Section 3-125-11 - Differing site conditions for construction contracts Paragraph (1) or similar statements expressing the same intent, shall be included in all construction contracts in which the procurement officer determines that the contractor should not accept the risk of differing site conditions. Where the procurement officer determines that a contractor must accept the risk of differing site conditions, the clause in paragraph (2), or similar statement expressing the intent of the clause, shall be included.
(1) "Differing site conditions - price adjustments.(A)Notification. The contractor shall promptly, and before such conditions are disturbed, notify the procurement officer of: (i) Subsurface or latent physical conditions at the site differing materially from those indicated in this contract; or(ii) Unknown physical conditions at the site, of an unusual nature, differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in this contract.(B)Adjustments of price or time for performance. After receipt of the notice, the procurement officer shall promptly investigate the site, and if it is found that the conditions do materially so differ and cause an increase in the contractor's cost of, or the time required for, performance of any part of the work under this contract, whether or not changed as a result of the conditions, an adjustment shall be made and the contract modified in writing accordingly. Any adjustment in contract price made pursuant to this clause shall be determined in accordance with the price adjustment clause of this contract.(C)Timeliness of claim. No claim of the contractor under this clause shall be allowed unless the contractor has given the notice required in this clause; provided, however, that the time prescribed therefore may be extended by the procurement officer in writing.(D)No claim after final payment. No claim by the contractor for an adjustment thereunder shall be allowed if asserted after final payment under this contract.(E)Knowledge. Nothing contained in this clause shall be grounds for an adjustment in compensation if the contractor had actual knowledge of the existence of such conditions prior to the submission of bids."(2) "Differing site conditions - contractor's responsibility. The contractor accepts the conditions at the construction site as they eventually may be found to exist and warrants and represents that the contract can and will be performed under such conditions, and that all materials, equipment, labor, and other facilities required because of any unforeseen conditions (physical or otherwise) shall be wholly at the contractor's own cost and expense, anything in this contract to the contrary notwithstanding."[Eff 12/15/95; am and comp NOV 17 1997] (Auth: HRS §§ 103D-202, 103D-501) (Imp: HRS § 103D-501)