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3. Any CONTRACTOR interpretation of or conclusion drawn from any “technical data” or any such other
data, interpretations, opinions, or information.

C. Potential for Hazardous Materials:

Work may include excavation through, and removal of, soils potentially containing undocumented asbestos-
containing or other hazardous materials. Should the CONTRACTOR, while performing work under this
Contract, uncover hazardous materials, as defined in federal, state and local regulations, he/she shall immediately
notify the Engineer. No further disturbance of the area shall occur until the Engineer has collected and analyzed
a representative sample of the suspected material. The area shall be cordoned off and covered with 6-mil
polyethylene sheeting and await further directions from the Engineer.

4.03 Differing Subsurface or Physical Conditions

A. Notice: If CONTRACTOR believes that any subsurface or physical conditions at or contiguous to the Site
that is uncovered or revealed either:

1. Is of such a nature as to establish that any “technical data” on which CONTRACTOR is entitled to rely as
provided in paragraph 4.02 is materially inaccurate; or

2. Is of such a nature as to require a change in the Contract Documents; or
3. Differs materially from that shown or indicated in the Contract Documents; or

4.Is of an unusual nature, and differs materially from conditions ordinarily encountered and generally
recognized as inherent in work of the character provided for in the Contract Documents; then
CONTRACTOR shall, promptly after becoming aware thereof and before further disturbing the subsurface or
physical conditions or performing any Work in connection therewith (except in an emergency as required by
paragraph 6.16.A), notify OWNER and ENGINEER in writing about such condition. CONTRACTOR shall
not further disturb such condition or perform any Work in connection therewith (except as aforesaid) until
receipt of written order to do so.

B. ENGINEER’s Review: After receipt of written notice as required by paragraph 4.03.A, ENGINEER will
promptly review the pertinent condition, determine the necessity of OWNER’s obtaining additional exploration

or tests with respect thereto, and advise OWNER in writing (with a copy to CONTRACTOR) of ENGINEER’S
findings and conclusions.

C. Possible Price and Times Adjustments
1. The Contract Price or the Contract Times, or both, will be equitably adjusted to the extent that the
existence of such differing subsurface or physical condition causes an increase or decrease in
CONTRACTOR’s cost of, or time required for, performance of the Work: subject, however, to the following:

a. Such condition must meet any one or more of the categories described in paragraph 4.03.A; and

b. With respect to Work that is paid for on a Unit Price Basis, any adjustment in Contract Price will be
subject to the provisions of paragraphs 9.08 and 11.03.

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2.CONTRACTOR shall not be entitled to any adjustment in the Contract Price or Contract Times if:

a. CONTRACTOR knew of the existence of such conditions at the tme CONTRACTOR made a final
commitment to OWNER in respect of Contract Price and Contract Times by the submission of a Bid or
becoming bound under a negotiated contract: or

b. The existence of such condition could reasonably have been discovered or revealed as a result of
any examination, investigation, exploration, test, or study of the Site and Contiguous areas required by
the Bidding Requirements or Contract Documents to be conducted by or for CONTRACTOR prior to
CONTRACTOR’s making such final commitment; or

c. CONTRACTOR failed to give the written notice within the time and as required by paragraph
4.03.A.

3. If OWNER and CONTRACTOR are unable to agree on entitlement to or on the amount or extent, if any,
of any adjustment in the Contract Price or Contract Times, or both, a Claim may be made therefore as
provided in paragraph 10.05. However, OWNER, ENGINEER, and ENGINEER’s Consultants shall not be
liable to CONTRACTOR for any claims, costs, losses, or damages (including but not limited to all fees and
charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute
resolution costs) sustained by CONTRACTOR on or in connection with any other project or anticipated
project.

4.04 Underground Facilities

A. Shown or Indicated: The information and data shown or indicated in the Contract Documents with respect to
existing Underground Facilities at or contiguous to the Site is based on information and data furnished to
OWNER or ENGINEER by the OWNER’s of such Underground Facilities, including OWNER, or by others.
Unless it is otherwise expressly provided in the Supplementary Conditions:

1. OWNER and ENGINEER shall not be responsible for the accuracy or completeness of any such
information or data; and

2. The cost of all of the following will be included in the Contract Price, and CONTRACTOR shall have full
responsibility for:

a. Reviewing and checking all such information and data,
b. Locating all Underground Facilities shown or indicated in the Contract Documents.

c. Coordination of the Work with the OWNER’s of such Underground Facilities, including OWNER,
during construction, and

d. The safety and protection of all such Underground Facilities and repairing any damage thereto
resulting from the Work.

B. Not Shown or Indicated

1. If an Underground Facility is uncovered or revealed at or contiguous to the Site which was not shown or
indicated, or not shown or indicated with reasonable accuracy in the Contract Documents, CONTRACTOR
shall, promptly after becoming aware thereof and before further disturbing conditions affected thereby or
performing any Work in connection therewith (except in an emergency as required by paragraph 6.16.A).
identify the OWNER of such Underground Facility and give written notice to that OWNER and to OWNER
and ENGINEER. ENGINEER will promptly review the Underground Facility and determine the extent, if

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any, to which a change is required in the Contract Documents to reflect and document the consequences of
the existence or location of the Underground Facility. During such time, CONTRACTOR shall be
responsible for the safety and protection of such Underground Facility.

2. If ENGINEER concludes that a change in the Contract Documents is required, a Change Order will be
issued to reflect and document such consequences. An equitable adjustment shall be made in the Contract
Price or Contract Times, or both, to the extent that they are attributable to the existence or location of any
Underground Facility that was not shown or indicated or not shown or indicated with reasonable accuracy in
the Contract Documents and that CONTRACTOR did not know of and could not reasonably have been
expected to be aware of or to have anticipated. If OWNER and CONTRACTOR are unable to agree on
entitlement to or on the amount or extent, if any, of any such adjustment in Contract Price or Contract Times,
OWNER or CONTRACTOR may make a Claim therefore as provided in paragraph 10.05.

3. CONTRACTOR shall notify the following underground utility locating service at least three full working
days prior to beginning work: Dig Safe System, Inc. 1-800-344-7233.

A list of the major public utilities servicing the work area follows. The list indicates the name and telephone
number of the responsible authority of the various utilities which should be notified if conflicts or
emergencies arise during the progress of the work.

Electricity — Eversource 1-800-662-7764
Natural Gas — Liberty Energy 1-603-222-3705
Water — Pennichuck Water Works 1-603-882-5191
Telephone —Fairpoint Communications 1-603-645-3500
Cable TV — Comcast 1-888-633-4266

Fire Alarm Cable — Nashua Fire Department 1-603-594-3641

4. At points where the CONTRACTOR’s operations are adjacent to public and private utilities,
CONTRACTOR shall not commence work until CONTRACTOR has made all arrangements necessary for
the protection of utilities.

5. CONTRACTOR shall coordinate and cooperate with the OWNER’s of any underground or overhead
utility lines in their removal and rearrangement operations in order that these operations may progress in a
reasonable manner, that duplication of rearrangement work may be reduced to a minimum, and that services
rendered by those parties will not be unnecessarily interrupted.

4.05 Reference Points

A. OWNER shall provide engineering surveys to establish reference points for construction which in
ENGINEER’s judgment are necessary to enable CONTRACTOR to proceed with the Work. CONTRACTOR
shall be responsible for laying out the Work, shall protect and preserve the established reference points and
property monuments, and shall make no changes or relocations without the prior written approval of OWNER.
CONTRACTOR shall report to ENGINEER whenever any reference point or property monument is lost or
destroyed or requires relocation because of necessary changes in grades or locations, and shall be responsible for
the accurate replacement or relocation of such reference points or property monuments by professionally
qualified personnel.

4.06 Hazardous Environmental Condition at Site
A. Reports and Drawings: Reference is made to the Supplementary Conditions for the identification of those

reports and drawings relating to a Hazardous Environmental Condition identified at the Site, if any, that have
been utilized by the ENGINEER in the preparation of the Contract Documents.

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B. Limited Reliance by CONTRACTOR on Technical Data Authorized: CONTRACTOR may rely upon the
general accuracy of the “technical data” contained in such reports and drawings, but such reports and drawings
are not Contract Documents. Such “technical data” is identified in the Supplementary Conditions. Except for
such reliance on such “technical data,” CONTRACTOR may not rely upon or make any Claim against OWNER,
ENGINEER or any of ENGINEER’s Consultants with respect to:

1. The completeness of such reports and drawings for CONTRACTOR’s purposes, including, but not limited
to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed
by CONTRACTOR and safety precautions and programs incident thereto; or

2. Other data, interpretations, opinions and information contained in such reports or shown or indicated in
such drawings; or

3. Any CONTRACTOR interpretation of or conclusion drawn from any “technical data” or any such other
data, interpretations, opinions or information.

C. CONTRACTOR shall not be responsible for any Hazardous Environmental Condition uncovered or revealed
at the Site which was not shown or indicated in Drawings or Specifications or identified in the Contract
Documents to be within the scope of the Work. CONTRACTOR shall be responsible for a Hazardous
Environmental Condition created with any materials brought to the Site by CONTRACTOR, Subcontractors,
Suppliers, or anyone else for whom CONTRACTOR is responsible.

D. If CONTRACTOR encounters a Hazardous Environmental Condition or if CONTRACTOR or anyone for
whom CONTRACTOR is responsible creates a Hazardous Environmental Condition, CONTRACTOR shall
immediately: (1) secure or otherwise isolate such condition; (ii) stop all Work in connection with such condition
and in any area affected thereby (except in an emergency as required by paragraph 6.16); and (iii) notify
OWNER and ENGINEER (and promptly thereafter confirm such notice in writing). OWNER shall promptly
consult with ENGINEER concerning the necessity for OWNER to retain a qualified expert to evaluate such
condition or take corrective action, if any.

E. CONTRACTOR shall not be required to resume Work in connection with such condition or in any affected
area until after OWNER has obtained any required permits related thereto and delivered to CONTRACTOR
written notice: (1) specifying that such condition and any affected area is or has been rendered safe for the
resumption of Work; or (ii) specifying any special conditions under which such Work may be resumed safely. If
OWNER and CONTRACTOR cannot agree as to entitlement to or on the amount or extent, if any, of any
adjustment in Contract Price or Contract Times, or both, as a result of such Work stoppage or such special
conditions under which Work is agreed to be resumed by CONTRACTOR, either party may make a Claim
therefore as provided in paragraph 10.05.

F. If after receipt of such written a notice CONTRACTOR does not agree to resume such Work based on a
reasonable belief it is unsafe, or does not agree to resume such Work under such special conditions, then
OWNER may order the portion of the Work that is in the area affected by such condition to be deleted from the
Work. If OWNER and CONTRACTOR cannot agree as to entitlement to or on the amount or extent, if any, of
an adjustment in Contract Price or Contract Times as a result of deleting such portion of the Work, then either
party may make a Claim therefore as provided in paragraph 10.05. OWNER may have such deleted portion of
the Work performed by OWNER’S own forces or others in accordance with Article 7.

G. To the fullest extent permitted by Laws and Regulations, CONTRACTOR shall indemnify and hold harmless
OWNER, ENGINEER, ENGINEER’s Consultants, and the officers, directors, partners, employees, agents, other
consultants, and subcontractors of each and any of them from and against all claims, costs, losses, damages
(including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and
all court or arbitration or other dispute resolution costs) arising out of or relating to a Hazardous Environmental

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Condition created by CONTRACTOR or by anyone for whom CONTRACTOR is responsible. Nothing in this
paragraph 4.06.F shall obligate CONTRACTOR to indemnify any individual or entity from and against the
consequences of that individual’s or entity’s own negligence.

H. The provisions of paragraphs 4.02, 4.03, and 4.04 are not intended to apply to a Hazardous Environmental
Condition uncovered or revealed at the Site.

ARTICLE 5 - BONDS AND INSURANCE

5.01 Performance, Payment, and Other Bonds

A. CONTRACTOR shall furnish performance and payment Bonds, each in an amount at least equal to the
Contract Price as security for the faithful performance and payment of all CONTRACTOR’s obligations under
the Contract Documents. These Bonds shall remain in effect at least until one year after the date when final
payment becomes due, except as provided otherwise by Laws or Regulations or by the Contract Documents.
CONTRACTOR shall also furnish such other Bonds as are required by the Contract Documents.

B. All Bonds shall be in the form prescribed by the Contract Documents except as provided otherwise by Laws
or Regulations, and shall be executed by such sureties as are named in the current list of “Companies Holding
Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies” as
published in Circular 570 (amended) by the Financial Management Service, Surety Bond Branch, U.S.
Department of the Treasury. All Bonds signed by an agent must be accompanied by a certified copy of such
agent’s authority to act.

C. If the surety on any Bond furnished by CONTRACTOR is declared bankrupt or becomes insolvent or its right
to do business is terminated in any state where any part of the Project is located or it ceases to meet the
requirements of paragraph 5.01.B, CONTRACTOR shall within 20 days thereafter substitute another Bond and
surety, both of which shall comply with the requirements of paragraphs 5.01.B and 5.02.

5.02 Licenses Sureties and Insurers

A. All Bonds and insurance required by the Contract Documents to be purchased and maintained by
CONTRACTOR shall be obtained from surety or insurance companies that are duly licensed or authorized in the
jurisdiction in which the Project is located to issue Bonds or insurance policies for the limits and coverage’s so
required. Such surety and insurance companies shall also meet such additional requirements and qualifications
as may be provided in the Supplementary Conditions.

B. All Sureties and Insurance Companies shall be authorized to do business in the State of New Hampshire and
shall have an A.M. Best rating of “A(FSC-VIID” or better. In the event that the Insurer fails to maintain an A.M.

Best rating “A(FSC-VIID” or better, the CONTRACTOR shall immediately retain a Surety which does meet the
above requirements.

5.03 Certificates of Insurance

A. CONTRACTOR shall deliver to OWNER 10 days prior to Work, with copies to each additional insured
identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance requested
by OWNER or any other additional insured) which CONTRACTOR is required to purchase and maintain.

5.04 CONTRACTOR’s Liability Insurance

A. CONTRACTOR shall purchase and maintain such liability and other insurance as is required by OWNER
which will provide protection from claims which may arise out of or result from CONTRACTOR’s performance

GC - 17 of 57

of the Work and CONTRACTOR’s other obligations under the Contract Documents, whether it is to be
performed by CONTRACTOR, any Subcontractor or Supplier, or by anyone directly or indirectly employed by
any of them to perform any of the Work, or by anyone for whose acts any of them may be liable.

B. The policies of insurance so required by this paragraph 5.04 to be purchased and maintained shall:

1. Include as additional insured (subject to any customary exclusion in respect of professional liability)
OWNER, ENGINEER.

2. The CONTRACTOR must maintain the following lines of coverage and policy limits for the duration of
the contract. Any subcontractors used by the CONTRACTOR are subject to the same coverage and limits
and is a subcontractor of the CONTRACTOR and not the OWNER. It is the responsibility of the
CONTRACTOR to update Certificates of Insurance during the term of the contract. Provide coverage for not
less than the following amounts or greater:

General Liability
$1,000,000 per Occurrence
$2,000,000 Aggregate
City of Nashua Additional Insured

Motor Vehicle Liability *coverage must include all owned, non-owned and hired vehicles.
$1,000,000 Combined Single Limit
Automobile Liability
City of Nashua Additional Insured

Workers’ Compensation Coverage according to Statute of the State of New Hampshire:
$100,000 / $500,000 / $100,000

All bidders and subcontractors at every tier under the bidder will fully comply with NH RSA Chapter 281-A,
“Workers’ Compensation”.

It is the responsibility of the contractor to submit to the City of Nashua certificates of insurance for all
subcontractors prior to the start of the project. It is the responsibility of the contractor to provide the City
with updated certificates of insurance for the contractor and all subcontractors 10 days prior to the expiration
of coverage. The City may, at any time, order the contractor to stop work, suspend the contract or terminate
the contract for non-compliance. All subcontractors are subject to the same insurance requirements as the
contractor.

3. Include completed operations insurance;

4. Include contractual liability insurance covering CONTRACTOR’s indemnity obligations under paragraphs
6.07, 6.11, and 6.20;

5. Contain a provision or endorsement that the coverage afforded will not be canceled, materially changed or
renewal refused until at least thirty days prior written notice has been given to OWNER and CONTRACTOR
and to each other additional insured identified in the Supplementary Conditions to whom a certificate of
insurance has been issued (and the certificates of insurance furnished by the CONTRACTOR pursuant to
paragraph 5.03 will so provide);

6. Remain in effect until final payment and at all times thereafter when CONTRACTOR may be correcting,
removing or replacing defective Work in accordance with paragraph 13.07; and

GC - 18 of 57

7. With respect to completed operations insurance, and any insurance coverage written on a claims-made
basis, remain in effect for at least two years after final payment (and CONTRACTOR shall furnish OWNER
and each other additional insured identified in the Supplementary Conditions, to whom a certificate of
insurance has been issued, evidence satisfactory to OWNER and any such additional insured of continuation
of such insurance at final payment and one year thereafter).

C. CONTRACTOR agrees to maintain all required insurance coverage throughout the entire term of the contract.
If CONTRACTOR does not maintain coverage throughout the entire term of the contract, CONTRACTOR
agrees that OWNER may, at any time the coverage is not maintained by CONTRACTOR, order the
CONTRACTOR to stop work, suspend the contract, or terminate the contract. CONTRACTOR further agrees, if
applicable, as a precondition to the performance of any work under this contract and as a precondition to any
obligation of the OWNER to make any payment under this contract to provide the OWNER with a certificate of a
qualified insurer.

5.05 Property Insurance

A. CONTRACTOR must purchase and maintain property insurance upon the Work at the Site in the amount of
the full replacement cost of the Work. This insurance shall:

1. include the interests of OWNER, CONTRACTOR, Subcontractors, ENGINEER, ENGINEER’s
Consultants and any other individuals or entities identified in the Supplementary Conditions, and the
officers, directors, partners, employees, agents and other consultants and subcontractors of any of them
each of whom is deemed to have an insurable interest and shall be listed as an insured or additional
insured;

2. include expenses incurred in the repair or replacement of any insured property (including but not limited
to fees and charges of engineers and architects):

3. cover materials and equipment stored at the Site or at another location that was agreed to in writing
by OWNER prior to being incorporated in the Work, provided that the materials and equipment have
been included in an application for payment recommended by ENGINEER; and

4. allow for partial utilization of the Work by OWNER:
5. include testing and startup; and

6. be maintained in effect until final payment is made unless otherwise agreed to in writing by
OWNER, CONTRACTOR and ENGINEER with 30 days written notice to each other additional
insured to whom a certificate of insurance has been issued.

B. CONTRACTOR shall be responsible for any deductible or self-insured retention. The risk of loss within the
identified deductible amount will be bome by CONTRACTOR, Subcontractors, or others suffering any such loss,
and if any of them wishes property insurance coverage within the limits of such amounts, each may purchase and
maintain it at the purchaser’s own expense. OWNER shall not be responsible for purchasing and maintaining
any property insurance specified in this paragraph 5.06 to protect the interests of CONTRACTOR,
Subcontractors, or others in the Work to the extent of any deductible amounts that are identified in the
Supplementary Conditions.

C. All the policies of insurance (and the certificates or other evidence of the policy) required to be purchased and
maintained in accordance with paragraph 5.06 will contain a provision or endorsement that the coverage afforded
will not be canceled or materially changed or renewal refused until at least 30 days after written notice has been
given to OWNER and CONTRACTOR and to each other additional insured to whom a certificate of insurance
has been issued and will contain waiver provisions in accordance with paragraph 5.07.

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5.06 Waiver of Rights

A. CONTRACTOR intends that all policies purchased in accordance with paragraph 5.06 will protect OWNER,
CONTRACTOR, Subcontractors, ENGINEER, ENGINEER’s Consultants, and all other individuals or entities
identified in the Supplementary Conditions to be listed as insured ( and the officers, directors, partners,
employees, agents, and other consultants and subcontractors of each and any of them) in such policies and will
provide primary coverage for all losses and damages caused by the perils or causes of loss covered by the policy.
All CONTRACTOR policies must contain provisions to the effect that in the event of payment of any loss or
damage the insurers will have no rights of recovery against any of the insured or additional insured there under.
CONTRACTOR waive all rights against OWNER each other and their respective officers, directors, partners,
employees, agents, and other consultants and subcontractors of each and any of them for all losses and damages
caused by, arising out of or resulting from any of the perils or causes of loss covered by such policies and any
other property insurance applicable to the Work; and, in addition, waive all such nghts against Subcontractors,
ENGINEER, ENGINEER’s Consultants, and all other individuals or entities identified in the Supplementary
Conditions to be listed as insured or additional insured (and the officers, directors, partners, employees, agents,
and other consultants and subcontractors of each and any of them) under such policies for losses and damages so
caused.

ARTICLE 6 - CONTRACTOR’S RESPONSIBILITIES

6.01 Supervision and Superintendence

A. CONTRACTOR shall supervise, inspect, and direct the Work competently and efficiently, devoting such
attention thereto and applying such skills and expertise as may be necessary to perform the Work in accordance
with the Contract Documents. CONTRACTOR shall be solely responsible for the means, methods, techniques,
sequences, and procedures of construction, but CONTRACTOR shall not be responsible for the negligence of
OWNER or ENGINEER in the design or specification of a specific means, method, technique, sequence, or
procedure of construction which is shown or indicated in and expressly required by the Contract Documents.
CONTRACTOR shall be responsible to see that the completed Work complies accurately with the Contract
Documents.

B. At all times during the progress of the Work, CONTRACTOR - shall assign a competent resident
superintendent thereto who shall not be replaced without written notice to OWNER and ENGINEER except
under extraordinary circumstances. The superintendent will be CONTRACTOR’s representative at the Site and
shall have authority to act on behalf of CONTRACTOR. All communications given to or received from the
superintendent shall be binding on CONTRACTOR.

6.02 Labor; Working Hours

A. CONTRACTOR shall provide competent, suitably qualified personnel to survey, lay out, and construct the
Work as required by the Contract Documents. CONTRACTOR shall at all times maintain good discipline and
order at the Site.

B. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or
adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site shall be
performed during regular working hours, and CONTRACTOR will not permit overtime work or the performance
of Work on Saturday, Sunday, or any legal holiday without OWNER’s written consent (which will not be
unreasonably withheld) given after prior written notice to ENGINEER.

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C. The following list of streets will require prior approval to close a lane and may require flagging or police
details and may have work time restrictions.

Allds Street East Hollis Street
Amherst Street Henri Burque Hwy
Arlington Street Kinsley Street
Bridge Street Ledge Street
Broad Street Main Dunstable Road
Broad Street Parkway Main Street

Canal Street Manchester Street
Central Street Pine Hill Road
Concord Street Somerset Parkway
Daniel Webster Highway Spitbrook Road
East Dunstable Road West Hollis Street

6.03 Services, Materials, and Equipment

A. Unless otherwise specified in the General Requirements, CONTRACTOR | shall provide and assume full
responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery,
tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other
facilities and incidentals necessary for the performance, testing, start-up, and completion of the Work.

B. All materials and equipment incorporated into the Work shall be as specified or, if not specified, shall be of
good quality and new, except as otherwise provided in the Contract Documents. All warranties and guarantees
specifically called for by the Specifications shall expressly run to the benefit of OWNER. If required by
ENGINEER, CONTRACTOR shall furnish satisfactory evidence (including reports of required tests) as to the
source, kind, and quality of materials and equipment. All materials and equipment shall be stored, applied,
installed, connected, erected, protected, used, cleaned, and conditioned in accordance with instructions of the
applicable Supplier, except as otherwise may be provided in the Contract Documents.

6.04 Progress Schedule

A. CONTRACTOR shall adhere to the progress schedule established in accordance with paragraph 2.07 as it
may be adjusted from time to time as provided below.

1. CONTRACTOR shall submit to ENGINEER for acceptance (to the extent indicated in paragraph 2.07)
proposed adjustments in the progress schedule that will not result in changing the Contract Times (or
Milestones). Such adjustments will conform generally to the progress schedule then in effect and
additionally will comply with any provisions of the General Requirements applicable thereto.

2. Proposed adjustments in the progress schedule that will change the Contract Times (or Milestones) shall be
submitted in accordance with the requirements of Article 12. Such adjustments may only be made by a
Change Order or Written Amendment in accordance with Article 12.

6.05 Substitutes and “Or-Equals”

A. Whenever an item of material or equipment is specified or described in the Contract Documents by using the
name of a proprietary item or the name of a particular Supplier, the specification or description is intended to
establish the type, function, appearance, and quality required. Unless the specification or description contains or
is followed by words reading that no like, equivalent, or “or-equal” item or no substitution is permitted, other
items of material or equipment or material or equipment of other Suppliers may be submitted to ENGINEER for
review under the circumstances described below.

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1. “Or-Equal” Items:

If in ENGINEER’S sole discretion an item of material or equipment proposed by CONTRACTOR is
functionally equal to that named and sufficiently similar so that no change in related Work will be required, it
may be considered by ENGINEER as an “or-equal” item, in which case review and approval of the proposed
item may, in ENGINEER’s sole discretion, be accomplished without compliance with some or all of the
requirements for approval of proposed substitute items. For the purposes of this paragraph 6.05.A.1, a
proposed item of material or equipment will be considered functionally equal to an item so named if:

a. In the exercise of reasonable judgment ENGINEER determines that: (1) it is at least equal in quality,
durability, appearance, strength, and design characteristics; (11) it will reliably perform at least equally
well the function imposed by the design concept of the completed Project as a functioning whole, and;

b. CONTRACTOR certifies that: (1) there is no increase in cost to the OWNER; and (ii) it will conform
substantially, even with deviations, to the detailed requirements of the item named in the Contract
Documents.

2. Substitute Items

a. Ifin ENGINEER’s sole discretion an item of material or equipment proposed by CONTRACTOR
does not qualify as an “or-equal” item under paragraph 6.05.A.1, it will be considered a proposed
substitute item.

b. CONTRACTOR shall submit sufficient information as provided below to allow ENGINEER to
determine that the item of material or equipment proposed is essentially equivalent to that named and an
acceptable substitute therefore. Requests for review of proposed substitute items of material or
equipment will not be accepted by ENGINEER from anyone other than CONTRACTOR.

c. The procedure for review by ENGINEER will be as set forth in paragraph 6.05.A.2.d, as
supplemented in the General Requirements and as ENGINEER may decide is appropriate under the
circumstances.

d. CONTRACTOR shall first make written application to ENGINEER for review of a proposed
substitute item of material or equipment that CONTRACTOR seeks to furnish or use. The application
shall certify that the proposed substitute item will perform adequately the functions and achieve the
results called for by the general design, be similar in substance to that specified, and be suited to the
same use as that specified. The application will state the extent, if any, to which the use of the proposed
substitute item will prejudice CONTRACTOR’s achievement of Substantial Completion on time,
whether or not use of the proposed substitute item in the Work will require a change in any of the
Contract Documents (or in the provisions of any other direct contract with OWNER for work on the
Project) to adapt the design to the proposed substitute item and whether or not incorporation or use of the
proposed substitute item in connection with the Work is subject to payment of any license fee or royalty.
All variations of the proposed substitute item from that specified will be identified in the application, and
available engineering, sales, maintenance, repair, and replacement services will be indicated. The
application will also contain an itemized estimate of all costs or credits that will result directly or
indirectly from use of such substitute item, including costs of redesign and claims of other contractors
affected by any resulting change, all of which will be considered by ENGINEER in evaluating the
proposed substitute item. ENGINEER may require CONTRACTOR to furnish additional data about the
proposed substitute item.

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