Schedules C, D, E, F

Schedules C, D, E, F
SCHEDULE C
GENERAL CONDITIONS
TABLE OF CONTENTS
PART A – DEFINITIONS AND INTERPRETATION................................................................. 1
GC1 DEFINITIONS AND INTERPRETATION .......................................................................... 1
PART B - THE WORK .................................................................................................................. 6
GC2 TERM..................................................................................................................................... 6
GC3 DESIGNATED REPRESENTATIVES ................................................................................. 6
GC4 THE WORK ........................................................................................................................... 7
GC5 TIME SCHEDULE ................................................................................................................ 7
GC6 CONTROL AND SUPERVISION OF THE WORK ............................................................ 7
GC7 QUALITY MANAGEMENT ................................................................................................ 9
GC8 DESIGN ................................................................................................................................. 9
GC9 OWNERSHIP OF DOCUMENTS....................................................................................... 12
GC10 ERRORS IN DESIGN ....................................................................................................... 13
GC11 PRODUCTS ....................................................................................................................... 13
GC12 SUBCONTRACTS ............................................................................................................ 13
GC13 SEPARATE CONTRACTS WITH OTHER CONTRACTORS....................................... 14
GC14 ACCESS TO AND USE OF LAND .................................................................................. 15
GC15 USE OF WORK SITE........................................................................................................ 16
GC16 SUBSURFACE CONDITIONS AT WORK SITE............................................................ 16
GC17 WORK FOR OTHERS ON ADJACENT PROPERTIES ................................................. 17
GC18 ARCHAEOLOGICAL ITEMS .......................................................................................... 18
GC19 CONTAMINANTS AND ENVIRONMENTAL MANAGEMENT................................. 18
GC20 WORK SITE SAFETY ...................................................................................................... 19
GC21 DOCUMENTS AT THE WORK SITE ............................................................................. 20
GC22 CLEANUP AND FINAL CLEANING OF WORK .......................................................... 20
GC23 REMEDIAL WORK .......................................................................................................... 20
GC24 REJECTED WORK ........................................................................................................... 21
GC25 WARRANTY..................................................................................................................... 21
GC26 TITLE AND RISK ............................................................................................................. 21
PART C - PAYMENT AND COMPLETION.............................................................................. 22
GC27 APPLICATIONS FOR PAYMENT .................................................................................. 22
GC28 TAXES AND DUTIES ...................................................................................................... 23
GC29 LIEN HOLDBACK............................................................................................................ 24
GC30 SUBSTANTIAL COMPLETION AND TOTAL COMPLETION ................................... 25
GC31 RECORD DRAWINGS ..................................................................................................... 29
PART D - CHANGES .................................................................................................................. 30
GC32 DELAYS ............................................................................................................................ 30
GC33 CHANGES IN THE WORK.............................................................................................. 31
GC34 VALUATION AND CERTIFICATION OF CHANGES IN THE WORK ...................... 32
GC35 DETERMINATION OF COST.......................................................................................... 33
PART E - DEFAULT AND TERMINATION............................................................................. 34
GC36 DEFAULT & TAKING WORK OUT OF THE CONTRACTOR’S HANDS.................. 34
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-2GC37 SUSPENSION OF WORK, TERMINATION FOR CONVENIENCE ............................ 35
GC38 DEFAULT AND TERMINATION OF CONTRACT....................................................... 37
GC39 TERMINATION BY THE CONTRACTOR..................................................................... 38
PART F - REPRESENTATIONS, WARRANTIES AND INDEMNITIES ................................ 39
GC40 REPRESENTATIONS AND WARRANTIES .................................................................. 39
GC41 PROTECTION OF WORK AND PROPERTY................................................................. 40
GC42 DAMAGES AND MUTUAL RESPONSIBILITY ........................................................... 41
GC43 INDEMNIFICATION ........................................................................................................ 41
GC44 CONTRACTOR’S DISCHARGE OF LIABILITY........................................................... 42
PART G - CONTRACT SECURITY, RECORDS, REPORTS AND AUDIT............................ 43
GC45 BOND AND INSURANCE ............................................................................................... 43
GC46 RECORDS.......................................................................................................................... 44
GC47 REPORTS .......................................................................................................................... 44
GC48 AUDIT................................................................................................................................ 45
PART H - DISPUTE RESOLUTION........................................................................................... 46
GC49 DISPUTE RESOLUTION ................................................................................................. 46
PART I - GENERAL PROVISIONS ........................................................................................... 47
GC50 LAWS, NOTICE, PERMITS AND FEES ......................................................................... 47
GC51 INTELLECTUAL PROPERTY FEES .............................................................................. 48
GC52 COMMUNICATIONS AND CONFIDENTIALITY ........................................................ 48
GC53 LEGAL RELATIONSHIP ................................................................................................. 49
GC54 ASSIGNMENT .................................................................................................................. 49
GC55 LIMITATION FOR ACTIONS ......................................................................................... 49
GC56 WAIVER ............................................................................................................................ 50
GC57 OTHER PROVISIONS ...................................................................................................... 50
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PART A – DEFINITIONS AND INTERPRETATION
GC1 DEFINITIONS AND INTERPRETATION
Definitions
1.1
In this Contract, the following words and expressions have the following meanings:
(a)
“Agreement” means this Contract;
(b)
“Architect” means a professional architect registered and in good standing under
the Architects Act (British Columbia);
(c)
“Bond” means the performance bond for the Project as required by the Contract;
(d)
“Builders Lien Act” means the Builders Lien Act (British Columbia) as it may be
amended, repealed or replaced from time to time;
(e)
“Business Day” means a day other than a Saturday, Sunday or statutory holiday in
British Columbia;
(f)
“Change Order” has the meaning set out in GC34.2(b);
(g)
“Construction” means all Work other than Design;
(h)
“Contaminants” means any materials, substances or special (hazardous) wastes,
the storage, manufacture, disposal, treatment, generation, use, transport,
remediation or release into the environment of which is now or hereafter
prohibited, controlled, or regulated under the Environmental Management Act,
(British Columbia) and the Contaminated Sites Regulation (British Columbia), as
they may be amended, repealed or replaced from time to time;
(i)
“Contract” means the whole of the agreement between the parties and includes all
of the Contract Documents;
(j)
“Contract Documents” has the meaning set out in Article 5.1 of the Form of
Agreement;
(k)
“Contract Price” has the meaning set out in Article 2.1 of the Form of Agreement;
(l)
“Contract Time” means the time within which the Contractor will achieve
Substantial Completion of the Work as set out in Article 4.1 of the Form of
Agreement;
(m)
“Contractor’s Consultant” means any architectural or engineering firm or person,
including any Architect or Professional Engineer, engaged by the Contractor to be
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-2the coordinating professional, to prepare the Drawings and Specifications, or to
otherwise consult to the Contractor on the Project;
(n)
“Contractor’s Representative” has the meaning set out in GC3.2;
(o)
“Design” means all design for the Project;
(p)
“Dispute” means any claim, dispute or difference between the Contractor and the
School District arising in any way in connection with the Contract;
(q)
“Drawings” means Drawings as defined in the Master Agreement and such other
construction drawings for the Project that are prepared by or for the Contractor
and that are accepted in writing by the School District’s Representative as
provided in this Contract;
(r)
“Effective Date” means the date described in GC2.1 of the Contract;
(s)
“End Date” means the date described in GC2.1 of the Contract;
(t)
“Force Majeure” means labour disputes, strikes, lock-outs (including lock-outs
decreed or recommended for its members by a recognized contractor association
of which the Contractor is a member), fire, unusual delay by common carriers or
unavoidable casualties or, without limiting any of the foregoing, by any cause of
any kind whatsoever that could not have been reasonably prevented by and is
beyond the control of the Contractor;
(u)
“Form of Agreement” means the portion of this Contract titled “Form of
Agreement” to which the other Contract Documents are attached or incorporated
by reference;
(v)
“Freedom of Information and Protection of Privacy Act” means the Freedom of
Information and Protection of Privacy Act (British Columbia), as may be
amended, repealed or replaced from time to time;
(w)
“GCs” and “General Conditions” each mean this Schedule C – General
Conditions and reference to one or more GCs or General Conditions refers to the
referenced section of this Schedule;
(x)
“Heritage Conservation Act” means the Heritage Conservation Act (British
Columbia);
(y)
“Indemnified Parties” has the meaning set out in GC 43.1;
(z)
“Insurance Conditions” means the terms and conditions set out in Schedule D —
Insurance Conditions;
(aa)
“Key Personnel” means the persons identified in Schedule E — Key Personnel;
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-3(bb)
“Land” means the lands on which the completed Work is to be located as set out
in the Order Summary, and the limits of which will be as specified by the School
District;
(cc)
“Laws” means the common law and any and all laws, statutes, enactments, bylaws, regulations, rules, orders, directives, policies, permits, licences, codes and
rulings of any government, and any ministries, agencies, board, commission or
tribunal of any government;
(dd)
“Lien Holdback” means the 10% holdback required under the Builders Lien Act;
(ee)
“Order Summary” means Schedule A – Order Summary;
(ff)
“Other Contractor” means any person employed by or having a separate contract
directly or indirectly with the School District for work related to the Project other
than the Work;
(gg)
“Professional Engineer” means a professional engineer registered and in good
standing under the Engineers and Geoscientists Act (British Columbia);
(hh)
“Program” has the meaning set out in Recital F of the Form of Agreement;
(ii)
“Progress Monitor” means the party appointed by the Province of British
Columbia to act as the Progress Monitor under this Agreement;
(jj)
“Project” has the meaning set out in the Form of Agreement;
(kk)
“Project Management Plan” means the Project Management Plan as defined in the
Master Agreement together with such changes to such plan that are prepared by or
for the Contractor and that are accepted in writing by the School District’s
Representative as provided in this Contract;
(ll)
“Proposal Extracts” means Schedule F — Proposal Extracts;
(mm) “Province” means the Province of British Columbia;
(nn)
“Quality Management Plan” means the Quality Management Plan as defined in
the Master Agreement together with such changes to such plan that are prepared
by or for the Contractor and that are accepted in writing by the School District’s
Representative as provided in this Contract;
(oo)
“Record Drawings” means the drawings that record the as-built features of the
Project;
(pp)
“School District’s Representative” has the meaning set out in GC3.1;
(qq)
“School District Requirements” means the School District’s functional and other
requirements for the design and construction of the Project, including all
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-4performance and other specifications set out in the Order Summary and Statement
of Requirements;
(rr)
“Scope of Work” means the summary of the Work, as described in the Contract,
to be undertaken to complete the Project;
(ss)
“Site Occupation Date” has the meaning set out in GC6.9;
(tt)
“Specifications” means Specifications as defined in the Master Agreement and
such other construction or performance specifications that are prepared for the
Project by or for the Contractor and that are accepted in writing by the School
District’s Representative as provided in this Contract;
(uu)
“Standards” means any and all Laws, building codes, professional standards and
specifications applicable to the Work, or to work such as the Project, as they are
in force from time to time or in the latest current version thereof, as the case may
be;
(vv)
“Statement of Requirements” means Schedule B – Statement of Requirements;
(ww) “Statutory Declaration” means the document appropriate for the nature of the
declaration in the form provided by the School District to the Contractor;
(xx)
“Subcontract” means a contract between the Contractor and a Subcontractor;
(yy)
“Subcontractor” is a person or entity, other than the Contractor’s Consultant or
other design consultants, having a direct contract with the Contractor to perform a
part or parts of the Work, or to supply products worked to a special design for the
Work;
(zz)
“Substantial Completion” has the meaning set out in GC30.1;
(aaa)
“Substantial Completion Certificate” means the certificate issued to the
Contractor by the School District’s Representative acknowledging the occurrence
of Substantial Completion as described in the Contract;
(bbb) “Substantial Completion Date” means the date that Substantial Completion has
been achieved for the Work as the context requires;
(ccc)
“Target Substantial Completion Date” has the meaning set out in Article 4.1 of
the Form of Agreement;
(ddd) “Term” means the period commencing on the Effective Date and ending on the
End Date;
(eee)
“Time Schedule” means the general schedule for timing of the Work as set out in
Schedule A4 – Time Schedule and as updated pursuant to GC5 – Time Schedule;
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-5(fff)
“Total Completion” means total completion of the Work in accordance with the
Contract Documents;
(ggg) “Total Completion Certificate” means the certificate issued to the Contractor by
the School District’s Representative upon the achievement of Total Completion;
(hhh) “Total Completion Date” means the date of Total Completion as determined by
the School District’s Representative in accordance with the Contract Documents
and set out in the Total Completion Certificate;
(iii)
“Warranty Period” means the period defined in GC25.1 during which the
Contractor is required to repair any deficiencies or defects that arise in the Work;
(jjj)
“Work” means everything to be undertaken by the Contractor under this Contract,
including the design, construction, delivery, installation and commissioning of
modular classrooms in accordance with the Contract Documents;
(kkk) “Work Site” means the place where the Work is to be performed on the Land; and
(lll)
“Workers Compensation Board” or “WorkSafe BC” is the board constituted
pursuant to the Workers Compensation Act (British Columbia).
Interpretation
1.2
Reference in this Contract to:
(a)
the singular includes a reference to the plural, and vice versa, unless the context
requires otherwise;
(b)
a particular numbered or lettered section, or lettered schedule, is a reference to the
corresponding numbered or lettered section, or lettered schedule, of this Contract;
(c)
the word “enactment” is a reference to an enactment as that word is defined in the
Interpretation Act (British Columbia) on the reference date of this Contract;
(d)
an enactment is a reference to that enactment as amended, revised or replaced;
(e)
a “party” or “parties” is a reference to a party, or the parties, to this Contract and
the respective successors, assigns, trustees, administrators and receivers; and
(f)
“include”, “includes”, “including” and similar expressions, whether or not stated
expressly to be without limitation, are to be interpreted as without limitation.
1.3
The Contract Documents are complementary, and what is required by any one will be as
binding as if required by all.
1.4
Words that have well-known technical or trade meanings are used in the Contract
Documents in accordance with the recognized meanings.
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1.6
If there is a conflict within the Contract Documents the order of priority of documents
from highest to lowest will be:
(a)
in the order in which the Contract Documents appear in Article 5 of the Form of
Agreement;
(b)
Drawings of a large scale will govern over those of a smaller scale of the same
date;
(c)
dimensions shown in the Drawings will govern over dimensions scaled from the
Drawings; and
(d)
later dated documents will govern over earlier dated documents of the same type.
Notwithstanding the priority described in GC1.5 provisions of any Contract Document
establishing the higher quality, manner or method of performing the Work, using more
stringent standards, will prevail with the intent that the provisions that produce the higher
quality with the higher levels of safety, reliability, durability, performance and service
will govern.
PART B - THE WORK
GC2 TERM
2.1
With the exception of provisions that are expressly stated to survive the expiry of the
Term, this Contract is effective for the period commencing on the date of execution of
this Contract (the “Effective Date”) and ending on the date (the “End Date”) that all of
the following conditions are fulfilled:
(a)
the Contractor and the School District have performed all obligations required
under this Contract;
(b)
the Total Completion Certificate has been issued in accordance with GC30.5; and
(c)
the Contractor has fulfilled all of its obligations pursuant to GC25 — Warranty.
GC3 DESIGNATED REPRESENTATIVES
3.1
Within 7 days after the execution of this Contract, the School District will give written
notice to the Contractor designating its representative for the purposes of this Contract
(the “School District’s Representative”). The School District will give written notice to
the Contractor of any change in the School District’s Representative.
3.2
The representative of the Contractor for the purposes of this Contract (the “Contractor’s
Representative”) will be the person designated as such in Schedule E — Key Personnel,
unless otherwise agreed by the School District.
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The Contractor will not change the Contractor’s Representative or other personnel set out
in Schedule E – Key Personnel unless the Contractor provides documentation to the
School District’s Representative demonstrating to the satisfaction of the School District,
in its sole discretion, that the proposed replacement person has qualifications and
experience equivalent to or better than those of the person being replaced.
GC4 THE WORK
4.1
The Contractor will perform and provide all professional design services, construction
administration and construction work and all related labour, services, products, materials,
tools, water, heat, light, power, transportation, equipment, machinery and other facilities
and services and everything else necessary to achieve Total Completion.
GC5 TIME SCHEDULE
5.1
The Time Schedule included as Schedule A4 – Time Schedule is deemed to be submitted
for review by the School District’s Representative.
5.2
The Contractor will ensure that the Time Schedule will be consistent with and meet all
applicable requirements of this Contract.
5.3
The Contractor will submit for review by the School District’s Representative an updated
Time Schedule at a maximum interval of 1 month, reflecting progress to date and
including a comparison to the previously submitted Time Schedule and a forecast to
achieving Substantial Completion of the Work and Total Completion of the Work.
5.4
If, in the opinion of either the School District’s Representative or the Contractor, at any
time the actual progress of the Work does not materially conform with the Time Schedule
then, within 14 days of being so required by the School District’s Representative or, if
earlier becoming aware of the same, the Contractor will:
(a)
submit to the School District’s Representative a report identifying the reasons for
such non-conformity or the reasons why it does not agree that there is material
non-conformity; and
(b)
if the Contractor agrees that there is material non-conformity (or following
resolution of the Dispute that has established that there is material
nonconformity), submit to the School District’s Representative a revised Time
Schedule, which will meet all applicable requirements of this Contract and its
Schedules and provide for the Work to be commenced and pursued diligently to
Substantial Completion of the Work and Total Completion.
GC6 CONTROL AND SUPERVISION OF THE WORK
6.1
The Contractor will effectively direct and supervise the Work using its best skill and
attention. The Contractor will be solely liable and responsible for all design and all
construction means, methods, techniques, sequences and procedures with respect to the
Work, and for coordinating all parts of the Work under this Contract and for coordinating
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-8the Work with work of Subcontractors and of Other Contractors and in accordance with
generally accepted management and supervisory practices in British Columbia.
6.2
The Contractor will have the sole responsibility for the design, erection, operation,
maintenance and removal of temporary structures and other temporary facilities and the
design and execution of construction methods required in their use. The Contractor will
engage and pay for Professional Engineers or Architects as appropriate to perform these
functions where required by Law, and in all cases where such temporary facilities and
their method of construction are of such a nature that the education, training and
qualifications of the Architect or Professional Engineer are required to produce safe and
satisfactory results.
6.3
The Contractor will execute the Work in a continuous and diligent manner, and perform
all its obligations in conformance with the Contract including, without limitation, the
Project Management Plan and the Time Schedule.
6.4
Unless otherwise stated in this Contract, the Contractor will perform the Work at the
times, in the order of procedure, and in the manner and method that the Contractor
considers appropriate provided such Work is in conformance with the Contract including,
without limitation, the Project Management Plan and the Time Schedule.
6.5
The Contractor will employ a competent construction manager, and necessary assistants,
at the Work Site at all times during the progress of the Work.
6.6
The Contractor’s construction manager will represent the Contractor at the Work Site and
written notices and instructions given to the Contractor’s construction manager by the
School District’s Representative or the School District will be deemed to have been given
to the Contractor.
6.7
The Contractor will at all times maintain good order and discipline among its employees
engaged on the Work and will not employ on the Work any unfit person nor anyone not
skilled in the task assigned to him or her.
6.8
Before commencing the Work, the Contractor will:
(a)
purchase and deliver the Bond as set out in GC45 — Bond and Insurance to the
School District’s Representative; and,
(b)
file with the School District’s Representative certificates of all insurance policies
and necessary endorsements to comply with the Insurance Conditions.
6.9
The Contractor will not perform any Construction on the Work Site prior to the date
approved by the School District under Schedule A – Order Summary for occupation of
the Work Site (the “Site Occupation Date”).
6.10
The Contractor may request Work Site investigations. If the School District agrees that
the investigations are necessary, the School District will perform, or cause to be
performed, the investigations.
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-9GC7 QUALITY MANAGEMENT
7.1
Without affecting any other GC, the Contractor is solely responsible for the quality of the
Work and will diligently implement its Quality Management Plan.
7.2
The Contractor will not commence any Construction, including manufacturing, until the
quality procedures applicable to that part of the Work have been developed, submitted to
the School District’s Representative, included in the Quality Plan and are fully
implemented.
7.3
Despite the rest of this GC7, the School District’s Representative may at any time audit
the Quality Management Plan and its implementation and may, at the School District’s
expense, carry out independent quality control testing at any time.
7.4
Nothing in this GC7 and no review, audit, inspection, acceptance, comment approval,
action or inaction by the School District or the School District’s Representative or any
other authority, agency or government will derogate from or relieve the Contractor from
any obligations under this Contract, including its sole responsibility for the quality of the
Work, the Quality Management Plan and implementation of the Quality Management
Plan.
7.5
The School District and the School District’s Representative or consultants will have
access to the Work for review wherever the Work is in preparation or progress and the
Contractor will provide reasonable facilities for such access. No testing and review by the
School District or the School District’s Representative or consultants will relieve the
Contractor from its sole responsibility for the quality of the Work, the Quality
Management Plan or implementation of the Quality Management Plan.
7.6
If the results of any testing or other aspect of the Quality Management Plan disclose, or
based on the results of any aspect of the implementation of the Quality Management Plan
the School District determines, that any part of the Work is incomplete or defective in
any way, the School District may require the Contractor to complete that part of the Work
or correct the defect. The Contractor will immediately complete that part of the Work or
correct the defect at its own expense.
7.7
Prior to Total Completion, the Contractor will deliver to the School District all tests and
results taken and generated by the implementation of the Quality Management Plan.
7.8
The Contractor will permit access to the Work Site and to the Design and the
Construction to persons designated by the School District’s Representative including
persons representing other authorities or agencies of government.
GC8 DESIGN
8.1
The Contractor is responsible for the means, methods, techniques, sequences and
procedures necessary to properly complete the Design in conformance with this Contract
including, without limitation, the Project Management Plan and the Time Schedule.
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- 10 8.2
The Contractor:
(a)
will ensure that the Work and the Design are fully compliant with all
requirements of this Contract and all Laws;
(b)
will perform and complete the Design and the Work so as to provide the Project
that, at Total Completion, is fit for the intended use as specified in the Drawings
and Specifications and the Proposal Extracts; and
(c)
acknowledges and agrees that it has the non-delegable duty and obligation to the
School District to complete the Work, including the Design, in a manner that is
fully compliant with all requirements of this Contract and all Laws.
8.3
The Contractor will make any revisions to the Design as may reasonably be required
from time to time by the School District’s Representative, including changes resulting
from a Change Order.
8.4
The Contractor will:
(a)
cause all portions and aspects of the Drawings and Specifications to be prepared
under the direction of, and to be sealed under the professional seal of, the
Architect;
(b)
cause the Architect to confirm to the School District, under his or her professional
seal, that in the opinion of the Architect:
(c)
8.5
(i)
the Drawings and Specifications implement and otherwise conform to the
School District Requirements;
(ii)
the Drawings and Specifications implement and otherwise conform to the
Proposal Extracts;
(iii)
the Drawings and Specifications have been prepared in accordance with,
and substantially comply with, all Standards; and
(iv)
the Work has been completed in accordance with the Drawings and
Specifications; and
provide the School District with all letters of professional assurance as required
pursuant to all Laws.
The Contractor will not construct any part of the Work that is not based on the most
recent Drawings and Specifications or that does not meet the School District
Requirements. To the extent that the Drawings and Specifications conflict with, modify
or deviate from the School District Requirements, the Contractor will revise the
Drawings and Specifications such that the Work will be constructed in accordance with
the strict terms of the School District Requirements, unless the deviation, conflict or
modification was specifically identified, brought to the attention of and accepted by the
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- 11 School District’s Representative in advance and in writing, in which case the relevant
part of the Drawings and Specifications will apply.
8.6
The Contractor will make, or cause the Contractor’s Consultant to make, any revisions or
changes to the Drawings or Specifications as are necessary from time to time due to
approved changes to the Work and, for clarity, the Contractor will comply with GC8.4
with respect to any such revisions or changes.
8.7
Nothing in this GC8, or otherwise in or under this Contract, makes the School District’s
Representative or the School District responsible for the Design of the Project, including
compliance of the Drawings and Specifications with the School District Requirements
and all Standards, and the Contractor will, notwithstanding any acceptance under this GC
or other act of the School District or School District’s Representative, remain solely
liable and responsible for compliance of the Drawings and Specifications with the School
District Requirements and all Standards.
8.8
Without limiting any of the obligations of the Contractor under this Contract, the duties
and responsibilities of the Contractor with respect to the Design include, but are not
limited to:
8.9
(a)
review of the documents, reports, drawings, School District Requirements and
other information provided by the School District;
(b)
preparation of a Design that meets the School District Requirements, all Standards
and all terms of this Contract;
(c)
the coordination required to integrate all parts of the Design in the Work;
(d)
preparation of all reports, documents, information and schemes as required by this
Contract;
(e)
inspecting the progress of the Construction in order to determine that the Work is
in compliance with the requirements of the Design, Specifications, all Standards
and all terms of this Contract;
(f)
liaising with the School District’s Representative and local authorities having
jurisdiction as required during the Design and Construction and providing copies
of all correspondence with such local authorities to the School District’s
Representative; and
(g)
providing all required assurances to local authorities having jurisdiction
respecting substantial conformance of the Design with all Standards.
The Contractor will ensure that the Contractor’s Consultant and all other architects,
engineers and professionals performing professional services related to the Design fulfill
their duties and responsibilities to the standard of diligence, skill and care that such
professionals would customarily provide in accordance with their professional and legal
obligations. Any failure by any of the Contractor’s Consultants or other architects,
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- 12 engineers or professionals performing professional services in relation to the Design will
not relieve the Contractor of any responsibility for ensuring that the Work is carried out
in conformance with the Contract Documents including the School District
Requirements, the Design and all Standards.
8.10
The Contractor will provide the School District with the following documents:
(a)
all issued for construction Drawings and related Specifications;
(b)
all changes to the issued for construction Drawings and related Specifications;
and
(c)
Record Drawings in accordance with the requirements stated in this Contract.
GC9 OWNERSHIP OF DOCUMENTS
9.1
The Contractor acknowledges and agrees that this Contract contains intellectual property
that is protected by copyright and that this intellectual property is intended to be used
solely for the purposes of the Project. The Contractor will obtain prior written permission
and will require the Contractor’s Consultant and any other Subcontractors to obtain prior
written permission for any other use.
9.2
Copyright for the Design and Drawings belongs to the Contractor, the Contractor’s
Consultant or other consultants who prepared them.
9.3
Plans, sketches, Drawings, graphic representations and Specifications, including
computer generated designs, when prepared by the Contractor’s Consultant or other
consultants are instruments of their service and will remain their property whether the
construction for which they are made is executed or not.
9.4
Submission or distribution of the Contractor’s Consultants’ or other consultants’ plans,
sketches, Drawings, graphic representations and Specifications to meet official regulatory
requirements or for other purposes in connection with the Work is not to be construed as
publication in derogation of their reserved rights.
9.5
The School District may retain copies, including reproducible copies, of all plans,
sketches, Drawings, graphic representations, Specifications and other material. The
Contractor hereby grants an irrevocable licence to use any and all such material for any
purpose related to the use and ownership of the Work, including for additions or
alterations to the Work, and further such licence may be assigned, at the discretion of the
School District, to any third party who has or may acquire an interest or obligation related
to the Work. The Contract will at the School District’s request, and prior to any payment
after such request being issued under this Contract, deliver to the School District, a
consent and acknowledgement signed by the Contractor’s Consultant confirming such
licence.
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10.1
The Contractor is responsible for all errors, omissions or deficiencies in the Design
despite any review or acceptance of any portion or all of the Design by or on behalf of the
School District.
10.2
The Contractor will give written notice to the School District’s Representative
immediately upon becoming aware of any error, omission or deficiency in the Design.
10.3
The Contractor will remedy at its own cost, any error, omission or deficiency identified in
the Design including, without limitation, any resulting error, omission or deficiency in
the Design that results in defects or deficiencies in any part of the Construction that has
been commenced or completed. Such remediation will conform with the requirements of
this Contract.
GC11 PRODUCTS
11.1
Unless otherwise expressly provided in this Contract, the Contractor will provide and pay
for all labour, products, materials, tools, equipment, machinery, water, heat, light, power,
transportation and all other facilities, things and services whatsoever, without limitation,
necessary for the proper performance of the Work.
11.2
All products and materials provided will be new unless otherwise expressly specified in
the Contract Documents. Any products that are not specified will be of a quality
necessary for the purpose required.
GC12 SUBCONTRACTS
12.1
The Contractor will preserve and protect the rights of the School District under this
Contract with respect to any Work to be performed by a Subcontractor, so that the
subcontracting does not prejudice the School District’s rights under this Contract, and the
Contractor will be responsible to the School District for the performance of all its
Subcontractors and will require its Subcontractors to perform their work in accordance
with the terms and conditions of this Contract.
12.2
The Contractor will be as fully responsible to the School District for acts and omissions
of its Subcontractors and of persons directly or indirectly employed by them as for the
acts and omissions of persons directly employed by the Contractor.
12.3
The School District may, for reasonable cause, object at any time before the Contractor
has executed the contract to a proposed Subcontractor and require the Contractor to
employ another Subcontractor acceptable to the School District, but the Contractor will
not be required to employ as a Subcontractor any person or firm to whom it reasonably
objects. If the School District requires the Contractor to change a proposed
Subcontractor, then the price and time will be adjusted by the differences occasioned by
the change. The value will be determined in accordance with GC34 — Valuation and
Certification of Changes in the Work.
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Nothing contained in the Contract Documents will create any contractual or other
relationship between any Subcontractor and the School District or any Subcontractor
employee and the School District.
12.5
The Contractor will require every Subcontractor to observe the terms of this Contract so
far as they apply to that portion of the Work to be performed directly or indirectly by that
Subcontractor. The Contractor will require that the terms of this Contract that are
applicable to the portion of the Work to be performed by a Subcontractor will form part
of that Subcontract.
12.6
For greater certainty, the Contractor will ensure every Subcontract and standard purchase
order contains the following provisions:
(a)
the parties will immediately notify the School District’s Representative in writing
of any dispute that remains unresolved for a period of 30 days or more; and
(b)
the parties will negotiate in good faith to resolve all disputes and provide frank,
candid and timely disclosures of relevant information and documentation in their
possession to the other party.
12.7
The Contractor will require that every Subcontract and standard purchase order for
designers and Subcontractors require such designers and Subcontractors, where requested
by either the School District’s Representative or the Contractor, to: attend any Dispute
resolution process including discussions, negotiations, mediation or arbitration between
the Contractor and the School District; provide frank, candid and timely disclosure of
relevant information and documentation; and, negotiate in good faith to resolve such
Disputes.
12.8
Payment of any sums by the School District to the Contractor, and those sums paid by the
Contractor to any Subcontractor, and those sums paid by any Subcontractor to another
Subcontractor on account of the Contract Price are and constitute a trust fund in the hands
of the Contractor or of the Subcontractor, as the case may be, pursuant to the Builders
Lien Act.
GC13 SEPARATE CONTRACTS WITH OTHER CONTRACTORS
13.1
The School District reserves the right to enter into separate contracts with Other
Contractors in connection with the Project.
13.2
The Contractor will co-operate with and co-ordinate the Work with all concurrent
construction activities by the School District and Other Contractors on the Work Site or
adjacent to the Work Site. The work by the School District or Other Contractors may
include the following:
(a)
preparation of the Work Site as described in the Order Summary;
(b)
any other work in relation to the Work;
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13.3
(c)
any other work in respect of other facilities at the Work Site; and
(d)
utilities and municipal services construction that may be undertaken by another
agency within or adjacent to the Work Site.
The Contractor will:
(a)
co-ordinate the Work with that of Other Contractors and connect the Work with
the work of Other Contractors as applicable;
(b)
provide a design that enables coordination of the Work with the work of Other
Contractors without disruption to the Work or the work of Other Contractors; and
(c)
ensure that performance of the Work is carried out in accordance with the Time
Schedule so that Other Contractors are not delayed in their work.
13.4
The Contractor will promptly report to the School District any apparent deficiencies in
Other Contractors’ work that could affect the Work as soon as they come to the
Contractor’s attention, and will confirm such report in writing promptly. Failure by the
Contractor to so report promptly will invalidate any claims for delay by reason of the
deficiencies of Other Contractors’ work.
13.5
Where a change in the Work is required by the School District, or requested by the
Contractor, as a result of the coordination and connection of the work of Other
Contractors or the School District with the Work, the changes in the Work will only be
made as provided in GC33 — Changes in the Work.
13.6
Claims, disputes and other matters in question between the Contractor and Other
Contractors will be dealt with as provided in GC49 — Dispute Resolution provided the
Other Contractors have reciprocal obligations. The Contractor will be deemed to have
consented to arbitration of any dispute with any Other Contractor whose contract with the
School District contains a similar requirement to GC49 — Dispute Resolution.
13.7
The School District will require Other Contractors to coordinate and schedule their
construction activities at the Work Site in accordance with the reasonable instructions of
the Contractor acting as prime contractor that are applicable to health and construction
safety at the Work Site and that are in accordance with the Workers’ Compensation Act.
13.8
The Contractor acknowledges that other persons working at the Work Site may be union
or non-union, the Contractor will comply with any requirements of the School District in
respect of labour relations and the Contractor will take all reasonable precautions to avoid
labour disruptions caused or contributed to by the Contractor, its Subcontractors or any
persons performing the Work.
GC14 ACCESS TO AND USE OF LAND
14.1
Subject to any limitations under this Contract, including under GC14.2 and GC14.3, the
School District grants to the Contractor a licence to enter and be upon the Work Site from
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- 16 the Site Occupation Date until Total Completion, after school hours and on weekends or
as expressly agreed by the School District, to perform the Work that is required to be
performed on the Work Site.
14.2
14.3
The Contractor will:
(a)
limit its activities to within the Work Site unless the Contractor obtains
permission to occupy or use other lands; and
(b)
obtain any construction easements and permits that may be required for
construction of the Project.
The Contractor will not remove or disturb trees or other vegetation, including for
construction, laydown areas or any other Work.
GC15 USE OF WORK SITE
15.1
The Contractor will confine its tools and equipment, the storage of materials and
products, and the operations of its workers, to limits specified by the School District, by
or under all Laws, and will not unreasonably encumber the Work Site.
15.2
The Contractor will enforce the School District’s policies, procedures and instructions
regarding parking, safety, harassment, fires, smoking, signs and advertisements.
15.3
The Contractor will ensure that the Work does not adversely impact the ongoing
operations of School District schools near or adjacent to the Work Site.
15.4
The Contractor will confirm the location of all utilities and ensure that all of its labour
force, employees, Subcontractors and any other workers at the Work Site:
(a)
are made aware of the location of all utilities in connection with the Project and
the importance of avoiding damage to those underground utilities; and
(b)
observe any instructions in connection with those utilities issued by the School
District’s Representative on behalf of any applicable utility owners.
GC16 SUBSURFACE CONDITIONS AT WORK SITE
16.1
The Contractor acknowledges and agrees that:
(a)
the School District is responsible for preparing the Work Site as described in the
Order Summary, including having all necessary geotechnical work carried out
with respect to the Work Site, and the School District will provide copies of any
reports for geotechnical work to the Contractor;
(b)
it has had the opportunity to undertake additional examinations and investigations
of the Work Site in order to satisfy itself as to Work Site conditions and the
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- 17 impact they could have on any or all of the Work (including Design and
Construction), Contract Time and Contract Price;
(c)
only objective geotechnical data provided in this Contract can be relied upon for
accuracy (subject to any qualifications or conditions set out in such information or
this Contract) but such data cannot be relied upon for sufficiency, relevancy or
interpretation;
(d)
neither the School District nor the School District’s Representative is in any way
responsible or liable for the completeness, interpretation or accuracy of the reports
described in GC16.1(a) (except accuracy of objective geotechnical data identified
in GC16.1(c) for which the School District will be responsible) or for any
variation between Work Site conditions actually encountered by the Contractor
and those set out in those reports; and
(e)
the Contractor is not entitled to any adjustment in the Contract Time or Contract
Price, or to any other remuneration, compensation or damages whatsoever, in any
way connected with Work Site conditions, including the matters described in
GC16.1(c) except for concealed subsurface conditions which were existing before
commencement of the Work that differ materially from those indicated in the
Contract Documents and that could not have reasonably been foreseen.
16.2
The Contractor will notify the School District in writing before the concealed subsurface
conditions identified in GC16.1(e) above are disturbed and in no event later than 5 days
after the first observance of such conditions.
16.3
Notwithstanding that the Contractor may be entitled to an adjustment in the Contract
Time pursuant to GC16.1(e), if the School District determines that the Target Substantial
Completion Date can still be met and requests in writing that the Contractor accelerate
the Work, the Contractor will accelerate its efforts to meet the Target Substantial
Completion Date and the School District will reimburse the Contractor for all reasonable
and direct costs that the Contractor incurred as a result of such acceleration efforts.
GC17 WORK FOR OTHERS ON ADJACENT PROPERTIES
17.1
The Contractor may enter into separate arrangements with other persons to complete
Construction work, such as servicing properties within or adjacent to the Work Site, if the
following conditions are met:
(a)
the Contractor obtains advance written approval from the School District’s
Representative (approval may be granted provided any additional work to be
performed by the Contractor will not adversely affect the School District’s costs,
the Time Schedule, the quality of the Work or adversely impact the School
District’s operations and maintenance procedures or costs); and
(b)
the Contractor is responsible for any design, application for necessary approvals
and obtaining approvals prior to construction.
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- 18 GC18 ARCHAEOLOGICAL ITEMS
18.1
18.2
Upon discovery at the Work Site of any fossils, remains, coins, articles of value or
antiquity, including all heritage objects (as defined in the Heritage Conservation Act), the
Contractor will:
(a)
immediately notify the School District’s Representative;
(b)
take all steps not to disturb the item and, if necessary, stopping Construction
insofar as performing such works would endanger the object or prevent or impede
its excavation;
(c)
take all necessary steps to preserve the item in the same position and condition in
which it was found; and
(d)
comply with all Laws and regulations and all requirements of governmental
authorities with respect to such discovery including pursuant to the Heritage
Conservation Act.
If the Contractor is delayed in performing the Work or incurs additional costs as a result
of taking steps required under GC18.1, the School District will extend the Time Schedule
including the Substantial Completion Date by the number of days equal to the
substantiated “critical path” delay, and the School District will reimburse the Contractor
for all reasonable and direct costs the Contractor incurred as a result of the delay unless
the School District determines that the Target Substantial Completion Date can still be
met and requests in writing that the Contractor accelerate the Work, in which case the
Contractor will accelerate its efforts to meet the Target Substantial Completion Date and
the School District will reimburse the Contractor for all reasonable and direct costs of
taking such acceleration efforts in addition to the additional costs of taking those steps
required under GC18.1.
GC19 CONTAMINANTS AND ENVIRONMENTAL MANAGEMENT
19.1
19.2
Before the Site Occupancy Date, the School District will:
(a)
take all reasonable steps to determine whether any Contaminants are present at the
Work Site; and
(b)
provide the Contractor with a written list of any such Contaminants that the
School District determines at that time to be present at the Work Site.
Except those Contaminants identified pursuant to GC19.1, the Contractor acknowledges
that the School District has made no representation or warranty as to the absence or
presence on, in or under the Work Site of any Contaminant. If the Contractor, after
commencing the Work, encounters or has reason to believe in the existence of any
Contaminant on, in or under the Work Site, the Contractor will at once take all reasonable
steps, including suspension of the Work, as necessary to ensure that no person or property
suffers injury, sickness, death, damage or destruction as a result of exposure to, or the
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- 19 presence of, any Contaminant, and the Contractor will immediately report such
Contaminant to the relevant governmental authorities and to the School District.
19.3
If the Contractor is delayed in performing the Work, or incurs additional costs, due to
discovery of such Contaminants, adjustment in the Contract Time or the Contract Price
will be agreed upon, in the latter case as set out in GC34 — Valuation and Certification
of Changes in the Work. Where the Contractor claims a delay due to discovery of
Contaminants, the Contractor will provide full information regarding any options to
accelerate the Work to achieve Substantial Completion of the Work by the Target
Substantial Completion Date.
GC20 WORK SITE SAFETY
20.1
The Contractor agrees to be the “prime contractor” for the purposes of all applicable
occupational health and safety Laws, including the Workers’ Compensation Act, and the
Contractor is responsible for filing any documents necessary to comply with the
Workers’ Compensation Act, including, but not limited to, a notice of project. The
Contractor will comply with all requirements with the Workers’ Compensation Act and
any other occupational health and safety Laws, applicable to the Project, the Work or to
the Work Site.
20.2
Prior to commencing the Work and as a condition of receiving payment on Substantial
Completion and on Total Completion, the Contractor will provide the School District
with satisfactory written evidence of compliance by the Contractor with all requirements
under the Workers’ Compensation Act, including payments of assessments due under it
to the Workers’ Compensation Board. Without limiting the foregoing, the School
District’s Representative may at any time require the Contractor to provide evidence of
compliance with all requirements under the Workers’ Compensation Act, or payment of
assessments due under it to the Workers’ Compensation Board, or both.
20.3
When required to do so by the School District, the Contractor will provide the School
District with evidence of its compliance and compliance of any or all of its
Subcontractors under GC20.2.
20.4
Following the Site Occupation Date, the Contractor will coordinate health and safety for
the Work Site for all activities performed by its workers as well as those of
Subcontractors, utilities, suppliers, inspectors, the School District, other contractors and
any others performing any activities at the Work Site.
20.5
The Contractor will establish, implement, and provide for the review by the School
District’s Representative, by no later than 30 days after the Effective Date, a “Health and
Safety Plan” that meets all applicable requirements of this Contract with respect to health
and safety at the Work Site and that addresses the safety of the public and the school
population attending the nearby existing school who may be active on property adjacent
to the Work Site. Unless expressly provided otherwise in the Contract, the Contractor
will provide safety fencing and hoarding as necessary to limit public access, including
student access, to the Work Site in accordance with the Health and Safety Plan.
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- 20 20.6
The Contractor will ensure that its Health and Safety Plan is consistent with, and
accommodates any requirements of, the School District’s policies regarding safety and
that it specifically addresses the safety of children who attend the nearby existing school.
20.7
The Contractor will maintain and comply with the Health and Safety Plan in all material
respects during execution of the Work.
20.8
Prior to any person accessing the Work Site pursuant to this Contract, the Contractor will
provide health and safety orientation and information to such person in accordance with
its Health and Safety Plan.
GC21 DOCUMENTS AT THE WORK SITE
21.1
The Contractor will keep 1 copy of the following documents at the Work Site in good
order and available to the School District’s Representative:
(a)
all current Contract Documents, including an executed copy of this Contract;
(b)
all shop drawings and a current and up-to-date set of Record Drawings; and
(c)
the Health and Safety Plan referred to in GC20.5.
GC22 CLEANUP AND FINAL CLEANING OF WORK
22.1
The Contractor will maintain the Work in a tidy condition and free from the accumulation
of waste products and debris, other than that caused by the School District, Other
Contractors or their employees.
22.2
The Contractor will remove all surplus products, tools, construction machinery and
equipment, and any waste and debris, and leave the Work and Work Site clean and
suitable for occupancy by the School District by the date of Substantial Completion or an
earlier date that the School District uses, or has advised the Contractor in writing that it
will use, the Work for the purpose intended.
22.3
Despite the foregoing, the Contractor is not required to remove waste on Total
Completion if such waste caused by the School District.
GC23 REMEDIAL WORK
23.1
The Contractor will do all remedial work that may be required to make all parts of the
Work comply with the Contract.
23.2
The Contractor will co-ordinate the Time Schedule for the Work to ensure that the
requirement under GC23.1 is kept to a minimum.
23.3
Remedial work will be performed by specialists familiar with the materials affected and
will be performed in a manner to neither damage nor endanger any Work.
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- 21 GC24 REJECTED WORK
24.1
Defective Work, whether the result of poor design, poor workmanship, use of defective
equipment or materials, or damage through carelessness, default or other acts of the
Contractor or any Subcontractor, and whether incorporated in the Work or not, which has
been rejected by the School District as failing to conform to any of the School District
Requirements, the Design or the Standards, will be removed promptly by the Contractor
and replaced and re-executed promptly and properly at the Contractor’s expense.
24.2
If the Contractor does not remove such defective Work within the time fixed by written
notice by the School District, the School District may remove them and store any
materials at the expense of the Contractor.
24.3
Other Contractor’s work destroyed or damaged by such removals or replacements will be
made good by the Contractor promptly at the Contractor’s expense.
24.4
If in the opinion of the School District it is not expedient to correct defective Work or
Work not done in accordance with the Contract Documents, the School District may
deduct from the Contract Price the value required for the School District to have the work
done by others, as determined by the School District.
GC25 WARRANTY
25.1
The Contractor will correct, at its own expense, any defects or deficiencies in the Work
which are determined by the School District to not comply with the School District
Requirements, the Design or the Standards or to be not in accordance with the Contract
Documents for a period applicable to each modular classroom that is 12 months from the
date of Substantial Completion of that modular classroom, plus an extension for each
month (calculated from the date of Substantial Completion) that the modular classroom
remains unoccupied after the date of Substantial Completion to a maximum extension of
6 months. The Contractor will provide to the School District the extended warranties
from Subcontractors or suppliers described in the Proposal Extracts or other Contract
Documents and any other extended warranties normally provided by Subcontractors or
suppliers.
25.2
The Contractor will correct, at its own cost, or pay the School District for any damage to
other work resulting from any corrections required under GC25.1.
25.3
Issuance of the certificates of Substantial Completion and of Total Completion, and final
payment to the Contractor, do not relieve the Contractor from its responsibility under this
GC25.
GC26 TITLE AND RISK
26.1
Title to the Work will vest only in the School District. Without prejudice to any of the
rights of the School District under this Contract, title to the Work or any part of the Work
will vest in the School District at the earliest of:
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- 22 (a)
the time that the Work or part of it is at the Work Site;
(b)
the time that the School District has paid for the Work or part of the Work; and
(c)
the time of installation or construction of the Work or part of the Work.
26.2
The Work and any part of the Work remains under the care, custody and control of the
Contractor and at the risk of the Contractor until completion of the whole of the Work as
determined by the School District or until such earlier date determined by the School
District, and notified in writing to the Contractor, for occupancy and use by the School
District. The Contractor will exercise all reasonable care to avoid loss of, or damage to,
the Work or any part of the Work until the whole of the Work has been completed.
26.3
The Contractor represents and warrants that title to the Work and any part of the Work
will pass to the School District free and clear of all liens, charges and encumbrances.
PART C - PAYMENT AND COMPLETION
GC27 APPLICATIONS FOR PAYMENT
27.1
The Contractor will make applications for payment in accordance with this GC27.
Applications for payment of milestone payments may be made upon the achievement of
the applicable payment event. Applications for payment will not be made more than
once each month, at the end of each month shown in the Time Schedule
27.2
Applications for payment will be dated the last day of the monthly period.
27.3
Applications for payment for any change in the Work that is not made on a milestone
basis will be made on the basis of the progress of the change. Pending determination of
the final result of any change in the Work, the undisputed value of the Work performed
as a result of a change is eligible to be included in applications for payment for the
relevant month.
27.4
Subject to any further information that may be required by the School District’s
Representative, an application for payment will include:
(a)
the payment events that have been achieved and the applicable milestone
payments;
(b)
payment amounts in respect of any changes in the Work not paid on a milestone
basis;
(c)
the balance of the Contract Price complete the Work;
(d)
the amount of Lien Holdback deduction calculated based on the provisions of the
Builders Lien Act;
(e)
the amount applied for in the application;
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- 23 (f)
the Statutory Declaration required as described in GC27.5; and
(g)
a clearance letter from the Workers Compensation Board indicating that all
current assessments due from the Contractor and all Subcontractors have been
paid.
27.5
An application for payment will be accompanied by a Statutory Declaration attesting that
all labour, suppliers, Subcontractors and consultants have been paid in full for goods and
services provided to the Project to the date of the previous application for payment
(excepting only Lien Holdback and amounts identified as being in dispute).
27.6
Applications for release of the Lien Holdback will be made under GC29 — Lien
Holdback and applications for any payment at Substantial Completion or Total
Completion will be made under GC30 – Substantial Completion and Total Completion.
27.7
The School District’s Representative will, within 14 days of receipt of the Contractor’s
application for payment and the Statutory Declaration, either:
(a)
accept the amount set out in the application for payment; or
(b)
adjust the amount of any payment to reflect the determination of whether the
relevant payment events have been achieved and whether the applicable progress
of any change in the Work has been satisfactorily performed as of the date of the
application for payment.
If the School District’s Representative amends the application for payment, the School
District’s Representative will promptly notify the Contractor in writing and give reasons
for the amendment.
27.8
Provided the Contractor is not in material default of any provision in this Contract, the
School District will pay the Contractor within 30 days of the School District’s
Representative accepting or adjusting the Contractor’s application for payment in
accordance with GC27.7. The School District is not required to pay interest on overdue
payments.
27.9
Whenever any sum of money is recoverable from or payable by the Contractor pursuant
to this Contract or is an amount for which the School District may be liable on account of
a default by the Contractor, the School District may deduct such sum from, or may
reduce, any amounts then due or that may thereafter become due to the Contractor under
this Contract. Without limiting the generality of the foregoing, the School District may
set-off any amounts for liquidated damages set out in this Contract.
GC28 TAXES AND DUTIES
28.1
The Contract Price is inclusive of all applicable taxes, other than value added taxes
including the harmonized sales tax (the “HST”). The School District will pay to the
Contractor any value added taxes on materials and services provided to the School
District by the Contractor as part of the Work and such taxes will be shown separately on
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- 24 payment applications made by the Contractor. The Contractor will remit to Canada all
value added taxes as and when required by the relevant legislation and will, without
limiting GC43 – Indemnification, indemnify and hold the Indemnified Parties harmless
from and against any value added tax under such legislation and other taxes, that the
Contractor fails to remit as and when due, and from and against any penalties and interest
which may be levied against the Indemnified Parties, and any costs, in respect thereof.
28.2
The Contractor will pay all applicable government value added taxes, customs duties and
excise taxes under the Excise Tax Act (Canada), payable in accordance with any
enactment with respect to any component of the Work.
28.3
Any increase or decrease in costs to the Contractor due to changes in taxes or duties that
are in effect at the date of the Contract (other than value added taxes payable by the
School District to the Contractor) will increase or decrease the Contract Price
accordingly.
28.4
Where an exemption or refund of taxes, customs duties or excise taxes is applicable to
this Contract by way of the Contractor filing claims for, or cooperating fully with the
School District and the proper authorities in seeking to obtain such exemption or refund,
the Contractor will make such applications and provide such cooperation.
28.5
Refunds that are properly due to the School District and have been recovered by the
Contractor will be promptly refunded to the School District.
GC29 LIEN HOLDBACK
29.1
The School District will retain and release the Lien Holdback in accordance with the
provisions of the Builders Lien Act.
29.2
For purposes of this Contract, the School District’s Representative will be the payment
certifier under the Builders Lien Act.
29.3
For purposes of progressive release of portions of the Lien Holdback in respect of
Subcontracts, the School District’s Representative will be the payment certifier under the
Builders Lien Act.
29.4
The Contractor will make application to the School District’s Representative for
certification under the Builders Lien Act. As a condition of making any application and
as a condition of any certification, the Contractor will provide the School District with all
information required by the School District’s Representative, including a complete copy
of any Subcontracts in respect of any certification of substantial performance of the
Subcontracts.
29.5
Without limiting GC43 – Indemnification, the Contractor will, at its sole risk and
expense, do everything necessary, including through the institution, prosecution or
defence of legal proceedings, to promptly discharge from title to the Work Site any
claims of builders’ lien, builders’ liens or certificates of pending litigation. If the School
District becomes aware that a claim of builders’ lien, builders’ lien or certificate of
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- 25 pending litigation is threatened or has been registered against title to the Work Site, the
School District may, in its sole discretion, withhold out of the Lien Holdback and any
other monies payable to the Contractor such amounts as the School District reasonably
considers necessary in order to secure the discharge of the claim of builders’ lien,
builders’ lien or certificate of pending litigation. The School District will cooperate with
the Contractor in securing the discharge of any of the foregoing, subject to such
arrangements being made as the School District reasonably considers necessary before
any such additional holdback monies are paid to any person or into court.
GC30 SUBSTANTIAL COMPLETION AND TOTAL COMPLETION
30.1
The Contractor may make application to the School District’s Representative for a
certificate of Substantial Completion at any time after it considers that it has achieved
Substantial Completion of the Work. “Substantial Completion” means that all of the
following have been achieved:
(a)
the School District’s Representative has certified that substantial performance of
the Work under the Builders Lien Act has been achieved;
(b)
the Work is ready for use by the School District or is being used by the School
District for the purpose intended, and the following items have been submitted to
the School District’s Representative or completed by the Contactor and the items
are acceptable to the School District’s Representative:
(i)
all equipment and mechanical systems essential to the operation of the
Project are in place and are fully operational;
(ii)
preliminary commissioning reports satisfactory to the School District;
(iii)
all manufacturer’s inspections, certifications, guarantees and warranties
specified in the Performance Specifications;
(iv)
maintenance manuals, operating instructions, maintenance and operating
tools, replacement parts or products as specified in the Performance
Specifications;
(v)
certification by all testing, cleaning, or inspection authorities or
associations;
(vi)
a clearance letter from the Workers Compensation Board indicating that
all current assessments due from the Contractor and all Subcontractors
have been paid;
(vii)
a statement reconciling all change orders and claims under the Contract
with respect to the Work to the date of the application for Substantial
Completion;
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- 26 (viii) all approvals necessary for the Project from local authorities having
jurisdiction;
(ix)
all submittals, certificates and evidence required for the School District to
obtain an occupancy permit as required from local authorities having
jurisdiction;
(x)
a Statutory Declaration stating that all accounts for labour, services,
subcontracts, materials, products, construction equipment and machinery
and other indebtedness which may have been incurred by the Contractor in
performing the Work and for which the Owner might in any way be held
responsible, have been paid in full except for amounts properly retained as
a holdback or as an identified amount in dispute;
(xi)
demonstration to the School District’s satisfaction of all mechanical and
electrically operated devices to the School District’s operating and
maintenance staff;
(xii)
the requirements of GC22.2 have been fulfilled; and
(xiii) any other conditions specified in the Contract with respect to achieving
Substantial Completion;
(c)
the Work is at least 98% complete as determined by the School District’s
Representative;
(d)
a comprehensive deficiency list, including an estimated value for each item, has
been submitted to the School District’s Representative by the Contractor; and
(e)
a schedule for completion of all remaining Work has been submitted to the School
District’s Representative by the Contractor.
For purposes of GC25 (Warranty) and any payment milestones in Schedule A2 –
Schedule of Prices for payment upon Substantial Completion of a modular classroom,
references to “Substantial Completion” mean that, with respect to the relevant modular
classroom, the Contractor has for that modular classroom achieved all of the
requirements of this GC 30.1 but is not required to obtain the certification under the
Builders Lien Act referred to in GC 30.1(a).
The School District’s Representative will not disapprove or delay issuance of the
certificate of Substantial Completion of a modular classroom for any items that the
Contractor cannot achieve as a result of the School District failing to perform its
obligations under this Agreement.
30.2
The School District’s Representative with input from the Contractor’s Consultant will,
not later than 14 days after the receipt of an application from the Contractor for a
certificate of Substantial Completion, review and assess the Work to verify the validity of
the application. The School District’s Representative will, not later than 7 days after the
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- 27 review, notify the Contractor of approval, or the reasons for disapproval, of the
application. The Contractor will remedy all defects in the application and any substantive
deficiencies that, in the opinion of the School District’s Representative, prevent the
issuance of a certificate and the School District’s Representative will within 7 days after
notice from the Contractor of rectification of the defects or deficiencies, approve or
disapprove of the application, and so on, until such time as the School District’s
Representative determines that Substantial Completion has been achieved. When the
School District’s Representative determines that Substantial Completion has been
achieved, the School District’s Representative will issue a certificate of Substantial
Completion. The date of Substantial Completion will be as stated in that certificate.
Immediately following the issuance of the certificate of Substantial Completion of the
Work, the School District’s Representative, with input from the Contractor, will establish
a reasonable date for Total Completion of the Project.
30.3
The School District may retain out of the amount due and owing to the Contractor upon
Substantial Completion:
(a)
any sums required by law to satisfy any liens against the Work;
(b)
an amount determined by the School District’s Representative to be equal to 2
times the estimated value of the work still to be satisfactorily performed or
replaced as specified in the list of deficiencies; and
(c)
any amount withheld pursuant to GC29.5.
30.4
Notwithstanding any other provision in this Contract, no payment will be made to the
Contractor after the payment determined by the School District’s Representative to be
due and owing upon certification of Substantial Completion of the Work until Total
Completion has been certified in accordance with this GC30.
30.5
The Contractor may make application to the School District’s Representative for a
certificate of Total Completion when:
(a)
the entire Work has been performed to the requirements of the Contract
Documents;
(b)
all deficiencies and incomplete Work previously identified have been rectified or
completed to the School District’s satisfaction;
(c)
the requirements of GC22 — Cleanup and Final Cleaning of Work have been
fulfilled; and
(d)
the following items have been submitted by the Contractor and are acceptable to
the School District:
(i)
all submittals, including certified Record Drawings in accordance with
GC31 — Record Drawings, final commissioning reports, final inspections
(structural, environmental, etc.) and deficiency reports;
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30.6
(ii)
a Statutory Declaration of an officer or senior management employee of
the Contractor that all accounts for labour, subcontracts, materials,
construction machinery and equipment, and other indebtedness, which
may have been incurred by the Contractor and for which the School
District might in any way be held responsible have been paid in full,
except Lien Holdback monies properly retained by the Contractor, and
that no notice of liens has been served on the Contractor in respect of
anything done under, or by virtue of this Contract, dated at least 45 days
after the date of substantial performance under the Builders Lien Act;
(iii)
a written statement of the Contractor that all claims for payment for Work
done under this Contract as of the date of the Contractor’s application for
a certificate of Substantial Completion including extras, change orders and
force account items have been presented to School District’s
Representative;
(iv)
a clearance letter from the Workers Compensation Board indicating that
all current assessments due from the Contractor and all Subcontractors
have been paid;
(v)
certification, acceptable to the School District, that all taxes, Employment
Assistance payments, Canada Pension Plan contributions, duties, royalties,
and all other monies required to be paid by law or statute have been paid
in full; and
(vi)
all warranties and guarantees from product manufacturers, Subcontractors
and suppliers.
The School District’s Representative will, subject to the conditions contained in GC30.5,
not later than 14 days after the receipt of an application from the Contractor for a
certificate of Total Completion of the Work, review and assess the Work to verify the
validity of the application. If such review reveals that previously identified deficiencies
or incomplete work have not been corrected in a manner satisfactory to the School
District, making additional reviews by the School District’s Representative necessary, the
Contractor will be responsible for all additional costs of further reviews as determined by
the School District’s Representative, such costs to be deducted from the monies due to
the Contractor upon Total Completion. The School District’s Representative will, not
later than 7 days after the review, notify the Contractor of approval or the reasons for
disapproval of the application. The Contractor will rectify all defects in the application
and all deficiencies and incomplete Work. If the Contractor remedies all such
deficiencies and defects, the School District will, within 7 days after notification by the
Contractor of such rectification, approve or disapprove of the application, and so on, until
Total Completion is reached. When the School District’s Representative finds that Total
Completion has been reached, the School District’s Representative will promptly issue a
certificate of Total Completion and certify for payment the monies due to the Contractor
under this Contract, less any amount still retained for the Lien Holdback monies, amounts
withheld under GC29.5 or any amount set-off in accordance with GC27.9. Subject to the
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- 29 foregoing, the School District will, not later than 30 days after the issuance of such
certificate, make final payment to the Contractor in accordance with the provisions of this
Contract.
30.7
No payment made by the School District under this Contract, or partial or entire use or
occupancy of the Work by the School District, will constitute an acceptance of Work not
in accordance with the requirements of the Contract Documents.
30.8
By issuing any certificate, the School District’s Representative and the School District do
not guarantee, or otherwise become liable or responsible in any way for, the correctness
or completeness of the Work, including the Design, and no certificate makes the School
District’s Representative or the School District in any way responsible or liable for
adequacy of the Design or for the Work, all of which remain the responsibility of the
Contractor.
30.9
As of the date of Total Completion, the Contractor expressly waives and releases of the
School District from all claims against the School District, including without limitation
those that might arise from the negligence or breach of this Contract by the School
District, except those made in writing prior to the Contractor’s application for payment
upon Total Completion and still unsettled.
30.10 In the event of conflict between the provisions of this GC30 and any other GC or the
Contract, the provisions of this GC30 govern.
30.11 Without limiting any other withholding or set-off under this Contract, the School District
may deduct from any payment to the Contractor under this Contract the amount paid by
the School District to put the Contractor into the compliance with the Insurance
Conditions if the Contractor has defaulted in complying with the Insurance Conditions.
GC31 RECORD DRAWINGS
31.1
Before issuance of the certificate of Total Completion, the Contractor will provide to the
School District the following:
(a)
2 complete sets of paper print Record Drawings and Specifications, signed and
sealed by the Contractor’s Consultant, showing the as-built Work and identified in
bold letters with the words “CERTIFIED AS-BUILT”; and
(b)
2 complete copies of the Record Drawings on CD in AutoCAD DXF, AutoCAD
DWG and Adobe PDF format.
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PART D - CHANGES
GC32 DELAYS
32.1
32.2
32.3
If, in the opinion of the School District’s Representative, the Contractor is delayed in
performing a task or task on the critical path of the Work as a direct result of a failure of
the School District to provide access to the Work Site, or a material breach by the School
District of the terms of this Contract, then:
(a)
the Contract Time will be extended for such reasonable time as may be agreed by
the School District and the Contractor, acting reasonably, and the Contractor will
be reimbursed for any costs directly incurred by it as the result of such delay,
determined in accordance with GC35 — Determination of Cost; or
(b)
if the School District determines that the Target Substantial Completion Date can
still be met and requests in writing that the Contractor accelerate the Work, the
Contractor will accelerate its efforts to meet the Target Substantial Completion
Date. The Contractor will be reimbursed for all reasonable and direct costs
incurred by it as a result of undertaking such acceleration efforts.
If, in the opinion of the School District’s Representative, the Contractor is delayed in
performing a task or task on the critical path of the Work by an order issued by any court
or public authority having jurisdiction, and providing that such order was not issued as
the result of any act or fault of the Contractor or of anyone employed by it, then:
(a)
the Contract Time will be extended for such reasonable time as determined by the
School District, acting reasonably, that is not less than the time that the critical
path of the Work was delayed; or
(b)
if the School District determines that the Target Substantial Completion Date can
still be met and requests in writing that the Contractor accelerate the Work, the
Contractor will accelerate its efforts to meet the Target Substantial Completion
Date. The Contractor will be reimbursed for all reasonable and direct costs
incurred by it as a result of undertaking such acceleration efforts.
If, in the opinion of the School District’s Representative, the Contractor is delayed in
performing a task or task on the critical path of the Work by an event of Force Majeure,
then:
(a)
the School District will extend the Contract Time for such reasonable time as
determined by the School District, acting reasonably, but in no case will such an
extension of time be less than the time of delay in the critical path of the Work as
a result of the event of Force Majeure causing the delay, unless a shorter
extension of time is agreed to by the Contractor; or
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- 31 (b)
if the School District determines that the Target Substantial Completion Date can
still be met and requests in writing that the Contractor accelerate the Work, the
Contractor will accelerate its efforts to meet the Target Substantial Completion
Date. The Contractor will be reimbursed for all reasonable and direct costs
incurred by it as a result of undertaking such acceleration efforts.
32.4
If the Contractor is delayed in the performance of the Work for any reason other than that
for which an extension of time is permitted under this GC32 or if the Contractor does not
perform the Work substantially in accordance with the Time Schedule to meet the Target
Substantial Completion Date, the Contractor will at its cost accelerate the Work to meet
the Target Substantial Completion Date.
32.5
The Contractor is not entitled to any extension of time or any reimbursement of costs for
delay under this GC unless written notice is given to the School District not later than 7
days of the date that the Contractor becomes aware of the event causing the delay, but in
the case of a continuing cause of delay, only 1 notice is necessary.
32.6
In the case of any delay under GC32.1, GC32.2 or GC32.3 the Contractor will use
commercially reasonable efforts to mitigate the costs and impacts of the delay including
removing the cause of the delay as promptly as practicable such that the Time Schedule is
maintained and that acceleration efforts, if requested by the School District, are
minimized.
GC33 CHANGES IN THE WORK
33.1
The School District, without invalidating this Contract, may by written notice to the
Contractor make changes to the scope of the Work by altering, adding to, or deducting
from the Work, with the Contract Price and Contract Time being adjusted in accordance
with GC34 — Valuation and Certification of Changes in the Work. The School District’s
Representative may issue any Change Order, which can include a stop Work order or
resume Work order, to the Contractor’s Representative or to any other person authorized
by the Contractor to receive a Change Order.
33.2
No change to the scope of the Work will be made without a written order from the School
District, and no claim for an addition or deduction to the Contract Price, or change in the
Contract Time, will be valid unless so ordered and at the same time valued or agreed to
be valued as provided for in GC34 — Valuation and Certification of Changes in the
Work.
33.3
The School District’s Representative may, at anytime, require the Contractor to assess the
impact of a proposed Change Order on the Contract Price and the Time Schedule and the
Contractor will provide such impact assessment and the School District’s Representative
and the Contractor will agree to changes to Contract Price as set out in GC34 —
Valuation and Certification of Changes in the Work and the Time Schedule, failing which
the Dispute will be resolved in accordance with the provisions of GC49 — Dispute
Resolution.
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- 32 GC34 VALUATION AND CERTIFICATION OF CHANGES IN THE WORK
34.1
34.2
The value of any change in the Work will be determined by one or more of the following
methods:
(a)
by estimate and acceptance in a lump sum; or
(b)
by unit prices or fee rates agreed upon.
The following process will be followed for changes in the Work:
(a)
when a change in the Work is proposed or required by the School District, the
Contractor will promptly, and in any case within 10 days after the change in the
Work is proposed or required by the School District, present to the School District
its claims for any change to the Contract Price or change in the Contract Time, or
both, which arise from the change. Where the Contractor claims a change in
Contract Time, the Contractor will provide full cost and other information
regarding an option to accelerate the Work to achieve the Target Substantial
Completion Date; and
(b)
when the School District and Contractor agree to the change in the Work,
including adjustments in the Contract Price and Contract Time, the basis of
payment on a milestone or progress basis, or to the method to be used to
determine the adjustments, such change will be effective when recorded in a
written document executed by the School District and Contractor (the “Change
Order”).
The School District may also specify other processes for changes in the Work or
contemplated changes in the Work and the Contractor will comply with those processes.
34.3
In the case of changes in the Work to be paid for under GC34.2(b), the form of
presentation of costs and methods of measurement will be agreed to by the School
District and the Contractor before proceeding with the change. The Contractor will keep
accurate records of quantities or costs as agreed upon and will present an account of the
costs of the change in the Work, together with vouchers where applicable, at least once
each month during performance of the change in the Work, and will present a final
account upon completion of the change in the Work.
34.4
If the methods of valuation, measurement and value of any change cannot be promptly
agreed upon, and in any case within 7 days after the proposed change, and the change is
required by the School District to be proceeded with, then the change in the Work will be
performed by the Contractor and the value of the change will be determined in
accordance with the Dispute resolution process described in GC49 — Dispute
Resolution.
34.5
It is intended in all matters involving changes in the Work that both the School District
and the Contractor will act promptly and in accordance with the times set out in this
GC34.
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- 33 GC35 DETERMINATION OF COST
35.1
Subject to GC35.2 whenever it is necessary for the purposes of this Contract to determine
the cost of labour, equipment or material, the cost of such labour, equipment or material
will be the amount agreed upon by the Contractor and the School District from time to
time within a reasonable time after the issue arises in any given instance.
35.2
If the Contractor and the School District cannot agree as to the cost of labour, equipment
or material as contemplated in GC35.1, the cost of labour, equipment or material for the
purposes of these GCs will be equal to the aggregate of:
35.3
(a)
all reasonable and proper amounts actually expended by or legally payable by the
Contractor in respect of the labour, equipment or material which fall within 1 of
the classes of expenditures described in GC35.3, (being costs which are directly
attributable to the performance of the Work and are not costs in respect of which
the allowance in GC35.2(b) is made); plus
(b)
a markup for overhead of 10% and a markup for profit of 5%.
Classes of expenditure that are allowable for the purposes of GC35.2 are:
(a)
payments to the Contractor’s Consultant or Subcontractors that comply with
GC35.2(a), but, notwithstanding GC35.2(b), the percentage applied to such
payments to the Contractor’s Consultant and Subcontractors will for the purposes
of GC35.2(b), be 5%;
(b)
wages, salaries and traveling expenses of employees of the Contractor while they
are actually and properly engaged on the Work, other than wages, salaries,
bonuses, living and traveling expenses of personnel of the Contractor generally
employed at the head office, or at a general office, of the Contractor unless such
personnel is engaged at the Work Site, with the approval of the School District;
(c)
payments for materials necessary for and incorporated in the Work or necessary
for and consumed in the performance of the Work;
(d)
payment for equipment necessary for and incorporated in the Work;
(e)
payments for tools, other than tools customarily provided by tradespersons,
necessary for and used in the performance of the Work;
(f)
payments for preparation, inspection, delivery, installation, commissioning and
removal of equipment and materials necessary for the performance of the Work;
(g)
assessments payable under any statutory scheme relating to workers
compensation, unemployment insurance, or holidays with pay;
(h)
payments for renting equipment (but not tools), allowances for equipment (but not
tools) owned by the Contractor, necessary for the performance of the Work,
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- 34 provided that such payments or allowances are reasonable or have been agreed to
by the Contractor and the School District; and
(i)
other payments, made with the prior approval of the School District, that are
necessary for the performance of the Work, as determined by the School District
in its sole discretion.
PART E - DEFAULT AND TERMINATION
GC36 DEFAULT & TAKING WORK OUT OF THE CONTRACTOR’S HANDS
36.1
Without limiting GC37 — Suspension of Work, Termination for Convenience, if the
School District’s Representative determines that the Contractor has neglected to perform
the Work in accordance with the School District Requirements, the Design or the
Standards, or has failed to comply with any obligation under this Contract, including
failing to adhere to the Time Schedule, the School District may notify the Contractor in
writing that the Contractor is in default and if the School District so instructs, the
Contractor will correct the default within 7 days after receiving the notice.
36.2
lf correction of the default cannot be completed within the 7 days, the Contractor will be
considered to be in compliance with the School District’s instructions if it does all of the
following:
(a)
commences correction of the default within the specified time;
(b)
provides the School District with a schedule for correction acceptable to the
School District’s Representative; and
(c)
completes the correction in accordance with the accepted schedule.
36.3
If the Contractor fails to comply with GC36.1 or GC36.2, the School District may,
without prejudice to any other right or remedy it may have, take all or part of any of the
Work out of the Contractor’s hands and may employ such means as the School District
determines are appropriate to make good the default or complete the Work, or both.
36.4
If the School District takes all or part of any of the Work out of the Contractor’s hands,
the School District will be entitled to:
(a)
charge the Contractor the amount of the full cost of finishing such Work plus a
reasonable allowance to cover the cost of correcting Work pursuant to GC25 Warranty and deduct such amount from the unpaid balance of the Contract Price
and, if such amount is less than the unpaid balance of the Contract Price, the
School District will pay the Contractor the difference; and
(b)
on expiry of the Warranty Period charge the Contractor the amount of the cost of
corrections to the Work pursuant to GC25 — Warranty and deduct such amount
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- 35 from any allowance provided for such corrections, and if such amount is less than
the allowance, pay the Contractor the difference.
36.5
Despite GC36.4, where the Work or any portion thereof has been taken out of the
Contractor’s hands under GC36.3 and the portion is subsequently completed by a surety
under a bond provided by the Contractor under this Contract, or by the School District,
the School District may determine the amount, if any, due and payable but not paid at the
time of taking the Work out of the Contractor’s hands that is not necessary to hold the
School District harmless from all cost, loss and damage suffered by the School District
by reason of the default of the Contractor and by reason of non-completion of the Work
by the Contractor, and the School District may, if no financial prejudice to the School
District will result, pay that amount to the Contractor.
36.6
The taking of the Work, or any portion thereof, out of the Contractor’s hands pursuant to
GC36.3 does not relieve or discharge the Contractor from any obligations under this
Contract or imposed upon it by any Standards, except the obligation to perform the
portion of the Work so taken out of its hands.
GC37 SUSPENSION OF WORK, TERMINATION FOR CONVENIENCE
37.1
Notwithstanding that the Contractor may not be in default of the terms of this Contract, if
conditions arise which in the School District’s reasonable opinion make it necessary, the
School District may suspend performance of the Work or terminate this Contract by
giving 5 days written notice to that effect to the Contractor and the suspension or
termination is effective in the manner specified in the notice.
37.2
Without limiting GC37.1, the School District’s Representative may, if it determines that
there is an emergency, by notice to the Contractor, do either or both of the following:
(a)
suspend the Work whenever in its opinion such suspension may be necessary to
ensure the safety or life of others or of the Work or neighbouring property; or
(b)
make changes in the Work, and order, assess and award the cost of such changes
that are extra to the Contract Price in accordance with GC34 – Valuation and
Certification of Changes in the Work and GC35 – Determination of Cost as
determined to be necessary.
37.3
The School District’s Representative will within 2 Business Days after a change under
GC37.2(b), confirm in writing any change instructions and if a change in the Work has
been performed by order of the School District’s Representative, the Contractor retains
its right to claim the value of such change in the Work.
37.4
The Contractor upon receiving notice of suspension or termination from the School
District will immediately suspend all operations except those, which, in the Contractor’s
reasonable opinion, are necessary to ensure the safety of personnel and the public or for
the care and preservation of the Work and materials. Subject to any directions in the
notice of suspension or termination, the Contractor will discontinue ordering materials,
will not enter into any further subcontracts (except such subcontracts as are necessary for
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- 36 the safety of personnel or for the care and preservation of the Work), and will make every
reasonable effort in the event of termination to cancer existing subcontracts and orders on
the best terms available.
37.5
During the period of suspension the Contractor will not remove from the Work Site any
of the Work, or any material, without the prior written consent of the School District’s
Representative.
37.6
If the period of suspension is 30 days or less, the Contractor, upon the expiration of the
period of suspension, will resume the performance of the Work and will be paid for all
costs reasonably incurred by the Contractor in complying with the suspension,
determined in accordance with GC35 — Determination of Cost and for costs reasonably
incurred for acceleration of the Work so that Substantial Completion of the Work are
achieved by the Target Substantial Completion Date where the School District requires
such acceleration by written notice to the Contractor.
37.7
If the period of suspension is greater than 30 days and, before 120 days after the date of
the notice of suspension, the School District and the Contractor agree to continue with
and complete the Work, the Contractor will resume operations and complete the Work in
accordance with any terms and conditions agreed upon by the School District and the
Contractor.
37.8
If the period of suspension is greater than 30 days and the School District and the
Contractor do not agree to continue with and complete the Work, or they fail to agree on
the terms and conditions upon which the Contractor is to resume operations and complete
the Work, before 120 days after the date of the notice of suspension, this Contract will be
deemed to have been terminated.
37.9
If this Contract is terminated pursuant to this GC37, the School District will pay the
Contractor:
(a)
in accordance with the Contract Documents, for all Work performed and for all of
the Contractor’s obligations under subcontracts which it was unable to cancel, or
asked by the School District not to cancel, less any payments made by the School
District prior to termination; and
(b)
all costs reasonably incurred by the Contractor in complying with the suspension
or termination order, determined in accordance with GC35 — Determination of
Cost, less any costs already paid to the Contractor pursuant to GC37.6.
37.10 The Contractor’s obligations as to quality, correction and warranty of any Work
performed continue in force after termination under this GC37.
37.11 The Contractor, by giving written notice to the School District, may suspend performance
of the Work or terminate this Contract if the Work is stopped for a period in excess of 30
days by an order of any court or public authority having jurisdiction through no act or
fault of the Contractor or of anyone employed by it.
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- 37 GC38 DEFAULT AND TERMINATION OF CONTRACT
38.1
The School District may give notice to the Contractor of default under this Contract if the
Contractor:
(a)
is adjudged bankrupt, makes a general assignment for the benefit of creditors, or a
receiver is appointed on account of its insolvency;
(b)
abandons the Work;
(c)
refuses or fails to supply sufficient properly skilled workers or proper material
after 7 days’ written notice from the School District;
(d)
fails to make prompt payment when due to its Subcontractors, suppliers or
workers;
(e)
has delivered a Statutory Declaration in support of application for a payment
under this Contract that the School District’s Representative, acting reasonably,
determines was false or materially inaccurate;
(f)
breaches the provisions of this Contract, including by failing to adhere to the
Time Schedule or by failing to construct the Work in accordance with the
Contract Documents;
(g)
neglects to construct the Work in accordance with the Design; or
(h)
has made an assignment of this Contract without the required consent of the
School District.
38.2
On the happening of a default, other than a default referred to in GC38.1(a) or 38.1(b),
the School District’s Representative may waive the default, or specify in writing a 7 day
rectification period within which the Contractor will remedy the default.
38.3
If a default referred to in GC38.1(a) or 38.1(b) occurs or if the Contractor does not rectify
any other default referred to in GC38.2 within the 7 day rectification period, the School
District may suspend the Work or terminate this Contract, without prejudice to any other
right or remedy the School District may have.
38.4
If the School District terminates this Contract under GC38.3, the Contractor will not be
entitled to any further payment, and without limiting any other remedies available to the
School District, the School District may charge the Contractor the amount by which the
full cost of completing the Work, as certified by the School District’s Representative
(including compensation to the School District’s Representative for its additional services
and a reasonable allowance as determined by the School District’s Representative to
cover the cost of any corrections required by GC24 — Rejected Work), exceeds the
unpaid balance of the Contract Price.
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The rights, powers, and remedies conferred on the School District under this Contract are
not intended to be exclusive but are cumulative and are in addition to and not in
substitution for any other right, power and remedy existing under this Contract, under any
other Contract, at law or in equity. The exercise by the School District of any right,
power or remedy does not preclude the simultaneous or later exercise by the School
District of any other right, power or remedy.
GC39 TERMINATION BY THE CONTRACTOR
39.1
The Contractor may by giving written notice to the School District’s Representative,
declare the School District in default of this Contract for any of the following reasons:
(a)
the School District has failed to pay the Contractor within 30 days of the date that
any payment becomes due to the Contractor in accordance with the terms of this
Contract, unless the School District is bona fide disputing liability to make such
payment and has provided notice to the Contractor of the basis for its dispute
before the time provided in GC27.7 for payment of invoices; or
(b)
the School District has failed to substantially supply the Work Site to the
Contractor, subject to any property availability restrictions identified in this
Contract, within 180 days following the Site Occupation Date proposed by the
Contractor and accepted by the School District in the Time Schedule or otherwise
amended pursuant to this Contract.
39.2
On the happening of a default by the School District referred to in GC39.1, the
Contractor will either waive the default or specify in writing a 21 day rectification period
within which the School District will remedy the event of default.
39.3
If the School District fails to remedy the default within the rectification period or any
extension thereof established in accordance with GC39.2, the Contractor may:
39.4
(a)
further extend the rectification period;
(b)
suspend the Work;
(c)
terminate this Contract; or
(d)
within 7 days of the end of the rectification period provide notice to the School
District, in writing, that it waives the default, that it further extends the
rectification period or that it terminates the Contract.
If the Contractor terminates this Contract in accordance with GC39.3(c), the Contractor is
entitled to be paid:
(a)
in accordance with the terms of this Contract for all Work satisfactorily performed
to the date of termination; and
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expenses of the Contractor which are directly related to the termination and
reasonable in the circumstances including the Contractor’s obligations to other
parties.
PART F - REPRESENTATIONS, WARRANTIES AND INDEMNITIES
GC40 REPRESENTATIONS AND WARRANTIES
40.1
The Contractor covenants, represents, and warrants to the School District as of the date of
this Contract and at all times throughout the Term that:
(a)
all necessary proceedings have been taken to authorize the Contractor to enter into
this Contract and to execute and deliver this Contract;
(b)
the Contract has been properly executed by an authorized signatory of the
Contractor and is enforceable against the Contractor in accordance with its terms;
(c)
the Contractor has filed all tax, corporate information, and other returns required
to be filed by all Laws, has complied with all workers’ compensation legislation
and other similar legislation to which it is subject, and has paid all taxes, fees, and
assessments due by the Contractor under those laws as of the reference date of
this Contract, except for Lien Holdback monies properly retained, payments
deferred by Contract, and accounts withheld by reason of legitimate dispute;
(d)
the Contractor holds all permits, licences, consents, and authorities issued by any
level of government, or any agency of any level of government, that are required
by all Laws to conduct its business and perform the Work;
(e)
the Contractor has paid and will pay punctually, as they become due, all accounts,
expenses, wages, salaries, taxes, rates, fees and assessments required to be paid by
it on any of its undertakings and will so do in respect of the Work and fulfillment
of its obligations under this Contract;
(f)
the Contractor acknowledges that the investigations made by the School District
of the conditions of the Work Site, including subsurface conditions, are of a
preliminary nature and are made for the purpose of study and preliminary design
for the sole benefit of the School District only except for objective geotechnical
data which can be relied upon by the Contractor for accuracy but not
interpretation, sufficiency or relevance;
(g)
any statement, representation, or information, whether oral or written, made,
furnished, or given by the Contractor’s directors, officers or agents or the
Contractor’s Representative to the School District or any of its representatives or
consultants in connection with this Contract is materially correct and accurate;
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40.2
(h)
the Contractor has no knowledge of any fact that materially adversely affects or,
so far as it can foresee, might materially adversely affect either its financial
condition or its ability to fulfill its obligations under this Contract;
(i)
there is no bona fide proceeding pending or threatened against the Contractor,
which would, if successful, materially adversely affect the ability of the
Contractor to fulfill its obligations under this Contract;
(j)
the Contractor is not in breach of any law, by-law, or regulation that is material to
performance of the Contractor obligations under this Contract;
(k)
the Key Personnel, or any substitute with equivalent qualifications proposed by
the Contractor who have been first been expressly accepted in writing by the
School District, will be available and fully involved in the performance of the
Work;
(l)
the Contractor acknowledges that it has the responsibility for informing itself of
all aspects of the Project and all information necessary to perform the Work; and
(m)
the Contractor is registered for the purposes of the goods and services tax under
the Excise Tax Act (Canada) under the number set out on the first page of this
Contract.
The School District covenants, represents, and warrants to the Contractor that:
(a)
it has been properly constituted pursuant to applicable legislation;
(b)
it has been properly authorized to fulfill the obligations of the School District
under this Contract; and,
(c)
it has the power, capacity and authority to enter into this Contract and to carry out
its obligations under this Contract.
GC41 PROTECTION OF WORK AND PROPERTY
41.1
The Contractor will protect the Work Site and the property adjacent to the Work Site
from damage and, without limiting GC43 – Indemnification, will hold the School District
harmless from any claims which may arise as the result of its operations under this
Contract, or from its failure to provide such protection, or both.
41.2
The Contractor will protect the Work and the School District’s property on the Work Site
from damage. The Contractor will also be responsible for any damage which may arise as
the result of its operations under this Contract except damage which occurs as the result
of actions of the School District, its agents, employees or Other Contractors.
41.3
Should any damage occur to the Work or the School District’s property, or both, for
which the Contractor is responsible, it will make good such damage at its own expense or
pay all costs incurred by others in making good such damage.
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Should any damage occur to the Work or the School District’s property, or both, for
which the Contractor is not responsible, it will make good, at the School District’s
expense, such damage to the Work and, if the School District so directs, to the School
District’s property, and the Contract Price and Contract Time will be adjusted in
accordance with GC33 — Changes in the Work and GC34 — Valuation and Certification
of Changes in the Work.
GC42 DAMAGES AND MUTUAL RESPONSIBILITY
42.1
If either party to this Contract should suffer damage in any manner because of any
wrongful act or neglect of the other party or of anyone for whom the other party is
responsible in Law, then that party will be reimbursed by the other party for such
damage. The reimbursing party will be subrogated to the rights of the other party in
respect of such wrongful act or neglect if it be that of a third party.
42.2
Claims for damage under GC42.1 will be made in writing to the party liable within
reasonable time after the first observance of such damage and if undisputed will be
confirmed by Change Order. Disputed claims will be resolved as set out in GC49 —
Dispute Resolution.
42.3
If the Contractor has caused damage to the work of an Other Contractor, the Contractor
agrees upon due notice to settle with the Other Contractor by negotiation or arbitration. If
the Other Contractor makes a claim against the School District on account of damage
alleged to have been so sustained, the School District will notify the Contractor and may
require the Contractor to defend the action at the Contractor’s expense. The Contractor
will satisfy any final order or judgment against the School District and will pay the costs
incurred by the School District, including legal costs on a solicitor and own client basis,
arising from such action.
42.4
Under no circumstances will the Contractor be entitled to any compensation or payment
not specifically provided for in the Contract including, without limitation, any payment
for loss of profits or consequential damage or loss.
GC43 INDEMNIFICATION
43.1
The Contractor will indemnify and save harmless and assume the defence of the School
District, the Province and their respective officers, employees, representatives (including
the School District’s Representative and the Progress Monitor), consultants and agents
(collectively the “Indemnified Parties”), from and against any and all losses, claims,
damages, actions, causes of action, costs and expenses that any of the Indemnified Parties
may sustain, incur, suffer or be put to at any time either before or after the expiration or
termination of this Contract, where the same or any of them are based upon, arise out of
or occur, directly or indirectly, by reason of any act, omission, negligence or misconduct
of the Contractor or of any representative, agent, employee, officer, director, consultant
or Subcontractor of the Contractor, excepting only liability to the extent arising out of the
independent negligent acts of the Indemnified Parties.
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The Contractor agrees that all indemnities under the Master Agreement in favour of the
School District and its officers, employees, representatives (including the School
District’s Representative), consultants and agents may be enforced directly against the
Contractor. The Contractor agrees that all indemnities under this Contract in favour of
the Province and its officers, employees, representatives (including the Progress
Monitor), consultants and agents may be enforced directly against the Contractor.
43.3
GC43 — Indemnification will govern over the provisions of GC42 — Damages and
Mutual Responsibility.
43.4
Notwithstanding the obligation of the Contractor to assume the defence of any claims or
action against the School District under GC43.1, the School District may retain its own
counsel to represent it, and the Contractor will reimburse the School District for the
actual cost of that counsel including all fees and disbursements.
43.5
The obligations of the Contractor under this GC43 — Indemnification will not be
affected by completion or termination of this Contract, whether for default or otherwise,
or suspension of the Work or any withdrawal of services or labour from the Project.
43.6
Neither the requirement of the Contractor to purchase and maintain insurance as
described in the Insurance Conditions nor the acceptance of evidence of such insurance
by the School District will, in any manner, limit or qualify the right of the School District
to make a claim and recover insurance proceeds under the insurance policies described in
the Insurance Conditions or the liability and obligations otherwise assumed by the
Contractor under this Contract.
GC44 CONTRACTOR’S DISCHARGE OF LIABILITY
44.1
The Contractor will discharge all liabilities incurred by it, including for labour,
equipment, materials or services used or reasonably required for use, in the performance
of this Contract, on or before the date each becomes due.
44.2
The Contractor will include as a condition of every Subcontract that the Subcontractor
discharge all liabilities incurred by it, including for labour, equipment, materials, supplies
or services used or reasonably required for use, in the performance of the Subcontract, on
or before the date upon which each becomes due.
44.3
The Contractor will furnish the School District with satisfactory evidence that its
liabilities and those of Subcontractors have been discharged, such satisfactory evidence to
be a Statutory Declaration sworn by a knowledgeable officer or senior management
employee of the Contractor or Subcontractor, as the case may be, or such other evidence
as the School District may require.
44.4
The Contractor will not directly or indirectly create, incur, assume or allow to be created
by any of its Subcontractors, labourers or suppliers any lien, charge or encumbrance on
the Work Site, Project or any part thereof or interest therein. The Contractor will
immediately notify the School District of any lien, charge or encumbrance asserted upon
the Work Site, the Project or any part thereof.
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PART G - CONTRACT SECURITY, RECORDS, REPORTS AND AUDIT
GC45 BOND AND INSURANCE
45.1
The Contractor will prior to commencement of the Work furnish a performance bond in
a sum equal to 50% of the total Contract price. The bond must be issued by a surety
company acceptable to the School District and authorized to transact the business of
suretyship in British Columbia and will be maintained in good standing until the
fulfillment of the Contract. The surety bond is to be held by the School District to
guarantee the Contractor's performance of the Contract.
45.2
The Contractor will pay for and maintain the bond in force during the Term.
45.3
If the surety notifies either party that the bond described in GC45.1 is or is going to be
terminated or cancelled for any reason whatsoever, the Contractor will obtain and provide
the School District’s Representative with a valid bond effective from the date of
termination or cancellation of the original bond which comply with the bonding
requirements of this Contract.
45.4
The Contractor will, as part of the Contract Price, obtain and maintain during the Term
the insurance required by the Insurance Conditions, and otherwise will comply with the
Insurance Conditions.
45.5
Before beginning the Work, the Contractor will deliver to the School District certified
copies of all insurance coverage obtained by the Contractor in accordance with the
Insurance Conditions, or such other proof of that insurance as is satisfactory to the School
District, acting reasonably.
45.6
The School District’s Representative may require the Contractor to obtain the written
consent of the insurer or surety or both to any Change Order.
45.7
The Contractor will notify its surety and insurer of any event or circumstances, including
but not limited to a change to the Scope of Work or change to the Time Schedule that
could result in such event or circumstances not being covered under the bond or
insurance and update its bond or insurance coverage accordingly.
45.8
If an issuing company notifies either party that they decline consent or coverage for any
Change Order or change to Scope of Work, the Contractor will obtain and provide the
School District’s Representative with valid additional bond or insurance, satisfactory to
the School District’s Representative and complying with bonding requirements for the
bond as set out in this GC45 and the Insurance Conditions covering the Work specified in
the Change Order, which comply with this Contract.
45.9
In addition to any obligation the Contractor may have to notify any insurer or insurers or
any regulatory agency, the Contractor will give written notice to the School District’s
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- 44 Representative at such address as the School District or School District’s Representative
may from time to time direct in writing:
(a)
of any material accident or occurrence during occupation of the Work Site by the
Contractor until the issuance of the Total Completion Certificate, enclosing
pertinent details of the accident or occurrence, within 7 days from the date on
which the accident or occurrence arises or occurs;
(b)
any professional liability or errors and omissions claims; and
(c)
within 14 days following final disposition of any material accident, occurrence, or
claim enclosing pertinent details.
GC46 RECORDS
46.1
The Contractor will, in connection with this Contract:
(a)
establish and maintain, at a location within British Columbia, accurate books of
account and records (including supporting documents) to the satisfaction of the
School District’s Representative;
(b)
forthwith following the request of the School District’s Representative, give
written particulars of the location of the books of account and records; and
(c)
permit the School District or its consultants and representatives at any time during
normal business hours, to copy or audit any one or more of the books of account
or records (including supporting documents),
for 6 years following the Total Completion Date or until the date any proceeding, claim,
Dispute, audit, arbitration, or litigation arising in connection with this Contract is
resolved or completed, whichever is later.
46.2
The Contractor will permit the School District and its consultants and representatives at
all reasonable times during the Term to inspect and copy any or all of the material and
documentation relating to the Project.
GC47 REPORTS
47.1
The Contractor will, upon the request of the School District’s Representative:
(a)
fully inform the School District’s Representative of Work done and to be done by
the Contractor and, if requested by the School District’s Representative, submit
that information in writing; and
(b)
permit the School District’s authorized representatives or consultants at all
reasonable times to inspect and copy any findings, data, specifications, drawings,
working papers, reports, documents and material whether complete or otherwise
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on behalf of the School District to the Contractor as a result of the Contract.
GC48 AUDIT
48.1
The School District may, in its discretion, have its authorized representatives or
consultants conduct an audit of all books and records of the Contractor that, in any way,
relate to the Project or to any claim or Dispute and has all powers necessarily incidental
to conducting an audit including, without limitation, the right to inspect and take copies
of the books and records of the Contractor in connection with this Contract upon
reasonable notice and at reasonable times.
48.2
Without limiting the generality of GC48.1 and subject to Laws respecting privacy, the
Contractor will make available to any authorized representatives or consultants of the
School District all information concerning the Project including, without limitation, the
following:
(a)
diaries, daily time sheets, supervisors’ daily reports;
(b)
insurance, welfare, and benefits records;
(c)
payroll registers and tax forms;
(d)
invoices and requisitions;
(e)
cost distribution worksheets;
(f)
equipment records (including, without limitation, hours of use and distribution);
(g)
invoices from vendors, rental agencies, Subcontractors and agents;
(h)
payment certificates of Subcontractors and agents; and
(i)
cancelled cheques (payroll and vendors).
Without limiting the generality of GC48.1, the Contractor will make available to any
authorized representative of the School District all information and documents relating to
each Dispute that fully supports entitlement to any claim or Dispute including all
information and details regarding the magnitude of any claim or Dispute including
worksheets used to establish the cost components for all items of each claim or Dispute.
48.3
The Contractor will fully cooperate with the School District to conduct an audit pursuant
to this GC48.
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PART H - DISPUTE RESOLUTION
GC49 DISPUTE RESOLUTION
49.1
If a Dispute arises, the Contractor will abide by the School District’s Representative’s
decision with respect to the Dispute, diligently proceed with the Work, and closely track
all costs and impacts associated therewith while reserving its rights to claim or dispute
the instructions or the School District’s position concerning the Dispute.
49.2
The School District and the Contractor will:
(a)
make bona fide efforts to resolve any Dispute arising between them by amicable
negotiations; and
(b)
provide frank, candid and timely disclosure of all relevant facts, information and
documents to facilitate the resolution of any claim or Dispute.
49.3
In order to facilitate the negotiations in GC49.2(a), the Contractor will provide full
written particulars of the nature, entitlement and magnitude of any claim or Dispute and
any request for an extension of time being sought and the School District will provide a
description of its position to the Contractor with respect to such claim or Dispute, any
claim advanced by the School District or any Dispute including the provisions of the
Contract relied upon and any relevant facts, information and documents.
49.4
Within 7 days of a Dispute arising, the Contractor’s Representative or School District’s
Representative, as the case may be and provided the parties have received all information
requested pursuant to GC49.2(b) and GC49.3, will give the other party written notice of
the Dispute and the Contractor’s Representative and the School District’s Representative
will use bona fide efforts as identified by GC49.2(a) to resolve the Dispute.
49.5
If the School District’s Representative and the Contractor’s Representative fail to resolve
the Dispute within 10 days after receipt of the notice pursuant to GC49.4, the parties will
refer the Dispute and all information to the School District Secretary Treasurer and the
nominated senior officer of the Contractor for resolution.
49.6
If the School District Secretary Treasurer and the nominated senior officer of the
Contractor fail to resolve the Dispute within 10 days after the Dispute has been referred
to them, the Dispute will be referred to a single arbitrator and finally resolved by binding
arbitration under the rules of the British Columbia Mediation and Arbitration Institute.
49.7
The arbitrator will be chosen by mutual agreement between the Contractor and the
School District. If an arbitrator has not been appointed within 14 days of the date that the
Dispute has been referred to an arbitrator pursuant to GC49.6, the arbitrator will be
appointed by the British Columbia Mediation and Arbitration Institute.
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Any of the times specified in this GC49 may be varied by mutual agreement between the
Contractor’s Representative and the School District’s Representative. In addition, the
School District and the Contractor may by written agreement vary the requirements of
this GC49, including to provide for resolution of the Dispute through mediation.
49.9
If required by the School District, resolution of a Dispute will be consolidated with
resolution of any other dispute under the Master Agreement or any other Modular
Classroom Contract (as that term is defined in the Master Agreement).
49.10 Pursuit of the resolution of a Dispute under any part of this GC49 does not relieve either
party of its responsibility to ensure timely performance of its obligations under this
Contract.
PART I - GENERAL PROVISIONS
GC50 LAWS, NOTICE, PERMITS AND FEES
50.1
The Contractor will perform the Work in accordance with all Standards and will comply
with all Laws that may affect or relate to the Work.
50.2
Except for a permit or licence that is specifically identified in the Order Summary as the
responsibility of the School District, the Contractor will apply and pay for all necessary
permits and licences required for the performance of the Work. The Contractor will give
all necessary notices and pay all fees required by Law and comply with all Standards.
50.3
Except for an approval that is specifically identified in the Order Summary as the
responsibility of the School District, the Contractor will obtain all necessary municipal
approvals and approvals from relevant ministries of the government of the Province of
British Columbia, and relevant departments of the government of Canada.
50.4
With regards to any permit, licence or approval that is specifically identified in the Order
Summary as the responsibility of the School District, the Contractor will:
50.5
(a)
cooperate with the School District in obtaining the permit, licence or approval;
and
(b)
provide all required assistance to the School District to obtain the permit, licence
or approval.
All Laws in force in British Columbia, as amended from time to time, govern the Work
and the Contract Documents will be deemed to include any such Laws in force, as
amended from time to time.
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51.1
The Contractor will obtain and pay for all intellectual property rights (including of any
patent, copy right, industrial design, trademark or trade secret) all royalties and licence
fees required for the performance of the Contractor and will, without limiting GC43 –
Indemnification, indemnify and hold the Indemnified Parties harmless from and against
all claims, demands, losses, costs, damages, actions, suits or proceedings arising out of
the Contractor’s performance of the Work under this Contract which are attributable to
infringement or an alleged infringement of any intellectual property right by the
Contractor or anyone for whose acts it may be liable.
GC52 COMMUNICATIONS AND CONFIDENTIALITY
52.1
The Contractor will treat as confidential and will not, without the prior written consent of
the School District’s Representative, disclose or permit to be disclosed, any information,
positions or arguments related in any way to any claims or Disputes that may arise out of
this Contract.
52.2
The Contractor agrees and acknowledges that:
(a)
the School District is subject to the provisions of the Freedom of Information and
Protection of Privacy Act and that the Contract Documents, the information they
contain and any other information supplied by the Contractor to the School
District in connection with the Project may be disclosed pursuant to that
enactment. However, the Contractor may stipulate that any technical, scientific,
commercial, financial or trade secret information supplied to the School District
in connection with the Project is confidential for the purposes of that Act; and
(b)
the Contract Documents, and the information they contain and any other
information supplied by the Contractor to the School District in connection with
the Project, may be the subject of an access to information request made to the
School District under the Freedom of Information and Protection of Privacy Act
and that despite GC52.2(a), the School District may be obliged by that Act to
disclose all or part of the Contract Documents or the information they contain or
all or part of any information of the Contractor supplied to the School District in
connection with the Project, whether or not the Contractor has expressly
stipulated that the information in question is confidential for the purposes of that
Act.
52.3
The Contractor will not make any public announcement relating to the Project or this
Contract without the prior written consent of the School District’s Representative. The
Contractor, with the prior written consent of the School District’s Representative, may
include the Project in its promotional materials.
52.4
The Contractor acknowledges that the School District may, in its discretion and without
consultation with the Contractor, make any public announcement relating to the Project.
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The Contractor acknowledges that the School District may establish communications
plans in relation to the Project, including for public announcements, traffic management,
public consultation and stakeholder relations, and the Contractor will provide timely
information and assistance to the School District.
GC53 LEGAL RELATIONSHIP
53.1
The Contractor is an independent contractor and not the servant, employee, partner or
agent of the School District.
53.2
The Contractor will not commit the School District to the payment of any money to any
person.
53.3
No partnership, joint venture, or agency involving the School District is created by this
Contract or under this Contract.
53.4
All personnel engaged by the Contractor to design and construct the Project are at all
times the employees or Subcontractors of the Contractor and not of the School District.
The Contractor is solely responsible for all matters arising out of the relationship of
employer and employee.
GC54 ASSIGNMENT
54.1
The Contractor will not, without the prior written consent of the School District’s
Representative, assign, either directly or indirectly, any right or obligation of the
Contractor under this Contract.
54.2
The School District may, upon notice to the Contractor, assign any or all of its rights or
obligations under this Contract to any third party.
54.3
This Contract continues to the benefit of and binds the School District and its assigns and
the Contractor and its successors and permitted assigns.
GC55 LIMITATION FOR ACTIONS
55.1
The Contractor’s right to commence any legal proceedings or any action against the
School District for any matter arising directly or indirectly out of the performance or nonperformance of the Contractor’s or School District’s obligations under the Contract:
(a)
only arises in respect of any Dispute after strict compliance with the dispute
resolution provisions in this Contract set out in GC49 — Dispute Resolution; and
(b)
is subject to the waiver and release set out in GC30.9; and
(c)
will be absolutely barred upon the expiration of 24 months after the Total
Completion Date.
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The Contractor will not assert any claim, file or commence any legal proceeding or any
action, or seek any other recourse against the School District’s trustees, superintendent,
officers, employees or agents.
GC56 WAIVER
56.1
No waiver by either party of a right of that party or any breach by the other party in the
performance of any of its obligations under this Contract is effective unless it is in
writing.
56.2
No waiver of any right or obligation is a waiver of any other right or obligation under the
Contract.
56.3
Failure or delay to complain of an act or failure of the other party or to declare the other
party in default, irrespective of how long the failure or delay continues, does not
constitute a waiver by the party of any of its rights against the other party.
56.4
The duties and obligations imposed by this Contract and the rights and remedies available
hereunder will be in addition to and not a limitation of any duties, obligations, rights and
remedies otherwise imposed or available by law.
GC57 OTHER PROVISIONS
57.1
If any term of this Contract is held to be unenforceable by a court, that term is to be
severed from this Contract and the rest of this Contract remains in force unaffected by the
severance of that term.
57.2
All the indemnities and the obligations accruing thereunder and all terms of this Contract
in favour of the School District and all rights and remedies of the School District, either
at law or in equity, survive the expiry or earlier termination of this Contract.
57.3
This Contract is the entire agreement between the parties regarding its subject.
57.4
Time is of the essence of this Contract.
57.5
This Contract binds the parties to it and their respective successors, assigns and
administrators.
57.6
The parties must do everything reasonably necessary to given effect to the intent of this
Contract, including execution of further instruments.
57.7
The Contractor and the School District will take all reasonable and necessary steps to
minimize and avoid all costs and impacts arising out of the performance of the Work and
this Contract.
57.8
Neither the School District nor the Contractor will take advantage of any apparent
discrepancy, ambiguity, error or omission in this Contract and will notify the other party
DM_VAN/247984-00010/7605572.13
- 51 forthwith following the detection of anything it suspects may be an ambiguity,
discrepancy, error or omission.
57.9
Each Schedule attached to the Contract is an integral part of the Contract as if set out at
length in the body of the Contract.
57.10 This Contract may only be amended by an agreement of the parties in writing. No such
amendments will be valid unless executed by the School District and the Contractor.
57.11 This Contract will be governed, construed and interpreted in accordance with the laws of
the Province of British Columbia.
57.12 The Contractor hereby irrevocably attorns itself to the jurisdiction of the courts of the
Province of British Columbia in all matters related to this Contract.
DM_VAN/247984-00010/7605572.13
SCHEDULE D
INSURANCE CONDITIONS
1.
The Contractor must, without limiting the Contractor’s obligations or liabilities and at the
Contractor’s own expense, purchase and maintain throughout the Term the following insurances
with insurers licensed in Canada in forms and amounts acceptable to the School District:
(a)
2.
Commercial General Liability in an amount not less than $10,000,000.00
inclusive per occurrence against bodily injury, personal injury and property
damage and including liability for products and completed operations as well as
any liability assumed under this Contract and this insurance must
(i)
include the Province and the School District as an additional insured,
(ii)
be endorsed to provide the Province and the School District with 30 days
advance written notice of cancellation or material change, and
(iii)
include a cross liability clause;
(b)
Professional Liability in an amount not less than $2,000,000 per claim, insuring
the Contractor's liability resulting from errors and omissions in the performance
of professional services under this Contract and this insurance must be endorsed
to provide the Province and the School District 30 days advance written notice of
cancellation; and
(c)
Property insurance covering the Work, including the modular classrooms and any
associated materials, throughout construction, delivery, installation and
commissioning operations with a limit equal to the completed value of the Work
and this insurance will remain in place until Substantial Completion and contain a
waiver of subrogation against the Province and the School District.
All insurance described in section 1 of this Schedule must:
(a)
be primary; and
(b)
not require the sharing of any loss by any insurer of the Province or the School
District.
3.
The Contractor must provide the Province and the School District with evidence of all
required insurance as follows:
(a)
within 10 Business Days of commencement of the Work, the Contractor must
provide to the Province evidence of all required insurance in the form of a
completed Province of British Columbia Certificate of Insurance;
(b)
if any required insurance policy expires before the end of the Term, the
Contractor must provide to the Province and the School District within 10
Business Days of the policy’s expiration, evidence of a new or renewal policy
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- 53 meeting the requirements of the expired insurance in the form of a completed
Province of British Columbia Certificate of Insurance; and
(c)
despite paragraph (a) or (b) above, if requested by the Province or the School
District at any time, the Contractor must provide to the Province and the School
District certified copies of the required insurance policies.
4.
The Contractor must obtain, maintain and pay for any additional insurance which the
Contractor is required by law to carry, or which the Contractor considers necessary to cover risks
not otherwise covered by insurance specified in this Schedule in the Contractor’s sole discretion.
DM_VAN/247984-00010/7605572.13
SCHEDULE E
KEY PERSONNEL
The following are the Key Personnel:
1.
2.
DM_VAN/247984-00010/7605572.13
Senior Project Manager
Project Director
SCHEDULE F
PROPOSAL EXTRACTS
DM_VAN/247984-00010/7605572.13
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