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Manual on Use of Self-Propelled Modular Transporters to Remove and Replace Bridges

Appendix G Example Specification for Incentive/Disincentive and Bonus Used in Conjunction with Contractor Alternatives Plan Sheet

FDOT SR 44 W/I-4 Project

PROSECUTION AND PROGRESS. (REV 7-28-97) (7-01)

SECTION 8 (Pages 71-86) is expanded by the following new Article: ARTICLE 8-13. Alternative Bidding. The following new Subarticles are added:

8-13.1 Incentive - Disincentive for A+B. (REV 7-27-04) (FA 7-28-04) (1-05)

The Department desires to expedite construction on this Contract to minimize the inconvenience to the traveling public and to reduce the time of construction. In order to achieve this, an incentive-disincentive provision is established for the Contract. The total incentive payment or disincentive deduction shall not exceed $2,350,000.00.

In the event the Contractor completes the Contract prior to the expiration of the Original Contract Time, the Department will pay the Contractor an incentive payment in the Daily Value amount specified in provision 3-1 for each calendar day the actual completion date precedes the Original Contract Time and subject to the conditions precedent set forth below. The term "Original Contract Time" as used in this Article will mean the number of calendar days established for completion of the work in the Contract on the date the Contract was executed. The term "calendar day" as used in this Article will mean every day shown on the calendar. Calendar days will be consecutively counted from commencement of Contract Time regardless of weather, weekends, holidays, suspensions of Contractor's operations, delays or other events as described herein. For purposes of the calculation and the determination of entitlement to the "incentive payment" stated above, the Original Contract Time will not be adjusted for any reason, cause or circumstance whatsoever, regardless of fault, save and except in the instance of a catastrophic event (i.e., hurricane or a declared state of emergency).

The parties anticipate that delays may be caused by or arise from any number of events during the course of the Contract, including, but not limited to, work performed, work deleted, change orders, supplemental agreements, delays, disruptions, differing site conditions, utility conflicts, design changes or defects, time extensions, extra work, right of way issues, permitting issues, actions of suppliers, subcontractors or other contractors, actions by third parties, shop drawing approval process delays, expansion of the physical limits of the project to make it functional, weather, weekends, holidays, suspensions of Contractor's operations, or other such events, forces or factors sometimes experienced in highway construction work. Such delays or events and their potential impacts on performance by the Contractor are specifically contemplated and acknowledged by the parties in entering into this Contract, and shall not extend the Original Contract Time for purposes of calculation of the "incentive payment" set forth above. Further, any and all costs or impacts whatsoever incurred by the Contractor in accelerating the Contractor's work to overcome or absorb such delays or events in an effort to complete the Contract prior to expiration of the Original Contract Time, regardless of whether the Contractor successfully does so or not, shall be the sole responsibility of the Contractor in every instance.

In the event of a catastrophic event (i.e., hurricane or a declared state of emergency) directly and substantially affecting the Contractor's operations on the Contract, the Contractor and the Department shall agree as to the number of calendar days to extend the Original Contract Time so that such extended Original Contract Time will be used in calculation of the "incentive payment." In the event the Contractor and Department are unable to agree to the number of calendar days to extend the Original Contract Time, the Department shall unilaterally determine the number of calendar days to extend the Original Contract Time reasonably necessary and due solely to such catastrophic event and the Contractor shall have no right whatsoever to contest such determination, save and except that the Contractor establishes that the number of calendar days determined by the Department was arbitrary or without any reasonable basis.

However, notwithstanding anything above to the contrary, upon the Contractor's written request being made directly to the Chief Engineer, with copies provided to both the Resident Construction Engineer and the District Construction Engineer, the Department reserves unto the Chief Engineer, in his sole and absolute discretion, according to the parameters set forth below, the authority to make a determination to either fully enforce the above provisions with no modification, modify the "Original Contract Time" by moving it, or both modify the "Original Contract Time" by moving it and also modify the "incentive payment" amount by reducing it.

No modification of this "Incentive-Disincentive" provision will be considered by the Chief Engineer for any impacts, whatsoever, beyond the reasonable control of the Contractor, the effect of which results in a time extension of less that 15% of the time remaining in the period from first day of occurrence of such impact to the "Original Contract Time." Furthermore, as to any such impact, the effect of which results in a time extension of 15% or more of the time remaining in the period from first day of occurrence of such impact to the "Original Contract Time." No modification of this "Incentive-Disincentive" provision will be considered by the Chief Engineer unless the Contractor clearly establishes that it has continuously from the beginning of the project aggressively, efficiently and effectively pursued the achievement of the "incentive payment," including the utilization of any and all reasonably available means and methods to overcome all impacts and accelerate the work so as to still achieve the "incentive payment," and that, but for this impact, the Contractor would have otherwise earned the "incentive payment" provided in the original Contract. Also, to the extent the request is not submitted in writing to the Chief Engineer within not less than twenty (20) calendar days prior to the original "Original Contract Time," the Contractor must also continue to aggressively, efficiently and effectively pursue the completion of the "Incentive-Disincentive" work, including the utilization of any and all reasonably available means and methods to overcome all impacts and accelerate the work, until a determination is made by the Chief Engineer or twenty (20) calendar days has expired since such written request was received by the Chief Engineer. There shall be no right of any kind on behalf of the Contractor to challenge or otherwise seek review or appeal in any forum of any determination made by the Chief Engineer under this provision.

The Contractor shall have no rights under the Contract to make any claim arising out of this "incentive payment" provision except as is expressly set forth in this Article.

As conditions precedent to the Contractor's entitlement to any "incentive payment" the Contractor must: (1) Deliver in-hand to the Department any and all claims, in full accordance with 5-12.3 and subject to the limitations therein, no later than 60 calendar days after completion of the work on which such claim is based and tentatively schedule a Disputes Review Board hearing while awaiting Department review and response to any such claim. Furthermore, as to any such 5-12.3 claims for which the Disputes Review Board has determined entitlement but both parties have not reached an agreement on monetary compensation prior to final acceptance, and also as to those 5-12.3 claims pending at final acceptance, tentatively schedule a Disputes Review Board hearing within 60 calendar days of the final acceptance while awaiting Department review and response to any such claim; and the sole forum for final determination as to both entitlement and amount of monetary compensation, if not otherwise mutually resolved or otherwise agreed, shall be the Disputes Review Board.

(2) Actually complete the Contract and obtain final acceptance by the Department prior to expiration of the Original Contract Time.

(3) No later than 60 days after final acceptance by the Department, the Contractor must either (a) elect to be paid the "incentive payment" pursuant to (4) below or (b) notify the Department in writing that the Contractor is electing to be paid the "incentive payment" and is reserving one or more outstanding 5-12.3 claims for final and fully binding determination by the Disputes Review Board. The determinations of the Disputes Review Board as to any such 5-12.3 claims will be fully binding on both the Department and the Contractor, with no right of any kind of challenge, review or appeal in any forum by either party. Further, under (b) herein, any previous Disputes Review Board determinations on any such 5-12.3 claims issues shall then be fully binding and not subject to reconsideration by the Disputes Review Board, regardless of whether either party has previously rejected or otherwise not accepted one or more such recommendations at the time such were rendered.

(4) The Contractor shall notify the Department in writing, within 60 days after final acceptance of the Contract by the Department, that the Contractor elects to be paid the "incentive payment" which the Contractor is eligible to be paid based on the actual final acceptance date, and such written notice shall constitute a full and complete waiver, release and acknowledgment of satisfaction by the Contractor of any and all claims, causes of action, issues, demands, disputes, matters or controversies, of any nature or kind whatsoever, known or unknown, against the Department, its employees, officers, agents, representatives, consultants, and their respective employees, officers and representatives, the Contractor has or may have, including, but not limited to, work performed, work deleted, change orders, supplemental agreements, delays, disruptions, differing site conditions, utility conflicts, design changes or defects, time extensions, extra work, right of way issues, permitting issues, actions of suppliers or subcontractors or other contractors, actions by third parties, shop drawing approval process delays, expansion of the physical limits of the project to make it functional, weather, weekends, holidays, suspensions of Contractors operations, extended or unabsorbed home office or job site overhead, lump sum maintenance of traffic adjustments, lost profits, prime mark-up on subcontractor work, acceleration costs, any and all direct and indirect costs, any other adverse impacts, events, conditions, circumstances or potential damages, on or pertaining to, or as to or arising out of the Contract. This waiver, release and acknowledgment of satisfaction shall be all inclusive and absolute, save and except any routine Department final estimating quantity adjustments.

Should the Contractor fail to actually complete the Contract and obtain final acceptance by the Department prior to expiration of the Original Contract Time, or should the Contractor, having timely completed the Contract and obtained final acceptance by the Department prior to expiration of the Original Contract Time but having failed to timely request the "incentive payment" for any reason, and including but not limited to the Contractor choosing not to fully waive, release and acknowledge satisfaction as set forth in (4) above, the Contractor shall have no right to any payment whatsoever under this Article. Notwithstanding the Contractor's election or non-election of the incentive under this provision, the disincentive provision applies to all circumstances where the work in the Contract is not finally accepted by the Allowable Contract Time.

Completion and acceptance of the Contract for purposes of this Article shall be in accordance with 5-11.

Should the Contractor fail to complete the Contract on or before expiration of the Allowable Contract Time, as adjusted in accordance with the provisions of 8-7.3, the Department shall deduct from the monies due the Contractor the Daily Value as shown in provision 3-1 for each calendar day completion exceeds the Allowable Contract Time. The term "Allowable Contract Time" as used in this Article shall mean the Original Contract Time plus adjustments pursuant to 8-7.3. This deduction shall be the disincentive for the Contractor's failing to timely complete the Contract. Article 8-10 relating to liquidated damages remains in effect and is applicable.

In the event the Contractor elects to exercise this "incentive payment" provision, should this provision conflict with any other provision of the Contract, the Contract shall be interpreted in accordance with this provision.

8-13.2 "Bonus" Payment and Waiver of Contractor Claims. (REV 12-15-03) (FA 1-8-04) (7-04)

The Department desires to expedite construction on this Contract to minimize the inconvenience to the traveling public and to reduce the time of construction. In order to achieve this, "Bonus" provisions are established for the Contract Work Items described below.

The Department will pay the Contractor a "Bonus" as follows:

Contract Work Item Bonus Completion Date Bonus Amount
Complete and open to traffic both directions of Cassadaga Road over 1-4. August 1, 2007 $200,000

The "Bonus" will be paid only if the "Contract Work Item" is completed as set forth above, and as determined by the Engineer, on or before the "Bonus Completion Date" as set forth above, and subject to the conditions precedent set forth below. For purposes of the calculation and the determination of entitlement to the "Bonus" stated above, the "Bonus Completion Date" will not be adjusted for any reason, cause or circumstance whatsoever, regardless of fault, save and except in the instance of a catastrophic event (i.e., hurricane or a declared state of emergency).

The parties anticipate that delays may be caused by or arise from any number of events during the course of the Contract, including, but not limited to, work performed, work deleted, change orders, supplemental agreements, delays, disruptions, differing site conditions, utility conflicts, design changes or defects, time extensions, extra work, right of way issues, permitting issues, actions of suppliers, subcontractors or other contractors, actions by third parties, shop drawing approval process delays, expansion of the physical limits of the project to make it functional, weather, weekends, holidays, suspensions of Contractor's operations, or other such events, forces or factors sometimes experienced in highway construction work. Such delays or events and their potential impacts on performance by the Contractor are specifically contemplated and acknowledged by the parties in entering into this Contract, and shall not extend the "Bonus Completion Date" set forth above. Further, any and all costs or impacts whatsoever incurred by the Contractor in accelerating the Contractor's work to overcome or absorb such delays or events in an effort to complete the Contract by the "Bonus Completion Date," regardless of whether the Contractor successfully does so or not, shall be the sole responsibility of the Contractor in every instance.

In the event of a catastrophic event (i.e., hurricane or a declared state of emergency) directly and substantially affecting the Contractor's operations on the Contract, the Contractor and the Department shall agree as to the number of calendar days to extend the "Bonus Completion Date." In the event the Contractor and Department are unable to agree to the number of calendar days to extend the "Bonus Completion Date," the Department shall unilaterally determine the number of calendar days to extend the "Bonus Completion Date" reasonably necessary and due solely to such catastrophic event and the Contractor shall have no right whatsoever to contest such determination, save and except that the Contractor establishes that the number of calendar days determined by the Department was arbitrary or without any reasonable basis.

However, notwithstanding anything above to the contrary, upon the Contractor's written request being made directly to the Chief Engineer, with copies provided to both the Resident Construction Engineer and the District Construction Engineer, the Department reserves unto the Chief Engineer, in his sole and absolute discretion, according to the parameters set forth below, the authority to make a determination to either fully enforce the above provisions with no modification, modify the "Bonus Completion Date" by moving it, or both modifying the "Bonus Completion Date" by moving it and also modify the "Bonus" amount by reducing it.

No modification of a "Bonus" provision will be considered by the Chief Engineer for any impacts whatsoever, beyond the reasonable control of the Contractor, for which the effect results in a time extension of less that 15% of the time remaining in the period from the first day of occurrence of such impact to the "Bonus Completion Date," Furthermore, as to any such impact, for which the effect results in a time extension of 15% or more of the time remaining in the period from the first day of occurrence of such impact to the "Bonus Completion Date," no modification of a "Bonus" provision will be considered by the Chief Engineer unless the contractor clearly establishes that it has continuously from the beginning of the project aggressively, efficiently and effectively pursued the achievement of the "Bonus." This would include the utilization of any and all reasonably available means and methods to overcome all impacts and accelerate the work so as to still achieve the "Bonus," and, but for this impact, the Contractor would have otherwise earned the "Bonus" provided in the original Contract. Also, to the extent the request is not submitted in writing to the Chief Engineer within not less than twenty (20) calendar days prior to the original "Bonus Completion Date," the Contractor must also continue to aggressively, efficiently, and effectively pursue the completion of the "Bonus" work. This would include the utilization of any and all reasonably available means and methods to overcome all impacts and accelerate the work, until a determination is made by the Chief Engineer or twenty (20) calendar days has expired since such written notice. There shall be no right of any kind on behalf of the Contractor to challenge or otherwise seek review or appeal, in any forum, of any determination made by the Chief Engineer under this provision.

The Contractor shall have no rights under the Contract to make any claim arising out of this "Bonus" provision except as is expressly set forth in this Article.

As conditions precedent to the Contractor's entitlement to any "Bonus" the Contractor must: (1) Deliver in-hand to the Department any and all claims in full accordance with 5-12.3 and subject to the limitations therein, no later than 60 calendar days after completion of the work on which such claim is based and tentatively schedule a Disputes Review Board hearing while awaiting Department review and response to any such claim. Furthermore, as to any such 5-12.3 claims for which the Disputes Review Board has determined entitlement but both parties have not reached an agreement on monetary compensation prior to final acceptance, and also as to those 5-12.3 claims pending at or submitted after "Bonus Date," tentatively schedule a Disputes Review Board hearing within 60 calendar days after the final acceptance date while awaiting Department review and response to any such claim. The sole forum for final determination as to both entitlement and amount of monetary compensation, if not otherwise mutually resolved, or otherwise agreed, shall be the Disputes Review Board.

(2) Actually complete the "Contract Work Item" and obtain written verification of completion from the Engineer on or before the "Bonus Completion Date."

(3) No later than 60 days after "Bonus Date" by the Department, the Contractor must either (a) elect to be paid the "Bonus" pursuant to (4) below, or (b) notify the Department in writing that the Contractor is electing to be paid the "Bonus" and is reserving one or more outstanding 5-12.3 claims for final and fully binding determination by the Disputes Review Board. The determinations of the Disputes Review Board as to any such 5-12.3 claims will be fully binding on both the Department and the Contractor, with no right of any kind of challenge, review or appeal, in any forum, by either party. Further, under (b) herein, any previous Disputes Review Board determinations on any such 5-12.3 claims issues shall then be fully binding and not subject to reconsideration by the Disputes Review Board, regardless of whether either party has previously rejected or otherwise not accepted one or more such recommendations at the time such were rendered.

(4) The Contractor shall notify the Department in writing, within 60 days of receiving written verification of completion of the "Contract Work Item" by the Engineer per (2) above, that the Contractor elects to be paid the "Bonus" which the Contractor is eligible to be paid based on the actual "Bonus Completion Date," and such written notice shall constitute a full and complete waiver, release and acknowledgment of satisfaction by the Contractor of any and all claims, causes of action, issues, demands, disputes, matters or controversies, of any nature or kind whatsoever, known or unknown, against the Department, its employees, officers, agents, representatives, consultants, and their respective employees, officers and representatives, the Contractor has or may have as to work performed, work deleted, change orders, supplemental agreements, delays, disruptions, differing site conditions, utility conflicts, design changes or defects, time extensions, extra work, right of way issues, permitting issues, actions of suppliers or subcontractors or other contractors, actions by third parties, shop drawing approval process delays, expansion of the physical limits of the project to make it functional, weather, weekends, holidays, suspensions of the Contractor's operations, extended or unabsorbed home office or job site overhead, lump sum maintenance of traffic adjustments, lost profits, prime mark-up on subcontractor work, acceleration costs, any and all direct and indirect costs, any other adverse impacts, events, conditions, circumstances or potential damages, on or pertaining to, or as to or arising out of the Contract. This waiver, release and acknowledgment of satisfaction shall be all-inclusive and absolute, save and except any routine Department final estimating quantity adjustments.

Should the Contractor fail to actually complete the "Contract Work Item" and obtain written verification of completion of the "Contract Work Item" from the Engineer on or before the "Bonus Completion Date," or should the Contractor, having done so, fail to timely request the "Bonus" for any reason, and including but not limited to the Contractor choosing not to either reserve one or more outstanding 5-12.3 claims for final and fully binding determination by the Disputes Review Board as set forth in (3)(b) above, or to fully waive, release and acknowledge satisfaction as set forth in (4) above, the Contractor shall have no right to any payment whatsoever under this Article.

In the event the Contractor elects to exercise the "Bonus Payment" provision, should this provision conflict with any other provision of the Contract, the Contract shall be interpreted in accordance with this provision.

As to any Contract Work Item provided for herein, the Contractor will remain responsible for all such work and the continued maintenance thereof until such date as the Department final accepts all Work under the Contract in accordance with 5-11, and without regard to whether the Department has provided written verification of completion or not, and without regard to whether any "Bonus" was earned or elected hereunder.

8-13.3 Incentive-Disincentive. (REV 12-15-03) (FA 1-8-04) (7-04)

The Department desires to expedite construction on this Contract to minimize the inconvenience to the traveling public and to reduce the time of construction. In order to achieve this, incentive-disincentive provisions are established for the Contract Work Items described below. The total combined incentive payment(s) or disincentive deduction(s) shall not exceed $2,350,000.00.

Contract Work Item Incentive-Disincentive Completion Date Incentive-Disincentive Daily Amount Incentive-Disincentive Total Amount
Contract Work Item 408463-1-52-01 Complete and open to traffic both directions of Cassadaga Road over 1-4. August 1, 2007 $7,500 per day $150,000 max.
Complete project in accordance with 5-11 Original Contract Time (Contractor Time Bid (B)) $15,500 per day $2,000,000 max.

The Department will pay the Contractor an "incentive payment" in the amount of the "Incentive-Disincentive Daily Amount" as set forth above for each calendar day the actual completion date of the "Contract Work Item" as set forth above precedes the "Incentive-Disincentive Completion Date" as set forth above, and as determined by the Engineer and subject to the conditions precedent set forth below. For purposes of the calculation and the determination of entitlement to the "incentive payment" stated above, the "Incentive-Disincentive Completion Date" will not be adjusted for any reason, cause or circumstance whatsoever, regardless of fault, save and except in the instance of a catastrophic event (i.e., hurricane or a declared state of emergency).

The parties anticipate that delays may be caused by or arise from any number of events during the course of the Contract, including, but not limited to, work performed, work deleted, change orders, supplemental agreements, delays, disruptions, differing site conditions, utility conflicts, design changes or defects, time extensions, extra work, right of way issues, permitting issues, actions of suppliers, subcontractors or other contractors, actions by third parties, shop drawing approval process delays, expansion of the physical limits of the project to make it functional, weather, weekends, holidays, suspensions of Contractor's operations, or other such events, forces or factors sometimes experienced in highway construction work. Such delays or events and their potential impacts on performance by the Contractor are specifically contemplated and acknowledged by the parties in entering into this Contract, and shall not extend the "Incentive-Disincentive Completion Date" for the purposes of calculation "incentive payment" as set forth above. Further, any and all costs or impacts whatsoever incurred by the Contractor in accelerating the Contractor's work to overcome or absorb such delays or events in an effort to complete the Contract by the "Incentive-Disincentive Completion Date," regardless of whether the Contractor successfully does so or not, shall be the sole responsibility of the Contractor in every instance.

In the event of a catastrophic event (i.e., hurricane or a declared state of emergency) directly and substantially affecting the Contractor's operations on the Contract, the Contractor and the Department shall agree as to the number of calendar days to extend the "Incentive-Disincentive Completion Date" so that such extended "Incentive-Disincentive Completion Date" will be used in calculation of the "incentive payment." In the event the Contractor and Department are unable to agree to the number of calendar days to extend the "Incentive-Disincentive Completion Date," the Department will unilaterally determine the number of calendar days to extend the "Incentive-Disincentive Completion Date" reasonably necessary and due solely to such catastrophic event and the Contractor shall have no right whatsoever to contest such determination, save and except that the Contractor establishes that the number of calendar days determined by the Department was arbitrary or without any reasonable basis.

However, notwithstanding anything above to the contrary, upon the Contractor's written request being made directly to the Chief Engineer, with copies provided to both the Resident Construction Engineer and the District Construction Engineer, the Department reserves unto the Chief Engineer, in his sole and absolute discretion, according to the parameters set forth below, the authority to make a determination to either fully enforce the above provisions with no modification, modify the "Incentive-Disincentive Completion Date" by moving it, or both modify the "Incentive-Disincentive Completion Date" by moving it and also modify the "incentive payment" amount by reducing it.

No modification of an "Incentive-Disincentive" provision will be considered by the Chief Engineer for any impacts whatsoever, beyond the reasonable control of the Contractor, for which the effect results in a time extension of less than 15% of the time remaining in the period from the first day of occurrence of such impact to the "Incentive-Disincentive Completion Date." Furthermore, as to any such impact, for which the effect results in a Time Extension of 15% or more of the time remaining in the period from the first day of occurrence of such impact to the "Incentive-Disincentive Completion Date," no modification of an "Incentive-Disincentive" provision will be considered by the Chief Engineer unless the Contractor clearly establishes that it has continuously from the beginning of the project aggressively, efficiently and effectively pursued the achievement of the "incentive payment." This would include the utilization of any and all reasonably available means and methods to overcome all impacts and accelerate the work so as to still achieve the "incentive payment," and that, but for this impact, the contractor would have otherwise earned the "incentive payment" provided in the original Contract. Also, to the extent the request is not submitted in writing to the Chief Engineer within not less than twenty (20) calendar days prior to the original "Incentive-Disincentive Completion Date," the Contractor must also continue to aggressively, efficiently, and effectively pursue the completion of the "Incentive-Disincentive" work. This would include the utilization of any and all reasonably available means and methods to overcome all impacts and accelerate the work, until a determination is made by the Chief Engineer or twenty (20) calendar days has expired since such written request was received. There shall be no right of any kind on behalf of the Contractor to challenge or otherwise seek review or appeal, in any forum, of any determination made by the Chief Engineer under this provision.

The Contractor shall have no rights under the Contract to make any claim arising out of this incentive payment except as is expressly set forth in this Article.

As conditions precedent to the Contractor's entitlement to any "Incentive payment" the Contractor must: (1) Deliver in-hand to the Department any and all claims in full accordance with 5-12.3 and subject to the limitations therein, no later than 60 days after completion of the work on which such claim is based and tentatively schedule a Disputes Review Board hearing while awaiting Department review and response to any such claim. Furthermore, as to any such 5-12.3 claims for which the Disputes Review Board has determined entitlement, but both parties have not reached an agreement on monetary compensation prior to final acceptance, and also as to those 5-12.3 claims pending at or submitted after final acceptance, tentatively schedule a Disputes Review Board hearing within 60 calendar days after the final acceptance date while awaiting Department review and response to any such claim. The sole forum for final determination as to both entitlement and amount of monetary compensation, if not otherwise mutually resolved, or otherwise agreed, shall be the Disputes Review Board.

(2) Actually complete the "Contract Work Item" and obtain written verification of the actual completion date from the Engineer on or before the "Incentive-Disincentive Completion Date."

(3) No later than 60 days after final acceptance by the Department, the Contractor must either (a) elect to be paid the "incentive payment" pursuant to (4) below, or (b) notify the Department in writing that the Contractor is electing to be paid the "incentive payment" and is reserving one or more outstanding 5-12.3 claims for final and fully binding determination by the Disputes Review Board. The determinations of the Disputes Review Board as to any such 5-12.3 claims will be fully binding on both the Department and the Contractor, with no right of any kind of challenge, review or appeal, in any forum, by either party. Further, under (b) herein, any previous Disputes Review Board determinations on any such 5-12.3 claims issues shall then be fully binding and not subject to reconsideration by the Disputes Review Board, regardless of whether either party has previously rejected or otherwise not accepted one or more such recommendations at the time such were rendered.

(4) The Contractor shall notify the Department in writing, within 60 days of receiving written verification of the actual completion date of the Contract Work Item by the Engineer per (2) above, that the Contractor elects to be paid the incentive payment which the Contractor is eligible to be paid based on the actual "Incentive-Disincentive Completion Date," and such written notice shall constitute a full and complete waiver, release and acknowledgment of satisfaction by the Contractor of any and all claims, causes of action, issues, demands, disputes, matters or controversies, of any nature or kind whatsoever, known or unknown, against the Department, its employees, officers, agents, representatives, consultants, and their respective employees, officers and representatives, the Contractor has or may have as to work performed, work deleted, change orders, supplemental agreements, delays, disruptions, differing site conditions, utility conflicts, design changes or defects, time extensions, extra work, right of way issues, permitting issues, actions of suppliers or subcontractors or other Contractors, actions by third parties, shop drawing approval process delays, expansion of the physical limits of the project to make it functional, weather, weekends, holidays, suspensions of the Contractor's operations, extended or unabsorbed home office or job site overhead, lump sum maintenance of traffic adjustments, lost profits, prime mark-up on subcontractor work, acceleration costs, any and all direct and indirect costs, any other adverse impacts, events, conditions, circumstances or potential damages, on or pertaining to, or as to or arising out of the Contract. This waiver, release and acknowledgment of satisfaction shall be all-inclusive and absolute, save and except any routine Department final estimating quantity adjustments.

Should the Contractor fail to actually complete the Contract Work Item and obtain written verification of the actual completion date from the Engineer prior to the "Incentive-Disincentive Completion Date," or should the Contractor, having done so, fail to timely request the "incentive payment" for any reason, and including but not limited to the Contractor choosing not to either reserve on or more outstanding 5-12.3 claims for final and fully binding determination by the Disputes Review Board as set forth in (3)(b) above, or to fully waive, release and acknowledge satisfaction as set forth in (4) above, the Contractor shall have no right to any payment whatsoever under this Article. Notwithstanding the Contractor's election or nonelection of the "incentive payment" under this provision, the disincentive provision applies to all circumstances where the work in the Contract is not verified as completed by the Engineer in writing by the Allowable "Incentive- Disincentive Completion Date." Should the Contractor fail to complete the Contract Work Item on or before the Allowable "Incentive-Disincentive Completion Date," as adjusted in accordance with the provisions of 8-7.3, the Department shall deduct the "Incentive-Disincentive Daily Amount" for each calendar day completion exceeds the Allowable "Incentive-Disincentive Completion Date," from monies otherwise due the Contractor. The term Allowable "Incentive-Disincentive Completion Date" as used in this Article shall mean the "Incentive-Disincentive Completion Date" plus adjustments pursuant to 8-7.3. This deduction shall be the disincentive for the Contractor's failing to timely complete the Contract Work Item. Article 8-10 relating to liquidated damages remains in effect and is applicable.

In the event the Contractor elects to exercise the "incentive payment" provision, should this provision conflict with any other provision of the Contract, the Contract shall be interpreted in accordance with this provision.

As to any Contract Work Item provided for herein, the Contractor will remain responsible for all such work and the continued maintenance thereof until such date as the Department final accepts all Work under the Contract in accordance with 5-11, and without regard to whether the Department has provided written verification of the actual completion date or not, and without regard to whether any "incentive payment" was earned or elected hereunder.

8-13.4 Pay Adjustment For Lane Closure Days.

If the Contractor closes both directions of Cassadaga Road over 1-4 to traffic, the Department will assess a per day fee as follows:

Time Frame Per Day Fee
Contract Day 1 through March 31, 2007 $7,500 per day
April 1, 2007 through April 30, 2007 $4,000 per day
May 1, 2007 through May 31, 2007 $2,000 per day

If the Contractor fails to open both directions of Cassadaga Road over 1-4 to traffic by August 1, 2007, the Department will assess $7,500 per day fee until both directions of Cassadaga Road over 1-4 are open to traffic.

Once the traffic is open in both directions on Cassadaga Road over 1-4 to traffic, allowable lane closure restrictions apply, as specified in the contract.

The Department will have the right to apply as payment for such assessments, any money which is due to the Contractor by the Department.

Updated: 08/21/2013
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