Common use of Claims for Extraordinary Unforeseeable Subsurface or Concealed Conditions Clause in Contracts

Claims for Extraordinary Unforeseeable Subsurface or Concealed Conditions. .1 Under the provisions of this Agreement, including the representations and warranties of Design/Builder contained in Paragraphs 2.1(5) and (6), Design/Builder understands and agrees that the risk of increased costs in the Design Services and the Work caused by the conditions of the Project site, whether surface, subsurface, or other conditions which affect the site or the performance of Design Services or the Work have been transferred to and assumed by Design/Builder under this Agreement, and that such increased costs will be absorbed by Design/Builder, and that there will be no increase in the Fixed Contract Price as a result of Design/Builder encountering such conditions and increased costs. Notwithstanding this general transference of the risk of such conditions, the parties agree that there are limited circumstances under which Design/Builder may be entitled to an increase in the Fixed Contract Price due to conditions that are unknown, concealed, and unforeseeable conditions, as set forth in this Article. .2 If subsurface or otherwise concealed conditions are encountered at the Project site which are: (1) unknown to Design/Builder; and (2) not reasonably foreseeable or anticipated by Design/Builder in view of Design/Builder’s representations and warranties contained in Article 2. (3) which are either: (i) materially different from those indicated in any respective soils reports provided; or (ii) materially different from those ordinarily found to exist and generally recognized and inherent in construction activities of the character provided for in the Contract, then Design/Builder may seek an adjustment to the Fixed Contract Price and/or an extension of the Contract Time, in accordance with the provisions of this Article 16, and provided that Design/Builder shall give notice to the Owner in writing before the conditions are disturbed and in no event later than seven (7) calendar days after Design/Builder discovers or observes the conditions. (iii) Upon receipt of said notice, Owner shall investigate such conditions and make a determination as to whether the conditions meet the requirements set forth in this Paragraph 16.2 above. Owner shall notify Design/Builder in writing within fourteen (14) days of its determination. If Owner determines that the conditions do not meet the requirements of Paragraph 16.2, Owner shall specify the reasons for that determination. .3 Examples of conditions that would not be reasonably foreseeable and thus may qualify for an adjustment in the Fixed Contract Price, and/or an extension of the Contract Time include: buried vehicle bodies, which reasonably require Design/Builder to utilize equipment to remove said vehicles which was not contemplated by Design/Builder as necessary to perform the Work; burial or archeological finds; dump or garbage pits that contain more than fifty (50) cubic yards of refuse to be hauled off of the Project site; drain fields; storage tanks, voids or tunnels; or rock formations which require “jack hammering” or “blasting” to excavate or remove; and groundwater higher than three (3) feet below existing ground level, which cannot be diverted or removed through the use of four-inch (4”) pumps on the Project site. .4 Examples of conditions that are reasonably foreseeable under the Contract, and do not qualify for an adjustment in either the Fixed Contract Price and/or an extension of the Contract Time include: materials expected to be found in river bottom soil, including but not limited to, cobblestones, clay, sand, silt and gravel (and combinations thereof), boulders up to one ton in size, car bodies or vehicles, which do not require Design/Builder to utilize equipment for removal which was not contemplated by Design/Builder for use in performing the Work, garbage pits containing less than fifty (50) cubic yards of material.

Claims for Extraordinary Unforeseeable Subsurface or Concealed Conditions. .1 Under the provisions of this Agreement, including the representations and warranties of Design/Builder contained in Paragraphs 2.1(5) and (6), Design/Builder understands and agrees that the risk of increased costs in the Design Services and the Work caused by the conditions of the Project site, whether surface, subsurface, or other conditions which affect the site or the performance of Design Services or the Work have been transferred to and assumed by Design/Builder under this Agreement, and that such increased costs will be absorbed by Design/Builder, and that there will be no increase in the Fixed Contract Price as a result of Design/Builder encountering such conditions and increased costs. Notwithstanding this general transference of the risk of such conditions, the parties agree that there are limited circumstances under which Design/Builder may be entitled to an increase in the Fixed Contract Price due to conditions that are unknown, concealed, and unforeseeable conditions, as set forth in this Article. .2 If subsurface or otherwise concealed conditions are encountered at the Project site which are: (1) unknown to Design/Builder; and (2) not reasonably foreseeable or anticipated by Design/Builder in view of Design/Builder’s representations and warranties contained in Article 2. (3) which are either: (i) materially different from those indicated in any respective soils reports provided; or (ii) materially different from those ordinarily found to exist and generally recognized and inherent in construction activities of the character provided for in the Contract, then Design/Builder may seek an adjustment to the Fixed Contract Price and/or an extension of the Contract Time, in accordance with the provisions of this Article 16, and provided that Design/Builder shall give notice to the Owner in writing before the conditions are disturbed and in no event later than seven (7) calendar days after Design/Builder discovers or observes the conditions. (iii) Upon receipt of said notice, Owner shall investigate such conditions and make a determination as to whether the conditions meet the requirements set forth in this Paragraph 16.2 above. Owner shall notify Design/Builder in writing within fourteen (14) days of its determination. If Owner determines that the conditions do not meet the requirements of Paragraph 16.2, Owner shall specify the reasons for that determination. .3 Examples of conditions that would not be reasonably foreseeable and thus may qualify for an adjustment in the Fixed Contract Price, and/or an extension of the Contract Time include: buried vehicle bodies, which reasonably require Design/Builder to utilize equipment to remove said vehicles which was not contemplated by Design/Builder as necessary to perform the Work; burial or archeological finds; dump or garbage pits that contain more than fifty (50) cubic yards of refuse to be hauled off of the Project site; drain fields; storage tanks, voids or tunnels; or rock formations which require “jack xxxx hammering” or “blasting” to excavate or remove; and groundwater higher than three (3) feet below existing ground level, which cannot be diverted or removed through the use of four-inch (4”) pumps on the Project site. .4 Examples of conditions that are reasonably foreseeable under the Contract, and do not qualify for an adjustment in either the Fixed Contract Price and/or an extension of the Contract Time include: materials expected to be found in river bottom soil, including but not limited to, cobblestones, clay, sand, silt and gravel (and combinations thereof), boulders up to one ton in size, car bodies or vehicles, which do not require Design/Builder to utilize equipment for removal which was not contemplated by Design/Builder for use in performing the Work, garbage pits containing less than fifty (50) cubic yards of material.

Claims for Extraordinary Unforeseeable Subsurface or Concealed Conditions. .1 16.2.1 Under the provisions of this Agreement, including the representations and warranties of Design/Builder the Contractor contained in Paragraphs 2.1(5) and (6), Design/Builder the Contractor understands and agrees that the risk of increased costs in the Design Services and the Work caused by the conditions of the Project site, whether surface, subsurface, or other conditions which affect the site or the performance of Design Services or the Work have been transferred to and assumed by Design/Builder the Contractor under this Agreement, and that such increased costs will be absorbed by Design/Builderthe Contractor, and that there will be no increase in the Fixed Contract Price as a result of Design/Builder the Contractor encountering such conditions and increased costs. Notwithstanding this general transference of the risk of such conditions, the parties agree that there are limited circumstances under which Design/Builder the Contractor may be entitled to an increase in the Fixed Contract Price due to conditions that are unknown, concealed, and unforeseeable conditions, as set forth in this Article. .2 16.2.2 If subsurface or otherwise concealed conditions are encountered at the Project site which are: (1) unknown to Design/Builderthe Contractor; and (2) not reasonably foreseeable or anticipated by Design/Builder the Contractor in view of Design/Builderthe Contractor’s representations and warranties contained in Article 2. (3) which are either: (i) materially different from those indicated in any respective soils reports provided; or (ii) materially different from those ordinarily found to exist and generally recognized and inherent in construction activities of the character provided for in the Contract, then Design/Builder the Contractor may seek an adjustment to the Fixed Contract Price and/or an extension of the Contract Time, in accordance with the provisions of this Article 16, and provided that Design/Builder the Contractor shall give notice to the Owner Municipality in writing before the conditions are disturbed and in no event later than seven (7) calendar days after Design/Builder the Contractor discovers or observes the conditions. (iii) Upon receipt of said notice, Owner the Municipality shall investigate such conditions and make a determination as to whether the conditions meet the requirements set forth in this Paragraph 16.2 above. Owner The Municipality shall notify Design/Builder the Contractor in writing within fourteen (14) days of its determination. If Owner the Municipality determines that the conditions do not meet the requirements of Paragraph 16.2, Owner the Municipality shall specify the reasons for that determination. .3 16.2.3 Examples of conditions that would not be reasonably foreseeable and thus may qualify for an adjustment in the Fixed Contract Price, and/or an extension of the Contract Time include: buried vehicle bodies, which reasonably require Design/Builder the Contractor to utilize equipment to remove said vehicles which was not contemplated by Design/Builder the Contractor as necessary to perform the Work; burial or archeological finds; dump or garbage pits that contain more than fifty (50) cubic yards of refuse to be hauled off of the Project site; drain fields; storage tanks, voids or tunnels; or rock formations which require “jack hammering” or “blasting” to excavate or remove; and groundwater higher than three (3) feet below existing ground level, which cannot be diverted or removed through the use of four-inch (4”) pumps on the Project site. .4 16.2.4 Examples of conditions that are reasonably foreseeable under the Contract, and do not qualify for an adjustment in either the Fixed Contract Price and/or an extension of the Contract Time include: materials expected to be found in river bottom soil, including but not limited to, cobblestones, clay, sand, silt and gravel (and combinations thereof), boulders up to one ton in size, car bodies or vehicles, which do not require Design/Builder the Contractor to utilize equipment for removal which was not contemplated by Design/Builder the Contractor for use in performing the Work, garbage pits containing less than fifty (50) cubic yards of material.

Claims for Extraordinary Unforeseeable Subsurface or Concealed Conditions. .1 Under the provisions of this Agreement, including the representations and warranties of Design/Builder contained in Paragraphs 2.1(5) and (6), Design/Builder understands and agrees that the risk of increased costs in the Design Services and the Work caused by the conditions of the Project site, whether surface, subsurface, or other conditions which affect the site or the performance of Design Services or the Work have been transferred to and assumed by Design/Builder under this Agreement, and that such increased costs will be absorbed by Design/Builder, and that there will be no increase in the Fixed Contract Price as a result of Design/Builder encountering such conditions and increased costs. Notwithstanding this general transference of the risk of such conditions, the parties agree that there are limited circumstances under which Design/Builder may be entitled to an increase in the Fixed Contract Price due to conditions that are unknown, concealed, and unforeseeable conditions, as set forth in this Article. .2 If subsurface or otherwise concealed conditions are encountered at the Project site which are: (1) unknown to Design/Builder; and (2) not reasonably foreseeable or anticipated by Design/Builder in view of Design/Builder’s representations and warranties contained in Article 2. (3) which are either: (i) materially different from those indicated in any respective soils reports provided; or (ii) materially different from those ordinarily found to exist and generally recognized and inherent in construction activities of the character provided for in the Contract, then Design/Builder may seek an adjustment to the Fixed Contract Price and/or an extension of the Contract Time, in accordance with the provisions of this Article 16, and provided that Design/Builder shall give notice to the Owner in writing before the conditions are disturbed and in no event later than seven (7) calendar days after Design/Builder discovers or observes the conditions. (iii) Upon receipt of said notice, Owner shall investigate such conditions and make a determination as to whether the conditions meet the requirements set forth in this Paragraph 16.2 above. Owner shall notify Design/Builder in writing within fourteen (14) days of its determination. If Owner determines that the conditions do not meet the requirements of Paragraph 16.2, Owner shall specify the reasons for that determination. .3 Examples of conditions that would not be reasonably foreseeable and thus may qualify for an adjustment in the Fixed Contract Price, and/or an extension of the Contract Time include: buried vehicle bodies, which reasonably require Design/Builder to utilize equipment to remove said vehicles which was not contemplated by Design/Builder as necessary to perform the Work; burial or archeological finds; dump or garbage pits that contain more than fifty (50) cubic yards of refuse to be hauled off of the Project site; drain fields; storage tanks, voids or tunnels; or rock formations which require “jack xxxx hammering” or “blasting” to excavate or remove; and groundwater higher than three (3) feet below existing ground level, which cannot be diverted or removed through the use of four-inch (4”) pumps on the Project site. .4 Examples of conditions that are reasonably foreseeable under the Contract, and do not qualify for an adjustment in either the Fixed Contract Price and/or an extension of the Contract Time include: materials expected to be found in river bottom soil, including but not limited to, cobblestones, clay, sand, silt and gravel (and combinations thereof), boulders up to one ton in size, car bodies or vehicles, which do not require Design/Builder to utilize equipment for removal which was not contemplated by Design/Builder for use in performing the Work, garbage pits containing less than fifty (50) cubic yards of material.fifty