Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1 :04-cv-00163-GIVIS Document 199-3 Filed 08/24/2006 Page 1 of 2
Article 4. CONTRACT PRICE.
OWNER shall pay CONTRACTOR for completion ofthe Work in accordance with the Contract Documents an amount
in current funds equal to the sum ofthe amounts determined pursuant to paragraphs 4.1 below:
4.i for ali Work a Lump Sum of:
£$.M...s..s;......>
{use words) figures
4.2 minus for Deduct Component ‘A’ I
<$.............._....>
(use words) figures
4.3 minus for Deduct Component ‘B’
<$.._._“.,..._.) .
(use words) figures
4.4 minus for DedoctCo1nponent ‘C’ l
($_.._...................>
(use words) tigures
4.5 minus for Deduct Component ‘D’
<$.............,...........>
(use words) tigures .
4.6 Total Calculated Amount (4.1, minus 4.2, minus 4.3, minus 4.4, minus 4.5)
. ($ J
(use words) figures
Article 5. PAYMENT PROCEDURES.
CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions.
Applications for Payment will be processed by ENGINEER as provided in the General Conditions.
5.i. Progress Payments; Retaincxge. OWNER shall make progress payments on account of the Contract Price
on the basis of CON’l`RAC'1`OR‘S Applications for Payment as recommended by ENGINEER, on or about the
WW day of each month during construction as provided in paragraphs 5.1.1 and 5.1.2. below. All such
payments will be measured by the schedule of values established in paragraph 2.9 ofthe General Conditions.
5.1.1. Prior to Substantial Completion, progress payments will be made in an amount equal to the
percentage indicated below, but, in each case, less the aggregate of payments previously made and
less such amounts as ENGINEER shall determine at its sole discretion, or OWNER may withhold, in
accordance with paragraph 14.7 ofthe General Conditions.
90 % of Work completed (with the balance being retainag). If Work has been 50%
completed as determined by ENGINEER, and if the character and progress of the Work
have been satisfactory to OWNER and ENGINEER, OWNER, on recommendation of
ENGINEER, may determine that as long as the character and progress ofthe Work remain
satisfactory to them, there will be no additional retainage on account of Work completed, in
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Case 1 :04-cv—OO163-GIVIS Document 199-3 Filed 08/24/2006 Page 2 of 2
which case the remaining progress payments prior to Substantial Completion wilt be in an
amount equal to 100% ofthe Work completed.
C 90 % (with tl balance being retainage) of materials and equipment not incorporated in
t the Work (but delivered, suitably stored and accompanied by documentation satisfactoiy to
OWNER as provided in paragraph 14.2 ofthe General Conditions). `
i 5.l.2. Upon Substantial Completion, in an amount sufticient to increase total payments to
CONTRACTOR to 95 % of the Contract Price (with the balance being retainage), less such
' amounts as ENGINEER shall determine, or OWNER may withhold, in accordance with paragraph
P 14.7 ofthe General Conditions.
5.2. Final Payment. Upon final completion and acceptance of the Work in accordance with paragraph l¢l.l3
of the General Conditions, OWNER shail pay the remainder of the Contract Price as recommended by
i ENGINEER as provided in said paragraph 14.13.
Article 6. INTEREST.
I All moneys not paid when due as provided in Article 14 of the General Conditions shall bear interest at the rat of live
percent per annum.
é _ Article 7. CONTRACTORS REPRESENTATIONS.
E In order to induce OWNER to enter into this Agreement CONTRACTOR makes the following representations:
7.1. CONTRACTOR has examined and carefully studied the Contract Documents (including the Addenda
_ listed in paragraph 8.8) and the other reiated data identified in the Bidding Documents including "technical .
é saw
7.2, CONTRACTOR has visited the site and become familiar with and is satisfied as to the generai, local and
@ site conditions that may affect cost, progress, performance or furnishing ofthe Work.
7.3. CONTRACTOR is familiar with and is satisfied as to all federal, state and local Laws and Regulations
that may affect cost, progress, performance and furnishing ofthe Work. __
Q 7.4. CONTRACTOR has carefully studied all reports of expiorations and tests of subsurface conditions at or
contiguous to the site and all drawings of physical conditions in or relating to existing surface or subsurface
w structures at or contiguous to the site (except Underground Facilities) which have been identified in the
Supplementary Conditions as provided in paragraph 4.2.l ofthe General Conditions. CONTRACTOR accepts
the determination set forth in paragraph SC-4.2 ofthe Supplementary Conditions of the extent ofthe "technical
.. data" contained in such reports and drawings upon which CONTRACTOR is entitled to rely as provided in
E paragraph 4.2 ofthe Generai Conditions, CONTRACTOR acknowledges that such reports and drawings are
not Contract Documents and may not be complete for CONTRACTORS purposes. CONTRACTOR
acknowledges that OWNER and ENGINEER do not assume responsibility for the accuracy or completeness of
E information and data shown or indicated in the Contract Documents with respect to subsurface conditions and
Underground Facilities at or contiguous to the site. CONTRACTOR has obtained and carethlly studied (or
assumes responsibility for having done so) all such supplementary examinations, investigations, explorations,
- tests, studies, and data concerning conditions (surface, subsurface conditions and Underground Facilities) at or
E contiguous to the site or otherwise which may affect cost, progress, performance or furnishing ofthe Work or
which relate to any aspect of the means, methods, techniques, sequences and procedures of construction to be
employed by CONTRACTOR and safety precautions and programs incident thereto. CONTRACTOR does
E not consider that any additional examinations, investigations, expiorations, tests, studies or data are necessary
for the performance and furnishing of the Work at the Contract Price, within the Contract Times and in
accordance with the other terms and conditions ofthe Contract Documents. Ifthe CONTRACTOR determines
E the need for additional testing, the expense shall belong to the CONTRACTOR unless the City determines the
payment to be their responsibility.
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Case 1:04-cv-00163-GMS

Document 199-3

Filed 08/24/2006

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Case 1:04-cv-00163-GMS

Document 199-3

Filed 08/24/2006

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