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2. Contract Approval - WWTP Digester Lid Repair Project2011 St Avenue East PO Box 1997 Kalispell, MT 59903 Phone: 406-758-7720 Fax: 406-758-7831 www.kalispell.com /public —works MEMORANDUM TO: Doug Russell, City Manager -V� FROM: Susie Turner, Public Works Director/City Engineer SUBJECT: Contract Approval — Digester Lid Repair Project MEETING: March 18, 2013 Upon Council approval of the bid recommendation for the Digester Lid Replacement Project, the Notice of Award was issued to Swank Enterprises as the Successful Bidder. The Notice of Award commences the execution of the Contract Agreement documentations. A copy of the Contract Agreement is attached for Council review and approval. The contract documents have been reviewed for completeness by HDR, the Engineer of Record for the project. Construction is scheduled for early spring 2013; timing is dependent on digester content removal and the ability to land apply digester solids. STAFF RECOMMENDATION: Approve contract and proceed with the construction of the Digester Lid Replacement Project. ACTION REQUESTED: At the City Council meeting, motion to approve contract as presented. FISCAL EFFECTS: As presented at the bid recommendation, the Digester Lid Repair Project is funded through a State Revolving Fund (SRF) Loan. The current FY 12/13 budget for this project is $865,000, which included the costs associated with the construction, construction engineering, and the SRF loan. The SRF loan amount will need to be adjusted to reflect the construction bid cost and the City's budget will need to be amended at a future Council meeting to reflect the construction and associated SRF loan costs. Below is the estimated loan amount for the project. Project Budget for Bond Amount Primary Digester Cover and Mixer $ 793,188.00 Foam Separator $ 70,000.00 Construction Total $ 863,188.00 Montana Gross Receipt Tax at 1% Construction Engineering Services $ 8,631.88 $ 150,550.00 15% Contingency $ 153,355.48 Construction and Engineering Total $ 1,175,725.36 SRF Bond Council and Related Costs $ 95,265.00 Total Bond Amount $ 1,270,990.36 ALTERNATIVES: As suggested and approved by the City Council. SECTION 00500 AGREEMENT THIS AGREEMENT is by and between City of Kalispell, hereinafter called OWNER, and Swank Enterprises, Inc, hereinafter called CONTRACTOR. OWNER and CONTRACTOR, in consideration of the mutual covenants hereinafter set forth, agree as follows: Article 1. WORK CONTRACTOR shall complete all Work as specified or indicated in the Contract Documents for the Project identified herein. Article 2. PROJECT The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: Primary Digester Repair for the City of Kalispell, Montana The contract includes, but is not limited to, the furnishing of the labor, materials, and equipment for the following work: 1. Demolition work in primary digester. 2. Construction of new primary digester cover. 3. Installation of new top entry mixer. 4. Relocation of an existing temperature transmitter. 5. Installation of new foam separator. 6. Other miscellaneous electrical, controls, piping and valve improvements. Article 3. ENGINEER The Project has been designed by: HDR Engineering Inc. Morrison-Maierle, Inc. 1715 South Reserve, Suite C in association with 125 Schoolhouse Loop Missoula, MT 59801 Kalispell, MT 59901 who is hereinafter called ENGINEER and who is to act as OWNER's representative, assume all duties and responsibilities, and have the rights and authority assigned to ENGINEER in the Contract Documents in connection with completion of the Work in accordance with the Contract Documents. Article 4. CONTRACT TIMES 4.1. Time of the Essence. A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. 4.2. Days to Achieve Substantial Completion and Final Payment. 00...177698 City of Kalispell Primary Digester Repair - AGREEMENT 00500 - 1 A. The Work will be substantially completed within 135 calendar days after the date when the Contract Times commence to run as provided in Paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with Paragraph 14.07 of the General Conditions within 150 calendar days after the date when the Contract Times commence to run. 4.3. Liquidated Damages. A. OWNER and CONTRACTOR recognize that time is of the essence of this AGREEMENT and that OWNER will suffer financial loss if the Work is not completed within the times specified in Paragraph 4.2. above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. The parties also recognize the delays, expense and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by OWNER if the Work is not completed on time. Accordingly, instead of requiring any such proof, OWNER and CONTRACTOR agree that as liquidated damages for delay (but not as a penalty), CONTRACTOR shall pay OWNER five hundred dollars ($500.00) for each day that expires after the time specified in Paragraph 4.2. for Substantial Completion until the Work is substantially complete. After Substantial Completion, if CONTRACTOR shall neglect, refuse or fail to complete the remaining Work within the time specified in Paragraph 4.2. for completion and readiness for final payment or any proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER five hundred dollars ($500.00) for each day that expires after the time specified in Paragraph 4.2. for completion and readiness for final payment. Article 5. CONTRACT PRICE 5.1. OWNER shall pay CONTRACTOR for completion of the Work in accordance with the Contract Documents an amount in current funds equal to the sum of the amounts determined pursuant to Paragraphs 5.1.A. below: A. For all Work a lump sum of: Eight Hundred Seventy -One Thousand Eight Hundred Twenty Dollars (S 871,820) (use words) (use figures) All specified cash allowances are included in the above price and have been computed in accordance with paragraph 11-02 of the General Conditions. 5.2 As provided in Paragraph 11.03 of the General Conditions, estimated quantities are not guaranteed, and determinations of actual quantities and classification are to be made by ENGINEER as provided in Paragraph 9.08 of the General Conditions. Unit prices have been computed as provided in Paragraph 11.03B. of the General Conditions. Article 6. PAYMENT PROCEDURES 6.1. Submittal and Processing of Payments. A. CONTRACTOR shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by ENGINEER as provided in the General Conditions. 6.2. Progress Payments; Retainage. 00...177698 City of Kalispell Primary Digester Repair - AGREEMENT 00500 - 2 A. OWNER shall make monthly progress payments on account of the Contract Price on the basis of CONTRACTOR's Applications for Payment as recommended by ENGINEER, during construction as provided in Paragraphs 6.1.1 and 6.1.2 below. All such payments will be measured by the schedule of values established in Paragraph 2.07A. of the General Conditions (and in the case of Unit Price Work based on the number of units completed) or, in the event there is no schedule of values, as provided in the General Requirements. l . Prior to Substantial Completion, progress payments will be made in an amount equal to the percentage indicated below, but, in each case, less the aggregate of payments previously made and less such amounts as accordance with Paragraph 14.02 of the General Conditions. a. 95 percent (with the balance being retainage) of materials and equipment not incorporated in the Work (but delivered, suitably stored and accompanied by documentation satisfactory to OWNER as provided in Paragraph 14.02 of the General Conditions). Upon Substantial Completion, in an amount sufficient to increase total payments to CONTRACTOR to 95 percent of the Contract Price (with the balance being retainage), less such amounts as ENGINEER shall determine, or OWNER may withhold, in accordance with Paragraph 14.02 of the General Conditions. 6.3. Final Payment. A. Upon final completion and acceptance of the Work in accordance with Paragraph 14.07 of the General Conditions, OWNER shall pay the remainder of the Contract Price as recommended by ENGINEER as provided in said Paragraph 14.07 Article 7. INTEREST 7.1 All moneys not paid when due as provided in Article 14 of the General Conditions shall bear interest at the rate allowed by law at place of this project. Article 8. CONTRACTOR'S REPRESENTATIONS 8.1. In order to induce OWNER to enter into this Agreement, CONTRACTOR makes the following representations: A. CONTRACTOR has examined and carefully studied the Contract Documents (including the Addenda listed in Article 9.) and the other related data identified in the Bidding Documents. B. CONTRACTOR has visited the site and become familiar with and is satisfied as to the general, local and site conditions that may affect cost, progress, performance or furnishing of the Work. C. CONTRACTOR is familiar with and is satisfied as to all federal, state and local Laws and Regulations that may affect cost, progress, performance or furnishing of the Work. D. CONTRACTOR has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all Drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) which have been identified in the Supplementary Conditions as provided in Paragraph 4.02A. of the General Conditions and (2) reports and drawings of a Hazardous Environmental Condition, if any, at the Site which have been identified in the Supplementary Conditions as provided in Paragraph 4.06 of the General Conditions. 00...177698 City of Kalispell Primary Digester Repair - AGREEMENT 00500 - 3 CONTRACTOR accepts the determination set forth in the General and Supplementary Conditions of the extent of the "technical data" contained in such reports and Drawings upon which CONTRACTOR is entitled to rely as provided in Paragraph 4.02 of the General Conditions. CONTRACTOR acknowledges that such reports and Drawings are not Contract Documents and may not be complete for CONTRACTOR's purposes. CONTRACTOR acknowledges that OWNER and ENGINEER do not assume responsibility for the accuracy or completeness of information and data shown or indicated in the Contract Documents with respect to Underground Facilities at or contiguous to the Site. E. CONTRACTOR has obtained and carefully studied (or assumes risk for not doing so) all reasonable additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site which may affect cost, progress, or performance of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, including any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Bidding Documents, and safety precautions and programs incident thereto. F. CONTRACTOR does not consider that any additional examinations, investigations, explorations, tests, studies or data are necessary for the performance and furnishing of the Work at the Contract Price, within the Contract Times and in accordance with the other terms and conditions of the Contract Documents. G. CONTRACTOR is aware of the general nature of work to be performed by OWNER and others at the site that relates to the Work as indicated in the Contract Documents. H. CONTRACTOR has correlated the information known to CONTRACTOR, information commonly known to contractors doing business in the locality of the Site, information and observations obtained from visits to the site, reports and drawings identified in the Contract Documents and all additional examinations, investigations, explorations, tests, studies and data with the Contract Documents. I. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, ambiguities or discrepancies in the Contract Documents and the written resolution thereof by ENGINEER through issued addendum or addenda is acceptable to CONTRACTOR, and the Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. When said conflicts, etc., have not been resolved through interpretation or clarification by ENGINEER, because of insufficient time or otherwise, CONTRACTOR has included in the Bid the greater quantity or better quality of Work, or compliance with the more stringent requirement resulting in a greater cost; and said greater cost is included in the Contract Price. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. Article 9. CONTRACT DOCUMENTS 9.1. Contents. A. The Contract Documents which comprise the entire agreement between OWNER and CONTRACTOR concerning the Work consist of the following: 00...177698 City of Kalispell Primary Digester Repair - AGREEMENT 00500 - 4 1. This Agreement (pages 1 to 7, inclusive). 2. Performance Bond (pages 1 to 3, inclusive). 3. Payment Bonds (pages 1 to 3, inclusive). 4. Notice to Proceed. 5. Standard General Conditions of the Construction Contract — Funding Agency Edition (pages 00710-1 to 00710-60, inclusive). 6. Supplementary Conditions (pages 00810-1 to 00810-15, inclusive). 7. Specifications as listed in Table of Contents of the Project Manual. 8. Drawings consisting of a cover sheet and plan sheet, inclusive with each sheet bearing the following general title: City of Kalispell Advanced Wastewater Treatment Plant, Primary Digester Repair 9. Addenda numbers 1 to 2, inclusive. 10. CONTRACTOR's Bid (pages 1 to 11, inclusive) marked Exhibit A. 12. The following which may be delivered or issued after the Effective Date of the AGREEMENT and are not attached thereto: a. All written amendments and other documents amending, modifying or supplementing the Contract Documents pursuant to Paragraph 3.04 of the General Conditions. b. The documents listed in Paragraphs 9.1 et seq. above are attached to this Agreement (except as previously noted otherwise above). G. There are no Contract Documents other than those listed above in this Article 9. The Contract Documents may only be amended, modified or supplemented as provided in Paragraph 3.04. of the General Conditions. Article 10. MISCELLANEOUS 10.1 Terms. A. Terms used in this Agreement which are defined in Article 1 of the General Conditions will have the meanings indicated in the General Conditions. 10.2. Assignment of Contract. A. No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.3. Successors and Assigns. 00...177698 City of Kalispell Primary Digester Repair - AGREEMENT 00500 - 5 A. OWNER and CONTRACTOR each binds itself, its partners, successors, assigns and legal representatives to the other party hereto, its partners, successors, assigns and legal representatives in respect to all covenants, agreements and obligations contained in the Contract Documents. 10.4. Severability. A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon OWNER and CONTRACTOR, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 10.5 CONTRACTOR'S Certifications. A. CONTRACTOR certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for or in executing the Contract. For the purposes of this Paragraph: 1. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the bidding process or in the Contract execution. 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Contract to the detriment of OWNER, (b) to establish Bid or Contract prices at artificial non-competitive levels, or (c) to deprive OWNER of the benefits of free and open competition. 3. "collusive practice" means a scheme or arrangement between two or more BIDDERS, with or without the knowledge of OWNER, a purpose of which is to establish Bid prices at artificial, non-competitive levels. 4. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract. 10.6. Other Provisions. IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in triplicate. One counterpart each has been delivered to OWNER, CONTRACTOR, and ENGINEER. All portions of the Contract Documents have been signed, initialed or identified by OWNER and CONTRACTOR or identified by ENGINEER on their behalf. This AGREEMENT will be effective on of the AGREEMENT). OWNER [CORPORATE SEAL] Attest Address for giving notices: 00...177698 2013 (which is the Effective Date CONTRACTOR � Eke _5 i By. a r.f M'v% [C RPORATE SEAL] Attest Address for giving notices: _150 W, �, �(rsal (,tli '06M. City of Kalispell J� 1 � C '� Primary Digester Repair - AGREEMENT 00500 - 6 Agent for service of process: NOTE: If OWNER is a corporation, attach evidence of authority to sign. If Owner is a public body, attach evidence of authority to sign and resolution or other documents authorizing execution of Agreement. Agent for service of process: License No. 4' NOTE: If CONTRACTOR is a corporation, attach evidence of authority to sign. 00...177698 City of Kalispell Primary Digester Repair - AGREEMENT 00500 - 7 EXHIBIT A 00... 177698 City of Kalispell Primary Digester Repair - AGREEMENT 00500 - 8 SECTION 00301 BID FORM PROJECT IDENTIFICATION: CiMof Kalispell Advanced WastewaterTreatiyent Plant Prip ary I�g ster Repair THIS BID fS SUBMITTED TO: Honorable Mayor and City Council CiIX. of Kalispell 201 I" Avenue )mast, P.O. Box 1997. Kalispell, MT 59903-1997, herein after referred to as OWNER. I. Enter into Agreement The undersigned BIDDER proposes and agrees, if this Bid is accepted, to enter into an agreement with OWNER in the form included in the Bidding Documents to perform and furnish all Work as specified or indicated in the Contract Documents for the Bid Price and within the Bid Times indicated in this Bid and in accordance with the other terms and conditions of the Contract Documents. 2. BIDDER Acknowledgements BIDDER accepts all of the terms and conditions of the Advertisement or INVITATION TO BID and INSTRUCTIONS TO BIDDERS, including without limitation those dealing with the disposition of Bid security. This Bid will remain subject to acceptance for the period specified for Notice of Award after the day of Bid opening. BIDDER will sign and deliver the required number of counterparts of the AGREEMENT with the Bonds and other documents required by the Bidding Requirements within 15 days after the date of OWNER's Notice of Award. 3. BiDDER's Representations in submitting this Bid, BIDDER represents that: a. BIDDER has examined and carefully studied the Bidding Documents, other related data identified in the Bidding Documents, and the following Addenda receipt of all which is hereby acknowledged: (List Addenda by Number) DDENl A 14 } b. BIDDER has visited the site and become familiar with and is satisfied as to the general, local and site conditions that may affect cost, progress, performance and furnishing of the Work. c. BIDDER is familiar with and is satisfied as to all federal, state and local Laws and Regulations that may affect cost, progress, performance and furnishing of the Work. d. BIDDER has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the site (except Underground Facilities) which have been identified in the SUPPLEMENTARY CONDITIONS as provided in Paragraph 4,02A. of the General Conditions, and (2) reports and drawings of Hazardous Environmental Conditions that have been identified in the SUPPLEMENTARY CONDITIONS. e. BIDDER accepts the determination set forth in Paragraph SC-4.02 of the Supplementary Conditions ofthe extent ofthe "technical data" contained in such reports and drawings upon which BIDDER is entitled to rely as provided in Paragraph 4.02 ofthe General Conditions. 00-177698 City of Kalispell Primary Digester Repair - BID FORM 00301 - 1 F. BIDDER acknowledges that such reports and drawings are not Contract Documents and may not be complete for BIDDER's purposes. g. BIDDER acknowledges that OWNER and ENGINEER do not assume responsibility for the accuracy or completeness of information and data shown or indicated in the Bidding Documents with respect to existing Underground Facilities at or contiguous to the site. h. BIDDER has obtained and carefully studied (or assumes responsibility for having done so) all reasonable additional or supplementary examinations, investigations, explorations, tests, studies and data concerning conditions (surface, subsurface and Underground Facilities) at or contiguous to the site or otherwise which may affect cost progress, performance or furnishing of the Work or which relate to any aspect of the means, methods, techniques, sequences and procedures of construction to be employed by BIDDER and safety precautions and programs incident thereto. I. BIDDER does not consider that any additional examinations, investigations, explorations, tests, studies or data are necessary for the determination of this Bid for performance and furnishing of the Work in accordance with the times, price and other terms and conditions of the Contract Documents. J. BIDDER is aware of the general nature of Work to be performed by OWNER and others at the site that relates to Work for which this Bid is submitted as indicated in the Contract Documents. k. BIDDER has correlated the information known to BIDDER, information commonly known to CONTRACTORS doing business in the locality of the Site, information and observations obtained from visits to the site, reports and drawings Identified in the Contract Documents and all additional examinations, investigations, explorations, tests, studies and data with the Contract Documents. 1. BIDDER has given ENGINEER written notice of all conflicts, errors, ambiguities or discrepancies in the Contract Documents and the written resolution thereof by ENGINEER is acceptable to BIDDER, and the Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performing and furnishing the Work for which this Bid is submitted. in, Where conflicts, errors, ambiguities or discrepancies have been discovered in or between Contract Documents and/or other related documents, and where said conflicts, etc., have not been resolved through the interpretations or clarifications by ENGINEER as described in the INSTRUCTIONS TO BIDDERS, because of insufficient time or otherwise, BIDDER has included in the Bid the greater quantity or better quality of Work, or compliance with the more stringent requirement resulting in a greater cost, n. The Bidding Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. o, This Bid is genuine and not made in the interest of or on behalf of any undisclosed person, firm or corporation and is not submitted in conformity with any agreement or rules of any group, association, organization or corporation; BIDDER has not directly or indirectly induced or solicited any other BIDDER to submit a false or sham Bid; BIDDER has not solicited or induced any person, firm or corporation to refrain from bidding; and BIDDER has not sought by collusion to obtain for itself any advantage over any other BIDDER or over OWNER. 4. BIDDER°s Certification 00...177698 City of Kalispell Primary Digester Repair - 1i1D Pt7RM 00301 - 2 a. This Bid is genuine and not made in the interest of or on behalf of any undisclosed individual or entity and is not submitted in conformity with any collusive agreement or rules of any group, association, organization, or corporation. b. BIDDER has not directly or indirectly induced or solicited any other BIDDER to submit a false or sham Bid. c. BIDDER has not solicited or induced any individual or entity to refrain from bidding. d. BIDDER has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for the Contract. For the purposes of this Paragraph: (I) "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the bidding process. (2) "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the bidding process to the detriment of OWNER. (b) to establish Bid prices at artificial non- competitive levels, or (c) to deprive OWNER of the benefits of free and open competition. (3) "collusive practice" means a scheme or arrangement between two or more BIDDERS, with or without the knowledge of 0 WNI;R, a purpose of which is to establish Bid prices at artificial, non-competitive levels. (4) "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract. 5. Bid Prices This section, in general, describes the bid items included in the BID SHEET. The description of Bid Items is provided for clarity purposes only. It is not intended to replace, supersede or preclude any information in the plans and specifications. Unless specified otherwise, all lump sum and unit price bid items will be paid as a percentage of actual work complete, Percent complete will be based on the schedule of values submitted by the Contractor and approved by the engineer. The schedule of values will break down the lump sum and unit price bid items into discrete work activities beyond the breakdown shown on the Bid Form. The schedule of values must be submitted and approved by the Engineer before the Contractor can request a payment for work under this Contract. Descriptions of the project Bid Items are provided below: BID ITEM NO. 1: PRIMARY DIGESTER COVER AND MIXER. This lump sum Bid Item Includes demolition within an existing Primary Digester, all labor, equipment, materials and services to perform the work of constructing a new Primary Digester concrete cover, installing a new top entry mixer 09-SM-0001, 8" DST, 10" DO, 4" DG, 8" SL,G, 4" FAD, 1" NPW and associated valves, fittings and pipe supports complete, except for work described III other Bid Stems. This Bid Item also includes the relocation of an existing temperature transmitter. This Base Bid excludes the costs associated with Bid Items No. 2, No. 3, and No. 4. BID ITEM NO. 2: FOAM SEPARATOR. This lump sum Bid Item includes all labor, equipment, materials and services for the supply and installation of Foam Separator 09-FS-0001. This Bid Item also includes piping from the foam separator to 3 FT minimum beyond the equipment or to the nearest isolation valve. All other piping shall he included as part of Bid item No. 1. BID ITEM NO. 3: DIGESTER GAS ROOM PIPING AND EQUIPMENT. This lump sum Bid Item includes all labor, equipment, materials, and services to construct the 4" DG and associated equipment, valves, fittings, and pipe supports in the Digester Gas Room. All other DG piping shall be included as part of Bid Item No. 1. 00...177698 City of Kalispell Primary Digester Repair - DID FORM 00301 -3 BID ITEM NO. 4: TWAS PIPING CROSS CONNECTION. This Jump sum Bid Item includes all labor, equipment, materials, and services to construct a cross connection between the existing 6" TWAS piping and existing Secondary Digester feed in the Digester Control Building basement. This Bid Item also Includes associated valves, fittings, and pipe supports. This Bid Item also includes demolition of existing 8" THS piping and installation of 6" magnetic flow meter. b. Bidder will complete the Work in accordance with the contract Documents and the provisions below for the following prlce(s) as summarized in the Bid Sheet Schedule(s) hereinafter. c. Bidder agrees that all sales and use taxes are included in the stated bid price for the work. d. The Owner reserves the right to reject any or all bids. e. Contractor Take Note: It is the intent of the Owner to award a contract to the lowest responsive, responsible bidder on the basis of the combined total of Bid Items No. I, No. 2, No. 3, and No. 4. Bidders must include lump sum bid prices for *I1 Bid Items No. I through 4. Bids received that do not Include pricing for all Bid Items will be considered non -responsive. The purpose and intent of using such a basis of award is to allow the Owner to construct the greatest possible number of Bid Items based upon the responsible bids received and the funding available. The Owner reserves the right to authorize construction of any combination of, or all of, the bid items defined at the bid amounts presented in the Contractor's Bid Proposal. 6. Primary Digester Repair Besse Pr9posal Sheet The bid for the following items shall be a lump sum bid for all construction work described in the contract Documents. The bid price shalt include all temporary or permanent equipment, materials, supplies, and labor necessary to construct the item in accordance with the contract documents. The total lump sum price shall be broken down Into the following items for the purpose of progress payments and of the information of the Owner. a. BID PROPOSAL SUMMARY (Basis of Award): Bid item No. Description Total Bid item Price (Ilse Figures) I Primary Digester Cover and Mixer $ Use Fi ures 2 Foam Separator $ opc� Use Fi ures 3 Digester Gas Room Piping and Equipment Use Figures) 4 _ _ TWAS Piping Cross Connection $_�____ Use i ures) Montana Cross Receipt Tax aQ 1% $____ _ U F pros ) — TOTAL BID PRICE Including Montana Gross Receipts Tax $ (Use Figures) g Total Bid Price Including Montana Gross ReceipisC%t` fV111 words) 87 00... 177698 City of Kai ispeli Primary Digester Repair - BtD FORM 00301 - 4 7. Time of Completion BIDDER agrees that the Work will be substantially completed and ready for final payment in accordance with Paragraph 14.07B, of the General Conditions on or before the dates or within the number of calendar days indicated in the AGREEMENT. BIDDER accepts the provisions of the AGREEMENT as to liquidated damages in the event of failure to complete the Work within the times specified in the AGREEMENT. 8. Attached To This Bid The following documents are attached to and made a condition of this Bid: a. Required BId Security consisting of three (3) pages (Specification Section 00410 -Bid Bond, EJCD No. 1910.28-C Document, Bid Bond (Penal Sum), Pages 1-2), identified in Section 00100 - Instructions To bidders in the form of certified or band check or bid bond. b. Bid Form - Appendix. Information required of bidder to be included with bid form. Failure to furnish required information will render the bid non -responsive and may cause its rejection. c. Required BIDDER's Non -Collusion Afdavit consisting of one (1) page, identified in Section 00460. 9. Address For Communications Communications concerning this Bid shall be addressed to the address of BIDDER indicated below: x 5D LQ . v �i (! , 1 Jim ► 1. C� t0. Defined TermsfY�C t �r1�` aV_, .st-' tea` a1R Y c E �S <�C�j�rl Terms used in this Bid which are defined in the General Conditions or INSTRUCTIONS TO BIDDERS will have the meanings indicated in the General Conditions or INSTRUCTIONS TO BIDDERS. It. Bid Submittal This Bid is submitted by: if BIDDER is: An Individual Name (typed or printed): By: (lndividual's signature) Doing business as: A Partnership Partnership Name: 00.,.177698 City of Kalispell Primary Digester Repair - BID FORM 00301 - 5 By: (Signature of gencraf—plA ttach evidence of authority to sign) Name (typed or printed: A Corporation t/ Corporation name-.\Y1i i 1, State of Incorporation: r` Type of Corporation: -� t� aA �----� encral Husinoss, Professional, Service, Limited Liability) Ely: —S-' (Signat c -- attach evidence of authority to sign) Name (typed or printed): J� 1OQ i4 Title: \1 icq r - 1(0.1ifC tfCCorporTatc SAID Attest: Lt� ifxr— I` - Date of Qualification to do business inis _ _.. /�"1W (State where Project is located) AJoint Venture Name of ?oinEVenture: First Joint Venturer Name:. By: �. (Signature of first joint Name (typed or printed): Title: -- attach evidence of authority to sign) Second Joint Venturer Name: By: (Signature of first joint venture partner •- attach evidence of aullmrit o sign) Name (typed or printed): Title: 00...17769E City of Kalispell Primary Digester Repair - BID FORM 00301 - 6 BID FORM - APPENDIX INFORMATION REQUIRED OF BIDDER The bidder shall furnish the following information. Failure to comply with this requirement will render the Bid non -responsive and may cause its rejection. Additional sheets shall be attached as required. t . Contractor's name and address: 1 2. Contractor's telephone number: t�\ 3. Contractor's license: Primary classification State License No, 4.ly Cp Supplemental classifications held, if any: 'V\ II/ A 4. Number of years as a contractor in construction work of this type:t�c Jli 5. Names and titles of all officers of Contractor's firm, responsible for this project: 6. Name of person who inspected site of proposed work for your firm: Name: Date of Inspection: 1- aq 7. Name, address and telephone number of surety company and agent who will provide the required on M Cc f `..)3 8. A financial statement, orAl Document A305 Contractor's Qualification Statement, references, and other information, sufficiently comprehensive to permit an appraisal of Contractor's current financial condition, can be requested by the Owner or Engineer, and must be provided by the Contractor upon request, 00...177698 City of Kalispell Primary Digester Repair - BtD PORM 0030 t - 8 SECTION 00410 BID BOND (TO BE EXECUTED AND PRQVIDliD WITH B113 FORM) Any si0galor reference to Bidder, Surety, Owner, or other party shall be considered plural where applicable. B10081K (Narnie 40 Address). Swank Enterprises PO Box 10007 Kalispell, MT 69904 SURETY (Name and Address of Principal Place of Business): Travelers Casualty & Surety Company of America One Tower Square Hartford, CT 06183 OWNBR (Name and Address)., City of Kalispell PO Box 1997 Kalispell, MT 59903 Bm Bid Due Dato: February 7, 2013 Project (Brief Description lncluding Location): Primary Digester Repair BOND Bond Number: SEK020713 Bate (Not laterthan Bid due date): February7, 2013 pe*,aum Ten Percent of Amount Bid 10% (Words) (Figures) Surety and Bidder, intending to be legally bound hereby, subject to the terms printed on the reverse side hereof, do eaoh oause tbi's Bid Bond to be duly executed on its behalf by its authorized cif ver, agent, or representative. BibDRR Swank Enterprises (Seal) BlddWs Name and Corporate Seal 0yc , Signature IM Title V { lc.r4 , PR,£ S , Attest, I.wckk n o(Osif)(01C Signature and.Title'S SURETY Note. Above addresses arc to ba used for giving'required notice. UU. J 77608 city or Kalispall Pri,nuy. Diguter 9apa& - 1310 BOND 00410- 1 Travelers Casualty & Surety Company of America (Seal) Surety's Name and Corporate Seal By: I AMA09d Af 1 0 - L zdi fl-.�A-& Y-.,4 ff Signature and Title Tpothy G. LlgTmii;e, M-- -Era act (,Attach Power of Attomey) Attest: Signature and Titic Staphani L. Cordelro, Customer Service Agent SWANK EN"'1"'ERPR!SES/co TR tr0R9 P,O Box 444 FAX, 400,1 *-3244 VALMR, MOW7'ANA ! -40 RESOLUTION" Swanlc Enterprises Resolution dated 10/30/98 which states the following remains in ful] force and effect: Resolved: All Officers of Swank Enterprises, to wit, the President and CEO, Dean Swank; Executive Vice Presidents, Dewey Swank and Derek Swank; Secretary/Treasurer, Rene Swank; and Assistant Secretary/Treasurer, Leiha VandenBos, are filly authorized to conduct financial transactions on behalf of Swank Enterprises. I, Derek Swank, hereby certify that I am the duly appointed and acting Executive Vice President of Swank Enterprises, a Montana Corporation, and that the above solution is true and correct. February 1, 2012 By: a6l��L Derek Swank Executive Vice President of Swank Enterprises WARNING: THIS POWER OF ATTORNEY IS INVALID WITHOUT THE RED BORDER ^gam ]POWER OF ATTORNEY r Farmington Casualty Company St. Paul Mercury Insurance Company Fidelity and Guaranty Insurance Company Travelers Casualty and Surety Company Fidelity and Guaranty Insurance Underwriters, Inc. Travelers Casualty and Surety Company of America St. Paul Fire and Marine Insurance Company United States Fidelity and Guaranty Company St. Paul Guardian Insurance Company Attorney -In Fact No. 224221 Certificate No. 6 0 4 7 2 4 6 91 KNOW ALLMEN BYTHESE PRESENTS: That St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company and St. Paul Mercury Insurance Company are corporations duly organized under the taws of the State of Minnesota, that Farmington Casualty Company, Travelers Casualty and Surety Company, and Travelers Casualty and Surety Company of America are corporations duly organized under the laws of the State of Connecticut, that United States Fidelity and Guaranty Company is a corporation duly organized under the laws of the State of Maryland, that Fidelity and Guaranty Insurance Company is a corporation duly organized under the laws of the State of Iowa, and that Fidelity and Guaranty Insurance Underwriters, Inc., is a corporation duly organized under the laws of the State of Wisconsin (herein collectively called the "Companies"), and that the Companies do hereby make, constitute and appoint Lorrin A. Darby, Dianne L. Meinhardt, Timothy G. Lightbourne, Dale J. Anderson, and Stephan) L. Cordefro of the City of Great Falls s , State of Montana , their true and lawful Attorneys) -in -Fact, each in their separate capacity if more than one is named above, to sign, execute, seal and acknowledge any and all bonds, recognizances, conditional undertakings and other writings obligatory in the nature thereof on behalf of the Companies in theirbusiness of.,guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or perirdtted in any`actions or proceedings allowed by law. IN WITNESS WHEREOF, the Companies have caused this instrument to be signed hd their corporate seals to be hereto affixed, this day of February 2012 Farmington Casualty CoWoimy' Fidelity and Guaranty Insurance Company Fidelity and Guaranty Insurance Underwriters, Inc. St. Paul Fire and Marine Insurance Company St. Paul Guardian Insurance Company 7th St. Paul Mercury insurance Company Travelers Casualty and Surety Company Travelers Casualty and Surety Company of America United States Fidelity and Guaranty Company SPj.,eRuq$4 43W�r arse d` O �r D fS9�� eJpA10Aa/ 6�� .... P � � (/ 1 3' dtsa' I 1 e fyi yy ceg90RAPr n 9 IWIPFOi 5 i' SSp1.Fa �3y Cona1 R State of Connecticut City of Hartford ss. By: Georg Thompson, & ce President On this the 7th day of February 2012 , before me personally appeared George W. Thompson, who acknowledged himself to be the Senior Vice President of Farmington Casualty Company, Fidelity and Guaranty Insurance Company, Fidelity and Guaranty Insurance Underwriters, Inc., St. Paul Fire and Marine Insurance Company, St. Paul Guardian Insurance Company, St. Paul Mercury Insurance Company, Travelers Casualty and Surety Company, Travelers Casualty and Surety Company of America, and United States Fidelity and Guaranty Company, and that he, as such, being authorized so to do, executed the foregoing instrument for the purposes therein contained by signing on behalf of the corporations by himself as a duly authorized officer. 0•� In Witness Whereof, I hereunto set my hand and official seal. My Commission expires the 30th day of June, 2016. 58440-6-11 Printed in U.S.A. Marie C. Tetreault, Notary Public SECTION 00460 NON -COLLUSION AFFIDAVIT State of t�L7_ )ss. County of 1IAT'y City of Kalispell Primacy Digester Repair [ State tjlat I am -Al'itle ) of �� Z. S .. (Name of Firm) and that I am authorized to make this affidavit on behalf of this firm and A owners, directors, and officers. I am the person responsible in this firm for the price(s) and the amount of this Bid. I state that: (1) The price(s) and amount of this Bid have been arrived at independently and without consultation, communication or agreement with any other Contractor, Bidder, or potential Bidder, except as disclosed on the attached appendix. (2) That neither the price(s) nor the amount of this Bid, and neither the, approximate price(s) nor approximate amount of this Bid, have been disclosed to any other firm or person who is a Bidder or potential Bidder, and they will not be disclosed before Bid opening. (3) No attempt has been made or will be made to induce any firm or person to refrain from bidding on this contract, or to submit a Bid higher than this Bid, or to submit any intentionally high or noncompetitive Bid or other form of complementary Bid. (4) The Bid of this firm is made in good faith and not pursuant to any agreement or discussion with, or inducement from, any firm or person to submit a complementary or other noncompetitive Bid. (5) �1�_ � !` (name of this firm), its affiliates, subsidiaries, officers, directors and employees are not currently tinder investigation by any governmental agency and have not in the last four years been convicted of or found liable for any act prohibited by State or Federal law in any jurisdiction, involving conspiracy or collusion with respect to bidding on any public contract, except as described in the attached appendix. [ state that!1s�elV� (name of this firm) understands and acknowtedbcs that the above representations are materialimportant, and will be relied on by the City of Kalispell in awarding the contract(s) for which this Bid is submitted. 1 understand and this firm understands that any misstatement in this affidavit is and shall be treated as fraudulent concealment from the City of Kalispell of the true facts relating to the submission of Bids for thls!; ntmet. -Signature Name of Co pany/Position NNOFFSi LEAANN NOFFSINGER T aQTAq ti 15 NOTARY PUB C f •7 A State of A 1 ?b a subscribed before me this day of R - e_u , 2013, SEAL Residing at 1��efish, Montana �tA My Commission Expires . Au9ust 22. 20t4 � Notary Public This commission expires "(v l 00.,.177698 City of Kalispell Primary Digester Repair - NON -COLLUSION AFFIDAVIT 00460 - 1 This document has important legal consequences; consultation with an attorney is encouraged with respect to its use or modification. This document should be adapted to the particular circumstances of the contemplated Project and the Controlling Law. STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT FUNDING AGENCY EDITION Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly By stational Society of Amerken Society ACEC 0 a roie_ssibnal Enivineera ASCEd CIVH Engine h—wQ C:w.ecn or ('Hcwtatrx Cogramrs Prot"W" fo*%WS�%Mro PrSikO PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE a practice division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS AMERICAN COUNCIL OF ENGINEERING COMPANIES AMERICAN SOCIETY OF CIVIL ENGINEERS This document has been approved and endorsed by The Associated General Contractors of America 0" and the Construction Specification Institute " ar:Cr�itlrq i�P .ne 9usretdip n,B &M. Eb*WMK EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 1 These General Conditions have been prepared for use with the Suggested Forms of Agreement Between Owner and Contractor Funding Agency Edition No. C-521 (2002 Edition), Their provisions are interrelated and a change in one may necessitate a change in the other. Comments concerning their usage are contained in the EJCDC Construction Documents, General and Instructions (No. C-001, 2002 Edition). For guidance in the preparation of Supplementary Conditions, see Guide to the Preparation of Supplementary Conditions (No. C-800, 2002 Edition). 9 Copyright 02002 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 (703) 684-2882 American Council of Engineering Companies 1015 15th Street N.W., Washington, DC 20005 (202) 347-7474 American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 (800) 548-2723 EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright d 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 2 TABLE OF CONTENTS Page Article1-Definitions and Terminology.....................................................................................................................................................7 1.01 Defined Terms........................................................... ....................... ........................................... .................. ......,................. 7 1.02 Terminology...................................................................................................-.4......................................,...................10 Article2 -Preliminary Matters .................................. ............ .............................................. ,.......................... ........... .,........................... -11 2.01 Delivery of Bonds and Evidence of Insurance..............................................................................................................11 2.02 Copies of Documents.........................................................................................................................................................11 2.03 Commencement of Contract Times; Notice to Proceed................................................................................................12 2.04 Starting the Work...............................................................................................................................................................12 2.05 Before Starting Construction............................................................................................................................................12 2.06 Preconstruction Conference ................... .......... ............. .................................................................... ........... ............ :....... 12 2.07 Initial Acceptance of Schedules......................................................................................................................................12 Article 3 - Contract Documents: Intent, Amending, Reuse..................................................................................................................13 3.01 Intent....................................................................................................................................................................................13 3.02 Reference Standards..........................................................................................................................................................13 3.03 Reporting and Resolving Discrepancies...................................................................................... ........... .......13 .... ............ 3,04 Amending and Supplementing Contract Documents...................................................................................................14 3.05 Reuse of Documents..........................................................................................................................................................14 3.06 Electronic Data....................................................................................................................................................................14 Article 4 - Availability of Lands; Subsurface and Physical Conditions; Hazardous Environmental Conditions; Reference Points................................................................................................. ........................... .....15 ............................................................................ 4.01 Availability of Lands .................................... ..,........................ ,........ .,...................... .......... ....................... .......... ,............. 15 4.02 Subsurface and Physical Conditions..............................................................................................................................15 4.03 Differing Subsurface or Physical Conditions.................................................................................................................16 4.04 Underground Facilities..................................................................-...............................,............,..............................17 4.05 Reference Points.................................................................................................................................................................17 4.06 Hazardous Environmental Condition at Site..................................................................................................................IS Article5 - Bonds and Insurance................................................................................................................................................................19 5.01 Performance, Payment, and Other Bonds.......................................................................................................................19 5.02 Licensed Sureties and Insurers........................................................................................................................................19 5.03 Certificates of Insurance........................................................................................................... .............................20 5.04 Contractor's Liability Insurance......................................................................................................................................20 5.05 Owner's Liability Insurance..............................................................................................................................................21 5.06 Property Insurance.............................................................................................................................................................21 5.07 Waiver of Rights................................................................................................................................................................22 5.08 Receipt and Application of Insurance Proceeds...........................................................................................................23 5.09 Acceptance of Bonds and Insurance; Option to Replace...........................................................................................23 5.10 Partial Utilization, Acknowledgment of Property Insurer.............................................................................................23 Article6 -Contractor's Responsibilities.............................................................................................................................................23 6.01 Supervision and Superintendence...................................................................................................................................23 6.02 Labor; Working Hours........................................................................................................24 6.03 Services, Materials, and Equipment.,........................................................................................................................24 6.04 Progress Schedule..............................................................................................................................................................24 6.05 Substitutes and "Or-Equals..............................................................................................................................................24 6.06 Concerning Subcontractors, Suppliers, and Others.....................................................................................................26 6.07 Patent Fees and Royalties.................................................................................................................................................28 6.08 Permits..................................................................................................................................................................................28 EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright Q 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 3 6.09 Laws and Regulations ......................................... ..............................................................................................................28 6.10 Taxes......................................................... ...........................................................................................................................28 6.11 Use of Site and Other Areas.............................................................................................................................................29 . 6.12 Record Documents.............................................................................................................................................................29 6.13 Safety and Protection........................................................................................................................................................29 6.14 Safety Representative................................................................................................................................................,.......30 6.15 Hazard Communication Programs....................................................................................................................................30 6.16 Emergencies........................................................................................................................................................................30 6.17 Shop Drawings and Samples............................................................................................................................................30 6.18 Continuing the Work.........................................................................................................................................................32 6.19 Contractor's General Warranty and Guarantee.............................................................................................................32 6.20 Indemnification................................................................................................................................................................... 33 6.21 Delegation of Professional Design Services..................................................................................................................33 Article7 - Other Work at the Site.........................................................................................................................................................34 7.01 Related Work at Site..........................................................................................................................................................34 7.02 Coordination.......................................................................................................................................................................34 7.03 Legal Relationships............................................................................................................................................................35 Article8 - Owner's Responsibilities..........................................................................................................................................................35 8.01 Communications to Contractor.... ....... _ ---- .............................. .......................................................................... ........... 35 8.02 Replacement of Engineer...................................................................................................................................................35 8.03 Furnish Data........................................................................................................................................................................35 8.04 Pay When Due....................................................................................................................................................................35 8.05 Lands and Easements; Reports and Tests.....................................................................................................................35 8.06 Insurance.............................................................................................................................................................................35 8.07 Change Orders....................................................................................................................................................................35 8.08 Inspections, Tests, and Approvals.................................................................................................................................35 8.09 Limitations on Owner's Responsibilities........................................................................................................................36 8.10 Undisclosed Hazardous Environmental Condition.......................................................................................................36 8.11 Evidence of Financial Arrangements..............................................................................................................................36 Article 9 - Engineer's Status During Construction.................................................................................................................................36 9.01 Owner's Representative....................................................................................................................................................36 9.02 Visits to Site........................................................................................................................................................................36 9.03 Project Representative.......................................................................................................................................................36 9.04 Authorized Variations in Work........................................................................................................................................37 9.05 Rejecting Defective Work.................................................................................................................................................37 9.06 Shop Drawings, Change Orders and Payments.............................................................................................................37 9.07 Determinations for Unit Price Work................................................................................................................................37 9.08 Decisions on Requirements of Contract Documents and Acceptability of Work...................................................37 9.09 Limitations on Engineer's Authority and Responsibilities..........................................................................................38 Article10 - Changes in the Work; Claims .............. ........................... ....,...... .. ...........................„..................................._..38 10.01 Authorized Changes in the Work....................................................................................................................................38 10.02 Unauthorized Changes in the Work................................................................................................................................38 10.03 Execution of Change Orders.............................................................................................................................................39 10.04 Notification to Surety........................................................................................................................................................39 10.05 Claims...................................................................................................................................................................................39 Article 11 - Cost of the Work; Allowances; Unit Price Work...............................................................................................................40 11.01 Cost of the Work................................................................................................................................................................40 11.02 Allowances..........................................................................................................................................................................42 11.03 Unit Price Work..................................................................................................................................................................42 E3CDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright (D 2002 National Society of Professional Engineers for E3CDC. All rights reserved. 00710 - 4 Article 12 - Change of Contract Price; Change of Contract Times........................................................................ .........................43 12.01 Change of Contract Price...................................................................................................................................................43 12.02 Change of Contract Times ............................... ............................. ..... ............. ................................................................. 44 12.03 Delays.........................,...,.,...,,.........,................... I ...... ........,........ .......................... .,..,...........................................,.....44 Article 13 -Tests and Inspections; Correction, Removal or Acceptance of Defective Work.........................................................45 13.01 Notice of Defects................................................................................................................................................................45 13.02 Access to Work..................................................................................................................................................................45 13.03 Tests and Inspections.......................................................................................................................................................45 13.04 Uncovering Work...............................................................................................................................................................46 13.05 Owner May Stop the Work...............................................................................................................................................46 13.06 Correction or Removal of Defective Work. ............................................................. . ................. - ........ ___ ......... ....... 46 13.07 Correction Period................................................................................................................................................................46 13.08 Acceptance of Defective Work........................................................................................................................................47 13.09 Owner May Correct Defective Work...............................................................................................................................47 Article 14 - Payments to Contractor and Completion.............................................................................................................................48 14.01 Schedule of Values.............................................................................................................................................................48 14.02 Progress Payments.......................................................................................................................................I.....................48 14.03 Contractor's Warranty of Title.........................................................................................................................................50 14.04 Substantial Completion.....................................................................................................................................................50 14.05 Partial Utilization.................................................................................................................................................................51 14.06 Final Inspection ......... ................................. ....,...,....... ......... ....... ................................................... ......................... ............. 51 14.07 Final Payment......................................................................................................................................................................52 14.08 Final Completion Delayed.................................................................................................................................................53 14.09 Waiver of Claims................................................................................................................................................... .......53 Article 15 - Suspension of Work and Termination...................................................................................,..........................................53 15.01 Owner May Suspend Work..............................................................................................................................................53 15.02 Owner May Terminate for Cause.....................................................................................................................................53 15.03 Owner May Terminate For Convenience........................................................................................................................ 54 15.04 Contractor May Stop Work or Terminate.......................................................................................................................55 Article16 -Dispute Resolution..................................................................................................................................................................55 16.01 Methods and Procedures..................................................................................................................................................55 Article17 - Miscellaneous..........................................................................................................................................................................55 17.01 Giving Notice.....................-.............................................................................................................................................55 17.02 Computation of Times ...................................... .....,...... ................ ............ .....,............................................ ....................... 56 17.03 Cumulative Remedies.........................................................................................................................................................56 17.04 Survival of Obligations......................................................................................................................................................56 17.05 Controlling Law..................................................................................................................................................................56 IT06Headings ..............................................................................................................................................................................56 Article18 - Federal Requirements........................................................................................................................................................56 18.01 Agency Not a Party...................................................................... ..........................................................................56 18.02 Contract Approval......,......................................................................................................................................................56 18,03 Conflict of Interest ............. „.................................. .................... ............................. ........................................................... 56 18.04 Gratuities..............................................................................................................................................................................57 18.05 Audit and Access to Records..........................................................................................................................................57 18.06 Small, Minority and Women's Businesses....................................................................................................................57 18.07 Anti-Kickback.....................................................................................................................................................................57 18.08 Clean Air and Pollution Control Acts ................. ............. ........ ............... ....................................... ,.......... .,...... .......... ....58 18.09 State Energy Policy............................................................................................................................................................58 18.10 Equal Opportunity Requirements ........................................................................................................................I......58 EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 5 10J1Restrictions ouLobbying ................................................................................................................................................. 0 EJCBC C-71OStandard General Conditions oYthe Construction Contract, Funding Agency Edition GENERAL CONDITIONS ARTICLE 1—DEFMITONS AND TERMINOLOGY 1.01 Defined Terms A. Wherever used in the Bidding Requirements or Contract Documents and printed with initial capital letters, the terms listed below will have the meanings indicated which are applicable to both the singular and plural thereof. In addition to terms specifically defined, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms. 1. Addenda — Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Requirements or the proposed Contract Documents. 2. Agency —The Federal or state agency named as such in the Agreement. 3. Agreement — The written instrument which is evidence of the agreement between Owner and Contractor covering the Work. 4. Application for Payment — The form acceptable to Engineer which is to be used by Contractor during the course of the Work in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 5. Asbestos —Any material that contains more than one percent asbestos and is friable or is releasing asbestos fibers into the air above current action levels established by the United States Occupational Safety and Health Administration. 6. Bid — The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 7. Bidder — The individual or entity who submits a Bid directly to Owner. 8. Bidding Documents — The Bidding Requirements and the proposed Contract Documents (including all Addenda). 9. Bidding Requirements — The Advertisement or Invitation to Bid, Instructions to Bidders, bid security of acceptable form, if any, and the Bid Form with any supplements. 10. Change Order — A document recommended by Engineer which is signed by Contractor and Owner and Agency and authorizes an addition, deletion, or revision in the Work or an adjustment in the Contract Price or the Contract Times, issued on or after the Effective Date of the Agreement. It. Claim — A demand or assertion by Owner or Contractor seeking an adjustment of Contract Price or Contract Times, or both, or other relief with respect to the terms of the Contract. A demand for money or services by a third party is not a Claim. 12. Contract —The entire and integrated written agreement between the Owner and Contractor concerning the Work. The Contract supersedes prior negotiations, representations, or agreements, whether written or oral. 13. Contract Documents — Those items so designated in the Agreement. Only printed or hard copies of the items listed in the Agreement are Contract Documents. Approved Shop Drawings, other Contractor's EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 7 submittals, and the reports and drawings of subsurface and physical conditions are not Contract Documents. 14. Contract Price — The moneys payable by Owner to Contractor for completion of the Work in accordance with the Contract Documents as stated in the Agreement (subject to the provisions of Paragraph 11.03 in the case of Unit Price Work). 15. Contract Times — The number of days or the dates stated in the Agreement to: (i) achieve Milestones, if any, (ii) achieve Substantial Completion; and (iii) complete the Work so that it is ready for final payment as evidenced by Engineer's written recommendation of final payment. 16. Contractor —The individual or entity with whom Owner has entered into the Agreement. 17. Cost of the Work — See Paragraph 11.01.A for definition. 18. Drawings — That part of the Contract Documents prepared or approved by Engineer which graphically shows the scope, extent, and character of the Work to be performed by Contractor. Shop Drawings and other Contractor submittals are not Drawings as so defined. 19. Effective Date of the Agreement —The date indicated in the Agreement on which it becomes effective, but if no such date is indicated, it means the date on which the Agreement is signed and delivered by the last of the two parties to sign and deliver. 20. Engineer — The individual or entity named as such in the Agreement. 21. Field Order —A written order issued by Engineer which requires minor changes in the Work but which does not involve a change in the Contract Price or the Contract Times. 22. General Requirements — Sections of Division 1 of the Specifications. The General Requirements pertain to all sections of the Specifications. 23. Hazardous Environmental Condition --The presence at the Site of Asbestos, PCBs, Petroleum, Hazardous Waste, or Radioactive Material in such quantities or circumstances that may present a substantial danger to persons or property exposed thereto in connection with the Work. 24. Hazardous baste —The term Hazardous Waste shall have the meaning provided in Section 1004 of the Solid Waste Disposal Act (42 USC Section 6903) as amended from time to time. 25. Laws and Regulations, Laws or Regulations — Any and all applicable laws, rules, regulations, ordinances, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 26. Liens — Charges, security interests, or encumbrances upon Project funds, real property, or personal property. 27. Milestone — A principal event specified in the Contract Documents relating to an intermediate completion date or time prior to Substantial Completion of all the Work. 28. Notice of Award — The written notice by Owner to the Successful Bidder stating that upon timely compliance by the Successful Bidder with the conditions precedent listed therein, Owner will sign and deliver the Agreement. 29. Notice to Proceed — A written notice given by Owner to Contractor fixing the date on which the Contract Times will commence to run and on which Contractor shall start to perform the Work under the Contract Documents. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 8 30. Owner — The individual or entity with whom Contractor has entered into the Agreement and for whom the Work is to be performed. 31. PCBs — Polychlorinatedbiphenyls. 32. Petroleum —Petroleum, including crude oil or any fraction thereof which is liquid at standard conditions of temperature and pressure (60 degrees Fahrenheit and 14.7 pounds per square inch absolute), such as oil, petroleum, fuel oil, oil sludge, oil refuse, gasoline, kerosene, and oil mixed with other non -Hazardous Waste and crude oils. 33. Progress Schedule — A schedule, prepared and maintained by Contractor, describing the sequence and duration of the activities comprising the Contractor's plan to accomplish the Work within the Contract Times. 34. Project —The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part. 35. Project Manual —The bound documentary information prepared for bidding and constructing the Work. A listing of the contents of the Project Manual, which may be bound in one or more volumes, is contained in the table(s) of contents. 36. Radioactive Material — Source, special nuclear, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 37. Related Entity — An officer, director, partner, employee, agent, consultant, or subcontractor. 38. Resident Project Representative — The authorized representative of Engineer who may be assigned to the Site or any part thereof. 39. Samples — Physical examples of materials, equipment, or workmanship that are representative of some portion of the Work and which establish the standards by which such portion of the Work will be judged. 40. Schedule of Submittals — A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to support scheduled performance of related construction activities. 41. Schedule of Values — A schedule, prepared and maintained by Contractor, allocating portions of the Contract Price to various portions of the Work and used as the basis for reviewing Contractor's Applications for Payment. 42. Shop Drawings — All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. 43. Site — Lands or areas indicated in the Contract Documents as being furnished by Owner upon which the Work is to be performed, including rights -of -way and easements for access thereto, and such other lands furnished by Owner which are designated for the use of Contractor. 44. Specifications — That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto. 45. Subcontractor — An individual or entity having a direct contract with Contractor or with any other Subcontractor for the performance of a part of the Work at the Site. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 9 46. Substantial Completion — The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 47. Successful Bidder —The Bidder submitting a responsive Bid to whom Owner makes an award. 48. Supplementary Conditions — That part of the Contract Documents which amends or supplements these General Conditions, 49. Supplier —A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or any Subcontractor. 50. Underground Facilities — All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, stoma water, other liquids or chemicals, or traffic or other control systems. 51. Unit Price Work —Work to be paid for on the basis of unit prices. 52. ff,ork—The entire construction or the various separately identifiable parts thereof required to be provided under the Contract Documents. Work includes and is the result of performing or providing all labor, services, and documentation necessary to produce such construction, and furnishing, installing, and incorporating all materials and equipment into such construction, all as required by the Contract Documents, 53. Work Change Directive — A written statement to Contractor issued on or after the Effective Date of the Agreement and signed by Owner and Agency upon recommendation of the Engineer ordering an addition, deletion, or revision in the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change ordered or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 1.02 Terminology A. The following words or terms are not defined but, when used in the Bidding Requirements or Contract Documents, have the following meaning. B. Intent of Certain Terms or Adjectives The Contract Documents include the terms "as allowed," "as approved," "as ordered", "as directed" or terms of like effect or import to authorize an exercise of professional judgment by Engineer. In addition, the adjectives "reasonable," "suitable," "acceptable," "proper," "satisfactory," or adjectives of like effect or import are used to describe an action or determination of Engineer as to the Work. It is intended that such exercise of professional judgment, action or determination will be solely to evaluate, in general, the Work for compliance with the requirements of and information in the Contract Documents and conformance with the design concept of the completed Project as a functioning whole as shown or indicated in the Contract Documents (unless there is a specific statement indicating otherwise). The use of any such term or adjective is not intended to and shall not be effective to assign to Engineer any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility contrary to the provisions of Paragraph 9.09 or any other provision of the Contract Documents, EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 10 1 k i C. Day 1, The word "day" means a calendar day of 24 hours measured from midnight to the next midnight. D. Defective 1. The word "defective," when modifying the word "Work," refers to Work that is unsatisfactory, faulty, or deficient in that it: a. does not conform to the Contract Documents, or b. does not meet the requirements of any applicable inspection, reference standard, test, or approval referred to in the Contract Documents, or c. has been damaged prior to Engineer's recommendation of final payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion in accordance with Paragraph 14.04 or 14.05). E, Furnish, Install, Perform, Provide 1. The word "furnish," when used in connection with services, materials, or equipment, shall mean to supply and deliver said services, materials, or equipment to the Site (or some other specified location) ready for use or installation and in usable or operable condition. 2. The word "install," when used in connection with services, materials, or equipment, shall mean to put into use or place in final position said services, materials, or equipment complete and ready for intended use. 3. The words "perform" or "provide," when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use. 4. When "furnish," "install," "perform," or "provide" is not used in connection with services, materials, or equipment in a context clearly requiring an obligation of Contractor, "provide" is implied. F. Unless stated otherwise in the Contract Documents, words or phrases which have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning, .ARTICLE 2 —PRELIMINARY MATTERS 2.01 Delivery of Bonds and Evidence of Insurance A. When Contractor delivers the executed counterparts of the Agreement to Owner, Contractor shall also deliver to Owner such bonds as Contractor may be required to furnish. B. Evidence oflnsurance: Before any Work at the Site is started, Contractor and Owner shall each deliver to the other, with copies to each additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance which either of them or any additional insured may reasonably request) which Contractor and Owner respectively are required to purchase and maintain in accordance with Article 5. 2.02 Copies of Documents A. Owner shall furnish to Contractor up to ten printed or hard copies of the Drawings and Project Manual. Additional copies will be furnished upon request at the cost of reproduction. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 11 2.03 Commencement of Conti -act Times; Arotice to Proceed A. The Contract Times will commence to run on the thirtieth day after the Effective Date of the Agreement or, if a Notice to Proceed is given, on the day indicated in the Notice to Proceed. A Notice to Proceed may be given at any time within 30 days after the Effective Date of the Agreement. 2.04 Starting the lYork A. Contractor shall start to perform the Work on the date when the Contract Times commence to run. No Work shall be done at the Site prior to the date on which the Contract Times commence to run. 2.05 Before Starting Construction A. Preliminary Schedules: Within 10 days after the Effective Date of the Agreement (unless otherwise specified in the General Requirements), Contractor shall submit to Engineer for timely review: 1. a preliminary Progress Schedule; 2. a preliminary Schedule of Submittals; and 3. a preliminary Schedule of Values for all of the Work which includes quantities and prices of items which when added together equal the Contract Price and subdivides the Work into component parts in sufficient detail to serve as the basis for progress payments during performance of the Work. Such prices will include an appropriate amount of overhead and profit applicable to each item of Work. 2.06 Preconstruction Conference A. Before any Work at the Site is started, a conference attended by Owner, Contractor, Engineer, Agency, and others as appropriate will be held to establish a working understanding among the parties as to the Work and to discuss the schedules referred to in Paragraph 2.05.A, procedures for handling Shop Drawings and other submittals, processing Applications for Payment, and maintaining required records. 2.07 Initial Acceptance of Schedules A. At least 10 days before submission of the first Application for Payment a conference attended by Contractor, Engineer, and others as appropriate will be held to review for acceptability to Engineer as provided below the schedules submitted in accordance with Paragraph 2.05.A. Contractor shall have an additional 10 days to make corrections and adjustments and to complete and resubmit the schedules. No progress payment shall be made to Contractor until acceptable schedules are submitted to Engineer. 1. The Progress Schedule will be acceptable to Engineer if it provides an orderly progression of the Work to completion within the Contract Times. Such acceptance will not impose on Engineer responsibility for the Progress Schedule, for sequencing, scheduling, or progress of the Work nor interfere with or relieve Contractor from Contractor's full responsibility therefor. 2. Contractor's Schedule of Submittals will be acceptable to Engineer if it provides a workable arrangement for reviewing and processing the required submittals. 3. Contractor's Schedule of Values will be acceptable to Engineer as to form and substance if it provides a reasonable allocation of the Contract Price to component parts of the Work. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright (D 2002 National Society of Professional Engineers for E3CDC. All rights reserved. 00710 - 12 ARTICLE 3 —CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE 3.01 Intent A. The Contract Documents are complementary; what is required by one is as binding as if required by all. B. It is the intent of the Contract Documents to .describe a functionally complete Project (or part thereof) to be constructed in accordance with the Contract Documents. Any labor, documentation, services, materials, or equipment that may reasonably be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the intended result will be provided whether or not specifically called for at no additional cost to Owner. C. Clarifications and interpretations of the Contract Documents shall be issued by Engineer as provided in Article 9. 3.02 Reference Standards A. Standards, Specifications, Codes, Laws, and Regulations 1. Reference to standards, specifications, manuals, or codes of any technical society, organization, or association, or to Laws or Regulations, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Laws or Regulations in effect at the time of opening of Bids (or on the Effective Date of the Agreement if there were no Bids), except as may be otherwise specifically stated in the Contract Documents, 2. No provision of any such standard, specification, manual or code, or any instruction of a Supplier shall be effective to change the duties or responsibilities of Owner, Contractor, or Engineer, or any of their subcontractors, consultants, agents, or employees from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to Owner, or Engineer, or any of their Related Entities, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents. 3.03 Reporting and Resolving Discrepancies A. Reporting Discrepancies 1. Contractor's Review of Contract Documents Before Starting Work: Before undertaking each part of the Work, Contractor shall carefully study and compare the Contract Documents and check and verify pertinent figures therein and all applicable field measurements. Contractor shall promptly report in writing to Engineer any conflict, error, ambiguity, or discrepancy which Contractor may discover and shall obtain a written interpretation or clarification from Engineer before proceeding with any Work affected thereby. 2. Contractor's Review of Contract Doctunents During Performance of Work: If, during the performance of the Work, Contractor discovers any conflict, error, ambiguity, or discrepancy within the Contract Documents or between the Contract Documents and any provision of any Law or Regulation applicable to the performance of the Work or of any standard, specification, manual or code, or of any instruction of any Supplier, Contractor shall promptly report it to Engineer in writing. Contractor shall not proceed with the Work affected thereby (except in an emergency as required by Paragraph 6.16.A) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in Paragraph 3.04. 3. Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor knew or reasonably should have known thereof. B. Resolving Discrepancies EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright d 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 13 1. Except as may be otherwise specifically stated in the Contract Documents, the provisions of the Contract Documents shall take precedence in resolving any conflict, error, ambiguity, or discrepancy between the provisions of the Contract Documents and: a. the provisions of any standard, specification, manual, code, or instruction (whether or not specifically incorporated by reference in the Contract Documents); or b. the provisions of any Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation). 3.04 Amending and Supplementing Contract Documents A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof by either a Change Order or a Work Change Directive. B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized, by one or more of the following ways: 1. A Field Order; 2. Engineer's approval of a Shop Drawing or Sample; (Subject to the provisions of Paragraph 6.17.D.3) or 3. Engineer's written interpretation or clarification. 3.05 Reuse of Documents A. Contractor and any Subcontractor or Supplier shall not: 1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer or Engineer's consultants, including electronic media editions; or 2, reuse any of such Drawings, Specifications, other documents, or copies thereof on extensions of the Project or any other project without written consent of Owner and Engineer and specific written verification or adaption by Engineer. B. The prohibition of this Paragraph 3.05 will survive final payment, or termination of the Contract. Nothing herein shall preclude Contractor from retaining copies of the Contract Documents for record purposes. 3.06 Electronic Data A. Copies of data furnished by Owner or Engineer to Contractor or Contractor to Owner or Engineer that may be relied upon are limited to the printed copies (also known as hard copies). Files in electronic media format of text, data, graphics, or other types are furnished only for the convenience of the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. B. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any errors detected within the 60-day acceptance period will be corrected by the transferring party. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright <0 2002 National Society of Professional Engineers for EJCBC. All rights reserved. 00710 - 14 P C. When transferring documents in electronic media format, the transferring party makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by the data's creator. ARTICLE 4 —AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS 4.01 Availability of Lands A. Owner shall furnish the Site. Owner shall notify Contractor of any encumbrances or restrictions not of general application but specifically related to use of the Site with which Contractor must comply in performing the Work. Owner will obtain in a timely manner and pay for easements for permanent structures or permanent changes in existing facilities. If Contractor and Owner 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, as a result of any delay in Owner's furnishing the Site or a part thereof, Contractor may make a Claim therefor as provided in Paragraph 10.05. B. Upon reasonable written request, Owner shall furnish Contractor with a current statement of record legal title and legal description of the lands upon which the Work is to be performed and Owner's interest therein as necessary for giving notice of or filing a mechanic's or construction lien against such lands in accordance with applicable Laws and Regulations. C. Contractor shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment. 4.02 Subsurface and Physical Conditions A. Reports and Drawings: The Supplementary Conditions identify: 1. those reports of explorations and tests of subsurface conditions at or contiguous to the Site that Engineer has used in preparing the Contract Documents; and 2. those drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) that Engineer has used in preparing the Contract Documents. 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 or Engineer, or any of their Related Entities 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. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 15 4.03 Differing Subsurface or Physical Conditions A. Notice: If Contractor believes that any subsurface or physical condition 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 9.07 and 11.03. 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 time Contractor made a final commitment to Owner with respect to 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 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 therefor as provided in Paragraph 10.05. However, Owner and Engineer, and any of their Related Entities shall not be Iiable to Contractor for any claims, costs, losses, or damages (including but not limited to all fees and charges of EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for ETCDC. All rights reserved. 00710 - 16 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 UndergroundFacililies 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 owners 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 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 owners 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 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 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 Work Change Directive or 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 therefor as provided in Paragraph 10.05. 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 EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 17 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. 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 or Engineer, or any of their Related Entities 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: (i) 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.A); 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: (i) 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 therefor as provided in Paragraph 10.05. F. If after receipt of such written 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 therefor 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. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright Q 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 18 G. To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold harmless Contractor, Subcontractors, and Engineer, and the officers, directors, partners, employees, agents, consultants, and subcontractors of each and any of them from and against all claims, costs, losses, and 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 Condition, provided that such Hazardous Environmental Condition: (i) was not shown or indicated in the Drawings or Specifications or identified in the Contract Documents to be included within the scope of the Work, and (ii) was not created by Contractor or by anyone for whom Contractor is responsible. Nothing in this Paragraph 4.06.0 shall obligate Owner to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence. H. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, partners, employees, agents, consultants, and subcontractors of each and any of them from and against all claims, costs, losses, and 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 Condition created by Contractor or by anyone for whom Contractor is responsible. Nothing in this Paragraph 4.06. H shall obligate Contractor to indemnify any individual or entity from and against the consequences of that individual's or entity's own negligence. I. The provisions of Paragraphs 4.02, 4.03, and 4.04 do not 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 of Contractor's obligations under the Contract Documents. These bonds shall remain in effect until one year after the date when final payment becomes due or until completion of the correction period specified in Paragraph 13.07, whichever is later, 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 the 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 promptly notify Owner and Engineer and shall, within 20 days after the event giving rise to such notification, provide another bond and surety, both of which shall comply with the requirements of Paragraphs 5.0 LB and 5.02. 5.02 Licensed Sureties and Insurers A. All bonds and insurance required by the Contract Documents to be purchased and maintained by Owner or 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 coverages so required. Such surety and insurance companies shall also meet such additional requirements and qualifications as may be provided in the Supplementary Conditions. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 19 5.03 Certificates oflnsurance A. Contractor shall deliver to Owner, 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. B. Owner shall deliver to Contractor, with copies to each additional insured identified in the Supplementary Conditions, certificates of insurance (and other evidence of insurance requested by Contractor or any other additional insured) which Owner 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 appropriate for the Work being performed and as will provide protection from claims set forth below which may arise out of or result from Contractor's performance 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: 1. claims under workers' compensation, disability benefits, and other similar employee benefit acts; 2. claims for damages because of bodily injury, occupational sickness or disease, or death of Contractor's employees; 3. claims for damages because of bodily injury, sickness or disease, or death of any person other than Contractor's employees; 4. claims for damages insured by reasonably available personal injury liability coverage which are sustained: a. by any person as a result of an offense directly or indirectly related to the employment of such person by Contractor, or b. by any other person for any other reason; 5. claims for damages, other than to the Work itself, because of injury to or destruction of tangible property { wherever located, including loss of use resulting therefrom; and { 6. claims for damages because of bodily injury or death of any person or property damage arising out of the { ownership, maintenance or use of any motor vehicle. { B. The policies of insurance required by this Paragraph 5.04 shall: { 1. with respect to insurance required by Paragraphs 5.04.A.3 through 5.04.A.6 inclusive, include as additional { insureds (subject to any customary exclusion regarding professional liability) Owner and Engineer, and any { other individuals or entities identified in the Supplementary Conditions, all of whom shall be listed as additional insureds, and include coverage for the respective officers, directors, partners, employees, agents, consultants and subcontractors of each and any of all such additional insureds, and the insurance afforded to these additional insureds shall provide primary coverage for all claims covered thereby; 2. include at least the specific coverages and be written for not less than the limits of liability provided in the Supplementary Conditions or required by Laws or Regulations, whichever is greater; 3. include completed operations insurance; EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright Q 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 20 5.05 5.06 4. include contractual liability insurance covering Contractor's indemnity obligations under Paragraphs 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 30 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 at least 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 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. a. 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. Owner's Liability Insurance A. In addition to the insurance required to be provided by Contractor under Paragraph 5.04, Owner, at Owner's option, may purchase and maintain at Owner's expense Owner's own liability insurance as will protect Owner against claims which may arise from operations under the Contract Documents. Property Insurance A. Unless otherwise provided in the Supplementary Conditions, Contractor shall purchase and maintain property insurance upon the Work at the Site in the amount of the full replacement cost thereof (Contractor shall be responsible for any deductible or self -insured retention.). This insurance shall: I. include the interests of Owner, Contractor, Subcontractors, and Engineer, and any other individuals or entities identified in the Supplementary Conditions, and the officers, directors, partners, employees, agents, 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. be written on a Builder's Risk "all-risk" or open peril or special causes of loss policy form that shall at least include insurance for physical loss or damage to the Work, temporary buildings, falsework, and materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire, lightning, extended coverage, theft, vandalism and malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of Laws and Regulations, water damage (other than caused by flood), and such other perils or causes of loss as may be specifically required by the Supplementary Conditions; 3. include expenses incurred in the repair or replacement of any insured property (including but not limited to fees and charges of engineers and architects); 4. 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 such materials and equipment have been included in an Application for Payment recommended by Engineer; 5. allow for partial utilization of the Work by Owner; 6. include testing and startup; and EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 21 7. 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 purchase and maintain such boiler and machinery insurance or additional property insurance as may be required by the Supplementary Conditions or Laws and Regulations which will include the interests of Owner, Contractor, Subcontractors, and Engineer, and any other individuals or entities identified in the Supplementary Conditions, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them, each of whom is deemed to have an insurable interest and shall be listed as an insured or additional insured. C. All the policies of insurance (and the certificates or other evidence thereof) 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 prior 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, D. 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. The risk of loss within such identified deductible amount will be borne 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. 5.07 Waiver of RighI8 A. Owner and Contractor intend that all policies purchased in accordance with Paragraph 5.06 will protect Owner, Contractor, Subcontractors, and Engineer, and all other individuals or entities identified in the Supplementary Conditions to be listed as insureds or additional insureds (and the officers, directors, partners, employees, agents, 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 thereby. All such policies shall 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 insureds or additional insureds thereunder. Owner and Contractor waive all rights against each other and their respective officers, directors, partners, employees, agents, 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 rights against Subcontractors, and Engineer, 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, consultants and subcontractors of each and any of them) under such policies for losses and damages so caused. None of the above waivers shall extend to the rights that any party making such waiver may have to the proceeds of insurance held by Contractor as trustee or otherwise payable under any policy so issued. B. Owner waives all rights against Contractor, Subcontractors, and Engineer, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them for: 1. loss due to business interruption, loss of use, or other consequential loss extending beyond direct physical loss or damage to Owner's property or the Work caused by, arising out of, or resulting from fire or other perils whether or not insured by Owner; and 2. Ioss or damage to the completed Project or part thereof caused by, arising out of, or resulting from fire or other insured peril or cause of loss covered by any property insurance maintained on the completed Project or part thereof by Owner during partial utilization pursuant to Paragraph 14.05, after Substantial Completion pursuant to Paragraph 14.04, or after final payment pursuant to Paragraph 14.07. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 22 C. Any insurance policy maintained by Owner covering any loss, damage or consequential loss referred to in Paragraph 5.07.13 shall contain provisions to the effect that in the event of payment of any such loss, damage, or consequential loss, the insurers will have no rights of recovery against Contractor, Subcontractors, or Engineer, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them. 5.08 Receipt and Application oflnsurance Proceeds A. Any insured loss under the policies of insurance required by Paragraph 5.06 will be adjusted with Contractor and made payable to Contractor as fiduciary for the insureds, as their interests may appear, subject to the requirements of any applicable mortgage clause and of Paragraph 5.08.13. Contractor shall deposit in a separate account any money so received and shall distribute it in accordance with such agreement as the parties in interest may reach. If no other special agreement is reached, the damaged Work shall be repaired or replaced, the moneys so received applied on account thereof. B, Contractor as fiduciary shall have power to adjust and settle any loss with the insurers unless one of the parties in interest shall object in writing within 15 days after the occurrence of loss to Contractor's exercise of this power. If such objection be made, Contractor as fiduciary shall make settlement with the insurers in accordance with such agreement as the parties in interest may reach. If no such agreement among the parties in interest is reached, Contractor as fiduciary shall adjust and settle the loss with the insurers and, if required in writing by any party in interest, Contractor as fiduciary shall give bond for the proper performance of such duties. 5.09 Acceptance of Bonds and Insurance; Option to Replace A. If either Owner or Contractor has any objection to the coverage afforded by or other provisions of the bonds or insurance required to be purchased and maintained by the other party in accordance with Article 5 on the basis of non-conformance with the Contract Documents, the objecting party shall so notify the other party in writing within 10 days after receipt of the certificates (or other evidence requested) required by Paragraph 2.01.13. Owner and Contractor shall each provide to the other such additional information in respect of insurance provided as the other may reasonably request. If either party does not purchase or maintain all of the bonds and insurance required of such party by the Contract Documents, such party shall notify the other party in writing of such failure to purchase prior to the start of the Work, or of such failure to maintain prior to any change in the required coverage. Without prejudice to arty other right or remedy, the other party may elect to obtain equivalent bonds or insurance to protect such other party's interests at the expense of the party who was required to provide such coverage, and a Change Order shall be issued to adjust the Contract Price accordingly. 5.10 Partial Utilization, Acknowledgment of Property Insurer A. If Owner finds it necessary to occupy or use a portion or portions of the Work prior to Substantial Completion of all the Work as provided in Paragraph 14.05, no such use or occupancy shall commence before the insurers providing the property insurance pursuant to Paragraph 5.06 have acknowledged notice thereof and in writing effected any changes in coverage necessitated thereby. The insurers providing the property insurance shall consent by endorsement on the policy or policies, but the property insurance shall not be canceled or permitted to lapse on account of any such partial use or occupancy. 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. Contractor shall not be responsible for the negligence of Owner or Engineer in the EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 23 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. B. At all times during the progress of the Work, Contractor shall assign a competent resident superintendent 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 and lay out the Work and perform construction 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. Contractor will not permit the performance of Work on a Saturday, Sunday, or any legal holiday without Owner's written consent (which will not be unreasonably withheld) given after prior written notice to Engineer. 6.03 Services, Materials, and Equipment A. Unless otherwise specified in the Contract Documents, 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 special warranties and guarantees required 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. C. 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. Such adjustments will comply with any provisions of the General Requirements applicable thereto. 2. Proposed adjustments in the Progress Schedule that will change the Contract Times shall be submitted in accordance with the requirements of Article 12. Adjustments in Contract Times may only be made by a Change Order. 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 EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 24 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. "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 materials of construction, quality, durability, appearance, strength, and design characteristics; 2) it will reliably perform at least equally well the function and achieve the results imposed by the design concept of the completed Project as a functioning whole; 3) it has a proven record of performance and availability of responsive service; and b. Contractor certifies that, if approved and incorporated into the Work: 1) there will be no increase in cost to the Owner or increase in Contract Times, and 2) it will conform substantially to the detailed requirements of the item named in the Contract Documents. 2. Substitute Items a. If in 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 therefor. 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 requirements 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 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: 1) shall certify that the proposed substitute item will: a) will perform adequately the functions and achieve the results called for by the general design, b) be similar in substance to that specified, and c) be suited to the same use as that specified; EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright Cal 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 25 2) will state: a) the extent, if any, to which the use of the proposed substitute item will prejudice Contractor's achievement of Substantial Completion on time; b) 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 other work on the Project) to adapt the design to the proposed substitute item; and c) 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; 3) will identify: a) all variations of the proposed substitute item from that specified , and b) available engineering, sales, maintenance, repair, and replacement services; 4) and shall 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. B. Substitute Construction Methods or Procedures: If a specific means, method, technique, sequence, or procedure of construction is expressly required by the Contract Documents, Contractor may furnish or utilize a substitute means, method, technique, sequence, or procedure of construction approved by Engineer. Contractor shall submit sufficient information to allow Engineer, in Engineer's sole discretion, to determine that the substitute proposed is equivalent to that expressly called for by the Contract Documents. The requirements for IR review by Engineer will be similar to those provided in Paragraph 6.05.A.2. C. Engineer's Evaluation: Engineer will be allowed a reasonable time within which to evaluate each proposal or submittal made pursuant to Paragraphs 6.05.A and 6.05.B. Engineer may require Contractor to furnish additional data about the proposed substitute item. Engineer will be the sole judge of acceptability. No "or equal" or substitute will be ordered, installed or utilized until Engineer's review is complete, which will be evidenced by either a Change Order for a substitute or an approved Shop Drawing for an "or equal." Engineer will advise Contractor in writing of any negative determination. D. Special Guarantee: Owner may require Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any substitute. E. Engineer's Cost Reimbursement: Engineer will record Engineer's costs in evaluating a substitute proposed or submitted by Contractor pursuant to Paragraphs 6.05.A.2 and 6,05.13. Whether or not Engineer approves a substitute item so proposed or submitted by Contractor, Contractor shall reimburse Owner for the charges of Engineer for evaluating each such proposed substitute. Contractor shall also reimburse Owner for the charges of Engineer for making changes in the Contract Documents (or in the provisions of any other direct contract with Owner) resulting from the acceptance of each proposed substitute. F. Contractor's Expense: Contractor shall provide all data in support of any proposed substitute or "or -equal" at Contractor's expense. 6.06 Concerning Subcontractors, Suppliers, and Others A. Contractor shall not employ any Subcontractor, Supplier, or other individual or entity (including those acceptable to Owner as indicated in Paragraph 6.06.13), whether initially or as a replacement, against whom Owner EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright LU' 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 26 may have reasonable objection. Contractor shalt not be required to employ any Subcontractor, Supplier, or other individual or entity to furnish or perform any of the Work against whom Contractor has reasonable objection. B. If the Supplementary Conditions require the identity of certain Subcontractors, Suppliers, or other individuals or entities to be submitted to Owner in advance for acceptance by Owner by a specified date prior to the Effective Date of the Agreement, and if Contractor has submitted a list thereof in accordance with the Supplementary Conditions, Owner's acceptance (either in writing or by failing to make written objection thereto by the date indicated for acceptance or objection in the Bidding Documents or the Contract Documents) of any such Subcontractor, Supplier, or other individual or entity so identified may be revoked on the basis of reasonable objection after due investigation. Contractor shall submit an acceptable replacement for the rejected Subcontractor, Supplier, or other individual or entity, and the Contract Price will be adjusted by the difference in the cost occasioned by such replacement, and an appropriate Change Order will be issued. No acceptance by Owner of any such Subcontractor, Supplier, or other individual or entity, whether initially or as a replacement, shall constitute a waiver of any right of Owner or Engineer to reject defective Work. C. Contractor shall be fully responsible to Owner and Engineer for all acts and omissions of the Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work just as Contractor is responsible for Contractor's own acts and omissions. Nothing in the Contract Documents: 1. shall create for the benefit of any such Subcontractor, Supplier, or other individual or entity any contractual relationship between Owner or Engineer and any such Subcontractor, Supplier or other individual or entity, not 2. shall anything in the Contract Documents create any obligation on the part of Owner or Engineer to pay or to see to the payment of any moneys due any such Subcontractor, Supplier, or other individual or entity except as may otherwise be required by Laws and Regulations. D. Contractor shall be solely responsible for scheduling and coordinating the Work of Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract with Contractor. E. Contractor shall require all Subcontractors, Suppliers, and such other individuals or entities performing or furnishing any of the Work to communicate with Engineer through Contractor. F. The divisions and sections of the Specifications and the identifications of any Drawings shall not control Contractor in dividing the Work among Subcontractors or Suppliers or delineating the Work to be performed by any specific trade. G. All Work performed for Contractor by a Subcontractor or Supplier will be pursuant to an appropriate agreement between Contractor and the Subcontractor or Supplier which specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the Contract Documents for the benefit of Owner and Engineer. Whenever any such agreement is with a Subcontractor or Supplier who is listed as an additional insured on the property insurance provided in Paragraph 5.06, the agreement between the Contractor and the Subcontractor or Supplier will contain provisions whereby the Subcontractor or Supplier waives all rights against Owner, Contractor, and Engineer, and all other individuals or entities identified in the Supplementary Conditions to be listed as insureds or additional insureds (and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them) for all losses and damages caused by, arising out of, relating to, or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work. If the insurers on any such policies require separate waiver forms to be signed by any Subcontractor or Supplier, Contractor will obtain the same. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 27 6.07 Patent Fees and Royalties A. Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work and if to the actual knowledge of Owner or Engineer its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others, the existence of such rights shall be disclosed by Owner in the Contract Documents. B. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and 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 any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design, process, product, or device not specified in the Contract Documents. 6.08 Permits A. Unless otherwise provided in the Supplementary Conditions, Contractor shall obtain and pay for all construction permits and licenses. Owner shall assist Contractor, when necessary, in obtaining such permits and licenses. Contractor shall pay all governmental charges and inspection fees necessary for the prosecution of the Work which are applicable at the time of opening of Bids, or, if there are no Bids, on the Effective Date of the Agreement. Owner shall pay all charges of utility owners for connections for providing permanent service to the Work. 6.09 Laws and Regulations A. Contractor shall give all notices required by and shall comply with all Laws and Regulations applicable to the performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, neither Owner nor Engineer shall be responsible for monitoring Contractor's compliance with any Laws or Regulations. B. If Contractor performs any Work knowing or having reason to know that it is contrary to Laws or Regulations, Contractor shall bear all claims, costs, losses, and 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 such Work. However, it shall not be Contractor's primary responsibility to make certain that the Specifications and Drawings are in accordance with Laws and Regulations, but this shall not relieve Contractor of Contractor's obligations under Paragraph 3,03. C. Changes in Laws or Regulations not known at the time of opening of Bids (or, on the Effective Date of the Agreement if there were no Bids) having an effect on the cost or time of performance of the Work shall be the subject of an adjustment in Contract Price or Contract Times. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefor as provided in Paragraph 10.05, 6.10 Taxes A. Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid by Contractor in accordance with the Laws and Regulations of the place of the Project which are applicable during the performance of the Work. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright (D 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 28 6.11 Use of Site and Other Areas A. Limitation on Use of Site and Other Areas 1. Contractor shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Laws and Regulations, and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof, or of any adjacent land or areas resulting from the performance of the Work. 2. Should any claim be made by any such owner or occupant because of the performance of the Work, Contractor shall promptly settle with such other party by negotiation or otherwise resolve the claim by arbitration or other dispute resolution proceeding or at law. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and 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 any claim or action, legal or equitable, brought by any such owner or occupant against Owner, Engineer, or any other party indemnified hereunder to the extent caused by or based upon Contractor's performance of the Work. B. Removal of Debris During Performance of the Work: During the progress of the Work Contractor shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall conform to applicable Laws and Regulations. C. Cleaning: Prior to Substantial Completion of the Work, Contractor shall clean the Site and the Work and make it ready for utilization by Owner. At the completion of the Work Contractor shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents. D. Loading Structures: Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 6.12 Record Documents A. Contractor shall maintain in a safe place at the Site one record copy of all Drawings, Specifications, Addenda, Change Orders, Work Change Directives, Field Orders, and written interpretations and clarifications in good order and annotated to show changes made during construction. These record documents together with all approved Samples and a counterpart of all approved Shop Drawings will be available to Engineer for reference. Upon completion of the Work, these record documents, Samples, and Shop Drawings will be delivered to Engineer for Owner. 6.13 Safety and Protection A. Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 1. all persons on the Site or who maybe affected by the Work; 2. all the Work and materials and equipment to be incorporated therein, whether in storage on or off the Site; and EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 29 3. other property at the Site or adjacent thereto, including trees, shrubs, lawns, walks, pavements, roadways, structures, utilities, and Underground Facilities not designated for removal, relocation, or replacement in the course of construction. B. Contractor shall comply with all applicable Laws and Regulations relating to the safety of persons or property, or to the protection of persons or property from damage, injury, or loss; and shall erect and maintain all necessary safeguards for such safety and protection. Contractor shall notify owners of adjacent property and of Underground Facilities and other utility owners when prosecution of the Work may affect them, and shall cooperate with them in the protection, removal, relocation, and replacement of their property. C. All damage, injury, or loss to any property referred to in Paragraph 6.13.A.2 or 6.13.A.3 caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor, Supplier, or any other individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, shall be remedied by Contractor (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of Owner or Engineer or , or anyone employed by any of them, or anyone for whose acts any of them may be liable, and not attributable, directly or indirectly, in whole or in part, to the fault or negligence of Contractor or any Subcontractor, Supplier, or other individual or entity directly or indirectly employed by any of them). D. Contractor's duties and responsibilities for safety and for protection of the Work shall continue until such time as all the Work is completed and Engineer has issued a notice to Owner and Contractor in accordance with Paragraph 1.4.07.13 that the Work is acceptable (except as otherwise expressly provided in connection with Substantial Completion). 6.14 Safety Representative A. Contractor shall designate a qualified and experienced safety representative at the Site whose duties and responsibilities shall be the prevention of accidents and the maintaining and supervising of safety precautions and programs. 6.15 Hazard Communication Programs A. Contractor shall be responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Laws or Regulations. 6.16 Emergencies A. In emergencies affecting the safety or protection of persons or the Work or property at the Site or adjacent thereto, Contractor is obligated to act to prevent threatened damage, injury, or loss. Contractor shall give Engineer prompt written notice if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby or are required as a result thereof. If Engineer determines that a change in the Contract Documents is required because of the action taken by Contractor in response to such an emergency, a Work Change Directive or Change Order will be issued. 6.17 Shop Drawings and Samples A. Contractor shall submit Shop Drawings and Samples to Engineer for review and approval in accordance with the acceptable Schedule of Submittals (as required by Paragraph 2.07). Each submittal will be identified as Engineer may require. 1. Shop Drawings a. Submit number of copies specified in the General Requirements. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 30 b. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show Engineer the services, materials, and equipment Contractor proposes to provide and to enable Engineer to review the information for the limited purposes required by Paragraph 6.17.D. 2. Samples a. Submit number of Samples specified in the Specifications. b. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as Engineer may require to enable Engineer to review the submittal for the limited purposes required by Paragraph 6.17.D. B. Where a Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to Engineer's review and approval of the pertinent submittal will be at the sole expense and responsibility of Contractor. C. Submittal Procedures 1. Before submitting each Shop Drawing or Sample, Contractor shall have determined and verified: a. all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto; b. the suitability of all materials with respect to intended use, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance of the Work; c. all information relative to Contractor's responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto; and d. shall also have reviewed and coordinated each Shop Drawing or Sample with other Shop Drawings and Samples and with the requirements of the Work and the Contract Documents. 2. Each submittal shall bear a stamp or specific written certification that Contractor has satisfied Contractor's obligations under the Contract Documents with respect to Contractor's review and approval of that submittal. 3. With each submittal, Contractor shall give Engineer specific written notice of any variations, that the Shop Drinving or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawings or Sample submittal; and, in addition, by a specific notation made on each Shop Drawing or Sample submitted to Engineer for review and approval of each such variation. D. Engineer's Review 1. Engineer will provide timely review of Shop Drawings and Samples in accordance with the Schedule of Submittals acceptable to Engineer. Engineer's review and approval will be only to determine if the items covered by the submittals will, after installation or incorporation in the Work, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. 2. Engineer's review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 31 incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. 3. Engineer's review and approval shall not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless Contractor has complied with the requirements of Paragraph 6.17.C.3 and Engineer has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample. Engineer's review and approval shall not relieve Contractor from responsibility for complying with the requirements of Paragraph 6.17.C.1. E. Resubnuttai Procedures 1. Contractor shall make corrections required by Engineer and shall return the required number of corrected copies of Shop Drawings and submit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by Engineer on previous submittals. 6.18 Continuing the Work A. Contractor shall carry on the Work and adhere to the Progress Schedule during all disputes or disagreements with Owner. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as permitted by Paragraph 15.04 or as Owner and Contractor may otherwise agree in writing. 6.1.9 Contractor's General Warranty and Guarantee A. Contractor warrants and guarantees to Owner that all Work will be in accordance witb the Contract Documents and will not be defective. Engineer and its Related Entities shall be entitled to rely on representation of Contractor's warranty and guarantee. B. Contractor's warranty and guarantee hereunder excludes defects or damage caused by: abuse, modification, or improper maintenance or operation by persons other than Contractor, Subcontractors, Suppliers, or any other individual or entity for whom Contractor is responsible; or 2. normal wear and tear under normal usage. C. Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. None of the following will constitute an acceptance of Work that is not in accordance with the Contract Documents or a release of Contractor's obligation to perform the Work in accordance with the Contract Documents: 1. observations by Engineer; 2. recommendation by Engineer or payment by Owner of any progress or final payment; 3. the issuance of a certificate of Substantial Completion by Engineer or any payment related thereto by Owner; 4. use or occupancy of the Work or any part thereof by Owner; 5. any review and approval of a Shop Drawing or Sample submittal or the issuance of a notice of acceptability by Engineer; 6. any inspection, test, or approval by others, or EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 32 7. any correction of defective Work by Owner, 6'20 Indemnification A. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and 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 the performance of the Work, provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom but only to the extent caused by any negligent act or omission of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work or anyone for whose acts any of them may be liable. B. In any and all claims against Owner or Engineer or any of their respective consultants, agents, officers, directors, partners, or employees by any employee (or the survivor or personal representative of such employee) of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, the indemnification obligation under Paragraph 6.20.A shall not be limited in any way by any Iimitation on the amount or type of damages, compensation, or benefits payable by or for Contractor or any such Subcontractor, Supplier, or other individual or entity under workers' compensation acts, disability benefit acts, or other employee benefit acts. C. The indemnification obligations of Contractor under Paragraph 6.20.A shall not extend to the liability of Engineer and Engineer's officers, directors, partners, employees, agents, consultants and subcontractors arising out of: 1. the preparation or approval of, or the failure to prepare or approve, maps, Drawings, opinions, reports, surveys, Change Orders, designs, or Specifications; or 2. giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage. 6.21 Delegation of Professional Design Services A. Contractor will not be required to provide professional design services unless such services are specifically required by the Contract Documents for a portion of the Work or unless such services are required to carry out Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. Contractor shall not be required to provide professional services in violation of applicable law. B. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of Contractor by the Contract Documents, Owner and Engineer will specify all performance and design criteria that such services must satisfy. Contractor shall cause such services or certifications to be provided by a properly licensed professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to Engineer. C. Owner and Engineer shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided Owner and Engineer have specified to Contractor all performance and design criteria that such services must satisfy. D. Pursuant to this Paragraph 6,21, Engineer's review and approval of design calculations and design drawings will be only for the limited purpose of checking for conformance with performance and design criteria given and the design concept expressed in the Contract Documents. Engineer's review and approval of Shop Drawings and EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved, 00710 - 33 other submittals (except design calculations and design drawings) will be only for the purpose stated in Paragraph 6.17.D.1. E. Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. ARTICLE 7 —OTHER WORK AT THE SITE 7.01 Related 97ork at Site A. Owner may perform other work related to the Project at the Site with Owner's employees, or via other direct contracts therefor, or have other work performed by utility owners. If such other work is not noted in the Contract Documents, then: 1. written notice thereof will be given to Contractor prior to starting any such other work; and 2. 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 that should be allowed as a result of such other work, a Claim may be made therefor as provided in Paragraph 10.05. B. Contractor shall afford each other contractor who is a party to such a direct contract, each utility owner and Owner, if Owner is performing other work with Owner's employees, proper and safe access to the Site, a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such other work, and shall properly coordinate the Work with theirs. Contractor shall do all cutting, fitting, and patching of the Work that may be required to properly connect or otherwise make its several parts come together and properly integrate with such other work. Contractor shall not endanger any work of others by cutting, excavating, or otherwise altering their work and will only cut or alter their work with the written consent of Engineer and the others whose work will be affected. The duties and responsibilities of Contractor under this Paragraph are for the benefit of such utility owners and other contractors to the extent that there are comparable provisions for the benefit of Contractor in said direct contracts between Owner and such utility owners and other contractors. C. If the proper execution or results of any part of Contractor's Work depends upon work performed by others under this Article 7, Contractor shall inspect such other work and promptly report to Engineer in writing any delays, defects, or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of Contractor's Work. Contractor's failure to so report will constitute an acceptance of such other work as fit and proper for integration with Contractor's Work except for latent defects and deficiencies in such other work. 7.02 Coordination A. If Owner intends to contract with others for the performance of other work on the Project at the Site, the following will be set forth in Supplementary Conditions: 1. the individual or entity who will have authority and responsibility for coordination of the activities among the various contractors will be identified; 2. the specific matters to be covered by such authority and responsibility will be itemized; and 3. the extent of such authority and responsibilities will be provided. B. Unless otherwise provided in the Supplementary Conditions, Owner shall have sole authority and responsibility for such coordination. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 34 7.03 Legal Relationships A. Paragraphs 7.0l .A and 7.02 are not applicable for utilities not under the control of Owner. B. Each other direct contract of Owner under Paragraph 7.01.A shall provide that the other contractor is liable to Owner and Contractor for the reasonable direct delay and disruption costs incurred by Contractor as a result of the other contractor's actions or inactions. C. Contractor shall be liable to Owner and any other contractor for the reasonable direct delay and disruption costs incurred by such other contractor as a result of Contractor's action or inactions. ARTICLE &—ONVNER'S RESPONSIBILITIES 8.01 Communications to Contractor A. Except as otherwise provided in these General Conditions, Owner shall issue all communications to Contractor through Engineer. 8.02 Replacement of Engineer A. In case of termination of the employment of Engineer, Owner shall appoint an engineer to whom Contractor makes no reasonable objection, whose status under the Contract Documents shall be that of the former Engineer. 8.03 Furnish Data A. Owner shall promptly furnish the data required of Owner under the Contract Documents. 8.04 Pay When Due A. Owner shall make payments to Contractor when they are due as provided in Paragraphs 14.02.0 and 14.07.C. 8.05• Lands and Easements; Reports and Tests A. Owner's duties in respect of providing lands and easements and providing engineering surveys to establish reference points are set forth in Paragraphs 4.01 and 4.05. Paragraph 4.02 refers to Owner's identifying and making available to Contractor copies of reports of explorations and tests of subsurface conditions and drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site that have been utilized by Engineer in preparing the Contract Documents. 8.06 Insurance A. Owner's responsibilities, if any, in respect to purchasing and maintaining liability and property insurance are set forth in Article 5. 8.07 Change Orders A. Owner is obligated to execute Change Orders as indicated in Paragraph 10.03. 8.08 Inspections, Tests, and Approvals A. Owner's responsibility in respect to certain inspections, tests, and approvals is set forth in Paragraph 13.03.B. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Y� Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. !� 00710 - 35 8.09 Limitations on Owner's Responsibilities A. The Owner shall not supervise, direct, or have control or authority over, nor be responsible for, Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Owner will not be responsible for Contractor's failure to perform the Work in accordance with the Contract Documents. 8.10 undisclosed Hazardous Environmental Condition A. Owner's responsibility in respect to an undisclosed Hazardous Envirommental Condition is set forth in Paragraph 4.06. 8.11 Evidence of Financial Arrangements A. If and to the extent Owner has agreed to furnish Contractor reasonable evidence that financial arrangements have been made to satisfy Owner's obligations under the Contract Documents, Owner's responsibility in respect thereof will be as set forth in the Supplementary Conditions. ARTICLE 9 —ENGINEER'S STATUS DURING CONSTRUCTION 9.01 Owners Representative. 4 A. Engineer will be Owner's representative during the construction period. The duties and responsibilities and the limitations of authority of Engineer as Owner's representative during construction are set forth in the Contract Documents and will not be changed without written consent of Owner and Engineer. 9.02 Visits to Site A. Engineer will make visits to the Site at intervals appropriate to the various stages of construction as Engineer deems necessary in order to observe as an experienced and qualified design professional the progress that has been made and the quality of the various aspects of Contractor's executed Work. Based on information obtained during such visits and observations, Engineer, for the benefit of Owner, will determine, in general, if the Work is proceeding in accordance with the Contract Documents. Engineer will not be required to make exhaustive or continuous inspections on the Site to check the quality or quantity of the Work. Engineer's efforts will be directed toward providing for Owner a greater degree of confidence that the completed Work will conform generally to the Contract Documents. On the basis of such visits and observations, Engineer will keep Owner informed of the progress of the Work and will endeavor to guard Owner against defective Work. B. Engineer's visits and observations are subject to all the limitations on Engineer's authority and responsibility set forth in Paragraph 9.09. Particularly, but without limitation, during or as a result of Engineer's visits or observations of Contractor's Work Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. 9.03 Project Representative A. If Owner and .Engineer agree, Engineer will furnish a Resident Project Representative to assist Engineer in providing more extensive observation of the Work. The authority and responsibilities of any such Resident Project Representative and assistants will be as provided in the Supplementary Conditions, and limitations on the responsibilities thereof will be as provided in Paragraph 9.09. If Owner designates another representative or agent to represent Owner at the Site who is not Engineer's consultant, agent or employee, the responsibilities E3CDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 3G and authority and limitations thereon of such other individual or entity will be as provided in the Supplementary Conditions. 9.04 Authorized Variations in Mork A. Engineer may authorize minor variations in the Work from the requirements of the Contract Documents which do not involve an adjustment in the Contract Price or the Contract Times and are compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. These may be accomplished by a Field Order and will be binding on Owner and also on Contractor, who shall perform the Work involved promptly. If Owner or Contractor believes that a Field Order justifies an adjustment in the Contract Price or Contract Times, or both, and the parties are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefor as provided in Paragraph 10.05. 9.05 ReiectingDefective Work A. Engineer will have authority to reject Work which Engineer believes to be defective, or that Engineer believes will not produce a completed Project that conforms to the Contract Documents or that will prejudice the integrity of the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. Engineer will also have authority to require special inspection or testing of the Work as provided in Paragraph 13.04, whether or not the Work is fabricated, installed, or completed. 9.06 Shop Drawings, Change Orders and Payments A. In connection with Engineer's authority, and limitations thereof, as to Shop Drawings and Samples, see Paragraph 6.17. B. In connection with Engineer's authority, and limitations thereof, as to design calculations and design drawings submitted in response to a delegation of professional design services, if any, see Paragraph 6.21. C. In connection with Engineer's authority as to Change Orders, see Articles 10, 11, and 12. D. In connection with Engineer's authority as to Applications for Payment, see Article 14. 9.07 Determinationsfor Unit Price Work A. Engineer will determine the actual quantities and classifications of Unit Price Work performed by Contractor. Engineer will review with Contractor the Engineer's preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). Engineer's written decision thereon will be final and binding (except as modified by Engineer to reflect changed factual conditions or more accurate data) upon Owner and Contractor, subject to the provisions of Paragraph 10.05. 9.08 Decisions on Requirements of Contract Documents and Acceptahility of Work A. Engineer will be the initial interpreter of the requirements of the Contract Documents and judge of the acceptability of the Work thereunder. All matters in question and other matters between Owner and Contractor arising prior to the date final payment is due relating to the acceptability of the Work, and the interpretation of the requirements of the Contract Documents pertaining to the performance of the Work, will be referred initially to Engineer in writing within 30 days of the event giving rise to the question. B. Engineer will, with reasonable promptness, render a written decision on the issue referred. If Owner or Contractor believe that any such decision entitles them to an adjustment in the Contract Price or Contract Times or both, a Claim may be made under Paragraph 10.05. The date of Engineer's decision shall be the date of the event giving rise to the issues referenced for the purposes of Paragraph 10.05.13. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 37 C. Engineer's written decision on the issue referred will be final and binding on Owner and Contractor, subject to the provisions of Paragraph 10.05. D. When functioning as interpreter and judge under this Paragraph 9.08, Engineer will not show partiality to Owner or Contractor and will not be liable in connection with any interpretation or decision rendered in good faith in such capacity. 9.09 Limitaiians on Engineer's Authorit}, and Responsibilities A. Neither Engineer's authority or responsibility under this Article 9 or under any other provision of the Contract Documents nor any decision made by Engineer in good faith either to exercise or not exercise such authority or responsibility or the undertaking, exercise, or performance of any authority or responsibility by Engineer shall create, impose, or give rise to any duty in contract, tort, or otherwise owed by Engineer to Contractor, any Subcontractor, any Supplier, any other individual or entity, or to any surety for or employee or agent of any of them. B. Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Engineer will not be responsible for Contractor's failure to perform the Work in accordance with the Contract Documents. C. Engineer will not be responsible for the acts or omissions of Contractor or of any Subcontractor, any Supplier, or of any other individual or entity performing any of the Work. D. Engineer's review of the final Application for Payment and accompanying documentation and all maintenance and operating instructions, schedules, guarantees, bonds, certificates of inspection, tests and approvals, and other documentation required to be delivered by Paragraph 14.07.A will only be to determine generally that their content complies with the requirements of, and in the case of certificates of inspections, tests, and approvals that the results certified indicate compliance with the Contract Documents. E. The limitations upon authority and responsibility set forth in this Paragraph 9.09 shall also apply to the Resident Project Representative, if any, and assistants, if any. ARTICLE 10 —CHANGES M THE WORK; CLAIMS 10.01 Authorized Changes in the Work A. Without invalidating the Contract and without notice to any surety, Owner may, subject to written approval by Agency at any time or from time to time, order additions, deletions, or revisions in the Work by a Change Order, or a Work Change Directive. Upon receipt of any such document, Contractor shall promptly proceed with the Work involved which will be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided). B. If Owner and Contractor are unable to agree on entitlement to, or on the amount or extent, if any, of an adjustment in the Contract Price or Contract Times, or both, that should be allowed as a result of a Work Change Directive, a Claim may be made therefor as provided in Paragraph 10.05. 10.02 Unauthorized Changes in the Work A. Contractor shall not be entitled to an increase in the Contract Price or an extension of the Contract Times with respect to any work performed that is not required by the Contract Documents as amended, modified, or supplemented as provided in Paragraph 3.04, except in the case of an emergency as provided in Paragraph 6.16 or in the case of uncovering Work as provided in Paragraph 13.04.B. E3CDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright © 2002 National Society of Professional Engineers for EdCDC. All rights reserved. 00710 - 38 10.03 Execution of Change Orders A. Owner and Contractor shall execute appropriate Change Orders recommended by Engineer covering: 1. changes in the Work which are: (i) ordered by Owner pursuant to Paragraph 10.01.A, (ii) required because of acceptance of defective Work under Paragraph 13.08.A or Owner's correction of defective Work under Paragraph 13.09, or (iii) agreed to by the parties; 2. changes in the Contract Price or Contract Times which are agreed to by the parties, including any undisputed sum or amount of time for Work actually performed in accordance with a Work Change Directive; and 3. changes in the Contract Price or Contract Times which embody the substance of any written decision rendered by Engineer pursuant to Paragraph 10.05; provided that, in lieu of executing any such Change Order, an appeal may be taken from any such decision in accordance with the provisions of the Contract Documents and applicable Laws and Regulations, but during any such appeal, Contractor shall carry on the Work and adhere to the Progress Schedule as provided in Paragraph 6.18.A. 10.04 Notification to Surety A. If notice of any change affecting the general scope of the Work or the provisions of the Contract Documents (including, but not limited to, Contract Price or Contract Times) is required by the provisions of any bond to be given to a surety, the giving of any such notice will be Contractor's responsibility. The amount of each applicable bond will be adjusted to reflect the effect of any such change. 10.05 Claims A. Engineer's Decision Required: All Claims, except those waived pursuant to Paragraph 14.09, shall be referred to the Engineer for decision. A decision by Engineer shall be required as a condition precedent to any exercise by Owner or Contractor of any rights or remedies either may otherwise have under the Contract Documents or by Laws and Regulations in respect of such Claims. B. Notice: Written notice stating the general nature of each Claim shall be delivered by the claimant to Engineer and the other party to the Contract promptly (but in no event later than 30 days) after the start of the event giving rise thereto. The responsibility to substantiate a Claim shall rest with the party making the Claim. Notice of the amount or extent of the Claim, with supporting data shall be delivered to the Engineer and the other party to the Contract within 60 days after the start of such event (unless Engineer allows additional time for claimant to submit additional or more. accurate data in support of such Claim). A Claim for an adjustment in Contract Price shall be prepared in accordance with the provisions of Paragraph 12.01.13. A Claim for an adjustment in Contract Time shall be prepared in accordance with the provisions of Paragraph 12.02.B. Each Claim shall be accompanied by claimant's written statement that the adjustment claimed is the entire adjustment to which the claimant believes it is entitled as a result of said event. The opposing party shall submit any response to Engineer and the claimant within 30 days after receipt of the claimant's last submittal (unless Engineer allows additional time). C. Engineer's Action: Engineer will review each Claim and, within 30 days after receipt of the last submittal of the claimant or the last submittal of the opposing party, if any, take one of the following actions in writing: 1. deny the Claim in whole or in part, 2. approve the Claim, or 3. notify the parties that the Engineer is unable to resolve the Claim if, in the Engineer's sole discretion, it would be inappropriate for the Engineer to do so. For purposes of further resolution of the Claim, such notice shall be deemed a denial. E3CDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 39 D. In the event that Engineer does not take action on a Claim within said 30 days, the Claim shall be deemed denied. E. Engineer's written action under Paragraph 10.05.0 or denial pursuant to Paragraphs 10.05.C.3 or 10.05.13 will be final and binding upon Owner and Contractor, unless Owner or Contractor invoke the dispute resolution procedure set forth in Article 16 within 30 days of such action or denial. F. No Claim for an adjustment in Contract Price or Contract Times will be valid if not submitted in accordance with this Paragraph 10.05. ARTICLE i t — COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK 11.01 Cost of the Work A. Costs Included: The term Cost of the Work means the sum of all costs, except those excluded in Paragraph 11.01.13, necessarily incurred and paid by Contractor in the proper performance of the Work. When the value of any Work covered by a Change Order or when a Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, the costs to be reimbursed to Contractor will be only those additional or incremental costs required because of the change in the Work or because of the event giving rise to the Claim. Except as otherwise may be agreed to in writing by Owner, such costs shall be in amounts no higher than those prevailing in the locality of the Project, shall include only the following items, and shall not include any of the costs itemized in Paragraph 11.0I I.B. I. Payroll costs for employees in the direct employ of Contractor in the performance of the Work under schedules of job classifications agreed upon by Owner and Contractor. Such employees shall include, without limitation, superintendents, foremen, and other personnel employed full time at the Site. Payroll costs for employees not employed full time on the Work shall be apportioned on the basis of their time spent on the Work. Payroll costs shall include, but not be limited to, salaries and wages plus the cost of fringe benefits, which shall include social security contributions, unemployment, excise, and payroll taxes, workers' compensation, health and retirement benefits, bonuses, sick leave, vacation and holiday pay applicable thereto. The expenses of performing Work outside of regular working hours, on Saturday, Sunday, or legal holidays, shall be included in the above to the extent authorized by Owner. 2. Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation and storage thereof, and Suppliers' field services required in connection therewith. All cash discounts shall accrue to Contractor unless Owner deposits funds with Contractor with which to make payments, in which case the cash discounts shall accrue to Owner. All trade discounts, rebates and refunds and returns from sale of surplus materials and equipment shall accrue to Owner, and Contractor shall make provisions so that they may be obtained. A 3. Payments made by Contractor to Subcontractors for Work performed by Subcontractors. If required by Owner, Contractor shall obtain competitive bids from subcontractors acceptable to Owner and Contractor and shall deliver such bids to Owner, who will then determine, with the advice of Engineer, which bids, if any, will be acceptable. If any subcontract provides that the Subcontractor is to be paid on the basis of Cost of the Work plus a fee, the Subcontractor's Cost of the Work and fee shall be determined in the same manner as Contractor's Cost of the Work and fee as provided in this Paragraph 11.01, 4. Costs of special consultants (including but not limited to Engineers, architects, testing laboratories, surveyors, attorneys, and accountants) employed for services specifically related to the Work. 5. Supplemental costs including the following: a. The proportion of necessary transportation, travel, and subsistence expenses of Contractor's employees incurred in discharge of duties connected with the Work. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 40 I b. Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office, and temporary facilities at the Site, and hand tools not owned by the workers, which are consumed in the performance of the Work, and cost, less market value, of such items used but not consumed which remain the property of Contractor. c. Rentals of all construction equipment and machinery, and the parts thereof whether rented from Contractor or others in accordance with rental agreements approved by Owner with the advice of Engineer, and the costs of transportation, loading, unloading, assembly, dismantling, and removal thereof. All such costs shall be in accordance with the terms of said rental agreements. The rental of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the Work. d. Sales, consumer, use, and other similar taxes related to the Work, and for which Contractor is liable, imposed by Laws and Regulations. e. Deposits lost for causes other than negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, and royalty payments and fees for permits and licenses. f. Losses and damages (and related expenses) caused by damage to the Work, not compensated by insurance or otherwise, sustained by Contractor in connection with the performance of the Work (except losses and damages within the deductible amounts of property insurance established in accordance with Paragraph 5.06.D), provided such Iosses and damages have resulted from causes other than the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable. Such losses shall include settlements made with the written consent and approval of Owner. No such losses, damages, and expenses shall be included in the Cost of the Work for the purpose of determining Contractor's fee. g. The cost of utilities, fuel, and sanitary facilities at the Site. h. Minor expenses such as telegrams, long distance telephone calls, telephone service at the Site, expressages, and similar petty cash items in connection with the Work. i. The costs of premiums for all bonds and insurance Contractor is required by the Contract Documents to purchase and maintain. B. Costs Excluded: The term Cost of the Work shall not include any of the following items: 1. Payroll costs and other compensation of Contractor's officers, executives, principals (of partnerships and sole proprietorships), general managers, safety managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks, and other personnel employed by Contractor, whether at the Site or in Contractor's principal or branch office for general administration of the Work and not specifically included in the agreed upon schedule of job classifications referred to in Paragraph 11.01.A.1 or specifically covered by Paragraph 11.0l.A.4, all of which are to be considered administrative costs covered by the Contractor's fee. 2. Expenses of Contractor's principal and branch offices other than Contractor's office at the Site. 3. Any part of Contractor's capital expenses, including interest on Contractor's capital employed for the Work and charges against Contractor for delinquent payments. 4. Costs due to the negligence of Contractor, any Subcontractor, or anyone directly or indirectly employed by any of them or for whose acts any of them may be liable, including but not limited to, the correction of EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 41 Li defective Work, disposal of materials or equipment wrongly supplied, and making good any damage to property. 5. Other overhead or general expense costs of any kind and the costs of any item not specifically and expressly included in Paragraphs 1 I.OLA and 11..O1.B. C. Contractor's Fee: When all the Work is performed on the basis of cost -phis, Contractor's fee shall be determined as set forth in the Agreement. When the value of any Work covered by a Change Order or when a Claim for an adjustment in Contract Price is determined on the basis of Cost of the Work, Contractor's fee shall be determined as set forth in Paragraph 12.01.C. D. Documentation: Whenever the Cost of the Work for any purpose is to be determined pursuant to Paragraphs 1 LOLA and 11.O1.B, Contractor will establish and maintain records thereof in accordance with generally accepted accounting practices and submit in a form acceptable to Engineer an itemized cost breakdown together with supporting data. 11.02 Allowances A. It is understood that Contractor has included in the Contract Price all allowances so named in the Contract Documents and shall cause the Work so covered to be performed for such sums and by such persons or entities as may be acceptable to Owner and Engineer. B. Cash Allowances 1. Contractor agrees that: a. the cash allowances include the cost to Contractor (less any applicable trade discounts) of materials and equipment required by the allowances to be delivered at the Site, and all applicable taxes; and b. Contractor's costs for unloading and handling on the Site, labor, installation, overhead, profit, and other expenses contemplated for the cash allowances have been included in the Contract Price and not in the allowances, and no demand for additional payment on account of any of the foregoing will be valid. C. Contingency Allowance 1. Contractor agrees that a contingency allowance, if any, is for the sole use of Owner to cover unanticipated costs. D. Prior to final payment, an appropriate Change Order will be issued as recommended by Engineer to reflect actual amounts due Contractor on account of Work covered by allowances, and the Contract Price shall be correspondingly adjusted. 11.03 Unit Price Work A. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Agreement. B. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and classifications of Unit Price Work performed by Contractor will be made by Engineer subject to the provisions of Paragraph 9.07. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 )National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 42 C. Each unit price will be deemed to include an amount considered by Contractor to be adequate to cover Contractor's overhead and profit for each separately identified item. D. Owner or Contractor may make a Claim for an adjustment in the Contract Price in accordance with Paragraph 10.05 if. 1, the Bid price of a particular item of Unit Price Work amounts to more than 5 percent of the Contract Price and the variation in the quantity of that particular item of Unit Price Work performed by Contractor differs by more than 25 percent from the estimated quantity of such item indicated in the Agreement; and 2. there is no corresponding adjustment with respect to any other item of Work; and 3. Contractor believes that Contractor is entitled to an increase in Contract Price as a result of having incurred additional expense or Owner believes that Owner is entitled to a decrease in Contract Price and the parties are unable to agree as to the amount of any such increase or decrease. ARTICLE 12 — CHANGE OF CONTRACT PRICE; CHANGE OF CONTRACT TIMES 12.01 Change of Contract Price A. The Contract Price may only be changed by a Change Order. Any Claim for an adjustment in the Contract Price shall be based on written notice submitted by the party making the Claim to the Engineer and the other party to the Contract in accordance with the provisions of Paragraph 10.05. B. The value of any Work covered by a Change Order or of any Claim for an adjustment in the Contract Price will be determined as follows: 1. where the Work involved is covered by unit prices contained in the Contract Documents, by application of such unit prices to the quantities of the items involved (subject to the provisions of Paragraph 11.03); or 2. where the Work involved is not covered by unit prices contained in the Contract Documents, by a mutually agreed lump sum (which may include an allowance for overhead and profit not necessarily in accordance with Paragraph 12.0I.C.2); or 3. where the Work involved is not covered by unit prices contained in the Contract Documents and agreement to a lump sum is not reached under Paragraph 12.013.2, on the basis of the Cost of the Work (determined as provided in Paragraph 11.01) plus a Contractor's fee for overhead and profit (determined as provided in Paragraph 12.01.C). C. Contractor's Fee: The Contractor's fee for overhead and profit shall be determined as follows: 1, a mutually acceptable fixed fee; or 2. if a fixed fee is not agreed upon, then a fee based on the following percentages of the various portions of the Cost of the Work: a, for costs incurred under Paragraphs 11.01.A.1 and 11.01.A.2, the Contractor's fee shall be 15 percent; b. for costs incurred under Paragraph 11.01.A.3, the Contractor's fee shall be five percent; c. where one or more tiers of subcontracts are on the basis of Cost of the Work plus a fee and no fixed fee is agreed upon, the intent of Paragraph 12.01.C.2.a is that the Subcontractor who actually performs the Work, at whatever tier, will be paid a fee of 15 percent of the costs incurred by such Subcontractor EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 43 under Paragraphs 11.01.A.1 and 11.01.A.2 and that any higher tier Subcontractor and Contractor will each be paid a fee of five percent of the amount paid to the next lower tier Subcontractor; no fee shall be payable on the basis of costs itemized under Paragraphs 11.01.A.4, 11.0l.A.5, and 11.01.13; e. the amount of credit to be allowed by Contractor to Owner for any change which results in a net decrease in cost will be the amount of the actual net decrease in cost plus a deduction in Contractor's fee by an amount equal to five percent of such net decrease; and f. when both additions and credits are involved in any one change, the adjustment in Contractor's fee shall be computed on the basis of the net change in accordance with Paragraphs 12.01.C.2.a through 12.0l.C.2.e, inclusive. 12.02 Change gfCunfracf Times A. The Contract Times may only be changed by a Change Order. Any Claim for an adjustment in the Contract Times shall be based on written notice submitted by the party making the Claim to the Engineer and the other party to the Contract in accordance with the provisions of Paragraph 10.05. B. Any adjustment of the Contract Times covered by a Change Order or any Claim for an adjustment in the Contract Times will be determined in accordance with the provisions of this Article 12. 12.03 Delays A. Where Contractor is prevented from completing any part of the Work within the Contract Times due to delay beyond the control of Contractor, the Contract Times will be extended in an amount equal to the time lost due to such delay if a Claim is made therefor as provided in Paragraph 12.02.A. Delays beyond the control of Contractor shall include, but not be limited to, acts or neglect by Owner, acts or neglect of utility owners or other contractors performing other work as contemplated by Article 7, fires, floods, epidemics, abnormal weather conditions, or acts of God. B. if Owner, Engineer, or other contractors or utility owners performing other work for Owner as contemplated by Article 7, or anyone for whom Owner is responsible, delays, disrupts, or interferes with the performance or progress of the Work, then Contractor shall be entitled to an equitable adjustment in the Contract Price or the Contract Times, or both. Contractor's entitlement to an adjustment of the Contract Times is conditioned on such adjustment being essential to Contractor's ability to complete the Work within the Contract Times. C. 1f Contractor is delayed in the performance or progress of the Work by fire, flood, epidemic, abnormal weather conditions, acts of God, acts or failures to act of utility owners not under the control of Owner, or other causes not the fault of and beyond control of Owner and Contractor, then Contractor shall be entitled to an equitable adjustment in Contract Times, if such adjustment is essential to Contractor's ability to complete the Work within the Contract Times. Such an adjustment shall be Contractor's sole and exclusive remedy for the delays described in this Paragraph 12.03.11. 1, delays caused by or within the control of Contractor; or D. Owner, Engineer and the Related Entities of each of them 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. EJC.DC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 44 E. Contractor shall not be entitled to an adjustment in Contract Price or Contract Times for delays within the control of Contractor. Delays attributable to and within the control of a Subcontractor or Supplier shall be deemed to be delays within the control of Contractor. ARTICLE 13 —TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OFDEFECI'IVE WORK 13.01 Notice of Defects A. Prompt notice of all defective Work of which Owner or Engineer has actual knowledge will be given to Contractor. All defective Work may be rejected, corrected, or accepted as provided in this Article 13, 13.02 Access to Work A. Owner, Engineer, their consultants and other representatives and personnel of Owner, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Site and the Work at reasonable times for their observation, inspecting, and testing. Contractor shall provide them proper and safe conditions for such access and advise them of Contractor's Site safety procedures and programs so that they may comply therewith as applicable. 13.03 Tests and Inspections A. Contractor shall give Engineer timely notice of readiness of the Work for all required inspections, tests, or approvals and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. B. Owner shall employ and pay for the services of an independent testing laboratory to perform all inspections, tests, or approvals required by the Contract Documents except: 1. for inspections, tests, or approvals covered by Paragraphs 13.03.0 and 13.03.13 below; 2. that costs incurred in connection with tests or inspections conducted pursuant to Paragraph 13.04.13 shall be paid as provided in said Paragraph 13.04.C; and 3. as otherwise specifically provided in the Contract Documents. C. If Laws or Regulations of any public body having jurisdiction require any Work (or part thereof) specifically to be inspected, tested, or approved by an employee or other representative of such public body, Contractor shall assume full responsibility for arranging and obtaining such inspections, tests, or approvals, pay all costs in connection therewith, and furnish Engineer the required certificates of inspection or approval. D. Contractor shall be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests, or approvals required for Owner's and Engineer's acceptance of materials or equipment to be incorporated in the Work; or acceptance of materials, mix designs, or equipment submitted for approval prior to Contractor's purchase thereof for incorporation in the Work. Such inspections, tests, or approvals shall be performed by organizations acceptable to Owner and Engineer. R If any Work (or the work of others) that is to be inspected, tested, or approved is covered by Contractor without written concurrence of Engineer, it must, if requested by Engineer, be uncovered for observation. F. Uncovering Work as provided in Paragraph 13.03.E shall be at Conti -actor's expense unless Contractor has given Engineer timely notice of Contractor's intention to cover the same and Engineer has not acted with reasonable promptness in response to such notice. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 45 13.04 Uncovering Work A. If any Work is covered contrary to the written request of Engineer, it must, if requested by Engineer, be uncovered for Engineer's observation and replaced at Contractor's expense. B. If Engineer considers it necessary or advisable that covered Work be observed by Engineer or inspected or tested by others, Contractor, at Engineer's request, shall uncover, expose, or otherwise make available for observation, inspection, or testing as Engineer may require, that portion of the Work in question, furnishing all necessary labor, material, and equipment. C. If it is found that the uncovered Work is defective, Contractor shall pay all claims, costs, losses, and 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 such uncovering, exposure, observation, inspection, and testing, and of satisfactory replacement or reconstruction (including but not limited to all costs of repair or replacement of work of others); and Owner shall be entitled to an appropriate decrease in the Contract Price. If the parties are unable to agree as to the amount thereof, Owner may make a Claim therefor as provided in Paragraph 10.05, D. If, the uncovered Work is not found to be defective, Contractor shall be allowed an increase in the Contract Price or an extension of the Contract Times, or both, directly attributable to such uncovering, exposure, observation, inspection, testing, replacement, and reconstruction. If the parties are unable to agree as to the amount or extent thereof, Contractor may make a Claim therefor as provided in Paragraph 10.05. 13.45 Owner May Stop the Work A. If the Work is defective, or Contractor fails to supply sufficient skilled workers or suitable materials or equipment, or fails to perform the Work in such a way that the completed Work will conform to the Contract Documents, Owner may order Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated; however, this right of Owner to stop the Work shall not give rise to any duty on the part of Owner to exercise this right for the benefit of Contractor, any Subcontractor, any Supplier, any other individual or entity, or any surety for, or employee or agent of any of them. 13.06 Correction or Removal of Defective Work A. Promptly after receipt of notice, Contractor shall correct all defective Work, whether or not fabricated, installed, or completed, or, if the Work has been rejected by Engineer, remove it from the Project and replace it with Work that is not defective. Contractor shall pay all claims, costs, losses, and 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 such correction or removal (including but not limited to all costs of repair or replacement of work of others). B. When correcting defective Work under the terms of this Paragraph 13.06 or Paragraph 13.07, Contractor shall take no action that would void or otherwise impair Owner's special warranty and guarantee, if any, on said Work. 13.07 Correction Period A. If within one year after the date of Substantial Completion (or such longer period of time as may be prescribed by the terms of any applicable special guarantee required by the Contract Documents) or by any specific provision of the Contract Documents, any Work is found to be defective, or if the repair of any damages to the land or areas made available for Contractor's use by Owner or permitted by Laws and Regulations as contemplated in Paragraph 6.1 LA is found to be defective, Contractor shall promptly, without cost to Owner and in accordance with Owner's written instructions: 1. repair such defective land or areas; or EdCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 46 9 2. correct such defective Work; or 3. if the defective Work has been rejected by Owner, remove it from the Project and replace it with Work that is not defective, and 4. satisfactorily correct or repair or remove and replace any damage to other Work, to the work of others or other land or areas resulting therefrom. B. If Contractor does not promptly comply with the terms of Owner's written instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the defective Work corrected or repaired or may have the rejected Work removed and replaced. All claims, costs, losses, and 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 such correction or repair or such removal and replacement (including but not limited to all costs of repair or replacement of work of others) will be paid by Contractor. C. In special circumstances where a particular item of equipment is placed in continuous service before Substantial Completion of all the Work, the correction period for that item may start to run from an earlier date if so provided in the Specifications. D. Where defective Work (and damage to other Work resulting therefrom) has been corrected or removed and replaced under this Paragraph 13.07, the correction period hereunder with respect to such Work will be extended for an additional period of one year after such correction or removal and replacement has been satisfactorily completed. E. Contractor's obligations under this Paragraph 13.07 are in addition to any other obligation or warranty. The provisions of this Paragraph 13.07 shall not be construed as a substitute for or a waiver of the provisions of any applicable statute of limitation or repose. 13.08 Acceptance of Defective Work A. If, instead of requiring correction or removal and replacement of defective Work, Owner (and, prior to Engineer's recommendation of final payment, Engineer) prefers to accept it, Owner may do so. Contractor shall pay all claims, costs, losses, and 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) attributable to Owner's evaluation of and determination to accept such defective Work (such costs to be approved by Engineer as to reasonableness) and the diminished value of the Work to the extent not otherwise paid by Contractor pursuant to this sentence. If any such acceptance occurs prior to Engineer's recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and Owner shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work so accepted. If the parties are unable to agree as to the amount thereof, Owner may make a Claim therefor as provided in Paragraph 10.05. If the acceptance occurs after such recommendation, an appropriate amount will be paid by Contractor to Owner. 13.09 Owner May Correct Defective Work A. If Contractor fails within a reasonable time after written notice from Engineer to correct defective Work or to remove and replace rejected Work as required by Engineer in accordance with Paragraph 13.06.A, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, Owner may, after seven days written notice to Contractor, correct or remedy any such deficiency. B. In exercising the rights and remedies under this Paragraph 13.09, Owner shall proceed expeditiously. In connection with such corrective or remedial action, Owner may exclude Contractor from all or part of the Site, EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright CD 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 47 take possession of all or part of the Work and suspend Contractor's services related thereto, take possession of Contractor's tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner, Owner's representatives, agents and employees, Owner's other contractors, and Engineer and Engineer's consultants access to the Site to enable Owner to exercise the rights and remedies under this Paragraph. C. All claims, costs, losses, and 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) incurred or sustained by Owner in exercising the rights and remedies under this Paragraph 13.09 will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and Owner shall be entitled to an appropriate decrease in the Contract Price. If the parties are unable to agree as to the amount of the adjustment, Owner may make a Claim therefor as provided in Paragraph 10.05. Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction, removal, or replacement of Contractor's defective Work. D. Contractor shall not be allowed an extension of the Contract Times because of any delay in the performance of the Work attributable to the exercise by Owner of Owner's rights and remedies under this Paragraph 13.09. ARTICLE 14—PAl'I14ENTS TO CONTRACTOR AND COMMLETION 14.01 Schedule of Values A. The Schedule of Values established as provided in Paragraph 2.07.A will serve as the basis for progress payments and will be incorporated into a form of Application for Payment acceptable to Engineer. Progress payments on account of Unit Price Work will be based on the number of units completed. 14.02 Progress Payments A. Applications for Payments At least 20 days before the date established in the Agreement for each progress payment (but not more often than once a month), Contractor shall submit to Engineer for review an Application for Payment filled out and signed by Contractor covering the Work completed as of the date of the Application and accompanied by such supporting documentation as is required by the Contract Documents. If payment is requested on the basis of materials and equipment not incorporated in the Work but delivered and suitably stored at the Site or at another location agreed to in writing, the Application for Payment shall also be accompanied by a bill of sale, invoice, or other documentation warranting that Owner has received the materials and equipment free and clear of all Liens and evidence that the materials and equipment are covered by appropriate property insurance or other arrangements to protect Owner's interest therein, all of which must be satisfactory to Owner. 2. Beginning with the second Application for Payment, each Application shall include an affidavit of Contractor stating that all previous progress payments received on account of the Work have been applied on account to discharge Contractor's legitimate obligations associated with prior Applications for Payment. 3. The amount of retainage with respect to progress payments will be as stipulated in the Agreement. B. Review ofApplications 1. Engineer will, within 10 days after receipt of each Application for Payment, either indicate in writing a recommendation of payment and present the Application to Owner or return the Application to Contractor EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for E3CDC. All rights reserved. 00710 - 4S indicating in writing Engineer's reasons for refusing to recommend payment. In the latter case, Contractor may make the necessary corrections and resubmit the Application. 2. Engineer's recommendation of any payment requested in an Application for Payment will constitute a representation by Engineer to Owner, based on Engineer's observations on the Site of the executed Work as an experienced and qualified design professional and on Engineer's review of the Application for Payment and the accompanying data and schedules, that to the best of Engineer's knowledge, information and belief: a. the Work has progressed to the point indicated; the quality of the Work is generally in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, to the results of any subsequent tests called for in the Contract Documents, to a final determination of quantities and classifications for Unit Price Work under Paragraph 9.07, and to any other qualifications stated in the recommendation); and c. the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is Engineer's responsibility to observe the Work. 3. By recommending any such payment Engineer will not thereby be deemed to have represented that: a. inspections made to check the quality or the quantity of the Work as it has been performed have been exhaustive, extended to every aspect of the Work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to Engineer in the Contract Documents; or b. that there may not be other matters or issues between the parties that might entitle Contractor to be paid additionally by Owner or entitle Owner to withhold payment to Contractor. 4. Neither Engineer's review of Contractor's Work for the purposes of recommending payments nor Engineer's recommendation of any payment, including final payment, will impose responsibility on Engineer: a. to supervise, direct, or control the Work, or b. for the means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or c. for Contractor's failure to comply with Laws and Regulations applicable to Contractor's performance of the Work, or d, to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price, or e. to determine that title to any of the Work, materials, or equipment has passed to Owner free and clear of any Liens. 5. Engineer may refuse to recommend the whole or any part of any payment if, in Engineer's opinion, it would be incorrect to make the representations to Owner stated in Paragraph 14.02.13.2. Engineer may also refuse to recommend any such payment or, because of subsequently discovered evidence or the results of subsequent inspections or tests, revise or revoke any such payment recommendation previously made, to such extent as may be necessary in Engineer's opinion to protect Owner from loss because: a. the Work is defective, or completed Work has been damaged, requiring correction or replacement; b. the Contract Price has been reduced by Change Orders; EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 49 c. Owner has been required to correct defective Work or complete Work in accordance with Paragraph 13.09; or d. Engineer has actual knowledge of the occurrence of any of the events enumerated in Paragraph 15.02.A C. Pavment Becomes Due 1. Ten days after presentation of the Application for Payment to Owner with Engineer's recommendation, the amount recommended will (subject to the provisions of Paragraph 14.02.1)) become due, and when due will be paid by Owner to Contractor, D. Reduction in Payment 1. Owner may refuse to make payment of the full amount recommended by Engineer because: a. claims have been made against Owner on account of Contractor's performance or furnishing of the Work; b. Liens have been filed in connection with the Work, except where Contractor has delivered a specific bond satisfactory to Owner to secure the satisfaction and discharge of such Liens; c. the Contractor's performance or furnishing of the Work is inconsistent with funding Agency requirements; d. there are other items entitling Owner to a set-off against the amount recommended; or e. Owner has actual knowledge of the occurrence of any of the events enumerated in Paragraphs 14.02.B.5.a through 14.02.B.5.c or Paragraph 15.02.A. 2. If Owner refuses to make payment of the full amount recommended by Engineer, Owner will give Contractor immediate written notice (with a copy to Engineer) stating the reasons for such action and promptly pay Contractor any amount remaining after deduction of the amount so withheld. Owner shall promptly pay Contractor the amount so withheld, or any adjustment thereto agreed to by Owner and Contractor, when Contractor corrects to Owner's satisfaction the reasons for such action. 3. If it is subsequently determined that Owner's refusal of payment was not justified, the amount wrongfully withheld shall be treated as an amount due as determined by Paragraph 14.02.C.1. 14.03 Contractor's Warranty of Title A. Contractor warrants and guarantees that title to all Work, materials, and equipment covered by any Application for Payment, whether incorporated in the Project or not, will pass to Owner no later than the time of payment free and clear of all Liens. 14.04 Substantial Completion A. When Contractor considers the entire Work ready for its intended use Contractor shall notify Owner and Engineer in writing that the entire Work is substantially complete (except for items specifically listed by Contractor as incomplete) and request that Engineer issue a certificate of Substantial Completion, B. Promptly after Contractor's notification, Owner, Agency, Contractor, and Engineer shall make a prefinal inspection of the Work to determine the status of completion. If Engineer does not consider the Work substantially complete, Engineer will notify Contractor in writing giving the reasons therefor. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 50 C. If Engineer considers the Work substantially complete, Engineer will deliver to Owner a tentative certificate of Substantial Completion which shall fix the date of Substantial Completion. There shall be attached to the certificate a tentative list of items to be completed or corrected before final payment. Owner shall have seven days after receipt of the tentative certificate during which to make written objection to Engineer as to any provisions of the certificate or attached list. If, after considering such objections, Engineer concludes that the Work is not substantially complete, Engineer will within 14 days after submission of the tentative certificate to Owner notify Contractor in writing, stating the reasons therefor. If, after consideration of Owner's objections, Engineer considers the Work substantially complete, Engineer will within said 14 days execute and deliver to Owner and Contractor a definitive certificate of Substantial Completion (with a revised tentative list of items to be completed or corrected) reflecting such changes from the tentative certificate as Engineer believes justified after consideration of any objections from Owner. D. At the time of delivery of the tentative certificate of Substantial Completion, Engineer will deliver to Owner and Contractor a written recommendation as to division of responsibilities pending final payment between Owner and Contractor with respect to security, operation, safety, and protection of the Work, maintenance, heat, utilities, insurance, and warranties and guarantees. Unless Owner and Contractor agree otherwise in writing and so inform Engineer in writing prior to Engineer's issuing the definitive certificate of Substantial Completion, Engineer's aforesaid recommendation will be binding on Owner and Contractor until final payment. E. Owner shall have the right to exclude Contractor from the Site after the date of Substantial Completion subject to allowing Contractor reasonable access to complete or correct items on the tentative list. 14.05 Partial Utilization A. Prior to Substantial Completion of all the Work, Owner may use or occupy any substantially completed part of the Work which has specifically been identified in the Contract Documents, or which Owner, Engineer, and Contractor agree constitutes a separately functioning and usable part of the Work that can be used by Owner for its intended purpose without significant interference with Contractor's performance of the remainder of the Work, subject to the following conditions. Owner at any time may request Contractor in writing to permit Owner to use or occupy any such part of the Work which Owner believes to be ready for its intended use and substantially complete. If and when Contractor agrees that such part of the Work is substantially complete, Contractor will certify to Owner and Engineer that such part of the Work is substantially complete and request Engineer to issue a certificate of Substantial Completion for that part of the Work. 2. Contractor at any time may notify Owner and Engineer in writing that Contractor considers any such part of the Work ready for its intended use and substantially complete and request Engineer to issue a certificate of Substantial Completion for that part of the Work. 3. Within a reasonable time after either such request, Owner, Contractor, and Engineer shall make an inspection of that part of the Work to determine its status of completion. If Engineer does not consider that part of the Work to be substantially complete, Engineer will notify Owner and Contractor in writing giving the reasons therefor. If Engineer considers that part of the Work to be substantially complete, the provisions of Paragraph 14.04 will apply with respect to certification of Substantial Completion of that part of the Work and the division of responsibility in respect thereof and access thereto. 4. No use or occupancy or separate operation of part of the Work may occur prior to compliance with the requirements of Paragraph 5.10 regarding property insurance. 14.06 Final Inspection A. Upon written notice from Contractor that the entire Work or an agreed portion thereof is complete, Engineer will promptly make a final inspection with Owner, Agency, and Contractor and will notify Contractor in writing of all EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright © 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 51 particulars in which this inspection reveals that the Work is incomplete or defective. Contractor shall immediately take such measures as are necessary to complete such Work or remedy such deficiencies. 14.07 Final Payment A. Application for Payment 1. After Contractor has, in the opinion of Engineer, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance certificates of inspection, marked -up record documents (as provided in Paragraph 6.12), and other documents, Contractor may make application for final payment following the procedure for progress payments. 2. The final Application for Payment shall be accompanied (except as previously delivered) by: a. all documentation called for in the Contract Documents, including but not limited to the evidence of insurance required by Paragraph 5.04.13.7; b. consent of the surety, if any, to final payment; c. a list of all Claims against Owner that Contractor believes are unsettled; and d. complete and legally effective releases or waivers (satisfactory to Owner) of all Lien rights arising out of or Liens filed in connection with the Work. 3. In lieu of the releases or waivers of Liens specified in Paragraph 14.07.A.2 and as approved by Owner, Contractor may furnish receipts or releases in full and an affidavit of Contractor that: (i) the releases and receipts include all labor, services, material, and equipment for which a Lien could be filed; and (ii) all payrolls, material and equipment bills, and other indebtedness connected with the Work for which Owner or Owner's property might in any way be responsible have been paid or otherwise satisfied. If any Subcontractor or Supplier fails to furnish such a release or receipt in full, Contractor may furnish a bond or other collateral satisfactory to Owner to indemnify Owner against any Lien. B. Engineer's Review of Application and Acceptance If, on the basis of Engineer's observation of the Work during construction and final inspection, and Engineer's review of the final Application for Payment and accompanying documentation as required by the Contract Documents, Engineer is satisfied that the Work has been completed and Contractor's other obligations under the Contract Documents have been fulfilled, Engineer will, within ten days after receipt of the final Application for Payment, indicate in writing Engineer's recommendation of payment and present the Application for Payment to Owner for payment. At the same time Engineer will also give written notice to Owner and Contractor that the Work is acceptable subject to the provisions of Paragraph 14.09. Otherwise, Engineer will return the Application for Payment to Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case Contractor shall make the necessary corrections and resubmit the Application for Payment. C. Payment Becomes Due . Thirty days after the presentation to Owner of the Application for Payment and accompanying documentation, the amount recommended by Engineer, less any sum Owner is entitled to set off against .Engineer's recommendation, including but not limited to liquidated damages, will become due and will be paid by Owner to Contractor. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 52 14,08 Final Completion Delayed A. If, through no fault of Contractor, final completion of the Work is significantly delayed, and if Engineer so confirms, Owner shall, upon receipt of Contractor's final Application for Payment (for Work fully completed and accepted) and recommendation of Engineer, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance to be held by Owner for Work not fully completed or corrected is less than the retainage stipulated in the Agreement, and if bonds have been furnished as required in Paragraph 5.01, the written consent of the surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by Contractor to Engineer with the Application for such payment. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of Claims. The remaining balance of any sum included in the final Application for Payment but held by OWNER for Work not fully completed and accepted will become due when the Work is fully completed and accepted. 14.09 Waiver of Claims A. The making and acceptance of final payment will constitute: 1. a waiver of all Claims by Owner against Contractor, except Claims arising from unsettled Liens, from defective Work appearing after final inspection pursuant to Paragraph 14.06, from failure to comply with the Contract Documents or the terms of any special guarantees specified therein, or from Contractor's continuing obligations under the Contract Documents; and 2. a waiver of all Claims by Contractor against Owner other than those previously made in accordance with the requirements herein and expressly acknowledged by Owner in writing as still unsettled. ARTICLE 15 —SUSPENSION OF WORK AND TERMINATION 15.01 Owner May Suspend Work A. At any time and without cause, Owner may suspend the Work or any portion thereof for a period of not more than 90 consecutive days by notice in writing to Contractor and Engineer which will fix the date on which Work will be resumed. Contractor shall resume the Work on the date so fixed. Contractor shall be granted an adjustment in the Contract Price or an extension of the Contract Times, or both, directly attributable to any such suspension if Contractor makes a Claim therefor as provided in Paragraph 10.05, 15.02 Owner May Terminate for Cause A. The occurrence of anyone or more of the following events will justify termination for cause: 1. Contractor's persistent failure to perform the Work in accordance with the Contract Documents (including, but not limited to, failure to supply sufficient skilled workers or suitable materials or equipment or failure to adhere to the Progress Schedule established under Paragraph 2.07 as adjusted from time to time pursuant to Paragraph 6.04); 2. Contractor's disregard of Laws or Regulations of any public body having jurisdiction; 3. Contractor's disregard of the authority of Engineer; or 4. Contractor's violation in any substantial way of any provisions of the Contract Documents. B. If one or more of the events identified in Paragraph 15,02.A occur, Owner may, after giving Contractor (and surety) seven days written notice of its intent to terminate the services of Contractor: EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 National Society of Professional Engineers for E3CDC. All rights reserved. 00710 - 53 I. exclude Contractor from the Site, and take possession of the Work and of all Contractor's tools, appliances, construction equipment, and machinery at the Site, and use the same to the full extent they could be used by Contractor (without liability to Contractor for trespass or conversion), 2. incorporate in the Work all materials and equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere, and 3. complete the Work as Owner may deem expedient. C. If Owner proceeds as provided in Paragraph 15,02.13, Contractor shall not be entitled to receive any ffirther payment until the Work is completed. If the unpaid balance of the Contract Price exceeds all claims, costs, losses, and 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 Owner arising out of or relating to completing the Work, such excess will be paid to Contractor. If such claims, costs, losses, and damages exceed such unpaid balance, Contractor shall pay the difference to Owner. Such claims, costs, losses, and damages incurred by Owner will be reviewed by Engineer as to their reasonableness and, when so approved by Engineer, incorporated in a Change Order. When exercising any rights or remedies under this Paragraph Owner shall not be required to obtain the lowest price for the Work performed. D. Notwithstanding Paragraphs 15.02.13 and 15.02.C, Contractor's services will not be terminated if Contractor begins within seven days of receipt of notice of intent to terminate to correct its failure to perform and proceeds diligently to cure such failure within no more than 30 days of receipt of said notice. E. Where Contractor's services have been so terminated by Owner, the termination will not affect any rights or remedies of Owner against Contractor then existing or which may thereafter accrue. Any retention or payment of moneys due Contractor by Owner will not release Contractor from liability. F. If and to the extent that Contractor has provided a performance bond under the provisions of Paragraph 5.0l.A, the termination procedures of that bond shall supersede the provisions of Paragraphs 15.023, and 15.02.C. 15.03 Owner May Terminate For Convenience A. Upon seven days written notice to Contractor and Engineer, Owner may, without cause and without prejudice to any other right or remedy of Owner, terminate the Contract. In such case, Contractor shall be paid for (without duplication of any items): 1. completed and acceptable Work executed in accordance with the Contract Documents prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such Work; 2. expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the Contract Documents in connection with uncompleted Work, plus fair and reasonable sums for overhead and profit on such expenses; 3. all claims, costs, losses, and 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) incurred in settlement of terminated contracts with Subcontractors, Suppliers, and others; and 4. reasonable expenses directly attributable to termination. B. Contractor shall not be paid on account of loss of anticipated profits or revenue or other economic loss arising out of or resulting from such termination. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - _54 15.04 Contractor May Stop Work or Terminate A. If, through no act or fault of Contractor, (i) the Work is suspended for more than 90 consecutive days by Owner or under an order of court or other public authority, or (ii) Engineer fails to act on any Application for Payment within 30 days after it is submitted, or (iii) Owner fails for 30 days to pay Contractor any sum finally determined to be due, then Contractor may, upon seven days written notice to Owner and Engineer, and provided Owner or Engineer do not remedy such suspension or failure within that time, terminate the Contract and recover from Owner payment on the same terms as provided in Paragraph 15.03. B. In lieu of terminating the Contract and without prejudice to any other right or remedy, if Engineer has failed to act on an Application for Payment within 30 days after it is submitted, or Owner has failed for 30 days to pay Contractor any sum finally determined to be due, Contractor may, seven days after written notice to Owner and Engineer, stop the Work until payment is made of all such amounts due Contractor, including interest thereon. The provisions of this Paragraph 15.04 are not intended to preclude Contractor from making a Claim under Paragraph 10.05 for an adjustment in Contract Price or Contract Times or otherwise for expenses or damage directly attributable to Contractor's stopping the Work as permitted by this Paragraph. ARTICLE 16 —DISPUTE RESOLUTION 16.01 Methods and Procedures A. Owner and Contractor may mutually request mediation of any Claim submitted to Engineer for a decision under Paragraph 10.05 before such decision becomes final and binding. The mediation will be governed by the Construction Industry Mediation Rules of the American Arbitration Association in effect as of the Effective Date of the Agreement. The request for mediation shall be submitted in writing to the American Arbitration Association. Timely submission of the request shall stay the effect of Paragraph 10.05.E. B. Owner and Contractor shall participate in the mediation process in good faith. The process hall be concluded within 60 days of filing of the request. The date of termination of the mediation shall be determined by application of the mediation rules referenced above. C. If the claim is not resolved by mediation, Engineer's action under Paragraph 10.05.0 or a denial pursuant to Paragraphs 10.05.C.3 or 10.05.D shall become final and binding 30 days after termination of the mediation unless, within that time period, Owner or Contractor: 1. elects in writing to invoke any dispute resolution process provided for in the Supplementary Conditions, or 2. agrees with the other party to submit the Claim to another dispute resolution process, or 3. gives written notice to the other party of their intent to submit the Claim to a court of competent jurisdiction. ARTICLE 17—MISCELLANEOUS 17.01 Giving Notice A. Whenever any provision of the Contract Documents requires the giving of written notice, it will be deemed to have been validly given if: 1. delivered in person to the individual or to a member of the firm or to an officer of the corporation for whom it is intended, or 2. delivered at or sent by registered or certified mail, postage prepaid, to the last business address known to the giver of the notice. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 55 17.02 Computation of Times A. When any period of time is referred to in the Contract Documents by days, it will be computed to exclude the first and include the last day of such period. If the last day of any such period falls on a Saturday or Sunday or on a day made a legal holiday by the law of the applicable jurisdiction, such day will be omitted fi-om the computation. 17.03 Cumulative Remedies A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of, any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee, or by other provisions of the Contract Documents. The provisions of this Paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation, right, and remedy to which they apply. IT04 Survival of Obligations A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor. 17.05 Controlling Law A. This Contract is to be governed by the law of the state in which the Project is located. 17.06 Headings A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions, ARTICLE 18—TEDERAL REQUIREMENTS 18.01 Agency Not a Party A. This Contract is expected to be funded in part with funds provided by Agency. Neither Agency, nor any of its departments, entities, or employees is a party to this Contract. 18.02 Contract Approval A. Owner and Contractor will furnish Owner's attorney such evidence as required so that Owner's attorney can complete and execute the following "Certificate of Owner's Attorney" (Exhibit GC -A) before Owner submits the executed Contract Documents to Agency for approval. B. Concurrence by Agency in the award of the Contract is required before the Contract is effective. 18.03 Conflict of Interest A. Contractor may not knowingly contract with a supplier or manufacturer if the individual or entity who prepared the plans and specifications has a corporate or financial affiliation with the supplier or manufacturer. B. Owner's officers, employees, or agents shall not engage in the award or administration of this Contract if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when: (i) the employee, EJCDC C-710 Standard -General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - S6 officer or agent; (ii) any member of their immediate family; (iii) their partner or (iv) an organization that employs, or is about to employ, any of the above, has a financial interest in Contractor. Owner's officers, employees, or agents shall neither solicit nor accept gratuities, favors or anything of monetary value from Contractor or subcontractors. 18.04 Gratuities A. If Owner finds after a notice and hearing that Contractor, or any of Contractor's agents or representatives, offered or gave gratuities (in the form of entertainment, gifts, or otherwise) to any official, employee, or agent of Owner or Agency in an attempt to secure this Contract or favorable treatment in awarding, amending, or making any determinations related to the performance of this Contract, Owner may, by written notice to Contractor, terminate this Contract. Owner may also pursue other rights and remedies that the law or this Contract provides. However, the existence of the facts on which Owner bases such findings shall be an issue and may be reviewed in proceedings under the dispute resolution provisions of this Contract. B. In the event this Contract is terminated as provided in paragraph 18,04.A, Owner may pursue the same remedies against Contractor as it could pursue in the event of a breach of this Contract by Contractor. As a penalty, in addition to any other damages to which it may be entitled by law, Owner may pursue exemplary damages in an amount (as determined by Owner) which shall not be less than three nor more than ten times the costs Contractor incurs in providing any such gratuities to any such officer or employee. 18.05 Audit and Access to Records A. For all negotiated contracts and negotiated modifications (except those of $10,000 or less), Owner, Agency, the Comptroller General, or any of their duly authorized representatives, shall have access to any books, documents, papers, and records of the Contractor, which are pertinent to the Contract, for the purpose of making audits, examinations, excerpts and transcriptions. Contractor shall maintain all required records for three years after final payment is made and all other pending matters are closed. 18.06 Sniall, Minority and VVomen's Businesses A. If Contractor intends to let any subcontracts for a portion of the work, Contractor shall take affirmative steps to assure that small, minority and women's businesses are used when possible as sources of supplies, equipment, construction, and services. Affirmative steps shall consist of: (1) including qualified small, minority and women's businesses on solicitation lists; (2) assuring that small, minority and women's businesses are solicited whenever they are potential sources; (3) dividing total requirements when economically feasible, into small tasks or quantities to permit maximum participation of small, minority, and women's businesses; (4) establishing delivery schedules, where the requirements of the work permit, which will encourage participation by small, minority and women's businesses; (5) using the services and assistance of the Small Business Administration and the Minority Business Development Agency of the U.S. Department of Commerce; (6) requiring each party to a subcontract to take the affirmative steps of this section; and (7) Contractor is encouraged to procure goods and services from labor surplus area firms. 18.07 Anti -Kickback A. Contractor shalt comply with the Copeland Anti -Kickback Act (18 USC 874 and 40 USC 276c) as supplemented by Department of Labor regulations (29 CFR Part 3, "Contractors and Subcontractors on Public Buildings or Public Works Financed in Whole or in Part by Loans or Grants of the United States"). The Act provides that Contractor or subcontractor shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public facilities, to give up any part of the compensation to which they are otherwise entitled. Owner shall report all suspected or reported violations to Agency. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright CD 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - 57 18.08 Clean Air and Pollution Control Acts A. If this Contract exceeds $100,000, Contractor shall comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act (42 USC 7401 et seq.) and the Federal Water Pollution Control Act as amended (33 USC 1251 et seq.). Contractor will report violations to the Agency and the Regional Office of the EPA. 18.09 State Energy Policy A. Contractor shall comply with the Energy Policy and Conservation Act (P.L. 94-163). Mandatory standards and policies relating to energy efficiency, contained in any applicable State Energy Conservation Plan, shall be utilized. 18.10 Equal Opportunity Requirements A. If this Contract exceeds $10,000, Contractor shall comply with Executive Order 11246, "Equal Employment Opportunity," as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," and as supplemented by regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." B. Contractor's compliance with Executive Order 11246 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative active obligations required by the Standard Federal Equal Employment Opportunity Construction Contract Specifications, as set forth in 41 CFR Part 60-4 and its efforts to meet the goals established for the geographical area where the Contract is to be performed. The hours of minority and female employment and training must be substantially uniform throughout the length of the Contract, and in each trade, and Contractor shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor or from project to project for the sole purpose of meeting Contractor's goals shall be a violation of the Contract, the Executive Order, and the regulations in 41 CFR Part 60-4. Compliance with the goals will be measured against the total work howl performed. C. Contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs within 10 working days of award of any construction subcontract in excess of $10,000 at any tier for construction work under the Contract resulting from this solicitation, The notification shall list the name, address, and telephone number of the subcontractor; employer identification number; estimated dollar amount of subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the Contract is to be performed. 18.11 Restrictions on Lobbying A. Contractor and each subcontractor shall comply with Restrictions on Lobbying (Public Law 101-121, Section 319) as supplemented by applicable Agency regulations. This Law applies to the recipients of contracts and subcontracts that exceed $100,000 at any tier under a Federal loan that exceeds $150,000 or a Federal grant that exceeds $100,000. if applicable, Contractor must complete a certification form on lobbying activities related to a specific Federal loan or grant that is a funding source for this Contract. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 USC 1352. Each tier shall disclose any lobbying with non -Federal funds that takes place in connection with obtaining any Federal award. Certifications and disclosures are forwarded from tier to tier up to the Owner. Necessary certification and disclosure forms shall be provided by Owner. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - S8 18.12 Environmental Requirements A. When constructing a project involving trenching and/or other related earth excavations, Contractor shall comply with the following environmental constraints: 1. Wetlands — When disposing of excess, spoil, or other construction materials on public or private property, Contractor shall not fill in or otherwise convert wetlands. 2. Floodplains — When disposing of excess, spoil, or other construction materials on public or private property, Contractor shall not fill in or otherwise convert 100 year floodplain areas delineated on the latest Federal Emergency Management Agency Floodplain Maps, or other appropriate maps, i.e., alluvial soils on NRCS Soil Survey Maps, 3. Historic Preservation — Any excavation by Contractor that uncovers an historical or archaeological artifact shall be immediately reported to Owner and a representative of Agency. Construction shall be temporarily halted pending the notification process and further directions issued by Agency after consultation with the State Historic Preservation Officer (SHPO). 4. Endangered Species — Contractor shall comply with the Endangered Species Act, which provides for the protection of endangered and/or threatened species and critical habitat. Should any evidence of the presence of endangered and/or threatened species or their critical habitat be brought to the attention of Contractor, Contractor will immediately report this evidence to Owner and a representative of Agency. Construction shall be temporarily halted pending the notification process and further directions issued by Agency after consultation with the U.S. Fish and Wildlife Service. EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright 0 Z002 National Society of Professional Engineers for EJCDC. All rights reserved. 00710 - S9 EXHIBIT GC -A Certificate of Owner's Attorna I, the undersigned, the duly authorized and acting legal representative of , do hereby certify as follows: I have examined the attached Contract(s) and performance and payment bond(s) and the manner of execution thereof, and I am of the opinion that each of the aforesaid agreements is adequate and has been duly executed by the proper parties thereto acting through their duly authorized representatives; that said representatives have full power and authority to execute said agreements on behalf of the respective parties named thereon; and that the foregoing agreements constitute valid and legally binding obligations upon the parties executing the same in accordance with the terms, conditions, and provisions thereof. Date: EJCDC C-710 Standard General Conditions of the Construction Contract, Funding Agency Edition Copyright ® 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 007I0 - 60 SECTION 00810 SUPPLEMENTARY CONDITIONS TO THE GENERAL CONDITIONS These Supplementary Conditions to the General Conditions amend or supplement the Section 00710 - Standard General Conditions of the Construction Contract (No. C-710, 2002 Edition) and other provisions of the Contract Documents as indicated below. All provisions which are not so amended or supplemented remain in full force and effect. The terms used in these Supplementary Conditions which are defined in the General Conditions have the meanings indicated in the General Conditions. Additional terms used in these Supplementary Conditions have the meanings indicated below, which are applicable in both the singular and plural thereof. SC-1.01.A.20 ENGINEER'S Consultants SC-1.01.A.20 ENGINEER'S CONSULTANTS - The following persons, firms or corporations have provided or will provide professional services to the Engineer for the Project: Service Company Name Kalispell Primary Digester Repair HDR Engineering, Inc. Field Engineering. Morrison-Maierle, Inc. SC-2.01 DELIVERY OF BONDS Add a new paragraph immediately after paragraph 2.0 LA of the General Conditions which is to read: "B. Engineer shall furnish to Contractor six copies of the Agreement and other Contract Documents bound therewith. Contractor shall execute the Agreement, insert executed copies of the required Bonds and Power of Attorney and Certificates of Insurance and submit all copies to the Owner. Owner shall execute all copies and return two copies to the Contractor who shall promptly deliver one copy to his Surety. Owner shall also furnish a counterpart or conformed copy to the Engineer and MDEQ and shall retain two copies." SC-2.07 INITIAL ACCEPTANCE OF SCHEDULES Delete the first paragraph of 2.07.A of the General Conditions in its entirety and insert the following in its place: "A. Prior to the first application for payment all schedules and documents identified in paragraph 2.05.A of these General Conditions shall be finalized and submitted to the Engineer and Owner. Until acceptable schedules are submitted to Engineer and Owner as provided below, Owner may withhold an amount from a progress payment that is sufficient to pay the direct expenses that Owner may reasonably expect will be necessary to correct any problems based on Contractor's failure to submit acceptable schedules. The progress schedule shall be CPM form or other acceptable format that shows estimated time for each work item, and starting and completion dates for each part of the Work. Acceptance of these schedules and documents by either Engineer or Owner will neither impose on Engineer or Owner responsibility for the sequencing, scheduling or progress of the Work, and will not interfere with or relieve Contractor from Contractor's full responsibility therefore." SC-3.03.B RESOLVING DISCREPANCIES Add a new paragraph immediately after paragraph 3.0.3.B.l.b of the General Conditions which is to read: 00...177698 City of Kalispell Primary Digester Repair - SUPPLEMENTARY CONDITIONS TO THE GENERAL CONDITIONS 00810 - 1 "c. In the event that any provision of the Contract Documents conflicts with another provision of the Contract Documents, the provision in the Contract Documents first listed below shall generally govern except as otherwise specifically stated: 1. Standard Form of Agreement 2. Performance and Payment Bond 3. Addenda to Contract Documents 4. Legal and Procedural Documents: a. Proposal b. Proposal Guaranty c. Instructions to Bidders d. Invitation to Bid 5. Special Provisions 6. Drawings 7. Detailed Specifications Requirements (Technical Specifications) 8. Supplementary Conditions 9. General Conditions" SC-4.02 SUBSURFACE AND PHYSICAL CONDITIONS - TECHNICAL DATA Add the following new paragraph(s) immediately after paragraph 4.02.8 of the General Conditions: "C. In the preparation of Drawings and Specifications, Engineer or Engineer's Consultants relied upon the following drawings of physical conditions in or relating to existing surface and subsurface structures (except Underground Facilities) which are at or contiguous to the site of the Work: 1. Drawings dated 1983 prepared by Wright -McLaughlin Engineers, Denver, CO 80211, entitled Sludge Management Facilities, Kalispell, Montana consisting of 36 drawing sheets. 2. Drawings dated 1990 prepared by Carver Engineering, Kalispell, Montana entitled Kalispell Advanced Wastewater Treatment Facility Biological Nutrient Removal consisting of 152 drawing sheets. 3. Specifications and Drawings dated 2007 prepared by Morrison Maierle, Inc, Helena, Montana and HDR Engineering, Inc, Missoula, Montana, entitled Advanced Wastewater Treatment Plant Phase 1 Expansion consisting of 256 drawing sheets. D. Copies of reports and drawings itemized in SC-4.02.0 and SC-4.02-D that are not included with Bidding documents may be examined at HDR Engineering, Inc's Missoula office during regular business hours. These reports and drawings are not part of the Contract Documents, but the "technical data" contained therein upon which Contractor is entitled to rely as identified and established above are incorporated therein by reference. Contractor is not entitled to rely upon other information and data utilized by Engineer and Engineer's Consultants in the preparation of Drawings and specifications." SC-5.02 LICENSED SURETIES AND INSURERS Add the following immediately after paragraph 5.02.A of the General Conditions: 00...177698 City of Kalispell Primary Digester Repair - SUPPLEMENTARY CONDITIONS TO THE GENERAL CONDITIONS 00810 - 2 "B. Without limiting any of the other obligations or liabilities of the Contractor, Contractor shall secure and maintain such insurance from an insurance company (or companies) authorized to write insurance in the state of the project location, with minimum "A.M. Best Rating" of A-, VI, as will protect the Contractor, the vicarious acts of subcontractors, the Owner, the Engineer, the Engineer's Consultants, and the respective directors, officers, partners, agents, employees and other consultants and subcontractors of each and any of all such additional insureds from claims for bodily injury (including sickness, disease and mental anguish), death, and property damage which may arise from operations and completed operations under this Agreement. Contractor shall not commence work under this Agreement until such insurance has been obtained and certificates of insurance, with binders, or certified copies of the insurance policy shall have been filed with the Owner and the Engineer." SC-5.03 CERTIFICATES OF INSURANCE Add the following paragraphs immediately after paragraph 5.03.13 of the General Conditions: "C. Failure of Owner to demand such certificates or other evidence of full compliance with these insurance requirements or failure of Owner to identify a deficiency from evidence provided shall not be construed as a waiver of Contractor's obligations to maintain such insurance. D. By requiring such insurance and insurance limits herein, Owner does not represent that coverage and limits will necessarily be adequate to protect Contractor, and such coverage and limits shall not be deemed as a limitation on Contractor's liability under the indemnities granted to Owner in the Contract Documents." SC-5.04 CONTRACTOR'S LIABILITY INSURANCE Add the following new paragraph immediately after paragraph 5.04.13 of the General Conditions: "C. The limits of liability for the insurance required by paragraph 5.04 of the General Conditions shall provide coverages for not less than the following amounts or greater where required by Law or Regulations: 2. Workers' Compensation and Related Coverages under Paragraphs 5.04.A.1 and 5.04.A.2 of the General Conditions: a. State Applicable Federal (e.g. Longshoremens) C. Employer's Liability General Liability: Statutory Statutory $1,000,000.00 Contractor's General Liability Insurance under paragraphs 5.04.A.3 through 5.04.A.6 of the General Conditions, which shall also include premises -operations; independent contractor's operations protection; contractual liability; personal injury; broad form property damage (including explosion, collapse, blasting and underground damage, where applicable); and completed operations and product liability coverages. The General Aggregate Limit shall apply separately to each of the Contractor's projects. a. GENERAL AGGREGATE PER PROJECT b. Products - Completed Operations Aggregate C. Personal and Advertising Injury (Each Occurrence) d. Bodily Injury and 00...177698 City of Kalispell Primary Digester Repair - SUPPLEMENTARY CONDITIONS TO THE GENERAL CONDITIONS 00810 - 3 $5,000,000.00 $5,000,000.00 $1,000,000.00 Property Damage (Each Occurrence) $5,000,000.00 e. Contractor's Liability Insurance under 5.04.A.3 through 5.04.A.6 may be satisfied by primary insurance or a combination of primary and excess or umbrella insurance. Primary occurrence limit cannot be less than $1,000,000.00. The deductible, if any, may not exceed $5,000.00 per occurrence. £ In the event the General Aggregate Limit is diminished by an amount greater than $500,000, Contractor shall provide notice to Owner of this fact, and shall again provide such notice on each subsequent occasion on which the General Aggregate Limit is again diminished by an amount greater than $500,000. g. In addition to other requirement in the General Conditions, coverage will include the following at a minimum: Premises — Operations, Operations of Independent Contractor, Contractual Liability, Personal Injury, Product and Completed Operations, Broad Form Property Damage (to include explosion, collapse, blasting, and underground where applicable), and Per Project Aggregate Endorsement. Automobile Liability under paragraph 5.04.A.6 of the General Conditions: a. Combined Single Limit (bodily injury and property damage) Each Accident $ 1,000,000.00 b. Coverage to be written on a Symbol 1 (one) any auto basis, to include all owned, hired, and non -owned vehicles. C. Contractor's Automobile Liability Insurance under 5.04.A.6 may be satisfied by primary insurance or a combination of primary and excess or umbrella insurance. Primary occurrence limit can not be less than $1,000,000.00. The deductible, if any, may not exceed $5,000.00 per accident. 4. The Contractual Liability Coverage required by Paragraph 5.04.B.4 of the General Conditions shall provide coverage for not less than the following amounts: a. General Aggregate Per Project $ 5,000,000.00 b. Each Occurrence $ 1,000,000.00 (Bodily Injury and Property Damage) OWNERS and CONTRACTORS Protective Policy - Purchased By CONTRACTOR: In addition to the insurance required to be provided by Contractor under paragraph 5.04.A.1 through 5.04.A.6 inclusive, Contractor shall purchase and maintain a separate Owners and Contractors Protective Policy (OCP) to protect Owner against claims which may arise from operations under the Contract Documents, with limits of liability as specified below. This liability insurance shall include as additional insureds the Engineer and the Engineer's Consultants, and include coverage for the respective directors, officers, partners, employees, agents and other consultants and subcontractors of all such additional insureds. a. General Aggregate $2,000,000.00 b. Each Occurrence $1,000,000.00 (Bodily Injury and Property Damage) 00...177698 City of Kalispell Primary Digester Repair - SUPPLEMENTARY CONDITIONS TO THE GENERAL CONDITIONS 00810 - 4 The insurance policy will contain a provision or endorsement that the coverage afforded will not be cancelled, materially changed or renewal refused until at least forty-five (45) days prior written notice has been given to Owner and to each other additional insured (and the certificates of insurance furnished to Owner and each other additional insured will so provide). 6. Additional Insureds: a. With respect to insurance required by paragraphs 5.04.A.3 through 5.04.A.6, inclusive, include the following as additional insureds. Use Additional Insured Endorsement CG 20 32, or equivalent acceptable to the Owner and Engineer. OWNER - City of Kalispell, Montana ENGINEER — HDR Engineering, Inc. ENGINEER'S Consultants - Morrison-Maierle, Inc. b. With respect to the Owner's and Contractor's Protective Policy (OPC) insurance required by paragraph SC-5.0.4.C.5, include the following as additional insureds. Use Additional Insured Endorsement CG 20 32, or equivalent acceptable to the Owner or Engineer. ENGINEER — HDR Engineering, Inc. ENGINEER'S Consultants — Morrison-Maierle, Inc." SC-5.06 PROPERTY INSURANCE - PURCHASED BY CONTRACTOR A. With respect to the Contractor's property insurance coverage required by paragraph 5.06.A of the General Conditions, include the following as an insured or additional insured: "OWNER: City of Kalispell, Montana SUBCONTRACTORS: (Contractor to list Subcontractors) ENGINEER: HDR Engineering, Inc. ENGINEER'S Consultants: Morrison-Maierle, Inc." B. Deductible may not exceed $5,000 unless approved by appropriate Change Order. SC-6.02 LABOR; WORKING HOURS Add the following new paragraphs immediately after paragraph 6.02.13 of the General Conditions: "C. Working hours for the Contractor shall be limited to the hours between 7:00 a.m. and 7:00 p.m. and shall not exceed 10 hours per day with authorized overtime. With Owner and Engineer approval the Contractor may work a four day, ten hour per day work week. The Contractor must notify the Owner and Engineer in writing three (3) days in advance of his intention to work during other periods to allow assignment of additional inspection personnel when they are reasonably available. Emergency work may be done without prior permission. D. If a resident project representative is reasonably available, the Engineer may authorize the Contractor to perform work during periods other than normal working hours and/or days. The cost of this inspection will be calculated at the hourly rate specified in the Bid Form for unscheduled employment of the Engineer and will be deducted from the monthly progress payments and final payment as the costs are incurred." SC-6.03 SERVICES, MATERIALS, AND EQUIPMENT 00...177698 City of Kalispell Primary Digester Repair - SUPPLEMENTARY CONDITIONS TO THE GENERAL CONDITIONS 00910 - 5 Add the following paragraphs immediately after paragraph 6.03.0 of the General Conditions which are to read as follows: "D. To ensure standardization and uniformity in all parts of the work under this Contract, like items of equipment shall be the products of one manufacturer. Like items of certain materials shall be the products of one manufacturer. E. Uniformity in like equipment items is required in order to provide the Owner with interchangeability capabilities, simplified spare parts inventory, and standardized maintenance programs and manufacturer's services. F. Uniformity in certain like material items is required in order to provide the Owner with a simplified spare materials inventory, continuity in patterns, color, and texture; and a standardized procedure for maintenance care and manufacturer's services. G. Visible architectural items such as exterior finishes, floor and wall covering, ceiling materials, doors, windows, cabinetwork, paint, and miscellaneous appurtenances, when specified alike shall be standardized. H. Generally, material items exempt from standardization include structural steel, reinforcing steel, building insulation, roofing materials, sheet metal, materials specified only by reference to a recognized standard, and items hidden from view where interchangeability, color, and texture is not a significant factor for standardization. I. The Contractor shall inform his suppliers and subcontractors of these requirements, and shall provide the necessary coordination to accomplish the standardization specified." SC-6.06 CONCERNING SUBCONTRACTORS, SUPPLIERS AND OTHERS The following provisions supplement paragraphs 6.06.A and 6.06.B of the General Conditions and paragraph 12.01 of the Instructions to Bidders: "A. The Contractor shall not sublet any part of the work embraced within this contract without the consent of the Owner, and the Owner reserves the right to withdraw at any time from any subcontractor whose work has proven unsatisfactory, the right to be engaged in or employed upon any part of the work. The amount of the work sublet on this project shall not exceed 50 percent. B. In accordance with Instruction to Bidders, paragraph 12.01, within seven (7) days after bids are opened, the apparent low bidder, and any other Bidder so requested, shall submit a Iist of all Subcontractors, Suppliers, or other persons or organizations (including those who are to furnish the principal items of materials and equipment) to Owner. An experience statement with pertinent information as to similar projects and other evidence of qualification for each named Subcontractor, Supplier and other persons or organizations shall be furnished. Acceptance and substitution of proposed Subcontractors, Suppliers, or other persons or organization prior to Notice of Award is governed by Instructions to Bidders paragraph 12.01. The Contractor may not change Subcontractors, Suppliers, or other persons and organizations accepted by Owner prior to the Notice of Award without the written permission of the Owner. C. Revocation of Subcontractor, Supplier, or other persons or organizations acceptance after the Effective Date of the Agreement is governed by General Condition 6.06.B" SC-6.13 SAFETY AND PROTECTION Add new paragraph to the end of paragraph 6.133 of the General Conditions as follows: 00...177698 City of Kalispell Primary Digester Repair - SUPPLEMENTARY CONDITIONS TO THE GENERAL CONDITIONS 00810 - 6 "It is expressly understood by the parties to this Agreement that the CONTRACTOR is solely responsible for initiating, maintaining, and supervising safety precautions and programs in connection with the Work. The right of the OWNER and ENGINEER to observe or otherwise review the Work and operations shall not relieve the CONTRACTOR from any of his covenants and obligations hereunder. CONTRACTOR shall incorporate all safety requirements into his construction progress and work schedules including preconstruction and scheduled monthly safety meetings, posted safety rules, tailgate meetings and site inspections by safety and other inspectors employed by the CONTRACTOR. All pavement, surfacing, driveways, curbs, walks, buildings, grass areas, trees, utility poles or guy wires damaged by the CONTRACTOR'S operations in the performance of this work shall be repaired and /or replaced to the satisfaction of the OWNER, ENGINEER, and affected property owner at the CONTRACTOR'S expense. The CONTRACTOR shall also be responsible for all damage to streets, roads, highways, shoulders, ditches, embankments, culverts, bridges, or other public or private property or facility, regardless of location or character, which may be caused by moving, hauling, or otherwise transporting equipment, materials, or men to and from the work or any part of site thereof, whether by him or his subcontractors. The CONTRACTOR shall make satisfactory and acceptable arrangements with owner of, or the agency or authority having jurisdiction over, the damaged property or facility concerning its repair or replacement or payment of costs incurred in connection with said damage. The CONTRACTOR shall conduct his work so as to interfere as little as possible with public travel, whether vehicular or pedestrian. Whenever it is necessary to cross, obstruct, or close roads, driveways, and walks, whether public or private, the CONTACTOR shall obtain approval from the governing party and shall, at his own expense, provide and maintain suitable and safe bridges, detours, and other temporary expedients for the accommodation of public and private drives before interfering with them. The provisions for temporary expedients will not be required when the CONTRACTOR has obtained permission from the owner and tenant of the private property, or from the authority having jurisdiction over public property involved, to obstruct traffic at the designated point. Safety provisions must be entirely adequate and meet with City or State and Federal regulations to protect the public on these streets and roads." SC-6.17 SHOP DRAWINGS AND SAMPLES Add the following paragraphs immediately after paragraph 6.17.E of the General Conditions: "F. Contractor shall furnish required submittals with sufficient information and accuracy in order to obtain required approval of an item with no more than three submittals. Engineer will record Engineer's time for reviewing subsequent submittals of Shop Drawings, samples or other items requiring approval and Contractor shall reimburse Owner for Engineer's charges for such time. G. In the event that Contractor requests a substitution for a previously approved item, Contractor shall reimburse Owner for Engineer's charges for such time unless the need for such substitution is beyond the control of Contractor. SC-7.01 RELATED WORK AT SITE Work by others at the site and other coordination issues are defined in Section 01010, SUMMARY OF WORK in these Contract documents." sYla�i7�i��l11�l�f1i7;11�7�`l�l►YK1111•1y Change the second sentence of paragraph GC-9.03.A to read as follows: "The responsibilities and authority and limitations theron of any such Resident Project Representative and assistance will be provided in paragraph 9.10, the Supplementary Conditions, and Specification Section 00821." 00...177698 City of Kalispell Primary Digester Repair - SUPPLEMENTARY CONDITIONS TO THE GENERAL CONDITIONS 00810 - 7 Add a new paragraph immediately after paragraph GC-9.03.A, which is to read as follows: "ENGINEER's Resident Project Representative(s) shall not authorize any deviation from the Contract Documents or substitutions of materials or equipment, unless authorized by ENGINEER." SC-11.01.A.5.C. EQUIPMENT RENTAL RATES - USE OF BLUE BOOK Delete paragraph 11.0l.A.5.c. of the General Conditions in its entirety and insert the following in its place: "11.01.A.5.c The cost for the use of all construction equipment and machinery and parts thereof whether owned by the Contractor or rented by others shall be calculated as follows. Cost will include the costs of transportation, loading, unloading, assembly, dismantling and removal thereof for equipment involved only in the changed portion of the work covered under the cost of the Work method. Transportation, loading, and assembly costs will not be included for equipment already on the site which is being used for other portions of the Work. The cost of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the Work. Hourly equipment and machinery rates may be calculated from the Rental Rate Blue Book for Construction Equipment, and the Equipment List submitted according to GC-2.05.A.4 and GC-2.07.A, and as follows: 1. For working equipment, the hourly rate shall be the monthly rental rate divided by 176 hours per month plus the hourly operating cost. 2. For equipment on standby, the hourly rate shall be 50 percent of the monthly rental rate divided by 176 hours per month, and the hourly operating cost shall not be applied. 3. For specialized equipment rented for a short duration used for change order work or additional work not part of the scope of work bid, the equipment rental rates will be negotiated prior to the work being performed. 4. Use of Blue Book rates, and review and approval of equipment rates associated with equipment lists submitted according to GC-2.05.A.4 and GC-2.07.A shall not extend to the settlement of any claim submitted under GC-10.05 and GC-12.01. In claim settlements, actual costs are recoverable, not blue book rates or rates approved with submittals of schedules of value or equipment lists." SC-12.03. DELAYS In the second sentence of General Conditions 12.03. after the words "or acts of God" add: "but shall not include strikes or labor disputes." Add a new paragraph after paragraph GC 12.03.A which is to read as follows: "Time extensions will not be granted for rain, wind, flood, or other natural phenomena of normal intensity for the locality where Work is performed. For purposes of determining extent of delay attributable to unusual whether phenomena, a determination shall be made by comparing the weather for a minimum continuous period of at least one-fourth of the Contract Time involved with the average of the preceding 5 year climatic range during the same time interval based on U.S. Weather Bureau statistics for the locality where the Work is performed." 00...177698 City of Kalispell Primary Digester Repair - SUPPLEMENfARY CONDITIONS TO THE GENERAL CONDITIONS 00810 - 8 The Contractor shall schedule the Work to be completed within the Contract Time(s) stipulated in the Agreement, including an allowance for time lost due to abnormally cold weather, abnormal precipitation, or other natural phenomena that is abnormal for northwestern Montana. Such events will not constitute justification for an extension of the Contract Time(s) unless 1) they are considered outside the normal natural weather patterns for the project area, 2) the occurrence is agreed upon by both the Engineer and Contractor during the event, and 3) the total number of working days lost to such events exceeds five percent of the total Contract Time(s). Any claim by the Contractor for an extension of the Contract Times(s) due to abnormal weather conditions must be submitted to the Engineer within two business days of the occurrence of the abnormal weather condition to be considered by the Engineer for an adjustment to the Contract Time(s). Once the total number of working days exceeds five percent of the Contract Time(s), the Contract Time(s) will be adjusted by the actual number of working days affected." SC-13.03 TESTS AND INSPECTIONS Replace paragraph 13.033 of the General Conditions with the following: "El. All quality control and compliance testing of work accomplished will be performed by the Contractor, or designated representative, where specified at no additional cost to the Owner. Where the specifications state that certain tests will be performed by the Owner, these tests will be done at no cost to the Contractor except all tests for work or materials that fail to meet specified requirements shall be borne by the Contractor and shall be deducted from his progress payments. Where the specifications require that certain materials are to be tested for suitability or in final position by the Contractor, the Contractor shall provide at his own expense by retaining the services of a certified independent testing laboratory. The Engineer will direct where and when tests are performed." SC-14.02.8 PROGRESS PAYMENTS — WHOLE OR PARTIAL PAYMENT REFUSAL BY ENGINEER Add the following paragraph 14.023.6 to the General Conditions: "6. Engineer may also refuse to recommend the whole or any part of any payment if, in Engineer's opinion, there exists: a. Unsatisfactory progress of the Work; b. Failure to remedy defective Work or materials; C. Disputed Work or materials; d. Failure to comply with material provisions of the Contract Documents; e. Failure of the Contractor to make timely payment upon request, including but not limited to payment for labor, equipment, materials, subcontracts, taxes, fees, professional services, rent, and royalties; f. Damage to the Owner; or g. The existence of reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Price." SC-14.02.0 PROGRESS PAYMENTS — PAYMENT BECOMES DUE 00...177698 City of Kalispell Primary Digester Repair - SUPPLEMENTARY CONDITIONS TO THE GENERAL CONDrfIONS 00810 - 9 C Delete paragraph 14.02.C.1 of the General Conditions in its entirety and insert the following in its place: 111. The Owner will, upon presentation to him of the Contractor's Application for Payment, with Engineer's recommendation, review and act upon said payment request once each month on or about the day of each month stipulated by the Owner at the preconstruction conference Payment will become due 21 days after the Owner approves the application for payment and will be paid by Owner to Contractor within 30 days after actual receipt of the Application for Payment by Engineer subject to the provisions of Paragraph 14.02.D.1." SC-14.02.1) PROGRESS PAYMENTS - FULL PAYMENT REFUSAL BY OWNER Add the following paragraph 14.02.D.Le. to the General Conditions: "e. there exists: i. Unsatisfactory progress of the Work; ii. Failure to remedy defective Work or materials; iii. Disputed Work or materials; iv. Failure to comply with material provisions of the Contract Documents. V. Failure of the Contractor to make timely payment upon request, including but not limited to payment for labor, equipment, materials, subcontracts, taxes, fees, professional services, rent, and royalties; vi. Damage to the Owner; or vii. The existence of reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Price." Delete Paragraph 14.02.D.2. of the General Conditions in its entirety and replace it with the following: "2. If Owner refuses to make payment of the full amount recommended by Engineer, Owner will give Contractor written notice (with a copy to Engineer) within 30 days of actual receipt of the Application for Payment by Engineer, stating the reasons for such action and promptly pay Contractor any amount remaining after deduction of the amount so withheld. Owner may only withhold an amount from a payment that is sufficient to pay the direct expenses that the Owner may reasonably expect will be necessary to correct any problems created by the items listed in Paragraph 14.02.D.I. Owner shall promptly pay Contractor the amount so withheld, or any adjustment thereto agreed to by Owner and Contractor, when Contractor corrects to Owner's satisfaction the reasons for such action." SC-14.07.11 FINAL PAYMENT - REFUSAL BY ENGINEER Add the following sentence to the end of Paragraph 14.07.B.1 of the General Conditions: "Engineer may refuse to recommend final payment if, in Engineer's opinion, there exists: a. Unsatisfactory progress of the Work; b. Failure to remedy defective Work or materials; c. Disputed Work or materials; 00...177698 City of Kalispell Primary Digester Repair - SUPPLEMENTARY CONDITIONS TO THE GENERAL CONDITIONS 00810 - 10 d. Failure of the Contractor to make timely payment upon request, including but not limited to payment for labor, equipment, materials, subcontracts, taxes, fees, professional services, rent, and royalties; e. Damage to the Owner; or f. The existence of reasonable evidence that the Work cannot be completed for the unpaid balance of the Contract Price." SC-14.07.0 FINAL PAYMENT - PAYMENT .BECOMES DUE Delete Paragraph 14.07.C.1. of the General Conditions in its entirety and replace it with the following: 11 1. Thirty -days (30) days after the Engineer actually receives the final Application for Payment and accompanying documentation, the amount recommended by Engineer (subject to the provisions of Paragraphs 14.02.D. and 14.07.B. of these General Conditions), will become due, and when due will be paid by Owner to Contractor within Twenty one (21) days." SC-16.02 DISPUTE RESOLUTION- MEDIATION Replace Section 16.01 of the General Conditions with the following: 16.01 Methods and Procedures A. Either Owner or Contractor may request mediation of any Claim submitted to Engineer for a decision under Paragraph 10.05 before such decision becomes final and binding. Notice of the demand for mediation will be filed in writing with the other party to the Agreement and a copy will be sent to Engineer for information. Once the other party receives the request for mediation they must notify the requestor if they desire to participate in mediation. If both parties agree to participate in mediation the parties shall establish mutually agreeable rules to abide by during the mediation process. Owner or Contractor may exercise such rights or remedies as either may otherwise have under the Contract Documents or Laws or Regulations in respect of any dispute that is not agreed upon during mediation. B. Except as provided in paragraph SC-16.02.C. below, no mediation arising out of or relating to the Contract Documents shall include by consolidation, joinder, or in any other manner any other person or entity (including Engineer, Engineer's Consultant and the officers, directors, agents, employees or consultants of any of them) who is not a party to this contract unless: 1. the inclusion of such other individual or entity is necessary if complete relief is to be afforded among those who are already parties to the mediation; and 2. such other individual or entity is substantially involved in a question of law or fact which is common to those who are already parties to the mediation, and which will arise in such proceedings; and 3. the written consent of the other individual or entity sought to be included and of Owner and Contractor has been obtained for such inclusion, which consent shall make specific reference to this paragraph; but no such consent shall constitute consent to mediation of any dispute not specifically described in such consent or to mediation with any party not specifically identified in such consent. 00...177699 City of Kalispell Primary Digester Repair - SUPPLEMENCARY CONDITIONS TO TBE GENERAL, CONDITIONS 00810 - 11 C. Notwithstanding paragraph SC-16.023, if a Claim or counterclaim, dispute or other matter in question between Owner and Contractor involves the Work of a Subcontractor, either Owner or Contractor may join such Subcontractor as a party to the mediation between Owner and Contractor hereunder. Contractor shall include in all subcontracts required by paragraph GC-6.06.G specific provision whereby the Subcontractor consents to being joined in mediation between Owner and Contractor involving the work of such Subcontractor. Nothing in this paragraph SC-16.02.0 nor in the provision of such subcontract consenting to joinder shall create any claim, right or cause of action in favor of Subcontractor and against Owner, Engineer or Engineer's Consultants that does not otherwise exist. SC-17.04 SURVIVAL OF OBLIGATIONS - STATUTES OF LDIITATIONS Add the following new paragraph immediately after 17.04.A. of the General Conditions: "B. Causes of action between the parties or the Engineer pertaining to acts or failures to act shall be deemed to have accrued and the applicable statutes of limitations shall commence to run in any and all events not later than the date of final payment to the Contractor. The Contractor shall include this provision in all contracts he enters into with subcontractors, consultants and suppliers who provide any work, products or services for this project." END OF SECTION 00...177699 City of Kalispell Primary Digester Repair - SUPPLEMENTARY CONDITIONS TO THE GENERAL CONDITIONS 00810 - 12 SECTION 00821 DUTIES, RESPONSIBILITIES AND LIMITATIONS OF THE RESIDENT PROJECT REPRESENTATIVE PART 1 - GENERAL: 1.1 SUMMARY A. Resident Project Representative is Engineer's agent and shall act as directed by and under the supervision of Engineer. He shall confer with Engineer regarding his actions. His dealings in matters pertaining to the on -site Work will in general be only with Engineer and Contractor. His dealings with subcontractors will only be through or with the full knowledge of Contractor or his superintendent. He shall generally communicate with Owner only through or as directed by Engineer. B. Duties and Responsibilities: The Resident Project Representative is responsible to serve as the Owner's and Engineer's liaison with the Contractor. The Resident Project Representative is responsible for: 1. Schedules: Review the progress schedule, schedule of Shop Drawing submission, schedule of values and other schedules prepared by Contractor and consult with Engineer concerning their acceptability. 2. Conferences: Attend preconstruction conferences. Arrange schedule of progress meetings and other job conferences as required in consultation with Engineer and notify in advance those expected to attend. Attend meetings and maintain copies of minutes thereof. 3. Liaison: a. Serve as Engineer's liaison with Contractor, working principally through Contractor's superintendent and assist him in understanding the intent of the Contract Documents. Assist Engineer in serving as Owner's liaison with Contractor when Contractor's operations affect Owner's on -site operations. b. As requested by Engineer assist in obtaining from Owner additional details or information, when required at the jobsite for proper execution of the Work. c. In the interest of preserving the proper channels of communication, advise Engineer of any direct communication between Owner and Contractor. 4. Shop Drawings and Samples: a. Receive and record date of receipt of Shop Drawings and samples which have been reviewed by Engineer. b. Receive samples which are furnished at the site by Contractor for Engineer's review, and notify Engineer of their availability for examination. c. Advise Engineer and Contractor or his superintendent immediately after becoming aware of the commencement of any Work requiring a Shop Drawing or sample submission if the submission has not been accepted by Engineer. 5. Review of Work, Rejection of Defective Work, Inspections and Tests: a. Conduct on -site observations of the Work in progress to assist Engineer in determining that the Project is proceeding in accordance with the Contract Documents and the completed Work will conform to the Contract Documents. b. Report to Engineer whenever he believes that any Work is unsatisfactory, faulty or defective or does not conform to the Contract Documents; or has been damaged; or does not meet the requirements of any required inspections, tests or approvals and advise Engineer when he believes Work should be corrected or rejected, or should be tmcovered for observation, or requires special testing or inspection. 00...177648 City of Kalispell Primary Digester Repair - DUTIES, RESPONSIBILITIES AND LIMITATIONS OF THE RESIDENT PROJECT REPRESENTATIVE 00821 - I c. Verify that tests, equipment and systems startups and operating and maintenance instructions are conducted as required by the Contract Documents and in presence of the required personnel, and that Contractor maintains adequate records thereof; observe, record, and report to Engineer appropriate details relative to the test procedures and startups. d. Accompany Owner and visiting inspectors representing public or other agencies having jurisdiction over the Project, record the outcome of these inspections, and report to Engineer. 6. Interpretation of Contract Documents: Transmit to Contractor clarification and interpretation of the Contract Documents as issued by Engineer. 7. Modifications: Consider and evaluate Contractor's suggestions for modifications in Drawings and Specifications and report them with recommendations to Engineer. 8. Records: a. Maintain at the jobsite orderly files for correspondence; reports of job conferences; Shop Drawings and sample submissions; reproductions of original Contract Documents including all addenda, change orders, field orders, and additional Drawings issued subsequent to the execution of the Contract, Engineer's clarifications and interpretations of the Contract Documents, progress reports and other Project -related documents. b. Keep a diary or daily log book, recording hours on the jobsite, weather conditions, data relative to questions of extras or deductions, list of principal visitors, daily activities, decisions, observations in general and specific observations in more detail as in the case of observing test procedures. Send copies to Engineer. c. Record names, addresses and telephone numbers of all contractors, subcontractors and major suppliers of equipment and materials. d. Advise Engineer whenever Contractor is not currently maintaining an up-to-date copy of Record Drawings at the site. e. Perform a cursory check of Contractor's record drawing set at least bi-weekly and prior to approval of each progress payment. f Contractor is advised that Engineer's jobsite records will not be routinely available to Contractor and that Engineer's jobsite recordkeeping and review efforts shall not diminish Contractor's obligations. 9. Reports: a. Furnish Engineer periodic reports, as required, of progress of the Work and of Contractor's compliance with the approved progress schedule, schedule of Shop Drawing submissions and other schedules. b. Consult with Engineer before scheduled major tests, inspections, or start of important phases of the Work. 10. Payment Requisitions: Review Applications for Payment with Contractor for compliance with the established procedure for their submission and forward them with recommendations to Engineer, noting particularly their relation to the schedule of values, work completed, and materials and equipment delivered at the site. 11. Guarantees, Certificates, Operating and Maintenance Manuals: During the course of the Work, verify that guarantees, certificates, Operation and Maintenance manuals and other data required to be assembled and furnished by Contractor are applicable to the items actually installed; and deliver these data to Engineer for his review and forwarding to Owner prior to final acceptance of the Work. 12. Completion: a. Before Engineer issues a Certificate of Substantial Completion, submit to Contractor a list of observed items requiring correction. b. Conduct final inspection in the company of Engineer, Owner, and Contractor and prepare a final list of items to be corrected. c. Verify that all items on final list have been corrected and make recommendations to Engineer concerning acceptance. 00._.177698 City of Kalispell Primary Digester Repair - DtJTIES, RESPONSIBILITIES AND LIMITATIONS OF THE RESIDENT PROJECT REPRESENTATIVE 00821 - 2 C. Limitation of Authority: Except upon written instructions of Engineer, Resident Project Representative: 1. Shall not authorize any deviation from the Contract Documents or approve any substitute materials or equipment. 2. Shall not undertake any of the responsibilities of Contractor, Subcontractor, or Contractor's superintendent. 3. Shall not expedite Work for the Contractor. 4. Shall not advise on or issue directions relative to any aspect of the means, methods, techniques, sequences or procedures of construction unless such is specifically called for in the Contract Documents. 5. Shall not advise on, issue directions, or enforce any regulation as to safety precautions and programs in connection with the Work. 6. Shall not authorize Owner to occupy the Project in whole or in part. 7. Shall not participate in specialized field or laboratory tests or inspections conducted by others. 8. Shall not assist Contractor in maintaining up-to-date copy of Drawings. 9. Shall not authorize any deviation from the Contract Documents unless written instruction of the ENGINEER and OWNER are received. s • • 00...177698 City of Kalispell Primary Digester Repair - DUTIES, RESPONSIBILITIES AND LIMITATIONS OF THE RESIDENT PROJECT REPRESENTATIVE 00821 - 3 00 ... 177698 SECTION 00825 DAVIS BACON WAGE RATES FOR HEAVY CONSTRUCTION City of Kalispell Primary Digester Repair - DAVIS 13ACON WAGE RATES FOR HEAVY CONSTRUCTION 00825-1 Page 1 of 4 General Decision Number: MT130071 01/04/2013 MT71 Superseded General Decision Number: MT20120071 State: Montana Construction Type: Heavy County: Flathead County in Montana. HEAVY CONSTRUCTION PROJECTS Modification Number Publication Date 0 01/04/2013 ELEC0768-010 06/01/2009 Rates Fringes ELECTRICIAN........, .. .$ 27.02 10.37 FNGI0400-009 07/29/2011 Rates Fringes POWER EQUIPMENT OPERATOR: ('zone 1) (1) A -frame truck Crane, oiler (except crane) ........ $ 23.47 10.40 (2) Crane Oiler,Bulldozer, Roller (Dirt and Grade Compaction)., . ....$ 23.94 10.40 (3) Mechanic, Scraper ....... $ 24.34 10.40 (4) Cranes, 25 tons - 44 tons. ..... .$ 25.00 10.40 (5) Cranes, 45 tons to and incl. 74 tons ............. .$ 25.50 10.40 (6) Cranes, 75 tons to and incl. 149 tons; Cranes, Whirley (All). .. ........$ 26.60 10.40 i (7) Cranes, 150 tons to including 250 tons (add I $1.00 I for every 100 tons over 250 tons); Crane, Stiff - Leg or ► Derrick; Helicopter Hoist; Crane, Tower (all) ... $ 27.10 10.40 I ZONE DEFINITIONS FOR POWER EQUPMENT OPERATORS: The zone hourly rates applicable to each project shall be M determined by measuring the road miles over the shortest I practical maintained route from the nearest County Court House of the following listed towns to the center of the job: BILLINGS, BOZEMAN, BUTTE, GREAT FALLS, HELENA, KALISPELL, 1 MISSOULA http://www.wdol.gov/wdol/scafiles/davisbacon/mt7l.dvb 1/8/2013 Page 2 of 4 Zone 1: 0 to 30 miles - Base Pay Zone 2: 30 to 60 miles - Base Pay + $3.50 Zone 3: Over 60 miles - Base Pay + $5.50 ------------- I ------ ----------- ------ -------------- IRON0014-016 07/01/2012 Rates Fringes IRONWORKER: Reinforcing and Structural.. ............. . —$ 25.65 19.28 ------------- SUMT2011-046 02/08/2011 Rates Fringes CARPENTER (Form Work Only) ....... $ 24.30 7.80 CARPENTER, Excludes Form Work....$ 21.13 7.00 LABORER: Common or General ...... $ 17.99 5.90 LABORER: Pipelayer .............. $ 21.81 4.83 LABORER: Landscape and Irrigation........ ....... .. $ 15.14 1.30 OPERATOR: Backhoe ........... 1._$ 21.44 8.05 OPERATOR: Bobcat/Skid Steer/Skid Loader........ . $ 21.99 8.55 OPERATOR: Excavator..... ... $ 22.94 9.05 OPERATOR: Grader/Blade ...... —.$ 24.69 8.40 OPERATOR: Loader (Front End) .... $ 24.20 7.84 TRUCK DRIVER: Dump Truck.......—$ -------------- ------- 18.84 --------- 5.92 ---------------- WELDERS - Receive rate prescribed for craft performing operation to which welding is incidental. Unlisted classifications needed for work not included within the scope of the classifications listed may he added after award only as provided in,the labor standards contract clauses (29CFR 5.5 (a) (1) (ii)). The body of each wage determination lists the classification and wage rates that have been found to be prevailing for the cited type(s) of construction in the area covered by the wage determination. The classifications are listed in alphabetical littp://www.wdol.gov/wdol/scafiles/davisbacon/mt7l.dvb 1/8/2013 Page 3 of 4 order of "identifiers" that indicate whether the particular rate is union or non -union. Union Identifiers An identifier enclosed in dotted lines beginning with characters other than "SU" denotes that the union classification and rate have found to he prevailing for that classification. Example: PLUM0198-005 07/01/2011. The first four letters , PLUM, indicate the international union and the four -digit number, 0198, that follows indicates the local union number or district council number where applicable , i.e., Plumbers Local 0198. The next number, 005 in the example, is an internal number used in processing the wage determination. The date, 07/01/2011, following these characters is the effective date of the most current negotiated rate/collective bargaining agreement which would be July 1, 2011 in the above example. Union prevailing wage rates will be updated to reflect any changes in the collective bargaining agreements governing the rates. 0000/9999: weighted union wage rates will be published annually each January. Non -Union Identifiers Classifications listed under an "SU" identifier were derived from survey data by computing average rates and are not union rates; however, the data used in computing these rates may include both union and non -union data. Example: SULA2004-007 5/13/2010. SU indicates the rates are not union majority rates, LA indicates the State of Louisiana; 2004 is the year of the survey; and 007 is an internal number used in producing the wage determination. A 1993 or later date, 5/13/2010, indicates the classifications and rates under that identifier were issued as a General Wage Determination on that date. Survey wage rates will remain in effect and will not change until a new survey is conducted. WAGE DETERMINATION APPEALS PROCESS 1.) Has there been an initial decision in the matter? This can be- * an existing published wage determination * a survey underlying a wage determination * a wage and Hour Division letter setting forth a position on a wage determination matter * a conformance (additional classification and rate) ruling on survey related matters, initial contact, including requests hq://www.wdol.gov/wdol/scafiles/davisbaconJmt7l.dvb 1/8/2013 Page 4 of 4 for summaries of surveys, should be with the Wage and Hour Regional Office for the area in which the survey was conducted because those Regional Offices have responsibility for the Davis -Bacon survey program. If the response from this initial contact is not satisfactory, then the process described in 2.) and 3.) should be followed. With regard to any other matter not yet ripe for the formal process described here, initial contact should be with the Branch of Construction Wage Determinations. Write to: Branch of Construction Wage Determinations Wage and Hour Division U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 2.) If the answer to the question in 1.) is yes, then an interested party (those affected by the action) can request review and reconsideration from the Wage and Hour Administrator (See 29 CFR Part 1.8 and 29 CFR Part 7). Write to: Wage and Hour Administrator U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 The request should be accompanied by a full statement of the interested party's position and by any information (wage payment data, project description, area practice material, etc.) that the requestor considers relevant to the issue. 3.) If the decision of the Administrator is not favorable, an interested party may appeal directly to the Administrative Review Board (formerly the Wage Appeals Board). Write to: Administrative Review Board U.S. Department of Labor 200 Constitution Avenue, N.W. Washington, DC 20210 4.), All decisions by the Administrative Review Board are final. ------------ -------------- END OF GENERAL DECISION http://www.wdol.gov/wdol/scafiles/davisbacon/mt7l.dvb 1/8/2013 SECTION 00900 FUNDING AGENCY SPECIAL PROVISIONS FOR MONTANA PUBLIC FACILITY PROJECTS This section supplements Division 0 of the Montana Public Works Standard Specifications, Sixth Edition, dated April, 2010. Included herein are supplemental general conditions that are required by Montana public facility funding programs or agencies listed in 1.01 below but are not included in the Montana Public Works Standard Specifications, Division 0. ARTICLE 1. Special Provisions 1.01 Funding Agencies This project is being funded with funds from one or more of the following public facility funding programs or agencies: Renewable Resource Grant and Loan Program (RRGL) Treasure State Endowment Program (TSEP) United States Department of Agriculture Rural Development (USDA/RD) Community Development Block Grant Program (CDBG) Drinking Water or Water Pollution Control State Revolving Fund Loan Program (SRF) 1.01.1 Applicable Funding Agency Special Provisions In addition to Section 1.02 below, the following sections also apply as indicated: Section 1.03 (Additional USDA/RD Requirements) Section 1.04 (Additional CDBG Requirements) X Section 1.05 (Additional SRF Requirements) 1.02 Special Provisions for All Funding Agencies The following requirements pertain to all of the funding programs or agencies listed in 1.01 above. If project funding sources include any of the programs or agencies listed, the following general requirements must be met in addition to those required in the Montana Public Works Standard Specifications, Division 0: 1.02.1 Reports, Information, and Access to Records The contractor, at such times and in such form as required by the owner (defined herein as the entity for which the project is being constructed) shall furnish reports pertaining to the work or services undertaken pursuant to this contract, the costs and obligations incurred or to be incurred in connection therewith, and any other matters covered by this contract. The owner and any federal, state or local governmental agency having a valid interest in this project shall be permitted by the contractor to have full access to and the right to examine pertinent documents of the contractor involving transactions related to this contract during the period of the project and for three (3) years from the date of final payment or until all findings have been resolved to the satisfaction of the funding agencies. 1.02.2 Contractor Eligibility and Certification Regarding Debarment The contractor certifies that the contractor's firm and the firm's principals are not debarred, suspended, or otherwise ineligible to receive any Montana public works contracts or subcontracts pursuant to 18-2-432 (2), MCA. For federally funded projects, the contractor certifies that the contractor's firm and the firm's principals are not debarred, suspended, voluntarily excluded, or otherwise ineligible for participation in federally assisted contracts under Executive Order 12549, "Debarment and Suspension" (24 CFR 24.505). 1.02.3 Contractor Registration and Worker's Compensation Requirements Title 39, Chapter 9, Parts 1 and 2 MCA stipulate contractor registration requirements for the State of Montana. Pursuant to 39-9-201 MCA, each construction contractor must be registered with the Montana Department of Labor and Industry. In accordance with 39-9-102 MCA, "construction contractor" means a person, firm, or corporation that, in the pursuit of an independent business, offers to undertake, undertakes, or submits a bid for construction. No bid shall be considered that does not carry the bidder's Montana Contractor's Registration Number on the bid form. Registration forms and additional information may be obtained by contacting the Montana Department of Labor and Industry, 1805 Prospect Ave., P.O. Box 8011, Helena, MT 59604-8011, or by calling 406-444- 7734. The contractor must provide certification that workers' compensation insurance will be maintained as required by the Montana Workers' Compensation Act (39-71-101 MCA). 1.02.4 Minimum Wage Requirements Unless superseded by federal law, 18-2-401 MCA and 18-2402 MCA require that each employer pay, as a minimum, the rate of wages, including fringe benefits and zone pay applicable for the work being performed, as provided in the current Montana Prevailing Wage Requirements as determined by the Montana Department of Labor and Industry. The current wage determination must be included in the contract documents. If the SRF Loan Program is funding the project in whole or in part, federal law requires that each employer pay, as a minimum, prevailing wages in accordance with the Federal Labor Standards Provisions (Davis -Bacon) (Exhibit C). If the CDBG Program is funding the project in whole or in part, HUD Form 4010-Federal Labor Standards Provisions (Exhibit B) must be included in the contract documents. 1.02.5 Compliance With State and Federal Laws and Regulations All applicable laws, ordinances, rules and regulations of authorities having jurisdiction over construction of the project shall apply to the contract throughout. The contractor must comply with all applicable state and federal occupational disease and health and safety laws and regulations. 1.02.6 Project Sign All projects will have a sign erected at a prominent location near the major portion of the work in plain view of the general public prior to submittal of the first pay estimate. The sign will generally conform to the following: "The CONTRACTOR, or such contractor as the ENGINEER may designate, when construction begins, shall erect a sign constructed of 4'X8'X31" exterior plywood (A-B) and shall be supported by and bolted to two (2) 2 4"U' posts with the bottom of the sign at a point at least two (2) feet above the ground line. The project sign shall be maintained in a good condition until project completion. The sign will be edged, painted and lettered as shown on Exhibit A. The letters shall be approximately three (3) inches in height. The cost of the sign is incidental to the contract price. The sign shall remain the property of the owner. A statement indicating all agencies participating in the financing of the project shall be included on the sign. The sign shall be subject to agency approval prior to being erected. 1.02.7 Gross Receipts Withholding Requirements Pursuant to Section 15-50-206(2)(3), MCA, the owner is required to withhold one percent (1%) of all payments due the contractor and is required to transmit such moneys to the Montana Department of Revenue as part of the public contractor's license fee. In like fashion, the contractor is required to withhold one percent (1%) from payments to subcontractors. 1.02.8 Clean Air and Clean Water Acts, Executive Order 11738 and EPA Regulations: If this Contract exceeds $100,000, Contractor shall comply with all applicable standards, orders or requirements issued under Section 306 of the Clean Air Act (42 USC 1857(h)); Section 508 of the Clean Water Act (33 USC 1368); Executive Order 11738; and Environmental Protection Agency Regulations (40 CFR Part 15). 1.03 Additional Special Provisions for USDA/RD 1.03.1 The following documents shall be attached to and made a condition of the contract documents for any project funded, in whole or in part, by Rural Development: If the bid amount exceeds $10,000, signed Compliance Statement (RD 400-6). Refer to specific equal opportunity requirements set forth in paragraph 18.10 of the General Conditions; If the bid amount exceeds $25,000, signed Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion - Lower Tier Covered Transactions (AD-1048); and If the bid amount exceeds $100,000, signed RD Instruction 1940-Q, Exhibit A-1, Certification for Contracts, Grants, and Loans. Refer to paragraph 18.11 of the General Conditions. 1.03.2 Free and Open Competition All procurement transactions will be conducted in a manner that provides maximum free and open competition. Examples of what are considered to be restrictive of competition include but are not limited to: employment preferences to Montana Bidders or Montana Contractors and Montana residents. 1.03.3 Contractor's Retainage No payments will be made that would deplete the retainage nor place in escrow any funds that are required for retainage or invest the retainage for the benefit of the contractor. 1.04 Additional Special Provisions for CDBG 1.04.1 Equal Employment Opportunity Provisions a. Equal Employment Opportunity (Executive Order 11246)_ During the performance of this contract, the Contractor agrees as follows: k3 (i) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion, transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation, and selection of training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the contracting officer setting forth the provisions of this nondiscrimination clause. (ii) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. (iii) The contractor will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice to be provided by the Department's contracting officer advising the labor union or workers' representative of the contractor's commitments under Section 202 of Executive Order 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. (iv) The contractor will comply with all of the provision of Executive Order 11246 of September 24, 1965, and of the rules, regulations and relevant orders of the Secretary of Labor. (v) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by the rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to its books, records and accounts by the Department and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations and orders. (vi) In the event of the contractor's noncompliance with the non- discrimination clauses of this contract or with any of such rules, regulations or orders, this contract may be canceled, terminated or suspended in whole or in part and the contractor may be declared ineligible for further government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive_ Order 11246 of September 24, 1965, or by rules, regulations, or order of the Secretary of Labor, or as otherwise provided by law. (vii) The contractor will include the provisions of paragraphs 1 through 7 in every subcontract or purchase order unless exempted by rules, regulations or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, so that each provision will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the Department may direct as. a means of enforcing such provisions including sanctions for noncompliance. Provided, however, that in the event the contractor becomes involved in or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the Department, the contractor may request the United States to enter into such litigation to protect the interest of the United States. b. Title VII of the Civil Rights Act of 1964. Provides that no person shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. c. Section 109 of the Housing and Community Development Act of 1974. "No person in the United States shall on the ground of race, color, national origin or sex be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity funded in whole or in part with funds available under this title. Any prohibition against discrimination on the basis of age under the Age Discrimination Act of 1975 or with respect to an otherwise qualified handicapped individual as provided in Section 504 of the Rehabilitation Act of 1973 shall also apply to any such program or activity." 21 d. Section 3 of the Housing and Community Development Act of 1968. The contractor will ensure that to the greatest extent feasible opportunities for training and employment arising in connection with this CDBG- assisted project will be extended to project area residents. Further, the contractor will, to the greatest extent feasible, utilize business concerns located in or substantially owned by residents of the project area, in the award of contracts and purchase of services and supplies. e. Minority Business Enterprise. Under the provisions of Executive Order 11246 contractors on federally - funded projects are required to take affirmative steps to assure that minority businesses are used when possible as sources of supplies, equipment, construction and services. Additionally, the contractor must document all affirmative steps taken to solicit minority businesses and forward this documentation along with the names of the minority subcontractors and suppliers to the owner upon request. f. Nondiscrimination Provision in all Public Contracts Pursuant to Section 49-3-207, MCA, the Contractor certifies that all hiring will be on the basis of merit and qualifications and there will be no discrimination on the basis of race, color, religion, creed, political ideas, sex, age, marital status, physical or mental handicap, or national origin. 1.042 Uniform Federal Accessibility Standards (UFAS) All design specifications for the construction of any building shall provide access to the physically handicapped in accordance with the Uniform Federal Accessibility Standards and HUD regulations 24 CFR Part 8, "Nondiscrimination Based on Handicap in Federally Assisted Programs and Activities of HUD". 1.04.3 Certification of Compliance with federal Clean Air and Water Acts (Applicable to federally assisted construction contracts and related sub -contracts exceeding $100,000.) During the performance of this contract, the contractor and all subcontractors shall comply with the requirements of the Clean Air Act, as amended, 42 USC 1857 et seq., the Federal Water Pollution Control Act, as amended, 33 USC 1251 et seq., and the regulations of the Environmental Protection Agency with respect thereto, at 40 CFR 15, as amended. 1.04.4 Preconstruction Conference After the contract(s) have been awarded, but before the start of construction, a conference will be held for the purpose of discussion requirements on such matters as project supervision, coordination with city or county officials, on -site inspections, progress schedules and reports, payrolls, payments to contractors, contract change orders, insurance, safety and other items pertinent to the project. The contractor shall arrange to have all supervisory personnel connected with the project on hand to meet with representatives of the engineer and owner to discuss any problems anticipated. 1.04.5 Contract Pricing The cost plus a percentage of cost method of contracting shall not be used. 1.05 Additional Special Provisions for SRF 1.05.1 Equal Employment Opportunity and Affirmative Action Requirements on Federally Assisted Construction Contracts NOTICE OF REQUIREMENT FOR AFFIRMATIVE ACTION TO ENSURE EQUAL EMPLOYMENT OPPORTUNITY (EXECUTIVE ORDER 11246) 1. The Offeror's or Bidder's attention is called to the "Equal Opportunity Clause" and the "Standard Federal Equal Employment Specifications" set forth herein. W 2. The goals and timetables for minority and female participation, expressed in percentage terms for the Contractor's aggregate workforce in each trade on all construction work in the covered area, are as follows: Goals for minority participation in each trade 2.7% Goals for female participation in each trade &9% These goals are applicable to all the contractor's construction work (whether or not it is Federal or Federally assisted) performed in the covered area. If the contractor performs construction work in a geographical area located outside of the covered area, it shall apply the goals established for such geographical area where the work is actually performed. With regard to this second area, the contractor also is subject to the goals for both its federally involved and nonfederally involved construction. The Contractor's compliance with the Executive Order and the regulations in 41 CFR Part 60-4 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative action obligations required by the specifications set forth in 41 CFR 60-4.3(a), and its efforts to meet the goals. The hours of minority and female employment and training must be substantially uniform throughout the length of the contract, and in each trade, and the contractor shall make a good faith effortto employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from contractor to contractor or from project to project for the sole purpose of meeting the contractor's goals shall be a violation of the contract, the Executive Order, and the regulations in 41 CFR Part 60-4. Compliance with the goals will be measured against the total work hours performed. 3. The contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs within 10 working days of award of any construction subcontract in excess of $10,000 at any tier for construction work under the contract resulting from this solicitation. The notification shall list the name, address and telephone number for the subcontractor; employer identification number of the subcontractor, estimated dollar amount of the subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the contract is to be performed (see form on page 11). 4. As used in this Notice, and in the contract resulting from this solicitation, the "covered area" is the This notice shall be included in, and shall be a part of, all solicitations for offers and bids on all federal and federally assisted construction contracts or subcontracts. EQUAL OPPORTUNITY CLAUSE The Equal Opportunity Clause published at 41 CFR Part 60-1.4(b) is required to be included in, and is part of, all nonexempt federally assisted construction contracts and subcontracts. The Equal Opportunity Clause shall be considered to be a part of every contract and subcontract required by the regulations in this part to include such a clause, whether or not it is physically incorporated in such contracts. In addition to the clause described above, all federal contracting officers, all applicants, and all non -construction contractors, as applicable, shall include the specifications set forth in this section in all federal and federally assisted construction contracts in excess of $10,000 to be performed in geographical areas designated by the Director pursuant to §60-4.6 of this part and in construction subcontracts in excess of $10,000 necessary in whole or in part to the performance of non -construction Federal contracts and subcontracts covered under the Executive Order. STANDARD FEDERAL EQUAL EMPLOYMENT OPPORTUNITY CONSTRUCTION CONTRACT SPECIFICATIONS (EXECUTIVE ORDER 11246) 1. As used in these specifications: a. "Covered Area" means the geographical area described in the solicitation from which this contract resulted; R b. "Director" means Director, Office of Federal Contract Compliance Programs, United States Department of Labor, or any person to whom the Director delegates authority; c. "Employer identification number" means the Federal Social Security number used on the employer's quarterly Federal Tax Return, U.S. Treasury Department Form 941. d. "Minority" includes: (i) Black (all persons having origins in any of the Black African racial groups not of Hispanic origin); (ii) Hispanic (all persons of Mexican, Puerto Rican, Cuban, Central or South American or other Spanish Culture or origin, regardless of race); (iii) Asian and Pacific Islander (all persons having origins in any of the original peoples of the Far East, Southeast Asia, the Indian Subcontinent, or the Pacific Islands); (iv) American Indian or Alaskan Native (all persons having origins in any of the original peoples of North America and maintaining identifiable tribal affiliations through membership and participation or community identification). 2. Whenever the contractor, or any subcontractor at any tier, subcontracts a portion of the work involving any construction trade, it shall physically include in each subcontract in excess of $10,000 the provisions of these specifications and the Notice which contains the applicable goals for minority and female participation and which is set forth in the solicitations from which this contract resulted. 3. If the contractor is participating (pursuant to 41 CFR 60-4.5) in a Hometown Plan approved by the U.S. Department of Labor in the covered area either individually or through an association, its affirmative action obligations on all work in the Plan area, (including goals and timetables) shall be in accordance with that Plan for those trades which have unions participating in the Plan. Contractors must be able to demonstrate their participation in and compliance with the provisions of any such Hometown Plan. Each contractor or subcontractor participating in an approved Plan is individually required to comply with its obligations under the EEO clause, and to make a good faith effort to achieve each goal under the Plan in each trade in which it has employees. The overall good faith performance by other contractors or subcontractors toward a goal in an approved Plan does not excuse any covered contractor's or subcontractor's failure to take good faith efforts to achieve the Plan goals and timetables. 4. The contractor shall implement the specific affirmative action standards provided in paragraphs (7)(a) through (p) of these specifications. The goals set forth in the solicitation from which this contract resulted are expressed as percentages of the total hours of employment and training of minority and female utilization the contractor should reasonably by able to achieve in each construction trade in which it has employees in the covered area. Covered Construction contractors performing construction work in geographical areas where they do not have a Federal or federally assisted construction contract shall apply the minority and female goals established for the geographical area where the work is being performed. Goals are published periodically in the federal register in notice form, and such notices may be obtained from any Office of Federal Contract Compliance Programs office or from Federal procurement contracting officers. The contractor is expected to make substantially uniform progress toward its goals in each craft during the period specified. 5. Neither the provisions of any collective bargaining agreement, nor the failure by a union with whom the contractor has a collective bargaining agreement, to refer either minorities or women shall excuse the contractor's obligations under these specifications, Executive Order 11246, or the regulations promulgated pursuant thereto. 6. In order for the non -working training hours of apprentices and trainees to be counted in meeting the goals, such apprentices and trainees must be employed by the contractor during the training period, and the contractor must have made a commitment to employ the apprentices and trainees at the completion of their training, subject to the availability of employment opportunities. Trainees must be trained pursuant to training programs approved by the U.S. Department of Labor. 7. The contractor shall take specific affirmative actions to ensure equal employment opportunity. The evaluation of the contractor's compliance with these specifications shall be based upon its effort to achieve 7 maximum results from its actions. The contractor shall document these efforts fully, and shall implement affirmative action steps at least as extensive as the following: a. Ensure and maintain a working environment free of harassment, intimidation, and coercion at all sites, and in all facilities at which the contractor's employees are assigned to work. The contractor, where possible, will assign two or more women to each construction project. The contractor shall specifically ensure that all foremen, superintendents, and other on -site supervisory personnel are aware of and carry out the contractor's obligation to maintain such a working environment, with specific attention to minority or female individuals working at such sites or in such facilities. b. Establish and maintain a current list of minority and female recruitment sources, provide written notification to minority and female recruitment sources and to community organizations when the contractor or its unions have employment opportunities available, and maintain a record of the organizations' responses. c. Maintain a current file of the names, addresses, and telephone numbers of each minority and female off - the -street applicant and minority or female referral from a union, a recruitment source or community organization and of what action was taken with respect to each such individual. If such individual was sent to the union hiring hall for referral and was not referred back to the contractor by the union or, if referred, not employed by the contractor, this shall be documented in the file with the reason therefor, along with whatever additional actions the contractor may have taken. d. Provide immediate written notification to the Director when the union or unions with which the Contractor has a collective bargaining agreement has not referred to the Contractor a minority person or woman sent by the Contractor, or when the Contractor has other information that the union referral process has impeded the Contractor's efforts to meet its obligations. e. Develop on-the-job training opportunities and/or participate in training programs for the areas which expressly include minorities and women, including upgrading programs and apprenticeship and trainee programs relevant to the contractor's employment needs, especially those programs funded or approved by the Department of Labor. The contractor shall provide notice of these programs to the sources compiled under (7)(b) above. f. Disseminate the contractor's EEO policy by providing notice of the policy to unions and training programs and requesting their cooperation in assisting the contractor in meeting its EEO obligations; by including it in any policy manual and collective bargaining agreement; by publicizing it in the company newspaper, annual report, etc.; by specific review of the policy with all management personnel and with all minority and female employees at least once a year; and by posting the company EEO policy on bulletin boards accessible to all employees at each location where construction work is performed. i g. Review, at least annually, the company's EEO policy and affirmative action obligations under these specifications with all employees having any responsibility for hiring, assignment, layoff, termination or other employment decisions including specific review of these items with on -site supervisory personnel such as superintendents, general foremen, etc., prior to the initiation of construction work at any job site. A written record shall be made and maintained identifying the time and place of these meetings, persons attending, subject matter discussed, and disposition of the subject matter. h. Disseminate the contractor's EEO policy externally by including it in any advertising in the news media, specifically including minority and female news media, and providing written notification to and discussing the contractor's EEO policy with other contractors and subcontractors with whom the contractor does or anticipates doing business. i. Direct its recruitment efforts, both oral and written, to minority, female and community organizations, to schools with minority and female students and to minority and female recruitment and training organizations serving the contractor's recruitment area and employment needs. Not later than one month prior to the date for the acceptance of applications for apprenticeship or other training by any recruitment 19 source, the contractor shall send written notification to organizations such as the above, describing the openings, screening procedures, and tests to be used in the selection process. j. Encourage present minority and female employees to recruit other minority persons and women and, where reasonable, provide after school, summer and vacation employment to minority and female youth both on the site and in other areas of a contractor's workforce. k. Validate all tests and other selection requirements where there is an obligation to do so under 41 CFR Part 60-3. 1. Conduct, at least annually, an inventory and evaluation at least of all minority and female personnel for promotional opportunities and encourage these employees to seek or to prepare for, through appropriate training, etc., such opportunities. m. Ensure that seniority practices, job classifications, work assignments and other personnel practices, do not have a discriminatory effect by continually monitoring all personnel and employment related activities to ensure that the EEO policy and the contractor's obligations under these specifications are being carried out. n. Ensure that all facilities and company activities are nonsegregated except that separate or single -user toilet and necessary changing facilities shall be provided to assure privacy between the sexes. o. Document and maintain a record of all solicitations of offers for subcontracts from minority and female construction contractors and suppliers, including circulation of solicitations to minority and female contractor associations and other business associations. p. Conduct a review, at least annually, of all supervisor's adherence to and performance under the contractor's EEO policies and affirmative action obligations. 8. Contractors are encouraged to participate in voluntary associations which assist in fulfilling one or more of their affirmative action obligations (7)(a) through (p). The efforts of a contractor association, joint contractor - union, contractor -community, or other similar group of which the contractor is a member and participant, may be asserted as fulfilling any one or more of its obligations under (7)(a) through (p) of these specifications provided that the contractor actively participates in the group, makes every effort to assure that the group has positive impact on the employment of minorities and women in the industry, ensures that the concrete benefits of the program are reflected in the contractor's minority and female workforce participation, makes a good faith effort to meet its individual goals and timetables, and can provide access to documentation which demonstrates the effectiveness of actions taken on behalf of the contractor. The obligation to comply, however, is the contractor's and failure of such a group to fulfill an obligation shall not be a defense for the contractor's noncompliance. 9. A single goal for minorities and a separate single goal for women have been established. The contractor, however, is required to provide equal employment opportunity and to take affirmative action for all minority groups, both male and female, and all women, both minority and non -minority. Consequently, the contractor may be in violation of the Executive Order if a particular group is employed in a substantially disparate manner (for example, even though the contractor has achieved its goals for women generally, the contractor may be in violation of the Executive order if a specific minority group of women is under-utilized). 10. The contractor shall not use the goals and timetables of affirmative action standards to discriminate against any person because of race, color, religion, sex, or national origin. 11. The contractor shall not enter into any subcontract with any person or firm debarred from government contracts pursuant to Executive Order 11246. 12. The contractor shall carry out such sanctions and penalties for violation of these specifications and of the Equal Opportunity Clause, including suspension, termination and cancellation of existing subcontracts 9 as may be imposed or ordered pursuant to Executive Order 11246, as amended, and its implementing regulations, by the Office of Federal Contract Compliance Programs. Any contractor who fails to carry out such sanctions and penalties shall be in violation of these specifications and Executive Order 11246, as amended. 13. The contractor, in fulfilling its obligations under these specifications, shall implement specific affirmative action steps, at least as extensive as those standards prescribed in paragraph (7) of these specifications, so as to achieve maximum results from its efforts to ensure equal employment opportunity. If the contractor fails to comply with the requirements of the Executive Order, the implementing regulations, or these specifications, the Director shall proceed in accordance with 41 CFR 60-4.8. 14. The contractor shall designate a responsible official to monitor all employment related activity to ensure that the company EEO policy is being carried out, to submit reports relating to the provisions hereof as may be required by the government and to keep records. Records shall at least include for each employee the name, address, telephone numbers, construction trade, union affiliation if any, employee identification number when assigned, social security number, race, sex, status (e.g., mechanic, apprentice, trainee, helper, or laborer), dates of changes in status, hours worked per week in the indicated trade, rate of pay, and locations at which the work was performed. Records shall be maintained in an easily understandable and retrievable form; however, to the degree that existing records satisfy this requirement, contractors shall not be required to maintain separate records. 15. Nothing herein provided shall be construed as a limitation upon the application of other laws which establish different standards of compliance or upon the application of requirements for the hiring of local or other area residents (e.g., those under the Public Works Employment Act of 1977 and the Community Development Block Grant Program) Ii z 0 LL z O cu a) iE CL cu CY) 0 O z 0 O RS d. E In, ui a) tf cu to E w O 0 0 00 4- 0 z E w< 0 re 0 a_ 0 0 0- E 0 a) () -Z5 E U) w m U) �o .2 a) Eco m (D LU 0 0 E < E (n w 0 E .2 :3 0 z 0 0 'a E w a) 6-0 E E m =3 z z cn a) 0 0 cu CL 0 U) U) 1.05.2 GUIDANCE FOR UTILIZATION OF SMALL, MINORITY AND WOMEN BUSINESS ENTERPRISES (DBE) REQUIREMENTS OF 40 CFR 35.3145(D) The contractor shall not discriminate on the basis of race, color, national origin or sex in The performance of this contract. The contractor shall carry out applicable requirements of 40 CFR part 33 in the award and administration of contracts awarded under EPA financial assistance agreements. Failure by the contractor to carry out these requirements is a material breach of this contract which may result in the termination of this contract or other legally available remedies. A. REQUIREMENTS 1. The recipient and prime contractor will exercise good faith efforts to attract and utilize small, minority, and women's business (DBEs) enterprises primarily through outreach, recruitment, and race/gender neutral activities. At a minimum, the recipient and project bidders will follow the six affirmative steps below: a. Ensure DBEs are made aware of contracting opportunities to the fullest extent practicable through outreach and recruitment activities including placing DBEs on solicitation lists and soliciting them whenever they are potential sources; b. Make information on forthcoming opportunities available to DBEs and arrange time frames and establish delivery schedules, when the requirements of the work permit, which will encourage participation by DBEs; c. Consider in the contracting process whether firms competing for large contracts could subcontract with DBEs; including dividing total requirements, when economically feasible, into small tasks or quantities to permit maximum participation by DBEs; d. Encourage contracting with a consortium of DBEs when a contract is too large for one of these firms to handle individually; e. Using the services of the Small Business Administration and the Office of Minority Business Enterprise of the U.S. Department of Commerce, as appropriate; and f. Require a. through e. to be taken if subcontracts are awarded. B. FAIR SHARE OBJECTIVE 1. The fair share objective for this project is 2 %MBE's and 3 % WBE's. C. DEFINITIONS 1. Minority Business Enterprise (MBE) is a business concern which is: a. Certified as socially and economically disadvantaged by the Small Business Administration; (1) Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities. (2) Economically disadvantaged individuals are those socially disadvantaged individuals whose ability to compete in the free enterprise system is impaired due to diminished capital and credit opportunities, as compared to others in the same business area who are not socially disadvantaged. In determining the degree of diminished credit and capital opportunities, the Small Business Administration shall consider, but not be limited to, the assets and net worth of such socially disadvantaged individuals. individuals who certify that they are members of named groups (Black Americans, Hispanic Americans, Native Americans, Asian -Pacific Americans, Asian -Indian Americans), are to be considered socially and economically 12 disadvantaged. Economically and socially disadvantaged individuals are deemed to include women. b. Certified as a minority business enterprise by a State or Federal agency; or c. An independent business concern which is at least 51 percent owned and controlled by minority group member(s). (1) A minority group member is an individual who is a citizen of the United States and one of the following: (a) Black American: (b) Hispanic American (with origins from Puerto Rico, Mexico, Cuba, South or Central America) (c) Native American (American Indian, Eskimo, Aleut, native Hawaiian); or (d) Asian -Pacific American (with origins from Japan, China, the Philippines, Vietnam, Korea, Samoa, Guam, the U.S. Trust Territories of the Pacific, Northern Marianas, Laos, Cambodia, Taiwan or the Indian subcontinent). (2) In order to satisfy the third criteria of the MBE definition, the minority ownership's interest must be real, substantial and continuing. Such interest is characterized by: (a) Risk of loss/share of profit commensurate with the proportional ownership; and (b) Receipt of the customary incidents of ownership, such as compensation (i.e. salary and other personnel compensation). (3) A minority owner must have and exercise control of the business decisions. Characteristics of control include, but are not limited to: (a) Authority to sign bids and contracts; (b) Decisions in price negotiations; (c) Incurring liabilities for the firm; (d) Final staffing decisions; (e) Policy -making; and (f) General company management decisions. (4) Only those firms performing a useful business function according to custom and practice in the industry are qualified as MBEs. Acting merely as a passive conduit of funds to some other firm where such activity is unnecessary to accomplish the project does not constitute a "useful business function according to custom and practice in the industry." The purpose of this approach is to discourage the use of MBE "fronts" and limit the creation of an artificial supplier and broker marketplace. 2. Women's Business Enterprise (WBE) is a business which is certified as such by a State or Federal agency, or which meets the following definition: "A women's business enterprise is an independent business concern which is at least 51 percent owned by a woman or women, who also control and operate it. Determination of whether a business is at least 51 percent owned by a woman or otherwise qualified WBE which is 51 percent owned by a married woman in a community property State will not be disqualified because her husband has a 50 percent interest in her share. Similarly, a business which is 51 percent owned by a married man and 49 percent owned by an unmarried woman will not become a qualified WBE by virtue of his wife's 50 percent interest in his share of the business." IN As in the case of a MBE, only United States citizens will be deemed to be WBEs. Similar to the MBE criteria, WBE should meet the criteria cited in subparagraphs C.1.c.(2), (3), and (4). 3. Fair Share or Fair Share Objective A fair share or a fair share objective is an amount of funds reasonably commensurate with the total project funding and the availability of qualified MBEs and WBEs, taking into account experience on EPA -funded projects and other comparable projects in the area. A fair share objective does not constitute an absolute requirement, but a commitment on the part of the bidder to exercise good faith efforts as defined in this section to use MBEs and WBEs to achieve the fair share objective. 4. Small Business (SBE). Any business entity, including its affiliates, that is independently owned and operated, and not dominant in its field of operations in which it is bidding on Government contracts, and qualified as a small business under the criteria and size standards set forth in 13 CFR Part 121. 5. Small Business in a Rural Area._A small business in a rural area (SERA) is a business entity meeting the definition of a small business, and is located and conducts its principal operations in a geographical area (county) listed in the Small Business Administration's Listing of Non - Metropolitan Counties by State. 6. Recipient. A party receiving SRF financial assistance. 7. Project. The work financed through an SRF loan. 8. Bidder. A party seeking to obtain a contract with a recipient through a competitive, advertised, sealed bid process. 9. Offeror. A party seeking to obtain a contract with a recipient through a negotiative procurement process. 14. Prime Contractor. A party that has obtained a contract with a recipient through a competitive, advertised, sealed bid process. 11. Good Faith Efforts. Good faith efforts by a recipient, prime contractor, and/or bidder/offeror means efforts to attract and utilize SBEs, MBEs, and WBEs (DBEs) primarily through outreach, recruitment, and race/gender neutral activities. The following are examples of activities to assist recipients, prime contractors and/or bidders/offerors to comply with good faith efforts. a. Include qualified SBEs, MBEs, and WBEs on solicitation lists. (1) Maintain and update a listing of qualified SBEs, MBEs, and WBEs and SBRAs that can be solicited for supplies, construction and/or services. (2) Provide listings to all interested parties who requested copies of the bidding or proposing documents. (3) Contact appropriate sources within your geographic area and State to identify qualified MBEs and WBEs for placement on your minority and women's business listings. (4) Utilize other MBE/WBE listings such as those of the State's Minority Business Office, the Small Business Administration, Minority Business Development Agency, US EPA- Office of Small and Disadvantaged Business Utilization (OSDBU) and the Department of Transportation. (5) Have the State environmental agency personnel review this solicitation list. b. Ensure that SBEs, MBEs, and WBEs are solicited. (1) Conduct meetings, conferences, and follow-ups with SBEs, MBEs, WBEs, and SBRAs, small, minority and/or women's business associations, minority media, etc., to inform these groups of opportunities to provide supplies, services, and construction. 9.1 (2) MBE utilization is facilitated if the recipient or prime contractor advertises through the minority media. Such advertisements may include, but are not limited to, contracting and subcontracting opportunities, hiring and employment, or any other matter related to the project. (3) Conduct pre bid, pre -solicitation, and post -award conferences to ensure that consultants, suppliers, and builders solicit SBEs, MBEs, WBEs, and SBRAs. (4) Provide bidders and offerors with listings of qualified SBEs, MBEs, WBEs, and SBRAs and establish that a fair share of contracts/procurements should be awarded to these groups. (5) Advertise in general circulation, trade publications, State agency publications of identified source, minority or women's business focused media, etc., concerning contracting opportunities on your projects. Maintain a list of minority or women's business -focused publications that may be utilized to solicit MBEs or WBEs. (6) Provide interested SBEs, MBEs, WBEs, or SBRAs with adequate information about plans, specifications, timing and other requirements of the proposed projects. (7) Provide SBE, SBRA, MBE or WBE trade organizations with succinct summaries of solicitations. (8) Notify SBEs, MBEs, WBEs, or SBRAs of future procurement opportunities so that they may establish bidding solicitations and procurement plans. c. Make information on forthcoming opportunities available to DBEs and arrange time frames and establish delivery schedules, where requirements of the work permit, which will encourage participation by SBEs, MBEs, WBEs and SBRAs. (1) Consider lead times and scheduling requirements often needed by SBE, MBE, WBE or SBRA participation. (2) Develop realistic delivery schedules which may provide for greater SBE, MBE, WBE or SBRA participation. (3) Whenever possible, post solicitations for bids or proposals for a minimum of 30 calendar days before the bid or proposal closing date d. Consider in the contracting process whether firms competing for large contracts could subcontract with DBEs; including dividing total requirements when economically feasible, into small tasks or quantities to permit maximum participation of SBEs, MBEs, WBEs and SBRAs. (1) Perform an analysis to identify portions of work that can be divided and performed by qualified SBEs, MBEs, WBEs and SBRAs. (2) Scrutinize the elements of the total project to develop economically feasible units of work that are within the bonding range of SBEs, MBEs, WBEs and SBRAs. (3) Analyze bid packages for compliance with the good faith efforts to afford SBEs, MBEs, WBEs and SBRAs maximum participation. (4) Encourage contracting with a consortium of SBEs, MBEs, WBEs, and SBRAs when a contract is too large for one of these firms to handle individually e. Use the services and assistance of the Small Business Administration and the Minority Business Development Agency of the US Department of Commerce, as appropriate. (1) Use the services of outreach programs sponsored by the Minority Business Development Agency and/or the Small Business Administration to recruit bona fide firms for placement on SBEs', MBEs', WBEs', or SBRAs' bidders lists to assist these firms in the development of bid packaging. R (2) Seek out Minority Business Development Centers (MBDCs) to assist recipients and prime contractors in identifying MBEs for potential work opportunities on this project. f. If the prime contractor awards subcontracts, require the prime contractor to take the steps in paragraphs a. through e. of this section. D. ADDITIONAL CONTRACT PROVISIONS 1. The prime contractor must pay its subcontractors for satisfactory performance no more than 30 days from the prime contractor's receipt of payment from the owner. 2. The prime contractor must notify the owner in writing prior to any termination of a DBE subcontractor for convenience. 3. If a DBE subcontractor fails to complete work under the subcontract for any reason, the prime contractor must employ the six good faith efforts if soliciting a replacement subcontractor, even if the fair share objectives have already been achieved. 4. The prime contractor must distribute EPA Form 6100-2 -DBE Program Subcontractor Participation Form (copy attached) to all of its DBE subcontractors. The subcontractors can submit completed forms to the EPA DBE Coordinator (address included on the form). 5. The prime contractor must have its DBE subcontractors complete EPA Form 6100-3—DBE Program Subcontractor Performance Form (copy attached) and include completed forms in its bid / proposal package or submit the form within seven (7) calendar days of the bid opening. 6. The prime contractor must complete EPA Form 6100-4—DBE Program Subcontractor Utilization Form (copy attached) and submit as part of its bid or proposal package or submit the form within seven (7) calendar days of the bid opening. 7. Failure to submit the requested information (Form 6100-3 and Form 6100-4) within seven (7) calendar days of the bid opening may be viewed as non -responsive. 8. Additional DBE forms can be downloaded at httr)://www.eDa.aov/osdbu/arant.htm E. REPORTING 1. Bidders/offerors shall demonstrate compliance with good faith efforts in order to be deemed responsible. At a minimum this will include completing EPA forms 6100-3 and 6100-4 as discussed above. Additional efforts could include maintaing phone/mail logs (see attached MBE/WBE Subcontractor Solicitation Sheet), submitting proof of DBE solicitation advertisements, etc.. The owner may specify other methods of demonstrating compliance. m W o a m o c Co 0 �= m .C2 U) C O O N O- (a L UO O Q U O — O O O � C L (� * 'O N O o z 0 � L q o w <L o 0 b o a) LL o o Q Lo C z � N H o � d V) U)l) a) O —Qo L OLL a H U z d 4 o m U m o n. p Y W m O W m O N � c N � O ca 00 .O 2 U 05 O (1) U to L O -vom ¢z� E o2 ca c z 0 C!) M., w E O C N O Q (a N C C6 s 0 0 tf 0 U a a� � U N N c - O)o U N O = ca U N _: C � � U w O H Environmental Protection Agency DBE Coordinator 1595 Wynkoop Street (8P-W-TF) Denver, CO 80202 OMB Control No: 2090-0030 Approved: 05/01/2" Approval Expires: 01/31/2011 Disadvantaged Business Enterprise Program DBE Subcontractor Participation Form NAME OF SUBCONTRACTOR' PROJECT NAME ADDRESS CONTRACT NO. TELEPHONE NO. EMAIL ADDRESS PRIME CONTRACTOR NAME Please use the space below to report any concerns regarding the above EPA -funded project e�, . reason for termination by prime contractor, late payment, e1c.). CONTRACT rIEM NO. ITEM OF WORK OR DESCRIPTION OF SERVICES RECEIVED FROM THE PRIME CONTRACTOR AMOUNT SUBCONTRACTOR WAS PAID BY PRAU CONTRACTOR Subcontractor Signature Title/Date ;bContr'actor is defined as a company, firm, sofa: ventur, or individual who enters into an agreernent with a contractor to pmv se services pursuant to anEPR award of financial assistant EPA FOPM 6100-2 (DBE SubcontreciorPardicipation Form) Environmental �7AIWI Protection Agency OMB Control No: 2090-0030 Approved: 05/01/2008 Approval Expires: 01/31/2011 L3isadvantaged Business Enterprise Program DBE Subcontractor Participation Form The public reporting and recordkeeping burden for this collection of information is estimated to average fifteen (IS) minutes. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden, including the use of automated collection techniques to the Director, Collection Strategies Division, U.S. Environmental Protection Agency (2822), 1200 Pennsylvania Ave., NW, Washington, D.C. 20460. Include the OMB control number in any correspondence. Do not send the completed EPA DBE Subcontractor Participation Form to this address. EPA FORM 6100-2 (DBE Subcontractor Participation Form) m Environmental Protection Agency LIMB Control No: Approved: Approval Expires: Disadvantaged Business Enterprise Program DBE Subcontractor Performance Form NAME OF SUBCONTRACTOR' PROJECT NAME .ADDRESS TELEPHONE NO. E-MAIL ADDRESS PRIME CONTRACTOR NAME CONTRACT ITEM OF WORK OR DESCRIPTION OF SERVICES PRICE OF WOrM ITEMNO. BID TO PRIME SUBMTITEDTO FRDAE CONTRACTOR Currently certified as an IVIBE or WBE under EPA's DBE Pro grain? —Yes No Signature of Prime Contractor Date Print Name Title Signature of Subcontractor Date Print Name Title 'Subcontractor is defined as a company, fir-fi,joint `venture or individual who enLen; into an agreementw-tth a contnact,>r to promde F.A.rvtc!i-; pit mmant to an EPA avvard of fir, a noa I a sstFt an ca. ERk FORNI 6100-3 (DBE Subcontractor Peifortnance Form) 20 11 21 Environmental M AW, 4 Protection Agency OMB Control No; Approved: , Approval Expires: _ Disadvantaged Business Enterprise Program DBE Subcontractor Performance Form The public reporting and recordkeeping burden for this collection of information is estimated to average fifteen (15) minutes. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjustthe existing waysto comply with arrypreviously applicable instructions andrequirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB, control number. Send comments on the AP ency's need for this information, the accuracy of the provided burden estimates, and any su ggested methods for minimizin g respondent burden, including the use of automated collection techniques to the Director, Collection Strategies Division, U.S. EnvironmentalProtection Agency (2822),1200Pennsylvania Ave., NW, Washington, D.C. 20460. Include the OMB control number in any correspondence. Do not send the completed Ei'A DBE Subcontractor Performance Form to this address, EPA FORM 6100-3 (DBE Subcontractor Performance Form) 22 OMB Control No: 2090.0030 Approved: 05/01/2008 ARL Approval Expires: 01/31/2011 Environmental Protection Agency Disadvantaged Business Enterprise Program DBE Subcontractor Utilization Form BID/PROPOSAL NO. PROJECT NAME NAME OF PRIME BIDDER/PROPOSER E-MAIL ADDRESS ADDRESS TELEPHONE NO. FAX NO. The following subcontractors will be used on this ro'ect: COMPANY Nl.ME, ADDRESS, PHONE TYPE OF WORK TO BE ESTIMATED CURRENTLY NUMBER, AND E-MAIL ADDRESS PERFORMED DOLLAR CERTIFIED AMOUNT AS AN MBE OR WBE? I certify under penalty of perjury that the forgoing statements are true and correct. In the event of a replacement of a subcontractor, I will adhere to the replacement requirements set forth in 40 CFR Part 33 Section 33.302(c) Signature of Prime Contractor Date Print Name Title 'Subcontractor is defined as a company, firm, joint venture, or individual who enters into an agreement with a contractor to provide services pursuant to an EPA award of financial assistance. EPA FORM 61004 (DBE Subcontractor Utilization Form) 0Z OMB Control No: 2040-0030 Approved: 05/01/2008 Approval Expires: 01/31/2011 Environmental Protection Agency 04F 0 Disadvantaged Business Enterprise Program DBE Subcontractor Utilization Form The public reporting and recordkeeping burden for this collection of information is estimated to average fifteen (15) minutes. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid ONO control number. Send comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for ininintizing respondent burden, including the use of automated collection techniques to the Director, Collection Strategies Division, U.S. Environmental Protection Agency (2822), 1200 Pennsylvania Ave., NW, Washington, D.C. 20460. Include the OMB control number in any correspondence. Do not send the completed EPA DBE Subcontractor Utilization Form to this address. EPA FORM 6100-4 (DBE Subcontractor Utilization Form) 00 1.05.3 Certification Regarding Debarment, Suspension and Other Responsibility Matters A. INSTRUCTIONS Under Executive Order 12549, an individual or organization debarred or excluded from participation in Federal assistance or benefit programs may not receive any assistance award under a Federal program, or a subagreement thereunder for $25,000 or more. The status of prospective individuals ` or organizations can be checked at: http://epls.arnet.gov/ A prospective prime contractor must submit a completed certification (see form on the following page) or explanation to the project owner for the project. Each prospective subcontractor must submit a completed certification or explanation to the prime contractor for the project. B. HOW TO OBTAIN FORMS t Additional forms may be obtained from the State or may be reproduced. I 25 F SRF Project Number United States Environmental Protection Agency Washington, DC 20460 Certification Regarding Debarment, Suspension, and Other Responsibility Matters The prospective participant certifies to the best of its knowledge and belief that it and its principals. - (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; (b) Have not within a three year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, State, or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a government entity (Federal, State, or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and (d) Have not within a three-year period preceding this application/proposal had one or more public transactions (Federal, State, or local) terminated for cause or default. i understand that a false statement on this certification may be grounds for rejection of this proposal or termination of the award. In addition, under 18 USC Sec. 1001, a false statement may result in a fine of up to $10,000 or imprison ment'for up to 5 years, or both. Typed Name & Title of Authorized Representative Signature of Authorized Representative Date I am unable to certify to the above statements. My explanation is attached. 1.05.4 Prohibition Against Listed Violated Facilities A. REQUIREMENTS (1) To comply with all the requirements of section 114 of the Clean Air Act, as amended (42 U.S.C. 1857, et seq., as amended by Pub. L. 92-604) and section 308 of the Clean Water Act (33 U.S.C. 1251, as amended), respectively, which relate to inspection, monitoring, entry, reports, and information, as well as other requirements specified in section 114 and section 308 of the Air Act and the Water Act, respectively, and all regulations and guidelines issued thereunder before the award of this contract. (2) That no portion of the work required by this prime contract will be performed in a facility listed on the Environmental Protection Agency list of violating facilities on the date when this contract was awarded unless and until the EPA eliminates the name of such facility or facilities from the listing. (3) To use his best efforts to comply with clean air and clean water standards at the facilities in which the contract is being performed. (4) To insert the substance of the provisions of this clause, including this paragraph (4), in any nonexempt subcontract. B. DEFINITIONS (1) Air Act means the Clean Air Act, as amended (42 U.S.C. 1857 et seq.). (2) Water Act means the Clean Water Act, as amended (33 U.S.C. 1251 et seq.). (3) Clean Air Standards means any enforceable rules, regulations, guidelines, standards, limitations, orders, controls, prohibitions, or other requirements which are contained in, issued under, or otherwise adopted under the Air Act or Executive Order 11738, an applicable implementation plan as described in section 110 (d) of the Air Act (42 U.S.C. 1857c-5(d)), an approved implementation procedure or plan under section 111 (c) or section 111(d), or an approved implementation procedure under section 112(d) of the Air Act (42 U.S.C. 1857c-7(d)). (4) Clean Water Standards means any enforceable limitation, control, condition, prohibition, standard, or other requirement which is promulgated under the Water Act or contained in a permit issued to a discharger by the Environmental Protection Agency or by a State under an approved program, as authorized by section 402 of the Water Act (33 U.S.C. 1342), or by a local government to ensure compliance with pretreatment regulations as required by section 307 of Water Act (33 U.S.C. 1317). (5) Compliance means compliance with clean air or water standards. Compliance shall also mean compliance with a schedule or plan ordered or approved by a court of competent jurisdiction, the Environmental Protection Agency in accordance with the requirements of the Air Act or Water Act and regulations. (6) Facility means any building, plant, installation, structure, mine, vessel, or other floating craft, location, or site of operations, owned, leased, or supervised by a contractor or subcontractor, to be used in the performance of a contract or subcontract. Where a location or site of operations contains or includes more than one building, plant, installation, or structure, the entire location or site shall be deemed to be a facility except where the Director, Office of Federal Activities, Environmental Protection Agency, determines that independent facilities are located in one geographical area. 1.05.5 Discovery of Archaeological and other Historical Items In the event of an archaeological find during any phase of construction, the following procedure will be followed: (1) Construction shall be halted, with as little disruption to the archaeological site as possible, 27 (2) The Contractor shall notify the Owner who shall contact the State Historical Preservation Officer. (3) The State Historical Preservation Officer may decide to have an archaeologist inspect the site and make recommendations about the steps needed to protect the site, before construction is resumed. (4) The entire event should be handled as expediently as possible in order to hold the loss in construction time to a minimum while still protecting archaeological finds. A similar procedure should be followed with regard to more recent historical resources. Should any artifacts, housing sites, etc., be uncovered, the same procedure should be followed as for an archaeological find. In the event archaeological/historical data are evaluated to meet National Register criteria, the Advisory Council on Historic Preservation may be notified and asked to comment. 1.05.6 Williams -Steiger Occupational Safety and Health Act of 1970 A. AUTHORITY (1) The contractor is subject to the provisions of the Williams -Steiger Occupational Safety and Health Act of 1970. (2) These construction documents and the joint and several phases of construction hereby contemplated are to be governed, at all times, by applicable provisions of the Federal law(s) , including but not limited to the latest amendment of the following: a. Williams -Steiger Occupational Safety and Health Act of 1970, Public Law 94-596; b. Part 1910 - Occupational Safety and Health Standards, Chapter XVII of Title 29, Code of Federal Regulations; c. Part 1926 - Safety and Health Regulations for Construction, Chapter XVII of Title 29, Code of Federal Regulations. B. SAFETY AND HEALTH PROGRAM REQUIREMENTS (1) This project, its prime contractor and its subcontractors, shall at all times be governed by Chapter XVII of Title 29, Code of Federal Regulations, Part 1926 - Safety and Health Regulations for Construction (29 CFR 22801), as amended to date. (2) To implement the program and to provide safe and healthful working conditions for all persons, general project safety meetings will be conducted at the site at least once each month during the course of construction, by the construction superintendent or his/her designated safety officer. Notice of such meeting shall be issued not less than three (3) days prior, stating the exact time, location, and agenda to be included. Attendance by the owner, architect, general foreman, shop steward(s), and trades, or their designated representatives, witnessed in writing as such, shall be mandatory. (3) To further implement the program, each trade shall conduct a short gang meeting, not less than once a week, to review project safety requirements mandatory for all persons during the coming week. The gang foreman shall report the agenda and specific items covered to the project superintendent, who shall incorporate these items in his/her daily log or report. i (4) The prime contractor and all subcontractors shall immediately report all accidents, injuries, or health hazards to the owner and architect, or their designated representatives, in writing. This shall not obviate any mandatory reporting under the provisions of the Occupational Safety and Health Act of 1970. 28 (5) This program shall become a part of the contract documents and the contract between the owner and prime contractor, prime contractor and all subcontractors, as though fully written therein 1.05.7 Wage Determination The Contractor must post the wage scales and pay, as a minimum, prevailing wage in accordance with the Federal Labor Standards Provisions (Davis -Bacon). Refer to Exhibit C. 1.05.8 Access 1. The recipient must insure that representatives of the Environmental Protection Agency and the State will have access to project records and the project work whenever it is in preparation or progress and must provide proper facilities for such access and inspection. The recipient must allow the Regional Administrator, the Comptroller General of the United States, the State agency, or any authorized representative, to have access to any books, documents, plans, reports, papers, including records of contractors which are pertinent to the project for the purpose of making audit, examination, excerpts, copies, and transcriptions thereof. The recipient must insure that a party to a subagreement will afford access to such project work, sites, documents, and records. 1.05.9 Construction Site Erosion and Sediment Control Measures Every effort shall be made by the contractors and subcontractors to prevent and correct problems associated with erosion and runoff processes which could occur during and after project construction. The efforts should be consistent with applicable local ordinances, the EPA Nonpoint Source Pollution Control Guidance and Department of Environmental Quality Stormwater Management Plan. Wherever appropriate, the contractor's efforts shall reflect the following engineering principles: 1. When appropriate, land grading and excavating should be kept at a minimum to reduce the possibility of creating runoff and erosion problems which require extensive control measures. 2. Whenever possible, topsoil should be removed and stockpiled before grading begins. 3. Land exposure should be minimized in terms of area and time. 4. Exposed areas subject to erosion should be covered as quickly as possible by means of mulching or vegetation. 5. Natural vegetation should be retained whenever feasible. 6. Appropriate structural or agronomic practices to control runoff and sedimentation should be provided during and after construction. 7. Early completion of stabilized drainage systems (temporary and permanent systems) will substantially reduce erosion potential. 8. Roadways and parking lots should be paved or otherwise stabilized as soon as feasible. 9. Clearing and grading should not be started until a firm construction schedule is known and can be effectively coordinated with the grading and clearing activity. 1.06 Exhibits Im n w w 0 m Y Q J m w J m J w 0 cc O in co O Z w w U H S (D zzD- r- �v w J U m r-.41 { 1 WE • w LU —1 Kr X❑U)<Q0<L NOO_WU4 00 U) a I O ¢to w J OQ ILZ O D Z W U) JO IQ_ z "It LLI 000-> 0ZwCU o-Om wz< w Q�Q Elf LU 0 w � co co 0- WZ"o ww cc0w Z W 7 0 w IL w J m w Q N 000 ty-Oui X�O w(LLL N T p - Z Jp x N ❑ (/) HUD Form 4010-Federal Labor Standards Provisions w EXHIBIT C (Required for SRF Projects) Federal Labor Standards Provisions For Federally Assisted Construction Contracts United States Department of Labor CFR Code of Federal Regulations Pertaining to ESA (Federal Davis -Bacon Wages) 33 Federal Labor Standards Provisions For Federally Assisted Construction Contracts United States Department of Labor CFR Code of Federal Regulations Pertaining to ESA (Federal Davis -Bacon Wages) Title 29, Chapter I, Part 5, Subpart A (29 CFR 5.5 ) Section Name: Contract provisions and related matters. (a) The Recipient shall assure that the subrecipient(s) shall insert in full in any contract in excess of $2,000 which is entered into for the actual construction, alteration or repair, including painting and decorating, of a treatment work under the CWSRF or a construction project under the DWSRF financed in whole or in part from Federal funds or in accordance with guarantees of a Federal agency or financed from funds obtained by pledge of any contract of a Federal agency to make a loan, grant or annual contribution (except where a different meaning is expressly indicated), and which is subject to the labor standards provisions of any of the acts listed in § 5.1 or the applicable FY appropriation requirements, the following clauses: (1) Minimum wages. (i) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (a)(1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in Sec. 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under paragraph (a)(1)(ii) of this section) and the Davis -Bacon poster (WH-1321) shall be posted at all times by the contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met: (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the 91 contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (C) In the event the contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(ii) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification. (iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the contractor does not make payments to a trustee or other third person, the contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, That the Secretary of Labor has found, upon the written request of the contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (2) Withholding. The loan or grant recipient shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the contractor under this contract or any other Federal contract with the same prime contractor, or any other federally - assisted contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the contractor or any subcontractor the full amount of wages required by the contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the contract, the (Agency or SRF program) may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. (3) Payrolls and basic records. (i) Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the i Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such I benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the 35 registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii)(A) The contractor shall submit weekly for each week in which any contract work is performed a -copy of all payrolls to the SRF program if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit the payrolls to the applicant, sponsor, or owner, as the case may be, for transmission to the SRF program. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee's social security number). The required weekly payroll information may be submitted in any form desired. Optional Form WH-347 is available for this purpose from the Wage and Hour Division Web site at http://www.dol._qov/whd/forms/wh347instr.htm or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker, and shall provide them upon request to the SRF program if the agency is a party to the contract, but if the agency is not such a party, the contractor will submit them to the applicant, sponsor, or owner, as the case may be, for transmission to the SRF program, the contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, sponsor, or owner).. (B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following: (1) That the payroll for the payroll period contains the information required to be provided under Sec. 5.5 (a)(3)(ii) of Regulations, 29 CFR part 5, the appropriate information is being maintained under Sec. 5.5 (a)(3)(i) of Regulations, 29 CFR part 5, and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3; (3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH-347 shall satisfy the requirement for submission of the— Statement of Compliance" required by paragraph (a)(3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. (iii) The contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the loan or grant recipient or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the contractor or subcontractor fails to submit the required records or to make them available, the Federal agency may, after written notice to the contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. (4) Apprentices and trainees (i) Apprentices. Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Office of Apprenticeship Training, Employer and Labor Services, or with a State Apprenticeship Agency recognized by the Office, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually 36 registered in the program, but who has been certified by the Office of Apprenticeship Training, Employer and Labor Services or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered program shall be paid Mt not less than the applicable wage rate on the wage determination, for the work actually performed. Where a contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Office of Apprenticeship Training, Employer and Labor Services, or a State Apprenticeship Agency recognized by the Office, withdraws approval of an apprenticeship program, the contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (ii) Trainees. Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (III) Equal employment opportunity. The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. (5) Compliance with Copeland Act requirements. The contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this contract. (6) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the SRF program may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR 5.5. 37 (7) Contract termination: Debarment. A breach of the contract clauses in 29 CFR 5.5 may be grounds for termination of the contract, and for debarment as a contractor and a subcontractor as provided in 29 CFR 5.12. (8) Compliance with Davis -Bacon and Related Act requirements, All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this contract. (9) Disputes concerning labor standards. Disputes arising out of the labor standards provisions of this contract shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. (10) Certification of eligibility. (i) By entering into this contract, the contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the contractor's firm is a person or firm ineligible to be awarded Government contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (ii) No part of this contract shall be subcontracted to any person or firm ineligible for award of a Government contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (iii) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001. (b) Contract Work Hours and Safety Standards Act. The Agency Head shall cause or require the contracting officer to insert the following clauses set forth in paragraphs (b)(1), (2), (3), and (4) of this section in full in any contract in an amount in excess of $100,000 and subject to the overtime provisions of the Contract Work Hours and Safety Standards Act. These clauses shall be inserted in addition to the clauses required by Sec. 5.5(a) or 4.6 of part 4 of this title. As used in this paragraph, the terms laborers and mechanics include watchmen and guards. (1) Overtime requirements. No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. (2) Violation; liability for unpaid wages; liquidated damages. In the event of any violation of the clause set forth in paragraph (b)(1) of this section the contractor and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (b)(1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (b)(1) of this section. (3) Withholding for unpaid wages and liquidated damages. The loan or grant recipient shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally -assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (b)(2) of this section. (4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (b)(1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (b)(1) through (4) of this section. (c) In addition to the clauses contained in paragraph (b), in any contract subject only to the Contract Work Hours and Safety Standards Act and not to any of the other statutes cited in Sec. 5.1, the Agency Head shall cause or require the contracting officer to insert a clause requiring that the contractor or subcontractor shall maintain payrolls and basic payroll records during the course of the work and shall preserve them for a period of three years from the completion of the contract for all laborers and mechanics, including guards and watchmen, working on the contract. Such records shall contain the name and address of each such employee, social security number, correct classifications, hourly rates of wages paid, daily and weekly number of hours worked, deductions made, and actual wages paid. Further, the Agency Head shall cause or require the contracting officer to insert in any such contract a clause providing that the records to be maintained under this paragraph shall be made available by the contractor or subcontractor for inspection, copying, or transcription by authorized representatives of the loan or grant recipient and the Department of Labor, and the contractor or subcontractor will permit such representatives to interview employees during working hours on the job. http://www,dol.gov/dol/al[cfr/ESA/Title 29/Part 5/29CFR5.5.httn a