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In the event the initial test results indicate a failure, the contractor will immediately contact <br />the independent testing agency in order to complete the confirmation testing. The receipt of <br />the test report indicating the failure in the mix will immediately trigger the corrective <br />action/damages process. The Contractor will be considered placed on notice upon receipt of <br />the testing report from the independent laboratory. if a back-up sample was not taken nor if <br />there is not enough of the original sample to complete confirmation testing, the original test <br />will be binding. There will be no coring of placed materials for confirmation testing. The <br />contractor is solely responsible for making any and all corrections to the material mix in order <br />to meet the requirements in the mix design. <br />4. The corrective action/damages are set forth as follows: <br />a. The damages will be for all of the specific mix design/material delivered on the day <br />the sample was taken. <br />b. Damages are progressive for each specific mix design. The material costs for the <br />day the sample was taken will be reduced by the following percentages <br />First test failure — 10% reduction of actual material cost. <br />ii. Second test failure — 20% reduction of actual material cost. <br />iii. Third test failure — 30% reduction of actual material cost. <br />iv. Fourth and all successive test failures — 50% of reduction of actual <br />material cost. <br />5. The City of South Bend reserves the right to accelerate the corrective action/damages <br />procedure or to require the contractor, at his expense, to remove and replace the material in <br />the event the failure in the material delivered may cause physical or property damage to the <br />public. <br />6. The parties recognize that time is of the essence in regard to this Contract and that City will <br />suffer financial loss if the equipment, supplies, services are not delivered within the times <br />specified on the Contract. <br />a. It is agreed between the parties hereto that if Contractor shall not deliver the <br />equipment, supplies, services and/or other obligations by the date specified in the <br />Contract, City shall use the bid bond or certified check of bidder as liquidated <br />damages <br />b. Should the Contractor fail to provide or perform the equipment, supplies, services <br />and/or other obligations pursuant to the Contract, and should the City then elect to <br />bid a new project that will replace the Contract, any bid for the project from <br />Contractor will be considered only if Contractor can demonstrate the ability to <br />deliver and perform the equipment, supplies, services and/or other obligations in <br />a timely fashion. <br />c. It is agreed between the parties hereto that if Contractor shall not deliver the <br />equipment, supplies, services and/or other obligations by the time specified in the <br />Contract, City shall award all or part of the material to the next lowest bidder. <br />XIII. DELIVERY <br />A. Prevailing specifications/INDOT Standard Specification Section: None <br />Version 1/30/2020 Special Provisions - 5 <br />