “Transmittal Procedure” requirements as
well as the following requirements and procedures.
1. Contractor shall be given a Login ID and Password to the Prein&Newhof Plan room. The
website for the Prein&Newhof Plan Room is http://www.preinnewhof.com/plan-room/.
2. Upon logging into the website, the Contractor will have access to a project folder labeled
with the name of the Owner and Project. This folder will only be accessible to the
Contractor, the Owner, and the Engineer.
3. Login and password will not be provided to Subcontractors. If the Contractor provides
their login information to their Subcontractors, the Contractor assumes responsibility for
the Subcontractor’s actions.
4. The Contractor may request automatic notifications by email of an “Upload” of both
submitted and reviewed documents.
5. Within the “Project Folder” there will be a “To Be Reviewed” folder and a “Reviewed”
Folder. Contractor shall upload submittals in PDF format to the “To Be Reviewed”
subfolder. The time and date of the upload will be logged and automatic email
notifications will be sent.
6. All submittals shall be prepared in accordance with this Section 01 33 00 of the
specifications. Electronic submittals shall have the following naming format:
Submittal Number – Specification Section – Description.pdf
For example –001-033000-Concrete Mix Design.pdf
A letter shall be added after the submittal number for resubmittals. For example,
001B-033000-Concrete Mix Design.pdf would be the second resubmission.
7. Within 15 days, reviewed submittals will be posted in the “Reviewed” folder. Automatic
email notifications of the upload will be sent.
8. The Engineer will update the “Shop Drawing Status Log” and post it in the Project Folder
as submittals are received, where it will be accessible by the Owner, Contractor, and
Engineer.
9. Contractor shall submit any submittal requiring an Engineer’s seal as a hard copy. In
addition, all submittals with an original size greater than 11 inches by 17 inches shall be
submitted as a hard copy. All hard copy submittals shall also be submitted electronically.
F. Deviation from Contract: If the Contractor proposes to provide material or equipment which does
not conform to the Specifications and Drawings, he shall indicate so under "deviations" on the
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SUBMITTALS
transmittal form accompanying the submittal copies. Contractor shall prepare reason for a change,
including cost differential, and request a change order to cover the deviations.
G. Submittal Completeness: Submittals which do not have all the information required to be
submitted, including deviations, are not acceptable and will be returned without review.
Submittals which do not clearly identify specified product and relevant data, and submittals
containing non-project specific data, will be rejected.
H. Review Procedure
1. When the contract documents require a submittal, the Contractor shall submit five (5)
copies of all submittal data (or one (1) electronic copy if submitting electronically), of
which two (2) copies will be retained by the Engineer. For samples this number may
vary. For samples, submit the number stated in each Specifications Section.
2. If the review indicates that the material, equipment or work method is in general
conformance with the design concept and complies with the Drawings and Specifications,
submittal copies will be marked "NO EXCEPTIONS TAKEN". In this event the
Contractor may begin to implement the work method or incorporate the material or
equipment covered by the submittal.
3. If the review indicates limited corrections are required, submitted copies will be marked
"FURNISH AS CORRECTED". The Contractor may begin implementing the work
method by the submittal in accordance with the noted corrections. Where submittal
information will be incorporated in Operation and Maintenance data, a corrected copy
shall be provided.
4. If the review reveals that the submittal is insufficient or contains incorrect data, submitted
copies will be marked "REVISE AND RESUBMIT". Except at its own risk, the
Contractor shall not undertake work covered by this submittal until it has been revised,
resubmitted and returned marked either "NO EXCEPTIONS TAKEN" or "FURNISH AS
CORRECTED".
5. If the review indicates that the material, equipment or work method is not in general
conformance with the Drawings and Specifications, copies of the submittal will be
marked "REJECTED". Submittals with deviations which have not been identified clearly
may be rejected. Except at its own risk the Contractor shall not undertake the work
covered by such submittals until it has been revised, resubmitted and returned marked
either "NO EXCEPTIONS TAKEN" or "FURNISH AS CORRECTED".
6. If the review indicates that the material or equipment is not from an acceptable
manufacturer, as indicated in the Specifications, copies of the submittal will be marked
"REJECTED". Except at its own risk, the Contractor shall not undertake the work
covered by such submittals until it has been revised, resubmitted and returned marked
either “NO EXCEPTIONS TAKEN" or "FURNISH AS CORRECTED".
7. If the review indicates “ACKNOWLEDGED RECEIPT”, the submittal under review has
been appropriately noted and filed. No further action is required for a submittal so noted.
8. If the review indicates “ON HOLD”, the submittal is being held in the office of the
Engineer pending the submittal of additional information, etc. so that the review can be
completed. No further action on the submittal shall be taken until the information needed
has been received and the submittal is returned marked either "NO EXCEPTIONS
TAKEN" or "FURNISH AS CORRECTED".
I. Effect of Review of Contractor's Submittal
1. Contractor shall furnish required Shop Drawing and Sample submittals with sufficient
accuracy to obtain required approval of an item with no more than two resubmittals.
Engineer will record Engineer’s time for reviewing a third or subsequent resubmittal of a
Shop Drawing or Sample, and Contractor shall be responsible for Engineer’s charges to
Owner for such time. Owner may impose a set-off against payments due Contractor to
secure reimbursement for such charges. Recovery of the administrative and review costs
will be discussed prior to completing review of all resubmittals as the project progresses.
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SUBMITTALS
2. Review of Drawings, methods of work, or information regarding materials or equipment
the Contractor proposes to provide, shall not relieve the Contractor of its responsibility
for errors therein and shall not be regarded as an assumption of risks or liabilities by the
Engineer or the Owner, or by an officer or employee thereof, and the Contractor shall
have no claim under the contract on account of the failure, or partial failure, of the
method of work, material, or equipment so reviewed.
3. Review of Drawings also shall not relieve the Contractor of responsibility for the proper
fitting and construction of the work nor for the furnishing of materials or work required
by the Contract and not indicated on the Drawings.
4. A mark of "NO EXCEPTIONS TAKEN" or "FURNISH AS CORRECTED" shall mean
that the Owner has no objection to the Contractor, upon its own responsibility, using the
plan or method of work proposed, or providing the materials or equipment proposed.
1.04 LIST OF SHOP DRAWING SUBMITTALS
A. Requirements
1. Within two (2) weeks after Notice of Award, the Contractor shall submit for review by
the Engineer an anticipated list of shop drawing submittals and submittal dates. If more
than one shop drawing submittal is anticipated for a specification section, the Contractor
shall identify what will be included in each submittal.
1.05 OPERATION AND MAINTENANCE DATA
A. Requirements
1. Compile product data for all equipment and associated controls systems furnished and
installed under this Contract. Provide all necessary information for Owner’s operation
and maintenance of products furnished.
2. Prepare data in the form of an instructional manual for use by Owner’s personnel.
Prepare three (3) copies or complete sets compiled, bound in hard stock, and indexed.
3. A USB drive shall be provided of the entire manual in electronic, PDF, format. The
electronic PDF shall include suitable bookmarks by section for ease of navigation.
4. The manuals shall include detailed operation and maintenance instructions for all
equipment, the name and phone number of the manufacturer, and a complete parts list.
5. Submittal of operation and maintenance manuals shall be prior to final payment request.
6. Each hard copy of the manual shall be prepared and arranged as follows:
a. One hard copy of all approved shop drawings and diagrams for all equipment
furnished. If the Contractor originally submitted the shop drawings
electronically, a hard copy of each shall be printed and provided by the
Contractor in each O&M manual. All sheets larger than 8-1/2 by 11 inches shall
be folded to 8-1/2 by 11 inches.
b. One copy of each manufacturer's operation, lubrication, maintenance
instructions and spare parts list for all equipment and controls furnished. All
equipment operating, lubrication and maintenance instructions and procedures
and parts lists shall be furnished on 8-1/2 by 11 inch commercially printed typed
forms. Such forms shall include equipment name, serial number and other
identifying references.
c. One valve schedule, giving the valve number, location, fluid and fluid
destination for each valve installed, prepared on 8-1/2 by 11 inch printed or
typed forms as specified. All valves in the same piping system shall be grouped
together in the schedule. A sample of the valve numbering system to be used
will be furnished by the Engineer.
d. List of electrical relay settings and control and alarm contact settings.
e. Electrical interconnection wiring diagram for equipment furnished including all
control and lighting systems.
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SECTION 01 33 00
SUBMITTALS
f. Each copy of the manual shall be assembled in one or more binders, each with
title page, typed table of contents, and heavy section dividers with copper
reinforced holes and numbered plastic index tabs. Each manual shall be divided
into sections paralleling the Special Specifications equipment specifications.
Binders shall be 3-ring, hard-back type. All data shall be punched for binding
and composition and printing shall be arranged so that punching does not
obliterate any data. The cover and binding edge of each manual shall have the
project title and manual title printed thereon, all as approved by Engineer.
g. Where more than one binder is required they shall be labeled Vol. 1, Vol. 2, and
so on. The table of contents for the entire set, identified by volume number, shall
appear in each binder.
7. When the work reaches 80 percent completion, the Contractor shall submit to the
Engineer one (1) electronic copy of the Operation and Maintenance Manual with all
specified material that is available at that time. The submittal shall accompany the
Contractor’s partial payment request for the specified completion. Manual shall be
complete prior to request for final payment.
8. The costs of the Operation and Maintenance Manual shall be included in the Contract
Price and no separate payment will be made therefor.
1.06 RECORD DOCUMENTS
A. Requirements
1. The Contractor shall maintain on the construction site a minimum of one (1) complete set
of contract documents amended by "RED LINE" or highlight inclusion to reflect the most
immediate status methods, materials, and locations and routings of construction.
Supplementary sketches shall be included, if necessary, to clearly indicate all work as
constructed.
2. At conclusion of work, the Contractor shall submit to the (Engineer) one (1) complete
amended record set of these site documents.
3. Submittal shall be prior to final payment.
4. Failure of the Contractor to maintain an up-to-date set of Record Drawings on the project
site shall be reason to withhold payments.
PART 2 - PRODUCTS
*** Not Used ***
PART 3 - EXECUTION
*** Not Used ***
END OF SECTION
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SECTION 01 51 00
TEMPORARY UTILITIES
PART 1 - GENERAL
1.01 GENERAL
A. This section covers provision of temporary utilities by the Contractor or Owner during the Work.
1.02 TEMPORARY SERVICES
A. Temporary Water: Within the limits of the available water supply from the existing plant water
system, the Owner will furnish necessary water to the Contractor without charge, provided the
Contractor coordinates use with the Owner and takes reasonable means to conserve it. The
Contractor shall be responsible for the distribution of the water.
B. Temporary Sanitary Facilities: The General Contractor shall provide temporary facilities for use of
all workers on the project. Maintain in clean, sanitary condition and remove same, and all contents
upon completion of the work.
PART 2 - PRODUCTS
*** Not Used ***
PART 3 - EXECUTION
*** Not Used ***
END OF SECTION
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SECTION 01 75 00
STARTING AND ADJUSTING
PART 1 - GENERAL
1.01 GENERAL
A. Prior to Substantial Completion, Contractor shall conduct startup and adjustment of all portions of
the work to provide a fully functional washwater pumping system. All equipment provided shall
be subject to the requirements of this section and further requirements in each section where
specific equipment is specified.
PART 2 - PRODUCTS
*** Not Used ***
PART 3 - EXECUTION
3.01 GENERAL
Due to the sequencing required to maintain operation of the Water Filtration plant during construction,
specified startup activities for equipment shall be required each time an individual unit is placed in
operation. Training of the Owner for a specific type of equipment shall only be required once.
3.02 PERFORMANCE TEST AND TRIAL OPERATION
Performance tests of the new facilities will be required and will be made in the presence of the Owner,
Contractor, and Engineer. All areas where work has been performed shall be thoroughly cleaned before
beginning any performance tests. Operating personnel and power will be provided by the Owner. If any
part of the equipment does not meet specifications, the Contractor shall correct the situation to the approval
of the Engineer. The Contractor shall provide personnel and bear all costs of correcting any malfunctions in
the work under this Contract.
A two week trial operation period shall be conducted for each system component. Training of Water
Filtration plant personnel shall be conducted as requested by the Owner during the performance test and
trial operation period. The performance test will be considered complete when the Contractor has corrected
any malfunctions in the work and the Owner indicates the test has been completed to his satisfaction.
Equipment testing and performance testing shall be conducted as construction proceeds.
END OF SECTION
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EXISTING CONDITIONS
DIVISION 2
TABLE OF CONTENTS
SECTION TITLE
02 41 00 Demolition
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SECTION 02 41 00
DEMOLITION
PART 1 - GENERAL
1.01 SUMMARY
A. The work covered by this section consists of furnishing all supervision, labor, materials, and
equipment necessary to demolish all specified piping and accessories as shown in the Drawings,
and to remove debris from the site in accordance with all federal, state and local regulations.
B. This Section requires demolition and abandonment of site piping, and demolition, removal and
off-site disposal of materials, as shown in the Drawings.
1.02 SUBMITTALS
A. Submit under provisions of Section 01 33 00 – “Submittals.”
B. Contractor shall propose a schedule of operations including coordination for shutoff, capping, and
continuation of utility services as required.
1. Provide detailed sequence of demolition and removal work to ensure uninterrupted
progress of Owner’s operations.
1.03 JOB CONDITIONS
A. The bidder shall be responsible for inspecting the site of the proposed work and to determine for
himself all conditions under which he will be obligated to work. It is also expected that the bidder
will obtain firsthand information concerning the available facilities for receiving, transporting,
disposing, handling and storing demolished equipment and materials, and concerning other local
conditions that may affect the work.
B. Salvaged Materials: Items of salvable value to Contractor not designated to be turned over to the
Owner may be removed from structure as work progresses. Transport salvaged items from site as
they are removed.
1. Storage or sale of removed items will not be permitted on site.
C. Protections: Ensure safe passage of persons around area of demolition. Conduct operations to
prevent damage to adjacent buildings, structures, and other facilities and injury to persons.
1. Provide interior and exterior shoring, bracing, or support to prevent movement,
settlement, or collapse of structures to be demolished and adjacent facilities to remain.
D. Damages: Promptly repair damages caused to adjacent facilities by demolition operations.
E. Utility Services: Maintain existing utilities indicated to stay in service and protect against damage
during demolition operations.
1. Do not interrupt existing utilities serving occupied or used facilities, except when
authorized in writing by authorities having jurisdiction. Provide temporary services
during interruptions to existing utilities, as acceptable to governing authorities.
F. Comply with requirements of NFPA 241, “Safeguarding Construction, Alteration, and Demolition
Operations.”
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SECTION 02 41 00
DEMOLITION
G. Coordination with Water Filtration Plant Operation: Work shall be conducted in such a manner as
to avoid hazards to persons and property. Contractor shall erect barriers, fences, guard rails,
enclosures, and shoring to protect personnel, structures, and utilities remaining intact.
H. Mechanical trade shall remove equipment, piping, and other items pertaining to their respective
trade. This shall include temporary removal and reinstallation where necessary.
PART 2 - PRODUCTS
*** Not Used ***
PART 3 - EXECUTION
3.01 DEMOLITION
A. Pollution Controls: Use water sprinkling, temporary enclosures, and other suitable methods to
limit dust and dirt rising and scattering in air. Comply with governing regulations pertaining to
environmental protection.
1. Do not use water when it may create hazardous or objectionable conditions such as ice,
flooding, and pollution.
2. All work where applicable shall conform to the State of Michigan Soil Erosion and
Sedimentation Part 91, Act 451 of the Public Acts of 1994, as amended and related
ordinances.
B. Clean adjacent structures and improvements of dust, dirt, and debris caused by demolition
operations. Return adjacent areas to condition existing prior to start of work.
C. Care shall be taken to assure that demolition activity does not damage other facilities. Contractor
shall make good, without additional cost to the Owner, work damaged by demolition activity.
3.02 SALVAGED MATERIALS
A. General: Remove carefully to avoid damages. Materials for reuse on this project (if any) are to be
incorporated into new work if indicated.
1. Salvage the following items for reuse by the Contractor:
a. 16”x20” Base 90 Reducing Bend with Base Support
2. The Owner intends to keep select items. Prior to demolition, remove and turn over to the
Owner the following:
a. Existing foot valves (if removed via either Alternate),
b. Existing 18-inch diameter flange filler (from WWP 3 discharge).
Contractor shall verify that all items the Owner wishes to keep have been removed before
beginning demolition.
3. Except for items indicated to be retained as Owner's property, other removed and
salvaged materials not indicated for reuse shall become Contractor's property and
removed from site with further disposition at Contractor's option.
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SECTION 02 41 00
DEMOLITION
3.03 DISPOSAL OF DEMOLISHED MATERIALS
A. General: Remove weekly from site accumulated debris, rubbish, and other materials resulting from
demolition operations.
1. Burning of combustible materials from demolished structures will not be permitted on
site.
B. Removal: Transport materials removed from demolished structures and legally dispose of offsite.
END OF SECTION
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FINISHES
DIVISION 9
TABLE OF CONTENTS
SECTION TITLE
09 96 00 High Performance Coatings
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SECTION 09 96 00
HIGH PERFORMANCE COATINGS
PART 1 - GENERAL
1.01 SUMMARY
A. This section includes surface preparation, painting, and finishing of exposed interior and exterior
items and surfaces.
1. Surface preparation, priming, and finish coats specified in this section are in addition to
shop priming and surface treatment specified under other sections.
2. Coatings in this specification include shop and field applications. Contractor is
responsible for complying with State of Michigan environmental coating compliance
standards and volatile organic (VOC) regulations for shop and field applications of
coatings. The State of Michigan has adopted Ozone Transport Commission Phase II
Model Rule for Architectural and Industrial Maintenance (AIM) coatings.
B. Paint all exposed surfaces except surfaces or items that are specifically indicated not to be painted
or to remain natural. Where an item or surface is not specifically mentioned, paint the same as
similar adjacent materials or surfaces. If color or finish is not designated, the Engineer will select
from standard colors or finishes available.
C. Painting is not required on pre-finished items, finished metal surfaces, concealed surfaces,
operating parts, and labels unless otherwise noted.
1. Pre-finished items not to be painted include the following factory-finished components,
but not limited to:
a. Acoustic materials.
b. Architectural woodwork and casework.
c. Finished mechanical and electrical equipment.
d. Light fixtures.
e. Distribution cabinets.
2. Concealed surfaces not to be painted include wall or ceiling surfaces in the following
generally inaccessible areas:
a. Foundation spaces.
b. Furred areas.
c. Utility tunnels.
d. Pipe spaces.
e. Duct shafts.
3. Finished metal surfaces not to be painted include unless otherwise noted:
a. Anodized aluminum.
b. Stainless steel.
c. Chromium plate.
4. Operating parts not to be painted include moving parts of operating equipment such as
the following:
a. Linkages.
b. Sensing devices.
c. Motor and fan shafts.
d. Hardware
5. Labels: Do not paint over Underwriter's Laboratories, Factory Mutual or other code-
required labels or equipment name, identification, performance rating, or nomenclature
plates.
1.02 REFERENCES
A. Reference Organizations and Documents
1. American National Standards Institute (ANSI):
a. ANSI A13.1 Scheme for the Identification of Piping Systems
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b. ANSI Z535.1 Safety Color Code
c. ANSI/ASC 29.4 Abrasive Blasting Operations – Ventilation and Safe
Practice
2. American Society for Testing Materials (ASTM)
a. ASTM D 16 Standard Terminology for Paint, Related Coatings,
Materials, and Applications.
b. ASTM D 4285 Standard Test Method for Indicating Water or Oil in
Compressed Air.
c. ASTM D 6386 Standard Practice for Preparation of Galvanized Iron &
Steel
d. ASTM D 6944 Standard Test Method for Measuring Humidity with a
Psychrometer.
e. ASTM F 1869 Standard Test Method for Measuring Moisture Vapor
Emission Rate of Concrete Subfloor Using Anhydrous
Calcium Chloride.
3. American Water Works Association (AWWA)
a. AWWA D102-17 Coating Steel Water Storage Tanks
b. AWWA C210 Liquid-Epoxy Coating Systems for the Interior and Exterior
of Steel Water Pipelines
c. AWWA C218 Coating the Exterior of Aboveground Steel Water Pipelines
and Fittings
4. International Concrete Repair Institute (ICRI)
a. 310.2R-2013 Selecting & Specifying Surface Preparation for Sealers,
Coatings, Polymer Overlays, & Concrete Repair
b. 320.1R-1996 Guide for Selecting Application Methods for the Repair of
Concrete Surfaces
c. 710.2-2014 Guide for Horizontal Waterproofing of Traffic Surfaces
5. NACE International (NACE)
a. NACE 6D-173 A Manual for Painter Safety
b. NACE 6G-164 Surface Preparation Abrasives for Industrial Maintenance
Painting
c. NACE TPC2 Coating and Lining for Immersion Service: Chapter 1
Safety, Surface Preparation, Chapter 3 Curing, and Chapter
2 Inspection
d. NACE 6F-163 Surface Preparation of Steel of Concrete Tank Interiors
e. NACE RP0892 Standard Recommended Practice, Lining over Concrete in
Immersion Service.
f. NACE RP0288 Standard Recommended Practice, Inspection of Linings on
Steel and Concrete.
g. NACE SP0188 Standard Practice for Discontinuity (Holiday) Testing of
Protective Linings
6. National Association of Pipe Fabricators (NAPF)
a. NAPF 500-03 Surface Preparation Standard for Ductile Iron Pipe and
Fittings in Exposed Locations Receiving Special External
Coatings and/or Special Internal Linings
7. National Fire Protection Association (NFPA)
a. NFPA 101 Life Safety Code
8. NSF International (NSF)
a. NSF/ANSI/CAN Standard 61 Drinking Water System Components
b. NSF/ANSI/CAN Standard 600
9. Ozone Transport Commission (OTC)
a. OTC Phase II Phase II Model Rule for Architectural and Industrial
Maintenance (AIM) Coatings
10. The Society for Protective Coatings (SSPC)
a. SSPC-SP 10 Near White Metal Blast Cleaning
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HIGH PERFORMANCE COATINGS
b. SSPC-SP 11 Power Tool Cleaning to Bare Metal
c. SSPC-PA 1 Painting Application Specification
d. SSPC-PA 2 Measurement of Dry Coating with Magnetic Gauges
e. SSPC-PA 3 A Guide for Safety in Paint Application
f. SSPC-Guide 12 Guide for Illumination of Industrial Painting Projects
1.03 DEFINITIONS
A. "Paint" as used herein means all coating systems materials, primers, emulsions, enamels, stains,
sealers and fillers, and other applied materials whether used as prime, intermediate, or finish coats.
1.04 SUBMITTALS
A. Product Data: for each paint system specified, including block fillers and primers.
1. Provide the manufacturer's technical information including label analysis and instructions
for handling, storage, and application of each material proposed for use.
2. List each material and cross-reference the specific coating, finish system, and application.
Identify each material by the manufacturer's catalog number and general classification.
3. Product data sheets shall indicate the mixing and thinning directions, and recommended
spray nozzles and pressures.
B. Samples for verification purposes: Provide samples of each color and material to be applied, with
texture to simulate actual conditions, on representative samples of the actual substrate. Define
each separate coat, including block fillers and primers. Use representative colors when preparing
samples for review. Resubmit until required sheen, color, and texture are achieved.
C. Provide safety data sheets (SDS).
1.05 QUALITY ASSURANCE
A. Engage an experienced applicator that has experience in industrial or heavy commercial painting
system applications and experience in painting wastewater or water treatment plants. The
submission of five (5) successful paint projects of similar nature will be required if the Engineer is
not familiar with the Subcontractor’s work.
B. Single-Source Responsibility: Provide primers and undercoat paint produced by the same
manufacturer as the finish coats.
C. Material Quality: Provide the manufacturer's paint material of the various coatings as specified.
Paint material containers not displaying manufacturer's product identification will not be
acceptable.
D. Compatibility: Materials specified herein are compatible and complete systems. Any
incompatible primers or barrier coats shall be removed and re-primed as directed by the Engineer.
Notify the Engineer in writing of any anticipated problems using specified coating systems with
substrates primed by others.
E. Paint sample areas to establish standards on quality of workmanship as directed by the Engineer
and to establish a basis for acceptability of the coating work. Project mock-ups and samples
approved by the Engineer shall stay in place the remainder of the project to provide a standard of
quality to which production work will be compared.
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HIGH PERFORMANCE COATINGS
1.06 DELIVERY, STORAGE, AND HANDLING
A. Deliver materials to the job site in the manufacturer's original, unopened packages and containers
bearing manufacturer's name and label and the following information:
1. Product name or title of material.
2. Product description (generic classification or binder type).
3. Manufacturer's lot number.
4. Manufacturer's stock number and date of manufacture.
5. Contents by volume, for pigment and vehicle constituents.
6. Thinning instructions.
7. Application instructions.
8. Color name and number.
9. Expiration date (after which the product should not be used).
B. Containers that have been broken, opened, water marked and contain caked, lumpy or otherwise
damaged materials are unacceptable and shall be removed from the work site immediately.
C. Store materials not in use in tightly covered containers in a well-ventilated area at a minimum
ambient temperature of 45 deg F (7 deg C). Maintain containers used in storage in a clean
condition, free of foreign materials and residue. The Contractor shall exercise every precaution in
the storage of paints, solvents, cleaning fluids, rags and similar materials to eliminate the risk of
spontaneous combustion or other hazardous conditions. Portable fire extinguishing equipment
shall be provided in a convenient location for emergency access. All painting materials stored on
the job site shall be stored in a location consistent to the manufacturer’s storage requirements. The
Contractor shall take all safety precautions in accordance with Section 7 of AWWA d-102 and
NFPA Bulletin No. 101.
1.07 PROJECT/SITE CONDITIONS
A. Apply paints only when the temperature of surfaces to be painted and surrounding air temperatures
are between 50 deg F (10 deg C) and 90 deg F (32 deg C). These temperatures need to be
maintained throughout the minimum cure time as recommended by the manufacturer.
B. The coatings shall be supplied for normal use without thinning. If it is necessary to thin the
coating for proper application in cool weather or obtain better coverage for a protected coating of
urethane application, the thinning shall be done in accordance with manufacturer's
recommendations.
C. Do not apply paint to wet or damp surfaces, or during snow, rain, fog, or mist. No paint shall be
applied when it expected that the relative humidity will exceeds 85 percent or that the air
temperature will drop below manufacturer’s requirements within 18 hours after the application of
the paint. Dew or moisture condensation should be anticipated and if such conditions are
prevalent, painting shall be delayed until the Engineer is satisfied that the surface is dry.
D. Air quality permits, requirements, and other construction related permits shall be the responsibility
of the Contractor. Copies of the permits shall be attached to the Field Superintendents copy of the
specifications and shall be on the job site at all times.
E. Adjacent Work – Protect work of other trades covered in these specifications and in other sections
and in other sections against damage by painting and finishing work. Correct any damage by
repairing, cleaning, replacing, or repainting any of the damaged areas as acceptable to the
Engineer.
F. Provide “Wet Paint” signs as required to protect freshly painted surfaces from the damage.
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SECTION 09 96 00
HIGH PERFORMANCE COATINGS
PART 2 - PRODUCTS
2.01 MANUFACTURERS
A. Manufacturer: All materials specified herein shall be base bid as manufactured by the Tnemec
Company, Inc., Kansas City, MO. These products are specified to establish standards of quality
and are approved for use on this project. The listing or description of these products shall not be
construed so as to eliminate from competition other products of equal performance, which are
similar in design, function, and performance. The products were selected by application,
performance requirements, and ASTM Testing.
2.02 PAINT MATERIALS
A. Material Compatibility: Provide block fillers, finish coat materials, and related materials that are
compatible with one another and the substrates indicated under conditions of service and
application, as demonstrated by the manufacturer based on testing and field experience.
B. Colors: Provide color selections made by the Owner from the manufacturer's full range of
standard colors.
PART 3 - EXECUTION
3.01 EXAMINATION
A. The Contractor shall examine Work-in-Place that work included in this section is dependent. Any
defects that may influence the satisfactory performance of any work of this section shall be
corrected in accordance with the requirements governed by the section under which the defects are
noted. The Contractor shall be solely responsible for assuring that Work-in-Place is acceptable to
satisfy the requirements of this section. Commencement of work under this section shall be
construed as Work-in-Place being acceptable to the Contractor.
B. Coordination of Work: Review other sections in which primers are provided to ensure
compatibility of the total system for various substrates on request. Furnish information on
characteristics of finish materials to ensure use of compatible primers.
1. Notify the Engineer about anticipated problems using the materials specified over
substrates primed by others.
3.02 PREPARATION:
A. General Procedures: Remove hardware and hardware accessories, plates, machined surfaces,
lighting fixtures, and similar items in place that are not to be painted, or provide surface-applied
protection prior to surface preparation and painting. Remove these items if necessary for complete
painting of the items and adjacent surfaces. Following completion of painting operations in each
space or area, have items reinstalled by workers skilled in the trades involved.
1. Clean surfaces before applying paint or surface treatments. Remove oil and grease prior
to cleaning. Schedule cleaning and painting so that dust and other contaminants from the
cleaning process will not fall on wet, newly painted surfaces.
B. Surface Preparation: Clean and prepare surfaces to be painted in accordance with the
manufacturer's instructions and SSPC for each particular substrate condition and as specified.
1. Provide barrier coats over incompatible primers or remove and re-prime. Notify the
Engineer in writing of problems anticipated with using the specified finish-coat material
with substrates primed by others.
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2. Ferrous Metals: Clean non-galvanized ferrous-metal surfaces that have not been shop
coated; remove oil, grease, dirt, loose mill scale, and other foreign substances.
a. All the surfaces to be coated shall be blast cleaned in accordance with the
surface preparation standard listed in the schedule.
b. The abrasive used for blast cleaning shall be an approved low dusting abrasive
and shall have a gradation such that the abrasive will produce a uniform profile
of 1 to 2.5 mils, as measured with extra coarse Testex Replica Tape.
c. All abrasive and coating residue shall be removed from steel surfaces with a
commercial grade vacuum cleaner equipped with a brush-type cleaning tool, or
by double blowing. If the double blowing method is used, the exposed top
surfaces of all structural steel, including flanges, longitudinal stiffeners splice
plates, hangers, etc., shall be vacuumed after the double blowing operations are
completed. The airline used for blowing the steel clean shall have an in-line
water trap and the air shall be free of oil and water as it leaves the air line. The
steel shall then be kept dust free and primed within eight (8) hours after blast
cleaning.
d. Touch up bare areas and shop-applied prime coats that have been damaged.
Wire-brush, clean with solvents recommended by the paint manufacturer, and
touch up with the same primer as the shop coat.
3. Ductile Iron: NAFP 500-03-04 Abrasive Blast Cleaning of Ductile Iron Pipe
4. Copper Pipe: Abrade surface to generate a profile for mechanical adhesion.
C. Materials Preparation: Carefully mix and prepare paint materials in accordance with
manufacturer's directions.
1. Maintain containers used in mixing and application of paint in a clean condition, free of
foreign materials and residue.
2. Stir material before application to produce a mixture of uniform density; stir as required
during application. Do not stir surface film into material. Remove film and, if necessary,
strain material before using.
3. Use only thinners approved by the paint manufacturer, and only within recommended
limits.
4. Epoxy, Coal Tar Epoxy and Urethane Coatings:
a. The coating shall be mixed with a high shear mixer (such as Jiffy Mixer) in
accordance with the manufacturer's directions, to a smooth, lump-free
consistency. Paddle mixers or paint shakers are not permitted. Mixing shall be
done, as far as possible, in the original containers and shall be continued until all
of the metallic powder or pigment is in suspension. Care shall be taken to ensure
that all of the coating solids that may have settled to the bottom of the container
are thoroughly dispersed. The coating shall then be strained through a screen
having openings no larger than those specified for a No. 50 sieve in ASTM E11.
After straining, the mixed primer shall be kept under continuous agitation up to
and during the time of application.
3.03 APPLICATION
A. Apply paint in accordance with manufacturer's directions and good painting practices under SSPC.
Use applicators and techniques best suited for substrate and type of material being applied.
B. Do not paint over dirt, rust, scale, grease, moisture, scuffed surfaces, fraying surfaces or conditions
detrimental to formation of a durable paint film.
1. Paint colors, surface treatments, and finishes are indicated in "schedules."
2. Provide finish coats that are compatible with primers used.
3. The number of coats and film thickness required is the same regardless of the application
method. Do not apply succeeding coats until the previous coat has cured as recommended
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by the manufacturer. Sand between applications where sanding is required to produce an
even smooth surface in accordance with the manufacturer's directions.
4. Apply additional coats when undercoats, stains, or other conditions show through final
coat of paint until paint film is of uniform finish, color, and appearance. Give special
attention to ensure that surfaces, including edges, corners, crevices, welds, and exposed
fasteners, receive a dry film thickness equivalent to that of flat surfaces.
5. The term "exposed surfaces" includes areas visible when permanent or built-in fixtures,
convector covers, covers for finned tube radiation, grilles, and similar components are in
place. Extend coatings in these areas as required to maintain the system integrity and
provide desired protection.
6. Sand lightly between each succeeding enamel or varnish coat.
7. Omit primer on metal surfaces that have been shop-primed and touch up painted.
C. Proper curing conditions for ferrous metals will be required between the applications of all coats.
The minimum curing time between coats and the maximum time between coats shall be in
accordance with the manufacturer's recommendation except that no more than sixty, (60), calendar
days will be permitted between coats. If the maximum time between coats is exceeded, all newly
coated surfaces shall be completely blast cleaned again to a near-white finish (SSPC-SP10) and
recoated and shall be at the Contractor's expense. Whatever metal is cleaned during a working day
shall be coated with the prime coat the same day. After the steel is primed, it shall be vacuumed
again before subsequent coating. If for any reason this vacuuming does not remove all the
accumulated dust and/or dirt, or if more than three (3) weeks has elapsed since the steel was
primed, or if in the opinion of the Engineer the surface is unfit for top-coating, the surface shall be
scrubbed with a mild detergent solution (any commercial laundry detergent) and thoroughly rinsed
with water and allowed to dry for twenty-four (24) hours before the surface is coated.
D. Minimum Coating Thickness: Apply materials at not less than the manufacturer's recommended
spreading rate. Provide a total dry film thickness of the entire system as recommended by the
manufacturer and as stated in paint schedules. If the application of coating at the required
thickness in one (1) pass produces runs, bubbles, or sags, the coating shall be applied in multiple
passes, the passes separated by several minutes. Where excessive coating thickness produces
“mud-cracking”, such coating shall be scraped back to soundly bonded coating and the area
recoated to the required thickness. All dry spray shall be removed, by sanding if necessary. In
areas of deficient primer thickness, the areas shall be thoroughly cleaned with power washing
equipment, as necessary to remove all dirt; the areas shall then be wire brushed, vacuumed, and
recoated. Each undercoat shall be tinted a lighter shade to facilitate identification of each coat
where multiple coats are applied. The Engineer will require certification from the approved
coating manufacturer that sufficient materials of each coating specified were purchased to
complete the scope of work indicated in these specifications and on the drawings.
E. Mechanical and Electrical Work: Painting mechanical and electrical work is limited to items
exposed in mechanical equipment rooms and in occupied spaces.
F. Stipple Enamel Finish: Roll and redistribute paint to an even and fine texture. Leave no evidence
of rolling such as laps, irregularity in texture, skid marks, or other surface imperfections.
G. Pigmented (Opaque) Finishes: Completely cover to provide an opaque, smooth surface of
uniform finish, color, appearance, and coverage. Cloudiness, spotting, holidays, laps, brush marks,
runs, sags, ropiness, or other surface imperfections will not be acceptable.
H. Transparent (Clear-White) Finishes: Use multiple coats to produce a glass-smooth surface film of
even luster. Provide a finish free of laps, cloudiness, color irregularity, runs, brush marks, orange
peel, nail holes, or other surface imperfections.
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HIGH PERFORMANCE COATINGS
I. Completed Work: Match approved samples for color, texture, and coverage. Remove, refinish, or
repaint work not in compliance with specified requirements.
J. All metal coated with impure unsatisfactory or unauthorized coating material or coated in an un-
workmanlike or objectionable manner shall be thoroughly cleaned and recoated or otherwise
corrected as directed by the Engineer.
3.04 FIELD QUALITY AND CONTROL
A. The Contractor shall provide access to the job site and areas of work at all times during normal
working hours for the Owner. This requirement includes both shop and work in the field.
B. The Engineer or an outside inspection service representing the Owner may make inspections of the
work in progress and completed work. Contractor shall coordinate with Engineer or outside
inspection agency to allow for inspections after surface preparation and after each coating is
applied.
Should the Engineer be summoned to inspect a completed phase of the work and find the work
incomplete and therefore, not ready for inspection, the Contractor shall bear the cost of the
inspection. It is not the intent to charge the Contractor for an inspection if discrepancies are found
in the completed phase of the construction as long as the discrepancies do not necessitate
additional inspection trips. Field inspections may be performed by the Engineer according to the
following outline:
1. Surface Preparation:
a. Surface appearance per SSPC checked with visual standards.
b. Anchor profile checked with replica tape.
2. Coating Conditions:
a. Temperature of steel using a surface thermometer.
b. Determination of relative humidity and dew point and air temperature using a
sling psychrometer.
3. Verification of Coating Thickness:
a. Dry film thickness will be determined by use of a magnetic film thickness
gauge.
b. Pin holes will be checked using a holiday detector.
4. The Contractor shall supply the following test equipment and standards. This equipment
shall be on the job site and available to the on-site inspector at all times:
a. Wet Film Thickness Gauges
b. SSPC Vis-1 pictorial standards
c. Magnetic Dry Film Thickness Gauge 0 to 45 mils
d. Dry Film Thickness Calibration Standards
e. Tooke Gauge
f. Holiday detection device
g. Surface Temperature Gauges
h. Sling Psychrometer or equal
C. Failure to comply with these specifications in any manner shall be sufficient cause for rejection of
work.
3.05 CLEAN-UP AND PROTECTION
A. Cleanup: At the end of each work day, remove empty cans, rags, rubbish, and other discarded
paint materials from the site.
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B. Upon completion of painting, clean glass and paint-spattered surfaces. Remove spattered paint by
washing and scraping, using care not to scratch or damage adjacent finished surfaces.
C. Protect work of other trades, whether to be painted or not, against damage by painting. Correct the
damage by cleaning, repairing or replacing, and repainting, as acceptable to the Engineer.
D. Provide "wet paint" signs to protect newly painted finishes. Remove temporary protective
wrappings provided by others for protection of their work after completion of painting operations.
1. At completion of construction activities of other trades, touch up and restore damaged or
defaced painted surfaces.
3.06 PAINT WASTE
A. The Contractor shall be responsible for correctly disposing of all material generated by his
performance of the work.
B. Documentation shall be provided to the Engineer/Owner regarding proper testing and disposal of
paint waste. All testing and disposal procedures shall meet or exceed those required by the State of
Michigan Department of Environment, Great Lakes, and Energy and/or any other governmental
bodies that have jurisdiction over waste in the State of Michigan.
C. If paint waste is generated, as a minimum, three samples shall be taken and analyzed for lead
content and any other hazardous material as required by local, State and federal governing bodies
before a dumpster containing paint waste may be removed from the job site. These samples shall
be taken and tested by an independent laboratory and paid for by the Contractor as a part of this
contract. The results of these tests must be submitted to the Engineer/Owner and the Contractor
shall receive written approval for the removal of any dumpster.
D. The cost of disposing of any waste shall be part of the Contractor’s original proposal and will not
be considered as an extra to the Contract.
E. Dust and blast products shall be completely removed prior to recoating by high pressure air or
vacuum cleaning.
3.07 PAINT SCHEDULE
A. General: Paint all surfaces as noted in this Paint Schedule and the Finish Schedules included in
the Drawings. Also paint items and surfaces where noted on the Drawings and in the Sections of
the Specifications. NOTIFY ENGINEER when ready to select colors and, again, when ready to
commence the work, and prior to applying the final coat. Where only two coats are noted, the
result must give total coverage or an added coat shall be applied.
1. All non-wearing surfaces, supports, frames, etc., except galvanized parts, shall be painted
in accord with the painting schedule.
2. Paint hollow metal doors and frames and overhead doors.
3. Paint the following items if exposed to view and not factory finished:
a. Metal, except stainless steel and aluminum unless noted.
b. Mechanical ductwork, piping (including copper and brass), and associated
supports, cabinets, covers, grilles, register, diffusers and appurtenances.
4. When exposed to the exterior elements and not factory finished, paint the following
items:
a. Metal, except stainless steel or aluminum unless noted.
5. Factory finishes shall be touched up with a matching material if scratched, stained or
otherwise damaged. When noted, factory finished items shall be field painted. Prime coat,
galvanizing or similar treatment do not constitute a factory finish exempted from field
painting. The overhead door shall be painted at the job site.
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6. Do not paint over code required labels such as UL or FM, or any equipment
identification, performance rating, name or nomenclature plates.
7. Do not paint moving parts of operating mechanical and electrical equipment such as
valve and damper operators, linkages, sensing devices, or motor and fan shafts.
8. The following painting schedule is based on the products of the Tnemec Company, Inc.
Schedule contains minimum number of coats required to achieve specified dry film
thickness.
9. See Section 40 05 13 – “Process Piping” for coating of inside of pipes. Interior and
exterior noted in schedule below refers to building environment.
C. DUCTILE IRON PIPE
Interior Ductile Iron Pipe and Fittings (Existing Construction)
Spot Surface Prep: NAPF 500-03-04/NAPF 500-03-05
Spot Prime: Tnemec Series V69 2.0 to 3.0 mils DFT
Intermediate: Tnemec Series V69 4.0 to 6.0 mils DFT
Finish: Tnemec Series V69 4.0 to 6.0 mils DFT
Interior Ductile Iron Pipe and Fittings (New Construction)
Surface Prep: NAPF 500-03-04/NAPF 500-03-05
Shop Prime: Tnemec Series 37H, N69, or V69 2.0 to 3.0 mils DFT
or Field Prime: Tnemec Series V69 2.0 to 3.0 mils DFT
Intermediate: Tnemec Series V69 4.0 to 6.0 mils DFT
Finish: Tnemec Series V69 4.0 to 6.0 mils DFT
D. STEEL PIPE
Interior Steel Pipe (Existing Construction)
Spot Surface Prep: SSPC-SP-11
Spot Prime: Tnemec Series 1 2.5 to 3.5 mils DFT
Finish: Tnemec Series V69 4.0 to 6.0 mils DFT
Interior Steel Pipe (New Construction)
Surface Prep: Near White Blast Cleaning (SSPC-SP-10)
Shop prime: Tnemec Series V69 4.0 to 6.0 mils DFT
Field Touch-up: Tnemec Series V69, as required
Intermediate: Tnemec Series V69 4.0 to 6.0 mils DFT
Finish: Tnemec Series V69 4.0 to 6.0 mils DFT
E. NON-FERROUS PIPE
Interior Copper Pipe
Surface Prep: 3.02.B.4
Prime: Tnemec Series V69 3.0 to 4.0 Mils DFT
Finish: Tnemec Series V69 3.0 to 4.0 Mils DFT
F. STEEL PIPE SUPPORTS - IMMERSION (Interior of reservoir – Alternate Nos. 1 and 2 only)
Surface Prep: SSPC-SP2
Prime (Shop and/or Field): Tnemec Series 94-H2O Hydro-Zinc 2.5 to 3.5 mils DFT
Intermediate: Tnemec 21-1255 Epoxoline 4.0 to 6.0 mils DFT
Finish: Tnemec 21-WH16 Epoxoline 4.0 to 6.0 mils DFT
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HIGH PERFORMANCE COATINGS
3.08 WATER TREATMENT FINISH COLOR SCHEME
A. Color Selection: Paint colors will be selected by Engineer. Before painting the Contractor shall
submit Paint Specifications and color chips for review by Engineer.
1. Furnish colors exactly matching the selected colors.
2. Obtain approval from Engineer of proposed color matches.
3. Paint wood, metal, and mechanical and electrical appurtenances the same color as
adjacent building surface unless noted.
4. Refer to architectural drawings for special painting considerations for accent color walls.
5. The “Ten State Standards” recommended piping color scheme shall be utilized for piping
and is as follows:
a) Potable Water Dark Blue (matching existing)
b) Pipe Supports Black
6. Verify pipe color scheme with Engineer prior to application to confirm whether a
different shade from the above listed piping color scheme is required.
3.09 LABELS
A. Piping shall be identified by labels and flow arrows every ten feet with at least two labels in each
room.
B. The contents and direction of flow shall be stenciled on the piping with paint in a contrasting
color. Coordinate label text with Owner and Engineer.
C. Minimum text size for 16'' and larger pipe shall be 4''.
D. Minimum text size for pipe smaller than 16'' shall be 2''.
3.10 SURFACE PREPARATION - SSPC DESCRIPTIONS
A. Reference is made to Steel Structures Painting Council (SSPC) surface preparation specifications
for recommended surface cleaning.
SSPC-SP-2 Hand Tool Cleaning:
Removal of loose rust, loose mill scale and loose paint to degree specified, by hand
chipping, scraping, sanding and wire brushing.
SSPC-SP-10 Near-White Metal Blast Cleaning:
The removal of all rust, oil, grease, dirt, dust, mill scale, oxides, corrosion products and
other foreign matter by compressed air nozzle blasting. Discoloration caused by certain
stains shall be limited to no more than five percent (5%) of each square inch of surface
area. (For high humidity, chemical atmosphere, marine or other corrosive environments).
SSPC-SP-11 Power Tool Cleaning to Bare Metal:
The removal of all visible oil, grease, dirt, dust, mill scale, rust, paint oxide, corrosion
products, and other foreign matter by the use of surface cleaning power tools.
B. Mill scale, rust and paint are considered tightly adherent if they cannot be removed by lifting with
a dull putty knife.
3.11 SURFACE PREPARATION - NAPF DESCRIPTIONS
A. Reference is made to National Association of Pipe Fitters (NAPF) surface preparation specifications
for recommended surface cleaning of ductile iron pipe and fittings.
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NAPF 500-03-04 Abrasive Blast Cleaning for Ductile Iron Pipe:
Removal of all visible dirt, dust, loose annealing oxide, loose rust, loose mold coating
and other foreign matter. All oils, small deposits of asphalt paint and grease shall have
been removed prior to blasting by solvent cleaning per NAPF 500-03-01. After the entire
surface to be coated is struck by the blast media, tightly adherent annealing oxide, mold
coating and rust staining may remain on the surface provided they cannot be removed by
lifting with a dull putty knife. No asphaltic coating shall be allowed to remain.
NAPF 500-03-05 Abrasive Blast Cleaning for Ductile Iron Fittings:
Removal of all visible dirt, dust, loose annealing oxide, loose rust, loose mold coating
and other foreign matter. All oils, small deposits of asphalt paint and grease shall have
been removed prior to blasting by solvent cleaning per NAPF 500-03-01. After the entire
surface to be coated is struck by the blast media, tightly adherent annealing oxide, mold
coating and rust staining may remain on the surface provided they cannot be removed by
lifting with a dull putty knife. For fittings previously coated with asphaltic paint, no
staining may remain on the surface after abrasive blast cleaning.
END OF SECTION
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PROCESS INTEGRATION
DIVISION 40
TABLE OF CONTENTS
SECTION TITLE
40 05 13 Process Piping
40 05 51 Process Valves
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PROCESS PIPING
PART 1 - GENERAL
1.01 RELATED DOCUMENTS
Drawings and general provisions of the Contract, including the General and Supplementary Conditions and
Division 1 Specification Sections apply to this document.
1.02 SUMMARY
A. The Contractor shall furnish and install all piping as shown on the Drawings complete with all
accessories and appurtenances required for the proper performance of the work.
B. Related Sections
1. SECTION 01 33 00 – “Submittals”
2. SECTION 09 96 00 – “High Performance Coatings”
3. SECTION 40 05 51 – “Process Valves”
1.03 REFERENCES
All piping materials, layout, and installation shall meet the requirements of the governing local, state, and
national codes and relevant AWWA Standards. Referenced codes and standards shall be the current code or
standard in effect at the time proposals are received.
1.04 DESIGN REQUIREMENTS
The Drawings show the general arrangement of the piping. Details of proposed departures due to actual
field conditions or other causes shall be submitted to the Engineer for review. The Contractor shall
carefully examine the Drawings and shall be responsible for the proper fitting of materials and equipment
in each structure as indicated without substantial alteration.
1.05 SUBMITTALS
A. Submit in accordance with the General and Supplementary Conditions and Section 01 33 00 –
“Submittals.”
B. Submit detailed shop and placement drawings to the Engineer for review for all piping four inches
(4") in diameter or greater.
C. Manufacturer’s Certificate: Certify that products meet or exceed specified requirements.
1.06 DELIVERY, STORAGE, AND HANDLING
Deliver, store, protect, and handle products as required by the manufacturer.
1.07 WARRANTY
The process piping shall be guaranteed for a period of one year from the date of substantial completion.
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SECTION 40 05 13
PROCESS PIPING
PART 2 - PRODUCTS
2.01 MATERIALS
Piping materials and accessories shall conform to the following specifications. Wherever pressure ratings,
wall thickness, pipe class, or schedule are given herein, they shall be considered to be the minimum
allowed. Piping with a higher rating, classification, or schedule shall be furnished if so called out on the
Drawings.
2.02 PIPE, FITTINGS, JOINTS, COATINGS AND LININGS
The Contractor shall furnish and install all piping as shown on the Drawings. All exterior, buried piping
shall be as defined in Division 33 of the Project Specifications.
All 4" diameter and larger interior or exposed piping shall be either ductile iron or carbon steel as shown on
the Drawings. Fittings shall be as shown on the Drawings.
All nuts and bolts on stainless steel flanges shall be 316L stainless steel.
A. Ductile Iron Pipe
All 4-inch and larger water piping may be ductile iron pipe. Ductile iron pipe shall be AWWA
C151 Class 53. Flanged ductile iron pipe shall be in accordance with AWWA C115. All pipe and
fittings for water service shall have a cement mortar lining with seal coat conforming to the
requirements of AWWA C104 (ANSI A21.4) and NSF 61.
For all interior ductile iron and steel flanged pipe, flange connection hardware shall be galvanized
or zinc plated carbon steel. Hardware shall comply with the current ASTM A307, Grade B
requirements, or approved equal. Bolts and nuts shall comply with the current American Standard
for Screw Head ANSI B1.1, Coarse Thread Series, Class 2 fit.
Exteriors of all interior ductile iron pipe and fittings shall have a shop prime coat of paint in
accordance with Section 09 96 00 requirements. Ductile iron pipe and fittings that are required to
be coated shall be supplied without any exterior asphaltic coating. No asphaltic coating shall be
permitted below coatings required by Section 09 96 00.
Flanges and fittings shall be ductile iron and meet AWWA C110/115. Casting and drilling shall be
to ANSI B16.1, Class 125. Gaskets shall be Toruseal® gaskets as manufactured by American or
equivalent. Gaskets for potable water piping applications shall be SBR rubber per ANSI/AWWA
C111/A21.11, certified per NSF 61.
Certified reports of chemical and physical analysis of material must be supplied. Fabrication
drawings shall be submitted to the Engineer for approval prior to starting fabrication of any of the
material required.
B. Carbon Steel Pipe
Water piping 4 inch diameter and larger may be steel.
Fittings shall be as shown on the Drawings. Flanges shall be furnished for all connections to
valves, existing flanges, wall/floor pipes, and as shown on the Drawings.
Steel pipe for 24-inch nominal diameter and smaller shall be in accordance with ASTM A53,
Grade B.
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Pipe 14" and larger shall have an outside diameter which corresponds to the nominal pipe size.
Steel pipe greater than 10 inch diameter shall have minimum wall thickness of 3/8". Fittings shall
comply with AWWA C208. Flanges shall be slip-on welding type meeting AWWA C207 Class D.
Flanges shall have the same diameter and drilling as Class 125 cast iron flanges ANSI/ASME
B16.1.
Gaskets shall be full face cloth inserted rubber type or Toruseal® gaskets as manufactured by
American approved for use with potable water.
Exteriors of all steel pipe shall be coated per the requirements of Section 09 96 00. Contractor
shall supply minimum of 48 hours notice of completion of surface preparation and allow for
observation of the surface preparation by the Engineer prior to coating.
Interior coating system shall be shop applied on the interior of all steel pipe and fittings as follows:
Steel Pipe 18” in diameter or greater
Surface Prep: SSPC-SP10 with a minimum angular profile of 1.5 mils
Prime Coat: Tnemec Series 21 Epoxoline (WH16 Off White) at 6.0-8.0 mils DFT
Finish Coat: Tnemec Series 21 Epoxoline (39BL Delft Blue) at 6.0-8.0 mils DFT
Steel Pipe 10” to 18” in diameter
Surface Prep: SSPC-SP10 with a minimum angular profile of 1.5 mils
Prime Coat: Tnemec Series 22 Epoxoline (1255 Beige) at 12.0-18.0 mils DFT
Finish Coat: Tnemec Series 22 Epoxoline (1218 Light Blue) at 12.0-18.0 mils DFT
Contractor shall supply minimum of 48 hours’ notice of completion of any pipe surface
preparation and allow for observation of the surface preparation by the Engineer prior to coating.
Certified reports of chemical and physical analysis of material must be supplied. Fabrication
drawings shall be submitted to the Engineer for approval prior to starting fabrication of any of the
material required.
C. SMALL DIAMETER PIPING (3-inch diameter and less) :
1. Pipe and Tube:
a. Copper water tube shall be ASTM B-88, Type L above ground. Tube shall be
hard drawn seamless copper tubing. Provide manufacturer’s colors to the Owner
for selection.
b. Brass pipe shall be ANSI/ASTM B-43, IPS 85 red brass.
c. Stainless steel pipe shall be used for all instrumentation connections. Stainless
steel pipe shall be Schedule 10, Type 316 conforming to ASTM A-312, TP-316.
2. Joints and Fittings
a. Steel pipe fittings - FS WW-P-521 Class 50 for pipe smaller than 4".
b. Copper and brass fittings shall meet ANSI/ASTM B-16.22 pressure fittings.
3. Unions and Couplings
a. Pipe Size 2" and Under - 150 psi malleable iron for threaded ferrous piping;
bronze for copper or brass pipe soldered joints.
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b. Pipe Size Over 2" - 150 psi forged steel slip-on flanges for ferrous piping;
bronze flanges for copper or brass piping.
2.03 PIPE HANGERS AND SUPPORTS
Whether or not specifically shown on the Drawings, Contractor shall support all horizontal runs of pipe to
prevent vibration, to maintain proper grading by adjustment, to provide for expansion and contraction and
to be neat in appearance. Hangers and supports shall be of standard design whenever possible and best
suited to service required. Pipe support for the base 90 bend at the WWP discharge shall be reused.
Contractor shall install non-shrink grout pad as required under base support.
Alternates No. 1 and No. 2: Structural steel used for fabricated flange supports in the finished water
reservoir shall conform to ASTM A36, or A572 Gr 50. Anchor bolts shall be Type 316 stainless steel
Simpson Titen HD Heavy-Duty Screw Anchors (or equal) and shall be installed into the reservoir slab
following the manufacturer recommendations. Surface preparation and shop prime painting of all structural
steel shall be in accordance with Section 09 96 00 – “High Performance Coatings.” Primer shall be
considered as first coat. Immediately after erection, clean and paint all surfaces not shop painted, welds,
and all damage to the paint system in accordance with Section 09 96 00 – “High Performance Coatings.”
2.04 JOINTS AND ACCESSORIES
A. Pipe taps
Pipe taps shall be as shown in the locations and the sizes indicated on the Drawings. All taps will
be temporarily plugged at the point of fabrication. Tapping method and thread shall meet the
requirements of the pipe manufacturer and shall be rated for the pressure of the pipe.
B. Sample Ports
Sample ports shall be provided as indicated on the Drawings. Sample ports shall consist of a 3/8”
diameter tap, 3/8” diameter ball valve, and 3/8” diameter copper tubing gooseneck. Sample port
shall be smooth nosed with no threaded fittings.
C. Pressure Gauges for Water
Pressure gauges shall be provided as shown on the Drawings. Gauges shall be liquid filled and
provided with 3½" dial. A snubber assembly shall be provided with each gauge to dampen
pressure pulsations. Provide diaphragm with stainless steel housing and diaphragm material
suitable for potable water. Range shall be as shown on the Drawings. Gauges shall be Type
1009SW Duralife pressure gages for severe service as manufactured by Ashcroft or Engineer
approved equal. Wetted materials shall be compatible with potable water as recommended by
manufacturer.
D. Small-diameter check valve shall be provided on each copper water tube from the impeller
housing to the bearing housing. Check valve shall match the size of the copper tubing, and be
installed with downstream end towards the bearing housing. Check valve shall be bronze or
stainless steel.
E. Restrained Flange Adapters (Alternate No. 1 and No. 2)
Restrained flange adapters shall be Series 2100 MEGAFLANGE® Restrained Flange Adapter as
produced by EBAA Iron, Inc. or approved equal. Flange adapters shall be made of ductile iron
conforming to ASTM A536 and have flange bolt circles that are compatible with ANSI/AWWA
C110/A21.10 (125#/Class 150 Bolt Pattern). The flange adapters shall be capable of deflection
during assembly or permit lengths of pipe to be field cut to allow a minimum 0.6 inch gap between
the end of the pipe and the mating flange without affecting the integrity of the seal.
All internal surfaces of the gasket ring (wetted parts) shall be lined with a minimum of 15 mils of
fusion bonded epoxy conforming to the applicable requirements of ANSI/AWWA C213. The
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PROCESS PIPING
coating shall meet ANSI/NSF-61. Exterior surfaces of the gasket ring shall be coated with a
minimum of 6 mils of fusion bonded epoxy conforming to the applicable requirements of
ANSI/AWWA C116/A21.16.
All hardware used in conjunction with the flange adapter shall be stainless steel.
PART 3 - EXECUTION
3.01 GENERAL
All pipe and fittings delivered to the Project shall be accompanied by certification papers showing that the
pipe and fittings meet the applicable specifications.
All exposed piping shall be run straight and square with the structure in a neat and workmanlike manner
and shall be coordinated with other work. Run piping true to line and grade.
Piping shall be hung from the building structure or laid in the ground in a manner that will allow expansion
and maintain alignment.
Pipe taps for ductile iron pipe shall conform to ANSI A21.51. Steel pipe taps shall be welded half-
couplings or saddle type and shall be attached in the shop.
The Contractor shall provide the necessary material and labor to make connections to existing piping when
called for on the Drawings. All necessary gaskets, bolts and fittings shall be provided for this purpose.
Pipe shall be kept clean. During construction, openings in pipe shall be fitted with temporary plugs except
where the pipe is actually being worked on. Piping must be clean at time of final acceptance of the work.
When piping is to connect to a piece of equipment it shall be run symmetrically, and it shall terminate so as
to properly fit the fixture or piece of equipment in accordance with the fixture or Equipment Manufacturer's
rough-in sheets or shop drawings.
3.02 CLEANING & DISINFECTING
A. After initial removal of the existing discharge gate valve, the discharge flange of the washwater
pump shall be blind flanged to prevent contaminants from entering the pump body and suction
piping.
Prior to placing WWP 2 into service, Contractor shall apply a 50 ppm chlorine solution in the
length of pipe between the check valve and the 20-inch butterfly valve. Piping shall be filled with
the chlorinated solution via the pressure gauge tap, exhausting air from the ¾” tap located near the
header until 50 ppm of chlorine is detected at the upper tap. The Contractor shall supply their own
temporary pumping equipment to fill the piping with chlorinated solution. Contractor shall supply
temporary piping to direct vented discharge from ¾” tap to floor drains selected by the Owner.
Once all air has been expelled from the new piping and detectable chlorine residual is evident at
the ¾” tap, all taps shall be closed leaving the stretch of piping between the check valve and
butterfly valve full of chlorinated solution.
After a 24-hour period, the installed valves and associated piping shall be flushed by opening the
upper ¾” tap and applying plant finished water at the pressure gauge tap, venting out the upper tap
until the chlorine residual at the upper tap matches that of the clearwell. Then, the Contractor shall
apply water at the upper tap and flush plant finished water out the pressure gauge tap until the
chlorine residual at that tap matches that of the clearwell. Contractor shall coordinate with the
Owner to select a hose bibb for use in flushing the piping with plant water. Contractor shall supply
all hoses used to direct plant water to the piping.
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
SECTION 40 05 13
PROCESS PIPING
A sample shall then be taken from the line in the presence of the Engineer and Owner. Samples
shall be taken from the ¾” tap or pressure gauge connection. The Owner will perform the
bacteriological analysis on the samples collected by the Contractor. In the event that the water
samples do not pass this bacteriological test, the chlorination procedure outlined above shall be
repeated until the quality of water is substantially the same as that being delivered from the
existing clearwell. The test procedure shall be repeated until two consecutive negative results are
obtained as required by the Michigan Department of Environment, Great Lakes, and Energy. The
two samples shall be taken 24 hours apart. The piping shall be re-chlorinated after two (2) failed
consecutive tests, whether the test fails at a different sample point or not.
The proposed 16-inch pipe spool between the pump discharge flange and the check valve shall be
cleaned and swabbed with chlorine solution before the final connection is made and the pump is
activated for testing.
Testing shall be coordinated with the Owner’s laboratory schedule for holidays and weekends. All
bacteriological sampling will be conducted by the Owner’s onsite laboratory.
3.03 HYDROSTATIC TEST
A. Procedure
After successfully completing disinfection, Contractor shall coordinate with the Owner to operate
WWP 2 in a normal backwash cycle to allow for flow through the pump and discharge piping and
to complete a visual inspection of all joints in the station for leakage. Contractor shall allow for up
to an hour for this visual review and shall notify Engineer and Owner to allow for a visual
inspection. Contractor shall keep the work area dry as necessary throughout the visual inspection
and shall make repairs or replacements as necessary if any joint is found to be leaking.
END OF SECTION
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
SECTION 40 05 51
WATER PROCESS VALVES
PART 1 - GENERAL
1.01 RELATED DOCUMENTS
Drawings and general provisions of the Contract, including the General and Supplementary Conditions and
Division 1 Specification Sections apply to this document.
1.02 SUMMARY
A. Work included in this section includes furnishing and installing process valves as shown on the
Drawings complete with all accessories and appurtenances required for the proper performance of
the work.
B. The Drawings indicate the general location of the valves and the intended service, type, and valve
size. The Contractor shall be responsible for furnishing all valves to provide a complete, ready-to-
operate facility.
C. Related Sections:
1. SECTION 01 33 00 – “Submittals”
2. SECTION 40 05 13 – “Process Piping”
1.03 REFERENCES
All valve materials and installation shall meet the requirements of the governing local, state, and national
codes. Referenced codes and standards shall be the current code or standard in effect at the time proposals
are received.
1.04 DELIVERY, STORAGE, AND HANDLING
A. Prepare valves for shipping to protect internal parts against rust and corrosion, and to protect
threads, flange faces, grooves, and weld ends. Set globe valves closed to prevent rattling. Set ball
and plug valves open to minimize exposure of functional surfaces. Set butterfly valves closed or
slightly open, and block check valves in either open or closed position.
B. Maintain valve end protection during storage. Store indoors and maintain valve temperature higher
than ambient dew-point temperatures. If outdoor storage is necessary, store valves off the ground
in watertight enclosures.
C. Use a sling to handle large valves. Rig to avoid damaged parts. Do not use handwheels and stems
as lifting or rigging point.
1.05 SUBMITTALS
A. Submit in accordance with Section 01 33 00 – “Submittals.”
B. Submit detailed shop and placement drawings to the Engineer for review for all valves including
detailed drawings, material lists, and installation, operation, and maintenance instructions on all
equipment furnished under this section.
C. Manufacturer’s Certificate: Certify that products meet or exceed specified requirements.
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Page 351 of 399
Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
SECTION 40 05 51
WATER PROCESS VALVES
1.06 WARRANTY
The process valves shall be guaranteed for a minimum period of one year from the date of substantial
completion.
PART 2 - PRODUCTS
2.01 MATERIALS
Materials used in the production of valves shall be of the best quality used in normal industrial practice for
the service intended. Material shall be free of all defects and imperfections that could affect the
serviceability of the product. The materials and types of valve construction specified below are for potable
water service.
Valves shall be the standard product of a manufacturer regularly engaged in the production of equipment of
this nature.
2.02 EQUIPMENT
A. AWWA Butterfly Valves
Butterfly valves 3 - 20" shall meet or exceed the latest revision of AWWA Standard C504 for
Class 150B butterfly valves and shall meet or exceed the requirements of this specification. All
valves shall be tested at and shall be capable of withstanding bi-directional line hydrostatic test
pressures up to 225 psi without leaking. Operators shall be considered an integral part of the valve
and shall be supplied by the valve manufacturer. Valves shall be furnished with all AWWA
C-504/C-516 and NSF61 interior coatings as required by each standard.
Valve bodies shall be of cast iron per ASTM A126 Class B. Flange end valves shall be of the short
body design with 125 lb. flanged ends faced and drilled per ANSI B16.1 standard for cast iron
flanges.
Discs shall be offset to provide an uninterrupted 360 degree seating edge and shall be ductile iron
per ASTM A536. The disc seating edge shall be solid 316 stainless steel. Sprayed mating seating
surfaces are not acceptable. The disc shall be securely attached to the valve shaft utilizing a field
removable/replaceable 316 stainless steel tangential pin locked in place with a set screw on sizes
14 - 20".
Valve shaft shall be type 316 stainless steel. Valve shaft seals shall be self-compensating V-type
packing with a minimum of four sealing rings. One-piece molded shaft seals and O-ring shaft
seals are not acceptable.
The seat shall be acrylonitrile-butadiene (NBR), and shall be molded in and vulcanized to the
valve body. The seat shall contain an integral shaft seal protecting the valve bearings and packing
from any line debris. Seats vulcanized to cartridge inserts in the valve body and seats on the disc
are not acceptable.
Valve shaft bearings shall be non-metallic and permanently lubricated.
Each valve shall be factory tested per AWWA C-504, with the actuator assembled to the valve.
A two-year warranty shall be provided for all valves.
Acceptable Manufacturers: DeZurik, or Engineer approved equal.
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
SECTION 40 05 51
WATER PROCESS VALVES
1. Manual Operators
Valves not requiring electric or pneumatic operators shall be provided with manual
operators. Manual operators shall be considered an integral part of the valve and shall be
supplied by the valve manufacturer. Each valve and valve actuator shall be assembled,
adjusted, and tested as a unit per the latest revision of AWWA C504, by the valve
manufacturer.
Valves shall be equipped with a handwheel operator unless otherwise noted. The geared
manual operators shall be designed, manufactured and tested in accordance with the
applicable AWWA standards. Operators shall have a maximum rim pull of 40 pounds.
Operators shall be capable of holding the disc in any position between full open and full
closed without any movement or fluttering of the disc. Operators shall be furnished with
fully adjustable mechanical stop-limiting devices. Operators that utilize the sides of the
housing to limit disc travel are unacceptable.
Valve operators shall be capable of withstanding the input torque for each system
application in either the open or closed position without damage.
Valves shall have traveling nut manual actuators designed and tested per the requirements
of AWWA C504.
All units shall have adjustable open and closed position stops. The operator shall be
housed in a watertight enclosure and shall be packed with grease or oil filled. The
operator shall hold the disc in any position without creeping or fluttering.
The valve operator shall be capable of meeting torque requirements under normal
operating conditions, open the valve under maximum head condition and close the valve
during maximum flow conditions. All actuators shall have an indicator of valve position
readily visible from the operator.
Valves shall open left or counterclockwise.
B. Potable Water Dual Disc Check Valve
The check valve shall be of the dual disc type, wafer style with torsion spring induced closure.
Check valve shall be dual disc/double door check valve as manufactured by Val-Matic or Engineer
approved equal.
1. Standards & Approvals
The valve shall be certified to NSF/ANSI 61, Drinking Water System Components –
Health Effects, and certified to be Lead-Free in accordance with NSF/ANSI 372.
Manufacturer shall have a quality management system that is certified to ISO 9001 by an
accredited, certifying body.
2. Connections
Wafer style valve shall be provided for installation between ANSI B16.1 Class 125
flanges.
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
SECTION 40 05 51
WATER PROCESS VALVES
3. Design
The body shall be of one piece construction incorporating a vulcanized synthetic seal.
Seal design shall include a raised sealing bead for positive seating at both high and low
pressures. The disc shall fully overlap the synthetic seal, preventing pressure
indentations.
Opening and closing of the valve shall utilize a lift and pivot action to prevent seal wear
and ensure long seal life. The stop and pivot pins shall be stabilized by the use of
synthetic spheres to prevent wear due to vibration during operating conditions.
Closure shall be assisted with a torsion spring to provide a cracking pressure of 0.25 psig.
4. Materials
The valve body shall be constructed of ASTM A126 Class B cast iron for Class 125
valves. The disc shall be constructed of ASTM B148, Alloy C95200 cast aluminum
bronze. The disc pins and stop pins shall be Type 316 stainless steel.
The torsion spring shall be ASTM A313 Type 316 stainless steel. The seal shall be Buna-
N per ASTM D2000-BG.
Valve interiors and exteriors shall be coated with an NSF/ANSI 61 certified fusion
bonded epoxy in accordance with AWWA C550.
5. Manufacture & Testing
The valves shall be hydrostatically tested at 1.5 times their rated cold working pressure.
A seat closure test at the valve rating shall be conducted to demonstrate zero leakage.
Manufacturer shall provide test certificates, dimensional drawings, parts list drawings,
and operation and maintenance manuals.
C. Suction Piping Alternate No. 2 – Foot Valves
As part of Suction Piping Alternate No. 2, foot valves shall be installed on the suction piping to
WWP2 and WWP3 within Finished Water Reservoir No. 2. Foot valves shall be of the full flow
globe style designed to provide silent operation, positive seating, and full flow area. Valve shall be
Series 1900 as manufactured by Val-Matic, or engineer approved equal.
1. Standards, Approvals, and Verifications
The valves shall be certified to be Lead-Free in accordance with NSF/ANSI 61, Annex G.
Manufacturer shall have a quality management system that is certified to ISO 9001 by an
accredited, certifying body.
The valves shall be hydrostatically tested at 1.5 times their rated cold working pressure.
Additional tests shall be conducted per AWWA, ANSI, MSS or API standards when
specified. The manufacturer shall provide test certificates, dimensional drawings, parts
list drawings, and operation and maintenance manuals.
2. Connections
Foot valve shall be provided with flanges in accordance with ANSI B16.1 for Class 125
iron flanges.
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
SECTION 40 05 51
WATER PROCESS VALVES
3. Design
The valve design shall incorporate a center guided disc, guided at opposite ends and
having a short linear stroke that generates a flow area equal to the pipe size. All
component parts shall be field replaceable without the need of special tools. A
replaceable guide bushing shall be provided and held in position by threaded bushing
retainer. The valve disc shall be concave to the flow direction providing for disc
stabilization, maximum strength, and a minimum flow velocity to open the valve. A
Buna-N seal shall be provided on the seat to provide for zero leakage at both high and
low pressures without overloading or damaging the seal. The seal design shall provide
both a metal to metal and a metal to Buna-N seal. A basket screen shall not be supplied
with the valve.
4. Materials
The valve body shall be constructed of ASTM A536, Grade 65-45-12 ductile iron. The
seat and plug shall be ASTM A351 Grade CF8M stainless steel or 316 stainless steel.
Valve interiors and exteriors shall be coated with an NSF/ANSI 61 certified fusion
bonded epoxy in accordance with AWWA C550.
2.03 ACCESSORIES
A. Valves shall be equipped with accessories as noted or as required for a workable, complete
installation. Operating wrenches, levers, extension stems, guides, floor boxes, or valve boxes shall
be furnished and installed. Operators shall be installed, adjusted, and tested for operation by the
valve manufacturer.
B. Valve Tags. All process valves (except for the foot valves) shall be provided with a valve tag. The
tag shall indicate the valve number as provided by the Owner or Engineer. The tag shall be
fabricated of stainless steel with the letters etched clearly on it. The tag shall be attached to the
valve with a metal cable/chain.
PART 3 - EXECUTION
3.01 EXAMINATION
Examine piping system for compliance with requirements for installation tolerances and other conditions
affecting performance of valves. Do not proceed with installation until unsatisfactory conditions have been
corrected.
A. Examine valve interior for cleanliness, freedom from foreign material, and corrosion. Remove
special packing materials.
B. Operate valve from fully open to fully closed positions. Examine guides and seats made accessible
by valve operation.
C. Examine mating flange faces for conditions that might cause leakage. Check bolting for proper
size, length, and material. Check gasket material for proper size, material composition, and
freedom from defects or damage.
D. Do not attempt to repair defective valves. Replace with new valves.
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Project Name: Washwater Pump Check Valve Addition
Project Number: 2230492
SECTION 40 05 51
WATER PROCESS VALVES
3.02 INSTALLATION & RESTRAINT
Install valves as indicated, according to manufacturer’s written instructions. Install valves with unions or
flanges at each piece of equipment arranged to allow servicing, maintenance, and equipment removal
without system shutdown.
Provide separate support for valves where necessary.
For valves installed in the finished water reservoir, valve shall be cleaned and swabbed with chlorine
solution before connection to the washwater pump suction piping.
3.03 INSPECTION AND TESTS
All valves shall be tested along with the process pipe in accordance with Section 40 05 13 – “Process
Piping.” All valves with surface and visible defects shall be removed and replaced with new valves prior to
final acceptance. All valves shall be operated by the Contractor in the presence of the Engineer.
END OF SECTION
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Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Request to amend the planned unit
development (PUD) at 3400, 3460, 3474 Wilcox
Avenue, 1875 Waterworks Road, and 1490
Edgewater Street (the Docks). SECOND READING
Submitted by: Mike Franzak, Planning Director Department: Planning
Brief Summary:
The plans have been amended to develop around areas that have been declared as established
wetlands. There will be a total of 240 residential units and a community building with retail/restaurant
space.
Detailed Summary & Background:
The Planning Commission unanimously recommended approval of the amended PUD with the
following conditions:
1. The applicant receives a stormwater permit from the Engineering Department.
2. All utility plans are reviewed and approved by the Engineering Department
3. Lane widths of streets are reduced to 9 or 10 feet subject to the Engineering Department.
4. Bulb outs are eliminated on road A.
5. Road C will be connected back to road B.
6. The parking lot to the southern marina parking lot will be revised as discussed.
7. Landscaping areas inside of parking areas and streets will be privately maintained.
8. A public/private street map will be provided and describe the ownership as discussed with all
privately-owned roadways being publicly accessible.
9. A landscaping plan is approved by the Planning Department.
Conditions 4, 5, and 6 have been addressed and reflected on the revised plans in the packet.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 Goal 2: Economic Development Housing and Business
Amount Requested: Budgeted Item:
N/A Yes No N/A X
Fund(s) or Account(s): Budget Amendment Needed:
N/A
Page 357 of 399
Yes No N/A X
Recommended Motion:
To approve the request to amend the PUD with the following conditions:
1. The applicant receives a stormwater permit from the Engineering Department.
2. All utility plans are reviewed and approved by the Engineering Department.
3. Lane widths of streets are reduced to 9 or 10 feet subject to the Engineering Department.
4. Landscaping areas inside of parking areas and streets will be privately maintained.
5. A public/private street map will be provided and describe the ownership as discussed with all
privately-owned roadways being publicly accessible.
6. A landscaping plan is approved by the Planning Department.
7. That on-street parking, inclusive of handicap parking, be placed to the north of the structural
retaining wall at public road E's final northerly bend.
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head Yes
Information
Technology
Other Division Heads X
Communication
Legal Review
Page 358 of 399
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Tuesday, July-16-2024 at 3:41pm O:\2306100GR The Docks Muskegon\Drawings - 2306100GR\Civil\03-Production Sheets\_PUD Drawings\100C-4-UTP-00.dwg tboze
SA
TR
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RELEASE DATE
DATE DESCRIPTION
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L. 1633
SE. FO
PROPOSED LEGEND
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SAN
, PG
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CONSTRUCTION
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CENTERLINE {NAME OF ROAD} CENTERLINE {NAME OF ROAD}
PROPOSED RIGHT OF WAY LINE
PROPOSED RIGHT OF WAY LINE
PROPOSED UTILITY EASEMENT
PROPOSED UTILITY EASEMENT
PROPOSED RIGHT OF WAY LINE
PROPOSED RIGHT OF WAY LINE
PROPOSED UTILITY EASEMENT
PROPOSED UTILITY EASEMENT
10' 48' ROW 10' 36' ROW
10' 10'
PARADIGMDESIGN
ARCHITECTS | ENGINEERS
13' PAVEMENT 13' PAVEMENT 415 Leonard Street NW, Suite 200
Grand Rapids, MI 49504
1' 5' 5' 2' 11' TRAFFIC LANE 11' TRAFFIC LANE 2' 5' 5' 1' 5' 2' 11' TRAFFIC LANE 11' TRAFFIC LANE 2' 5' (616) 785-5656
2' 3' 2' 3' 5E-2
5E-1 PLAN GRADE & Grand Rapids | Phoenix | Traverse City
PLAN GRADE & www.paradigmae.com
4E-1 CROWN POINT 4E-2
CROWN POINT
2.0% 2.0% GRADE 2.0% GRADE 2.0% 2.0% GRADE 2.0% GRADE
T.
AGGREGATE BASE, x INCH RE
EN
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FIN UM
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SECTION APPLIES TO:
NO
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PUBLIC ROADWAY A, B, C, D, E, H PUBLIC ROADWAY G
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NOT TO SCALE
NOT TO SCALE
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CENTERLINE {NAME OF ROAD}
PROPOSED RIGHT OF WAY LINE
PROPOSED RIGHT OF WAY LINE
PROPOSED UTILITY EASEMENT
PROPOSED UTILITY EASEMENT
10' 53' ROW 10'
R6"
CONCRETE OR
ASPHALT PAVING 1-1/4"
24' 31' APPROX. 3400 WILCOX AVE,
MUSKEGON, MI 49440
1"
11' PAVEMENT 18' PAVEMENT ADDRESS 3
9-1/2"
7-1/2"
R12"
1' 5' 5' 2' 11' TRAFFIC LANE 11' TRAFFIC LANE 7' PARKING 2' 5' 5' 1'
CLIENT
2' 3' 5E-1
PLAN GRADE &
CROWN POINT 4E-1
12" MICOAST
24"
2.0% 2.0% GRADE 2.0% GRADE 2.0% NOTES 1) CONTRACTION JOINTS SHALL BE PLACED EVERY 10 FT. PROPERTIES, LLC
2) EXPANSION JOINTS SHALL BE PLACED AT 350 FT. MIN.
AND AT ALL RADIUS POINTS.
3) CONCRETE SHALL CONFORM TO M.D.O.T. SPEC. 802.
ROLLED CURB (RESIDENTIAL)
AGGREGATE BASE, x INCH
SUBBASE, CIP, 12 INCH
SIDEWALK, CONC, 4 INCH 24" MOUNTABLE
WATER SEWER
SUBBASE, CIP, 4 INCH
CONCRETE CURB & GUTTER
# NOT TO SCALE
PROPOSED TYPICAL SECTION - PRIMARY STREET WITH PARKING
SECTION APPLIES TO:
PUBLIC ROADWAY A, C, E, F, H
NOT TO SCALE
(231) 722-6691
560 MART ST.
Tuesday, July-16-2024 at 3:41pm O:\2306100GR The Docks Muskegon\Drawings - 2306100GR\Civil\03-Production Sheets\_PUD Drawings\100C-7-ROW-SEC-00.dwg tboze
MUSKEGON, MI 49440
RELEASE DATE
DATE DESCRIPTION
CENTERLINE {NAME OF ROAD} CENTERLINE {NAME OF ROAD} 05-23-19 FINAL PUD SUBMITTAL
05-21-20 AMENDED PUD
PROPOSED RIGHT OF WAY LINE
PROPOSED RIGHT OF WAY LINE
PROPOSED UTILITY EASEMENT
PROPOSED UTILITY EASEMENT
10' ROW VARIES 10'
SUBMITTAL
06-13-24 AMENDED PUD
PRIVATE ACCESS EASEMENT SUBMITTAL
27' 27' 07-16-24 REV PER CITY
COMMENTS
5' PAVEMENT WIDTH VARIES 5'
1' 5' 5' 2' 12' TRAFFIC LANE 2' VARIES VARIES 2' 12' TRAFFIC LANE 2' 5' 5' 1'
3' 2' PLAN GRADE &
5E-1 INVERTED CROWN 5E-2
PLAN GRADE 4E-1 POINT 4E-2
2.0% 2.0% GRADE 2.0% GRADE 2.0% 2.0% GRADE 2.0% GRADE
ROLLED CURB (RESIDENTIAL) SIDEWALK, CONC, 4 INCH AGGREGATE BASE, x INCH
AGGREGATE BASE, x INCH SUBBASE, CIP, 4 INCH
NOT FOR
SUBBASE, CIP, 12 INCH
GRASSCRETE EMERGENCY ACCESS
SUBBASE, CIP, 12 INCH CONSTRUCTION
PROJECT
PROPOSED TYPICAL SECTION - BOULEVARD PROPOSED TYPICAL SECTION - PRIVATE ALLEY
SECTION APPLIES TO:
PUBLIC ROADWAY E
2306100GR
NOT TO SCALE NOT TO SCALE SHEET
TYPICAL SECTIONS
C-700
Page 362 of 399
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CONTRACTOR IS REQUIRED TO TAKE DUE PRECAUTIONARY
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MEASURESTO PROTECTTHE UTILITY LINES SHOWN ON THESE
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ITEM 12, SCHEDULE B EXCEPTIONS
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L. 1633, PG. 414
APPROX. 3400 WILCOX AVE,
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L. 1633, PG. 407
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PUBLIC ROAD A FM
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N
SA
VEHICLE PROFILE & DATA TR
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RELEASE DATE
7
EASEMENT 14, ITEM 14 SCHEDULE B EX.
20' NOT TO SCALE DATE DESCRIPTION
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15'
L. 1633, PG. 414
EASEMENT 11, ITEM 14 SCHEDULE B EX.
15' 05-23-19 FINAL PUD SUBMITTAL
20' EASE. FOR STORM
05-21-20 AMENDED PUD
L. 1633, PG. 414
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SAN
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Page 363 of 399
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Tuesday, July-16-2024 at 3:51pm O:\2306100GR The Docks Muskegon\Drawings - 2306100GR\Civil\03-Production Sheets\_PUD Drawings\100C-FIG-PHS.dwg tboze
TR
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RELEASE DATE
DATE DESCRIPTION
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AL Page 365 of 399
Page 366 of 399
Lot Size Set Back
Private Road -
Lot/Unit # Building# Description Waterfront Dock Garage Width Depth Total Alley Side Back Side Phase
1 Cottages - Pocket Neighborhood NO NO NO 60 55 3,300 10 10 10 10 3
2 Cottages - Pocket Neighborhood NO NO NO 60 55 3,300 N/A 5 10 5 3
3 Cottages - Pocket Neighborhood NO NO NO 55 50 2,750 N/A 5 10 5 3
4 Cottages - Pocket Neighborhood NO NO NO 55 50 2,750 10 5 10 5 3
5 Cottages - Pocket Neighborhood NO NO NO 55 50 2,750 N/A 5 10 5 3
6 Cottages - Pocket Neighborhood NO NO NO 55 50 2,750 10 5 10 5 3
7 Cottages - Pocket Neighborhood NO NO NO 55 50 2,750 N/A 5 10 5 3
8 Cottages - Pocket Neighborhood NO NO NO 55 50 2,750 10 5 10 5 3
9 Cottages - Pocket Neighborhood NO NO NO 55 50 2,750 10 5 10 5 3
10 Cottages - Pocket Neighborhood NO NO NO 40 60 2,400 10 5 10 8 3
11 Cottages - Pocket Neighborhood NO NO NO 40 60 2,400 10 5 10 8 3
12 3 story, narrow houses NO NO Alley 40 50 2,000 0 5 10 5 3
13 3 story, narrow houses NO NO Alley 40 50 2,000 0 5 10 5 3
14 3 story, narrow houses NO NO Alley 40 50 2,000 0 5 10 5 3
15 3 story, narrow houses NO NO Alley 40 50 2,000 0 5 10 5 3
16 3 story, narrow houses NO NO Alley 40 50 2,000 0 5 10 5 3
17 3 story, narrow houses NO NO Alley 40 50 2,000 0 5 10 5 3
18 3 story, narrow houses NO NO Alley 40 50 2,000 0 5 10 5 3
19 3 story, narrow houses NO NO Alley 40 50 2,000 0 5 10 5 3
20 Nantucket style boardwalk cottage YES NO NO 35 38 1,330 8 5 0 5 1
21 Nantucket style boardwalk cottage YES NO NO 35 38 1,330 8 5 0 5 1
22 Nantucket style boardwalk cottage YES NO NO 35 38 1,330 8 5 0 5 1
23 Nantucket style boardwalk cottage YES NO NO 35 38 1,330 8 5 0 5 1
24 Nantucket style boardwalk cottage YES NO NO 35 38 1,330 8 5 0 5 1
25 Nantucket style boardwalk cottage YES NO NO 35 38 1,330 8 5 0 5 1
26 Nantucket style boardwalk cottage YES NO NO 35 38 1,330 8 5 0 5 1
27 Nantucket style boardwalk cottage YES NO NO 35 38 1,330 8 5 0 5 1
28 Nantucket style boardwalk cottage YES NO NO 35 38 1,330 8 5 0 5 1
29 Nantucket style boardwalk cottage YES NO NO 35 38 1,330 8 5 0 5 1
30 Nantucket style boardwalk cottage YES NO NO 35 38 1,330 8 5 0 5 1
31 Nantucket style boardwalk cottage YES NO NO 35 38 1,330 8 5 0 5 1
32 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
33 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
34 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
35 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
36 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
37 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
38 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
Page 367 of 399
Lot Size Set Back
Private Road -
Lot/Unit # Building# Description Waterfront Dock Garage Width Depth Total Alley Side Back Side Phase
39 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
40 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
41 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
42 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
43 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
44 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
45 Homes with walk out and or partial split on gr YES NO Front - recessed 53 115 6,095 10 10 30 0 1
46 Front porches overlooking marina YES NO Side 44 100 4,400 10 8 20 8 1
47 Front porches overlooking marina YES NO Rear Alley 44 100 4,400 10 8 20 8 1
48 Front porches overlooking marina YES NO Rear Alley 44 100 4,400 10 8 20 8 1
49 Front porches overlooking marina YES NO Rear Alley 44 100 4,400 10 8 20 8 1
50 Front porches overlooking marina YES NO Rear Alley 44 100 4,400 10 8 20 8 1
51 Front porches overlooking marina YES NO Rear Alley 44 100 4,400 10 8 20 8 1
52 Front porches overlooking marina YES NO Rear Alley 44 100 4,400 10 8 20 8 1
53 Front porches overlooking marina YES NO Rear Alley 44 100 4,400 10 8 20 8 1
54 Front porches overlooking marina YES NO Rear Alley 44 100 4,400 10 8 20 8 1
55 Front porches overlooking marina YES NO Rear Alley 44 100 4,400 10 8 20 8 1
56 Marina Views YES NO Rear Alley 45 100 4,500 20 8 20 8 1
57 Marina Views YES NO Rear Alley 45 100 4,500 20 8 20 8 1
58 Muskegon Lake Lots YES NO Front 50 130 6,500 20 8 30 8 1
59 Muskegon Lake Lots YES NO Front 50 130 6,500 20 8 30 8 1
60 Muskegon Lake Lots YES NO Front 50 130 6,500 20 8 30 8 1
61 Muskegon Lake Lots YES NO Front 50 130 6,500 20 8 30 8 1
62 Muskegon Lake Lots YES NO Front 50 130 6,500 20 8 30 8 1
63 Muskegon Lake Lots YES NO Front 50 130 6,500 20 8 30 8 1
64 Muskegon Lake Lots YES NO Front 50 130 6,500 20 8 30 8 1
65 Muskegon Lake Lots YES NO Front 50 130 6,500 20 8 30 8 1
66 Muskegon Lake Lots YES NO Front 50 130 6,500 20 8 30 8 1
67 Muskegon Lake Views NO NO Front 60 110 6,600 20 10 20 10 2
68 Muskegon Lake Views NO NO Front 60 100 6,000 20 10 20 10 2
69 Muskegon Lake Views NO NO Front 60 105 6,300 20 10 20 10 2
70 Muskegon Lake Views NO NO Front 60 110 6,600 20 10 20 10 2
71 Elevated lot overlooking wetland/marina NO NO Rear Alley 40 65 2,600 1 12 10 0 2
72 Elevated lot overlooking wetland/marina NO NO Rear Alley 40 65 2,600 1 12 10 0 2
73 Elevated lot overlooking wetland/marina NO NO Rear Alley 40 65 2,600 1 12 10 0 2
74 Elevated lot overlooking wetland/marina NO NO Rear Alley 40 65 2,600 1 12 10 0 2
75 Elevated lot overlooking wetland/marina NO NO Rear Alley 40 65 2,600 1 12 10 0 2
76 Elevated lot overlooking wetland/marina NO NO Rear Alley 40 65 2,600 1 12 10 0 2
Page 368 of 399
Lot Size Set Back
Private Road -
Lot/Unit # Building# Description Waterfront Dock Garage Width Depth Total Alley Side Back Side Phase
77 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
78 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
79 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
80 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
81 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
82 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
83 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
84 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
85 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
86 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
87 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
88 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
89 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
90 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
91 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
92 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
93 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
94 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
95 Front porches on boardwalk to marina NO NO Rear Alley 40 90 3,600 1 12 15 0 2
96 Front porches on boardwalk to marina NO NO Rear Alley 53 90 4,770 1 12 15 0 2
97 Front porches on boardwalk to marina NO NO Rear Alley 40 78 3,120 1 12 15 0 2
98 Front porches on boardwalk to marina NO NO Rear Alley 40 78 3,120 1 12 15 0 2
99 Front porches on boardwalk to marina NO NO Rear Alley 40 78 3,120 1 12 15 0 2
100 Boat House Lot YES YES Side 120 110 13,200 10 15 0 15 2
101 Marina front lots YES YES Front 120 73 8,760 10 15 30 15 2
102 Marina front lots YES YES Front 40 105 4,200 10 5 30 5 2
103 Marina front lots YES YES Front 40 110 4,400 10 5 30 5 2
104 Marina front lots YES YES Front 40 115 4,600 10 5 30 5 2
105 Marina front lots YES YES Front 40 120 4,800 10 5 30 5 2
106 Marina front lots YES YES Front 40 125 5,000 10 5 30 5 2
107 Marina front lots YES YES Front 40 125 5,000 10 5 30 5 2
108 Marina front lots YES YES Front 40 120 4,800 10 5 30 5 2
109 Marina front lots YES YES Front 40 115 4,600 10 5 30 5 2
110 Marina front lots YES YES Front 40 115 4,600 10 5 30 5 2
111 Overlooking open space NO NO Side 40 90 3,600 10 5 0 5 2
112 Boat House Lot YES YES YES 40 90 3,600 10 0 0 5 2
113 Boat House Lot YES YES YES 40 90 3,600 10 0 0 5 2
114 Boat House Lot YES YES YES 40 90 3,600 10 0 0 5 2
Page 369 of 399
Lot Size Set Back
Private Road -
Lot/Unit # Building# Description Waterfront Dock Garage Width Depth Total Alley Side Back Side Phase
115 Boat House Lot YES YES YES 40 90 3,600 10 0 0 5 2
116 Boat House Lot YES YES YES 40 90 3,600 10 0 0 5 2
117 Boat House Lot YES YES YES 40 90 3,600 10 0 0 5 2
118 Boat House Lot YES YES YES 40 90 3,600 10 0 0 5 2
119 Boat House Lot YES YES YES 40 90 3,600 10 0 0 5 2
120 Boat House Lot YES YES YES 40 90 3,600 10 0 0 5 2
121 Boat House Lot YES YES YES 40 90 3,600 10 0 0 5 2
122 Boat House Lot YES YES YES 40 90 3,600 10 0 0 5 2
123 Boat House Lot YES YES YES 40 90 3,600 10 0 0 5 2
124 Corner Lots NO NO Rear Alley 85 35 2,975 1 5 10 5 2
125 Corner Lots NO NO Rear Alley 85 35 2,975 1 5 10 5 2
126 A Townhomes NO NO Rear Alley 3
127 A Townhomes NO NO Rear Alley 3
128 A Townhomes NO NO Rear Alley 3
129 A Townhomes NO NO Rear Alley 3
130 B Townhomes NO NO Rear Alley 3
131 B Townhomes NO NO Rear Alley 3
132 B Townhomes NO NO Rear Alley 3
133 B Townhomes NO NO Rear Alley 3
134 B Townhomes NO NO Rear Alley 3
135 B Townhomes NO NO Rear Alley 3
136 B Townhomes NO NO Rear Alley 3
137 C Townhomes NO NO Rear Alley 3
138 C Townhomes NO NO Rear Alley 3
139 C Townhomes NO NO Rear Alley 3
140 C Townhomes NO NO Rear Alley 3
141 C Townhomes NO NO Rear Alley 3
142 D Townhomes NO NO Rear Alley 2
143 D Townhomes NO NO Rear Alley 2
144 D Townhomes NO NO Rear Alley 2
145 D Townhomes NO NO Rear Alley 2
146 E Townhomes NO NO Rear Alley 2
147 E Townhomes NO NO Rear Alley 2
148 F Townhomes NO NO Rear Alley 2
149 F Townhomes NO NO Rear Alley 2
150 F Townhomes NO NO Rear Alley 2
151 F Townhomes NO NO Rear Alley 2
152 G Townhomes NO NO Rear Alley 2
Page 370 of 399
Lot Size Set Back
Private Road -
Lot/Unit # Building# Description Waterfront Dock Garage Width Depth Total Alley Side Back Side Phase
153 G Townhomes NO NO Rear Alley 2
154 G Townhomes NO NO Rear Alley 2
155 G Townhomes NO NO Rear Alley 2
156 G Townhomes NO NO Rear Alley 2
157 H Townhomes NO NO Rear Alley 2
158 H Townhomes NO NO Rear Alley 2
159 H Townhomes NO NO Rear Alley 2
160 H Townhomes NO NO Rear Alley 2
161 H Townhomes NO NO Rear Alley 2
162 I Townhomes NO NO Rear Alley 2
163 I Townhomes NO NO Rear Alley 2
164 I Townhomes NO NO Rear Alley 2
165 I Townhomes NO NO Rear Alley 2
166 I Townhomes NO NO Rear Alley 2
167 J Row House Lofts NO NO Rear Alley 2
168 J Row House Lofts NO NO Rear Alley 2
169 J Row House Lofts NO NO Rear Alley 2
170 J Row House Lofts NO NO Rear Alley 2
171 J Row House Lofts NO NO Rear Alley 2
172 J Row House Lofts NO NO Rear Alley 2
173 K Row House Lofts NO NO Rear Alley 2
174 K Row House Lofts NO NO Rear Alley 2
175 K Row House Lofts NO NO Rear Alley 2
176 K Row House Lofts NO NO Rear Alley 2
177 K Row House Lofts NO NO Rear Alley 2
178 K Row House Lofts NO NO Rear Alley 2
179 L Townhomes NO NO Road 2
180 L Townhomes NO NO Road 2
181 L Townhomes NO NO Road 2
182 L Townhomes NO NO Road 2
183 L Townhomes NO NO Road 2
184 L Townhomes NO NO Road 2
185 L Townhomes NO NO Road 2
186 L Townhomes NO NO Road 2
187 M Townhomes NO NO Road 2
188 M Townhomes NO NO Road 2
189 M Townhomes NO NO Road 2
190 M Townhomes NO NO Road 2
Page 371 of 399
Lot Size Set Back
Private Road -
Lot/Unit # Building# Description Waterfront Dock Garage Width Depth Total Alley Side Back Side Phase
191 M Townhomes NO NO Road 2
192 M Townhomes NO NO Road 2
193 M Townhomes NO NO Road 2
194 M Townhomes NO NO Road 2
195 N Townhomes NO NO Rear Alley 2
196 N Townhomes NO NO Rear Alley 2
197 N Townhomes NO NO Rear Alley 2
198 N Townhomes NO NO Rear Alley 2
199 N Townhomes NO NO Rear Alley 2
200 N Townhomes NO NO Rear Alley 2
201 AA 2-3 Story Condo NO NO NO 2
202 AA 2-3 Story Condo NO NO NO 2
203 AA 2-3 Story Condo NO NO NO 2
204 AA 2-3 Story Condo NO NO NO 2
205 AA 2-3 Story Condo NO NO NO 2
206 AA 2-3 Story Condo NO NO NO 2
207 AA 2-3 Story Condo NO NO NO 2
208 AA 2-3 Story Condo NO NO NO 2
209 AA 2-3 Story Condo NO NO NO 2
210 AA 2-3 Story Condo NO NO YES 2
211 AA 2-3 Story Condo NO NO YES 2
212 AA 2-3 Story Condo NO NO YES 2
213 AA 2-3 Story Condo NO NO YES 2
214 AA 2-3 Story Condo NO NO YES 2
215 AA 2-3 Story Condo NO NO YES 2
216 AA 2-3 Story Condo NO NO YES 2
217 AA 2-3 Story Condo NO NO YES 2
218 AA 2-3 Story Condo NO NO YES 2
219 BB 2-3 Story Condo NO NO NO 1
220 BB 2-3 Story Condo NO NO NO 1
221 BB 2-3 Story Condo NO NO NO 1
222 BB 2-3 Story Condo NO NO NO 1
223 BB 2-3 Story Condo NO NO NO 1
224 BB 2-3 Story Condo NO NO NO 1
225 BB 2-3 Story Condo NO NO NO 1
226 BB 2-3 Story Condo NO NO NO 1
227 BB 2-3 Story Condo NO NO YES 1
228 BB 2-3 Story Condo NO NO YES 1
Page 372 of 399
Lot Size Set Back
Private Road -
Lot/Unit # Building# Description Waterfront Dock Garage Width Depth Total Alley Side Back Side Phase
229 BB 2-3 Story Condo NO NO YES 1
230 BB 2-3 Story Condo NO NO YES 1
231 BB 2-3 Story Condo NO NO YES 1
232 BB 2-3 Story Condo NO NO YES 1
233 BB 2-3 Story Condo NO NO YES 1
234 CC 2-3 Story Condo YES NO NO 2
235 CC 2-3 Story Condo YES NO NO 2
236 CC 2-3 Story Condo YES NO NO 2
237 CC 2-3 Story Condo YES NO NO 2
238 CC 2-3 Story Condo YES NO NO 2
239 CC 2-3 Story Condo YES NO NO 2
240 CC 2-3 Story Condo YES NO NO 2
241 CC 2-3 Story Condo YES NO NO 2
242 CC 2-3 Story Condo YES NO NO 2
NOTE: Setbacks are measured from the main body of the house. Eves and chimneys are not included I the stated setbacks.
Any Zero Set Back side yards include eves and will have maintenanc easement from neighboring lot
Page 373 of 399
ZONING ORDINANCE EXCERPT
Staff Report
July 11, 2024
Hearing, Case 2024-15: Request to amend the planned unit development (PUD) at 3400,3460, 3474
Wilcox Avenue, 1875 Waterworks Road, and 1490 Edgewater Street (the Docks).
SUMMARY
1. The original PUD was approved in June of 2019 and was amended in June of 2020. The
amendment was to relocate the boat basin, the addition of six housing units and an additional
street connection to Edgewater St via Manhattan Ave.
2. The applicant has spent the past few years working with the Michigan Department of
Environment, Great Lakes, and Energy (EGLE) to determine where the established wetlands are
located on site. EGLE has determined that more of the property is considered an established
wetland than previously thought. The applicant is proposing this revised PUD to avoid
developing on these wetlands.
3. Please see the attached site plan packet that includes all of the relevant development information
and changes from the previously approved PUD.
4. Please see the attached “Lot Descriptions and Setbacks” document, which describes the
buildings shown on the site plan. The site plan depicts units 124 and 125, but does not label
them. They are located just east of units 93-96.
5. The underlying zoning of the property is R-1, Low-Density Single-Family Residential.
According to the zoning ordinance, “Where a cluster development abuts a body of water, at least
50% of the shoreline, as well as reasonable access to it, shall be a part of the common open space
land.” This proposed PUD increases the waterfront public access from 51% in the last PUD to
85% in this amendment.
6. There are 85 public parking spaces located in front of the multi-family buildings, near the
common area. Residential parking for the multi-family housing will be located behind the
buildings.
7. The fire access road to Harbour Towne has remained on the plan.
8. Please see the “Marina vs Private Docks” attachment. Dock locations on the site plan are just for
reference.
9. Notice was sent to all properties within 300 feet of the subject property. At the time of this writing,
staff had not received any comments from the public.
STAFF RECOMMENDATION
Staff recommends approval of PUD amendment with the condition that the stormwater permit be obtained
from the Engineering Department. Staff may have more recommendations at the meeting.
DELIBERATION
The following proposed motion is offered for consideration:
I move that the request to amend the planned unit development (PUD) at 3400,3460, 3474 Wilcox Avenue,
1875 Waterworks Road, and 1490 Edgewater Street be recommended to the City Commission for approval
with the following conditions:
1. The applicant receives a stormwater permit from the Engineering Department.
Page 374 of 399
CITY OF MUSKEGON
MUSKEGON COUNTY, MICHIGAN
ORDINANCE NO.________
An ordinance to adopt the final planned unit development at 3400,3460, 3474 Wilcox Avenue, 1875
Waterworks Road, and 1490 Edgewater Street
THE CITY COMMISSION OF THE CITY OF MUSKEGON HEREBY ORDAINS:
The planned unit development is hereby adopted.
This ordinance adopted:
Ayes:
Nayes:
Adoption Date:
Effective Date:
First Reading:
Second Reading:
CITY OF MUSKEGON
By: __________________________
Ann Meisch, MMC
City Clerk
Page 375 of 399
CERTIFICATE
(Planned Unit Development at 3400,3460, 3474 Wilcox Avenue, 1875 Waterworks Road, and 1490 Edgewater
Street)
The undersigned, being the duly qualified clerk of the City of Muskegon, Muskegon County, Michigan, does
hereby certify that the foregoing is a true and complete copy of an ordinance adopted by the City Commission
of the City of Muskegon, at a regular meeting of the City Commission on the 23rd day of July, at which
meeting a quorum was present and remained throughout, and that the original of said ordinance is on file in the
records of the City of Muskegon. I further certify that the meeting was conducted and public notice was given
pursuant to and in full compliance with the Michigan Zoning Enabling Act, Public Acts of Michigan No. 33 of
2006, and that minutes were kept and will be or have been made available as required thereby.
DATED: ___________________, 2024 ________________________________
Ann Meisch, MMC
Clerk, City of Muskegon
Publish Notice of Adoption to be published once within ten (10) days of final adoption.
Page 376 of 399
CITY OF MUSKEGON
NOTICE OF ADOPTION
Please take notice that on July 23, 2024, the City Commission of the City of Muskegon adopted an ordinance
adopting the planned unit development at 3400,3460, 3474 Wilcox Avenue, 1875 Waterworks Road, and 1490
Edgewater Street.
Copies of the ordinance may be viewed and purchased at reasonable cost at the Office of the City Clerk in the
City Hall, 933 Terrace Street, Muskegon, Michigan, during regular business hours.
This ordinance amendment is effective ten days from the date of this publication.
Published ____________________, 2024
By ___________________________
Ann Meisch, MMC
City Clerk
---------------------------------------------------------------------------------------------------------------------
PUBLISH ONCE WITHIN TEN (10) DAYS OF FINAL PASSAGE.
Account No. 101-80400-5354
Page 377 of 399
From: Karen Spencer
To: Planning
Subject: Letter to Mike Franzak, Planning Director, City of Muskegon
Date: Wednesday, July 10, 2024 8:55:27 AM
Letter to Mike Franzak, Planning Director,
City of Muskegon
July 10, 2024
Re: Case #2024-15
Dear Mr. Franzak:
Please consider this response to your letter of June 26, 2024 regarding the Planning
Commission meeting scheduled for July 11, 2024 regarding The Sand Docks PUD.
I have lived at 1456 E Harbour Towne Circle for the past 30 years. At this point in my life,
I’m heading into my retirement years. I have been looking forward to spending more time in
my home which is not only my santuary, but also my most significant asset.
I strongly object to the latest proposal for development of the Sand Docks PUD. As a point of
reference, my home is located directly across from what is labeled on the plan as “multi family
homes and condos BB”. According to the proposal, a new road would be built close to my
home, in addition to a parking lot and a large “multi family home”.
I believe such a large building would be inconsistent with adjacent land use. While Harbour
Towne is a residential condominium development, it was built in a manner that incorporated
abundant green spaces, particularly preserving privacy between units and allowing for
beautiful views. Not only would the proposed building “BB” block my existing view, it would
be replaced with a busy street, parking lot and the back side of a densely inhabited residence.
It would not provide for sufficient open space due to its close proximity to my home.
The proposed parking lot and building would result in noise and light pollution. My deck and
most of my windows, as well as those of my neighbors, face in that direction. Our privacy
would be completely compromised. The quiet enjoyment of our homes would be destroyed.
Our property values would tank. Who would want to live that close to a large parking lot
servicing a high density housing unit?
The Docks PUD is a huge project covering many acres. The owners and developers stand to
make a huge profit. I don’t object to their ability to make a profit, I simply request that this
board consider and prioritize the rights of existing, long time residents to continue to enjoy
their homes in a quiet, peaceful and beautiful location. Certainly the developers don’t need to
build a parking lot and large high density building so close to people who have made Harbour
Towne their home for decades.
Page 378 of 399
Please consider if you would want such a street/parking lot/high density unit this close to your
own home. Please consider whether it is fair to compromise existing home values in favor of
hypothetical new residents.
Thank you for taking my concerns seriously. I would appreciate it if you would share this
letter with all members of the Planning Commission.
Sincerely,
Karen M. Spencer
1456 E. Harbour Towne Circle
Muskegon, MI 49441
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Page 379 of 399
Page 380 of 399
From: jmakowske@aol.com
To: Planning
Subject: The Docks
Date: Tuesday, July 9, 2024 2:16:28 PM
To whom it may concern:
We are writing regarding the proposed development at "The Docks". The scheduled
housing development would be located next to our home.
Muskegon is experiencing a boom in new housing developments along Lake
Michigan. "The Docks" project is just one of several major housing projects slated for
production: Adelaide Point, the old paper mill site and the Lakeside Dunes to name a
few. Muskegon needs to grow and change for its economic survival, and it’s
wonderful to see a renaissance in the city. Is the infrastructure in place for the city to
support these new developments? Is there enough interest in the Muskegon real
estate market to fill all of this expensive new housing, or will we have half completed
projects along the waterfront sitting partially vacant?
"The Docks" is a beautiful, natural area - one of the last natural areas in Muskegon
along the lake. With its ponds and wetland areas it provides critical habitat for many
species considered important to our quickly disappearing dune habitat in Michigan.
Much of Muskegon's appeal to potential residents has been the balance between
natural environment and development. We will lose that with continued unchecked
development in the city's few remaining open natural spaces on the waterfront.
There are already concerns about the amount of activity and numbers of people using
the beaches and houses along the shore. Pere Marquette beach has become
increasingly busy with heavy auto traffic and large numbers of people using the
Beachside/Bluffton area. Streets are small and houses densely sited. A
development at "The Docks" will only increase traffic, causing more congestion, noise
and pollution to the area. Muskegon's waterfront is its most important resource. Let's
not lose it to development.
John and Gabrielle Makowske
3211 Brighton Avenue
Muskegon
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Page 381 of 399
From: JOHN MAKOWSKE
To: Planning
Subject: The Docks
Date: Wednesday, July 10, 2024 9:19:42 AM
An Addition To Our Letter Yesterday
We wish to add an additional comment to our letter of yesterday.
Consideration should also be given to the issue of rising/fluctuating lake levels. The Dock land and the wetlands it
contains provide a value of ecosystem service that help manage and absorb these changes. It would seem adding
over 100 homes to this area would have a huge negative impact, resulting in additional flooding (with its resultant
pollution/runoff issues as well) when lake levels are high. This impact must be considered.
Thank you.
Gabrielle and John Makowske
3211 Brighton Ave.
Muskegon, MI
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Page 382 of 399
From: Susan Abbey
To: Planning
Subject: Fwd: Sand Docks PUD
Date: Thursday, July 11, 2024 10:43:59 AM
---------- Forwarded message ---------
From: Susan Abbey
Date: Thu, Jul 11, 2024 at 10:30 AM
Subject: Sand Docks PUD
To: , Susan Abbey
Mike Franzak
Planning Director
City of Muskegon
Dear Mr. Franzak and Committee
This letter is in response to your letter of June 26 regarding the Planning
Commission meeting of the Sand Docks PUD scheduled for July 11.
I live at 1458 East Harbour Towne Circle which is in Building #8.
From looking at the diagram of the proposed development it seems that we are the
closest Harbour Towne building to the Sand Dock property. According to the
proposal, a road would be built very close to our building and a "multi-family
home" would be right in front of us. I strongly object to this plan.
Sand Docks has such a large piece of property it seems that putting roads and
housing so close to Harbour Towne would not be desirable to either development.
Privacy would be an issue as well as home values. Could the "multi-family Homes"
go in front of the marina parking lot which is adjacent to our building instead of
directly in front? We know that the "Docks" are coming but this does not seem to
be the best plan.
Harbour Towne is a community of mostly retired persons and most of us plan to be
here for a long time. Please consider the concerns of long time senior residents of
Harbour Towne. Green space would seem a better option for this end of the Sand
Docks property.
Respectfully,
Susan Abbey-Ludwig
1458 East Harbour Towne Circle
Page 383 of 399
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Page 384 of 399
Page 385 of 399
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Rezoning of 349 W Webster Ave from Form
Based Code, Urban Residential (FBC, UR) to Form
Based Code, Neighborhood Core (FBC,
NC). SECOND READING
Submitted by: Mike Franzak, Planning Director Department: Planning
Brief Summary:
The Planning Commission unanimously recommended in favor of the request at their August
meeting.
Detailed Summary & Background:
This property is the former location of the Muskegon Public Schools Administration building. It has
been privately owned since 2021. The applicant is requesting a rezoning to allow the building to be
converted into a hotel, with retail and other mixed-uses. There were no public comments given at the
public hearing.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 Goal 2: Economic Development Housing and Business
Amount Requested: Budgeted Item:
N/A Yes No N/A X
Fund(s) or Account(s): Budget Amendment Needed:
N/A Yes No N/A X
Recommended Motion:
I move to approve the request to rezone the property at 349 W. Webster Ave. from Form Based
Code, Urban Residential to Form Based Code, Neighborhood Core.
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Other Division Heads
Page 386 of 399
Communication
Legal Review
Page 387 of 399
PLANNING COMMISSION PACKET EXCERPT
August 15, 2024
Hearing, Case 2024-18: Request to rezone 349 W. Webster Avenue from Form-Based Code – Urban
Residential (FBC-UR) to Form-Based Code – Neighborhood Core (FBC-NC), by Reset Ventures.
SUMMARY
1. The property is currently zoned Form Based Code, Urban Residential.
2. This property is the former location of the Muskegon Public Schools Administration building. It has
been privately owned since 2021.
3. The applicant is requesting a rezoning to allow the building to be converted into a hotel, with retail
and other mixed-uses.
4. Please see the enclosed zoning ordinance excerpt for Form Based Core, Neighborhood Core.
5. Notice was sent to all properties within 300 feet, at the time of this writing staff has not received any
comments.
349 W Webster Ave
Page 388 of 399
Zoning Map
Aerial Map
Page 389 of 399
An ordinance to amend the zoning map of the City to provide for a zone change for 349 W Webster Avenue
from Form Based Code, Urban Residential (FBC, UR) to Form Based Code, Neighborhood Commercial
(FBC, NC).
THE CITY COMMISSION OF THE CITY OF MUSKEGON HEREBY ORDAINS:
The zoning map of the City of Muskegon is hereby amended to change the zoning from FBC, UR to FBC, NC.
This ordinance adopted:
Ayes:
Nayes:
Adoption Date:
Effective Date:
First Reading:
Second Reading:
CITY OF MUSKEGON
By: __________________________
Ann Meisch, MMC
City Clerk
Page 390 of 399
CERTIFICATE
(Rezoning 349 W Webster Ave from FBC, UR to FBC, NC)
The undersigned, being the duly qualified clerk of the City of Muskegon, Muskegon County, Michigan, does
hereby certify that the foregoing is a true and complete copy of an ordinance adopted by the City Commission
of the City of Muskegon, at a regular meeting of the City Commission on the 27th day of August, at which
meeting a quorum was present and remained throughout, and that the original of said ordinance is on file in the
records of the City of Muskegon. I further certify that the meeting was conducted and public notice was given
pursuant to and in full compliance with the Michigan Zoning Enabling Act, Public Acts of Michigan No. 33 of
2006, and that minutes were kept and will be or have been made available as required thereby.
DATED: ___________________, 2024 ________________________________
Ann Meisch, MMC
Clerk, City of Muskegon
Publish Notice of Adoption to be published once within ten (10) days of final adoption.
Page 391 of 399
CITY OF MUSKEGON
NOTICE OF ADOPTION
Please take notice that on August 27, 2024, the City Commission of the City of Muskegon adopted an ordinance
amending the zoning map to provide for the change of zoning for 349 W Webster Ave from FBC, UR to FBC,
NC.
Copies of the ordinance may be viewed and purchased at reasonable cost at the Office of the City Clerk in the
City Hall, 933 Terrace Street, Muskegon, Michigan, during regular business hours.
This ordinance amendment is effective ten days from the date of this publication.
Published ____________________, 2024
By ___________________________
Ann Meisch, MMC
City Clerk
---------------------------------------------------------------------------------------------------------------------
PUBLISH ONCE WITHIN TEN (10) DAYS OF FINAL PASSAGE.
Account No. 101-80400-5354
Page 392 of 399
Agenda Item Review Form
Muskegon City Commission
Commission Meeting Date: September 9, 2024 Title: Rezoning of 1700 Oak Ave from Medical
Care (MC) to Low-Density Multiple Family
Residential (RM-1). SECOND READING
Submitted by: Mike Franzak, Planning Director Department: Planning
Brief Summary:
The Planning Commission unanimously recommended approval of the request at their August
meeting.
Detailed Summary & Background:
The property is the site of the former Muskegon General Hospital and is still zoned MC, Medical Care.
The site measures just under 26 acres. The applicant is seeking a rezoning to RM-1, Low-Density Multi-
Family Residential to allow for a 144-unit “work force” apartment development. The plans include the
demolition of the existing hospital buildings. The applicant would utilize about 14 acres of the 26 acre
site. The Planning Commission recommended in favor of the rezoning and also approved the site
plan, contingent upon the City Commission approving the rezoning.
Goal/Focus Area/Action Item Addressed:
Key Focus Areas:
Goal/Action Item:
2027 Goal 2: Economic Development Housing and Business
Amount Requested: Budgeted Item:
N/A Yes No N/A X
Fund(s) or Account(s): Budget Amendment Needed:
N/A Yes No N/A X
Recommended Motion:
I move to approve the rezoning of 1700 Oak Ave from Medical Care (MC) to Low-Density Multiple
Family Residential (RM-1).
Approvals: Guest(s) Invited / Presenting:
Immediate Division X
Head No
Information
Technology
Page 393 of 399
Other Division Heads
Communication
Legal Review
Page 394 of 399
PLANNING COMMISSION PACKET EXCERPT
August 15, 2024
Hearing, Case 2024-20: Request to rezone 1700 Oak Avenue from Medical Care (MC), to Low-Density
Multiple Family Residential (RM-1), by Krimson Development, LLC.
SUMMARY
1. The property is the site of the former Muskegon General Hospital and is still zoned MC, Medical
Care. The site measures just under 26 acres.
2. The applicant is seeking a rezoning to RM-1, Low-Density Multi-Family Residential to allow for
a 144-unit “work force” apartment development. The plans include the demolition of the existing
hospital buildings. The applicant would utilize about 14 acres of the 26 acre site.
3. Notice was sent to all properties within 300 feet of the subject property. At the time of this writing,
staff had not received any comments from the public.
Former General Hospital Building on Site
Page 395 of 399
Zoning Map
Aerial Map
Page 396 of 399
An ordinance to amend the zoning map of the City to provide for a zone change for 1700 Oak Ave from
Medical Care (MC) to Low Density Multifamily Residential (RM-1).
THE CITY COMMISSION OF THE CITY OF MUSKEGON HEREBY ORDAINS:
The zoning map of the City of Muskegon is hereby amended to change the zoning from MC to RM-1.
This ordinance adopted:
Ayes:
Nayes:
Adoption Date:
Effective Date:
First Reading:
Second Reading:
CITY OF MUSKEGON
By: __________________________
Ann Meisch, MMC
City Clerk
Page 397 of 399
CERTIFICATE
(Rezoning 1700 Oak Ave from MC to RM-1)
The undersigned, being the duly qualified clerk of the City of Muskegon, Muskegon County, Michigan, does
hereby certify that the foregoing is a true and complete copy of an ordinance adopted by the City Commission
of the City of Muskegon, at a regular meeting of the City Commission on the 27th day of August, at which
meeting a quorum was present and remained throughout, and that the original of said ordinance is on file in the
records of the City of Muskegon. I further certify that the meeting was conducted and public notice was given
pursuant to and in full compliance with the Michigan Zoning Enabling Act, Public Acts of Michigan No. 33 of
2006, and that minutes were kept and will be or have been made available as required thereby.
DATED: ___________________, 2024 ________________________________
Ann Meisch, MMC
Clerk, City of Muskegon
Publish Notice of Adoption to be published once within ten (10) days of final adoption.
Page 398 of 399
CITY OF MUSKEGON
NOTICE OF ADOPTION
Please take notice that on August 27, 2024, the City Commission of the City of Muskegon adopted an ordinance
amending the zoning map to provide for the change of zoning for 1700 Oak Ave from MC to RM-1.
Copies of the ordinance may be viewed and purchased at reasonable cost at the Office of the City Clerk in the
City Hall, 933 Terrace Street, Muskegon, Michigan, during regular business hours.
This ordinance amendment is effective ten days from the date of this publication.
Published ____________________, 2024
By ___________________________
Ann Meisch, MMC
City Clerk
---------------------------------------------------------------------------------------------------------------------
PUBLISH ONCE WITHIN TEN (10) DAYS OF FINAL PASSAGE.
Account No. 101-80400-5354
Page 399 of 399
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