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Home My WebLink AboutReso 2009-1495 RESOLUTION NO. 2009 - J ~ 95 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AWARDING BID NO. 09-09-01 TO AND ENTERING INTO AN AGREEMENT WITH TENEX ENTERPRISES, INC., FOR THE MEDIAN CLOSURE AT l7STH TERRACE ON COLLINS AVENUE AND SR AlA/COLLINS A VENUE AT 183RD STREET STREETSCAPE IMPROVEMENTS PROJECT, IN AN AMOUNT NOT TO EXCEED FOUR HUNDRED EIGHTY-SEVEN THOUSAND SIX HUNDRED THIRTY -FOUR DOLLARS ($487,634.00), IN SUBST ANTIALL Y THE SAME FORM AS EXHIBIT "A", BASED ON THE PRICING, TERMS, AND CONDITIONS LISTED IN THE BID RESPONSE, A TT ACHED HERETO AS EXHIBIT "B"; AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; AUTHORIZING THE CITY MANAGER AND CITY ATTORNEY TO DO ALL THINGS NECESSARY TO EFFECTUATE THE TERMS OF THE AGREEMENT; PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Commission has long desired to have a consistent streetscape theme along Collins Avenue; and WHEREAS, the City is now in need of a contractor to furnish all materials, equipment and labor for the median closure at 175th Terrace on Collins Avenue and SRA1A1Collins Avenue at 183rd Street streetscape improvements; and WHEREAS, the City issued and advertised Bid No. 09-09-01, for Median Closure at l7Sth Terrace on Collins Avenue and SR AlA/Collins Avenue Streetscape Improvements Project, for which four (4) responses were received; and WHEREAS, staffhas determined that the bid response from Tenex Enterprises, Inc., attached hereto as Exhibit "B", is the lowest responsive responsible bid; and WHEREAS, Calvin, Giordano and Associates, Inc., the City's engineering consultant, has recommended the bid award, based on a careful review of the line items and consideration for the Contractor's reputation; and WHEREAS, the City wishes to award Bid No. 09-09-01 to and enter into an agreement with Tenex Enterprises, Inc. to provide services on a unit price basis for the Median Closure at l7Sth Terrace on Collins Avenue and SR AlA/Collins Avenue Streetscape Improvements Project, in an amount not to exceed Four Hundred Eighty-Seven Thousand Six Hundred Thirty-Four Dollars ($487,634.00), in substantially the same form as Exhibit "A". NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF SUNNY ISLES BEACH, FLORIDA, AS FOLLOWS: Section 1. Incorporation of Recitals. The recitals set forth in this resolution are incorporated herein by reference as if fully set forth herein. R2009- Tenex Enterprises Collins Ave Streetscape (Bid 09-09-01) Page 1 of2 Section 2. Award of Bid and Approval of Agreement. The City Commission hereby awards Bid No. 09-00-01 to and enters into an agreement with Tenex Enterprises, Inc., in an amount not to exceed Four Hundred Eighty-Seven Thousand Six Hundred Thirty-Four Dollars ($487,634.00), in substantially the same form as Exhibit "A", based on the pricing, terms, and conditions listed in the bid response, attached hereto as Exhibit "B". Section 3. Authorization of Mayor. The Mayor is hereby authorized to execute said Agreement. Section 4. Authorization of City Manager and City Attorney. The City Manager and City Attorney are hereby authorized to do all things necessary to effectuate the terms of this Agreement. Section 5. Effective Date. This Resolution will become effective upon adoption. PASSED AND ADOPTED this 29th day of October 2009. j~dit~ ATTEST: ~A~ Jane A. Hines, CMC, City Clerk FFICIENCY: Moved by: Lo~~~"Z..IJJ '110. ~y TH~CUL Vote: ~-O-' Mayor Edelcup V(Y es) Vice Mayor Thaler ----1L-(Yes) Commissioner Brezin ~(Yes) Commissioner Goodman ~(Yes) Commissioner Scholl- ~ (Yes) Seconded by: _(No) _(No) _(No) _(No) _(No) R2009- Tenex Enterprises Collins Ave Streetscape (Bid 09-09-01) Page 2 of2 EJCDC STANDARD FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR ON THE BASIS OF A STIPULATED PRICE THIS AGREEMENT is dated as of the between CITY OF SUNNY ISLES BEACH (hereinafter called CONTRACTOR). day of in the year 20_ by and (hereinafter called OWNER) and 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. The Work is generally described as follows: This project involves two separate elements, one is a median closure to limit the traffic movements on NE 175th Terrace on Collins Avenue, and the other element consists of streetscape improvements along section of State Road AlA (Collins Avenue and 183rd street), work is comprised of demolition of existing sidewalk with a replacement comprised of concrete pavers. New pedestrian and landscape lighting will also be part of the project along with new landscaping and irrigation. Article 2. ENGINEER. The Project has been designed by: Calvin Giordano and Associates, Inc. 1800 Eller Drive, Suite 600 Fort Lauderdale, FL 33316 L1VS Associates 21 21 Ponce de Leon Blvd., Suite 610 Coral Gables, FL 33134 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 3. CONTRACT TIMES. 3.1. The work will be substantially completed within 130 calendar days after the date when the Contract Times commence to run completed and ready for final payment in accordance with paragraph 14.07 of the General Conditions within 160 calendar days after the date when the Contract Times commence to run. 3.2. LIQUIDATED DAMAGES. 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 3.1 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. They also recognize the delays, expense and difficulties involved in proving 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 One Thousand Five Hundred and 00/100 dollars ($1500.00) 09/09 00500-1 Exhibit "A" 03-4122.F for each day that expires after the time specified in paragraph 3.1 for each Substantial Completion date until the Work is substantially complete. If CONTRACTOR shall neglect, refuse or fail to complete the project by the project completion date within the time specified in paragraph 3.1 for completion and readiness for final payment or any proper extension thereof granted by OWNER, CONTRACTOR shall pay OWNER One Thousand and 00/100 dollars ($1000.00) for each day that expires after the time specified in paragraph 3.1 for completion and readiness for final payment. Article 4. CONTRACT PRICE. OWNER shall pay CONTRACTOR for completion of the Work in accordance with the Contract Documents an amount in current funds equal to the sum of the amounts determined pursuant to paragraphs 4.1 below: FOR A LUMP SUM CONTRACT OF: TOTAL BASE BID (Lump sum, Unit prices, and contingency items) (use words) ($ figures As provided in paragraph 11 .03 of the General Conditions estimated quantities are not guaranteed, and dete"l'ti1inations 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 11.03.B of the General Conditions. Article 5. PAYMENT PROCEDURES. 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. 5.1. Progress Payments; Retainage. OWNER shall make progress payments on account of the contract Price on the basis of CONTRACTOR's Applications for Payment as recommended by ENGINEER, on or about the last day of each month during construction as provided in paragraphs 5.1.1. and 5.1.2. below. All such payments will be measured by the schedule of values established in paragraph 2.07 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. 5.1.1. 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 ENGINEER shall determine, or OWNER may withhold, in accordance with paragraph 14.02 of the General Conditions. ~ % of Work completed (with the balance being retainage). If Work has been 50% completed as determined by ENGINEER, and if the character and progress of the Work have been satisfactory to OWNER and ENGINEER, OWNER, on recommendation of ENGINEER, may determine that as long as the character and progress of the Work remain satisfactory to them, there will be no additional retainage on account of Work completed, in which case the remaining progress payments prior to Substantial Completion will be in an amount equal to 100% of the Work completed. 09/09 00500-2 03-4122.F ~ % (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 and within Section 9-6.5 partial payments as provided in FDOT Standard Specifications for Road and Bridge Construction. 5.1.2. When circumstances beyond the CONTRACTORS control arise (as determined by the OWNER) the OWNER may allow the total payment to the CONTRACTOR to increase to 98% of the contract price (with the balance being retainage), less such amounts as ENGINEER shall determine, only after receipt of the final as-builts and upon substantial completion of the project and in accordance with Paragraph 14.02 of the General Conditions. 5.2. Final Payment. 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 6. INTEREST. (Not Applicable) Article 7. CONTRACTOR'S REPRESENTATIONS. In order to induce OWNER to enter into this Agreement CONTRACTOR makes the following representations: 7.1. CONTRACTOR has examined and carefully studied the Contract Documents (including the Addenda listed in paragraph 8) and the other related data identified in the Bidding Documents including "technical data." 7 .2. 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. 7.3. CONTRACTOR 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. 7.4. CONTRACTOR has carefully studied all 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 4.2.1. of the General Conditions. CONTRACTOR accepts the determination set forth in paragraph SC-4.2 of the Supplementary Conditions of the extend of the "technical data" contained in such reports and drawings upon which CONTRACTOR is entitled to rely as provided in paragraph 4.2 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. CONTRACTOR has obtained and carefully studied (or assumes responsibility for having done so) all such additional 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 CONTRACTOR and safety precautions and programs incident thereto. CONTRACTOR does not consider that any additional examinations, investigations, explorations, tests, studies or data are necessary for 09/09 00500-3 03-4122.F 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. 7.5. 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. 7.6. CONTRACTOR has correlated the information known to CONTRACTOR, 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. 7.7. CONTRACTOR has given ENGINEER written notice of all conflicts, errors, ambiguities or discrepancies that CONTRACTOR has discovered in the Contract Documents and the written resolution thereof by ENGINEER 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. Article 8. CONTRACT DOCUMENTS. The Contract Documents which comprise the entire agreement between OWNER and CONTRACTOR concerning the Work consist of the following: 8.1. Notice to Bidders (pages 00020-1 to 00020-2, inclusive). 8.2. Instructions to Bidders (pages 00100-1 to 00100-7, inclusive). 8.3. Bid Forms (pages 00300-1 to 00300-4, inclusive). 8.4. Bid Bond (pages 00401-1 to 00401-2, inclusive). 8.5. Public Entity Crimes Affidavit (pages 00402-1 to 00402-2, inclusive). 8.6. Trench Safety Act (page 00403-1, inclusive). 8.7. Disadvantaged Business Enterprise Utilization (pages 00404-1 to 00404-6, inclusive). 8.8. Restrictions, Prohibitions, Controls, and Labor Provisions (page 00405-1, inclusive). 8.9. Information Required from Bidders (pages 00420-1 to 00420-3, inclusive). 8.10. This Agreement (EJCDC Standard Form of Agreement pages 00500-1 to 00500-10, inclusive). 8.11. Payment Bond (pages 00600-1 to 00600-2, inclusive). 8.12. Performance Bond (pages 00601-1 to 00601-2, inclusive). 8.13. Acknowledgment of Conformance with a.S.H.A. Standards (page 00650-1, inclusive), 8.14. General Conditions (pages 00700-1 to 00700-41, inclusive). 8.15. Supplementary Conditions (pages 00800-1 to 00800-16, inclusive). 8.16. Addenda (page 00900-1, inclusive). 8.17. Supplemental Specifications (pages 01000-1 to 01000-214, inclusive). 09/09 00500-4 03-4122.F 8.18. Trash Receptacles (prefabricated) Benches (prefabricated) (pages 01001-1 to 01001-2, inclusive) . 8.19. The following which may be delivered or issued after the Effective Date of this Agreement and are not attached hereto: All Written Amendments and other documents amending, modifying or supplementing the Contract Documents pursuant to paragraph 3.04 of the General Conditions. The documents listed in paragraphs 8.2 et seq. above are attached to this Agreement (except as expressly noted otherwise above). There are no Contract Documents other than those listed above in this Article 13. The Contract Documents may only be amended, modified or supplemented as provided in paragraph 3.04 of the General Conditions. Article 9. MISCELLANEOUS. 9.1. Terms used in this Agreement which are defined in Article 1 of the General Conditions will have the meanings indicated in the General Conditions. 9.2. No assignment by a party hereto of any rights under or interests in the Contract Documents will be binding on another party thereto 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 riot be as-sign-ed 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. 9.3. 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. 9.4. Any provisions 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 provisions or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 9.5. OTHER PROVISIONS. 9.5.1. DRAWINGS DESCRIPTION SHEET NO. Median Closure Plans Existing Conditions / Demolition Plan Paving and Grading Plan Paving and Grading Details Pavement Signage and Marking Plans C100 C200 C201 C600 09/09 00500-5 03-4122.F Streetscape Improvements Plans Cover Sheet Demolition Irrigation Service Plan Details Tree Protection Paving Irrigation Planting Furnishing Details Specifications Ground Floor Electrical Lighting Electrical Details GO.1 D1.0 C-1 MOT-1 MOT-2 L1 L2 L3 L4 L5 L6 - L7 L8 - L9 E1.0-E1.1 E2.0 9.5.2. In accordance with the indemnification provision contained in the General Conditions, the CONTRACTOR agrees to indemnify and save harmless the CITY OF SUNNY ISLES BEACH, and their agents and employees, from or on account of any injuries or damages received or sustained by any person or person during or on account of any operations connected with the construction of all Work; or by or in consequence of any negligence in connection with the same; or by use of any improper materials or by or on account of any act or omission of the said Contractor, subcontractor, agents, servants, or employees; and 9.5.3. The CONTRACTOR agrees to maintain in force at all times during the life of the construction, public liability insurance, by separate certificate, in an amount not less than $1,000,000 for injuries, including willful death, to anyone person and subject to those same limits for each person, in an amount not less that $1,000,000 for damages as a result of each occurrence and property damage insurance and in an amount not less than $1,000,000 for damages on anyone occurrence. Such policy shall specifically protect the CITY OF SUNNY ISLES BEACH, AND their agents and employees, by making them an additional insured, and shall not be modified or canceled without thirty (30) days written notice to the CITY OF SUNNY ISLES BEACH. 9.5.4 Should the final completion and acceptance of the work herein embraced together with any modification or additions be delayed beyond the time herein set because of lace of performance by the Contract, it is understood and agreed that aside from any other liquidated damage per day for such delay from such time until the work is completed and accepted as herein provided, all costs of engineering and inspection on behalf of the Owner will be charged to the contractor and deducted from any estimate or payment otherwise due and payable to him from time to time. The costs of engineering and inspection which may be charged to the Contractor by the Owner under this article shall be equal to the Engineer's charges to the Owner. 09/09 00500-6 03-4122.F IN WITNESS WHEREOF, OWNER and CONTRACTOR have signed this Agreement in Five (5) parts. 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 Agreement) . , 20_ (which is the Effective Date of the ATTEST: By [CORPORATE SEAL] [CORPORATE SEAL] Address for giving notices License No. Agent for service of process (If CONTRACTOR is a corporation, attached evidence of authority to sign). 09/09 00500-7 03-4122.F SIGNATURE PAGE FOR CONTRACTS/AGREEMENTS CITY EXECUTIONS IN WITNESS WHEREOF, the parties hereto have made and executed this (Agreement or Contract) on the respective dates under each signature: City of Sunny Isles Beach through its City Commission, signing by and through its Mayor, authorized to execute same by Commission action on the _ day of _, and CONTRACTOR authorized to execute same. CITY OF SUNNY ISLES BEACH, through its City Commission ATTEST: By: Norman S. Edelcup, Mayor _day of ,2009 Jane Hines, City Clerk Approved as to form and legality by Office of the City Attorney By: Rick Conner, P.E, City Manager _day of ,2009 By: Hans Ottinot, City Attorney _day of ,2009 (CITY SEAL) 09/09 00500-8 03-4122.F CERTIFICATE AS TO CORPORATE PRINCIPAL I, , certify that I am the of and . , that Dade County Florida for I who signed the Bid with City of Sunny Isles, , City Bid No. of said Corporation with full authority to sign said Bid on is behalf of the Corporation. Signed and sealed this _ day of ,20_. (SEAL) Signature Typed w/Title STATE OF FLORIDA COUNTY OF DADE SWORN TO AND SUBSCRIBED before me this _ day of ,20_. My Commission Expires: Notary Public 09/09 00500-9 03-4122.F CERTIFICATE AS TO AUTHORIZED CORPORATE PERSONNEL I, , certify that I am the of who signed the Bid with City of Sunny Isles Beach, Dade County Florida for the project titled , Consultant Project No. I and that the following persons have the authority to sign payment requests on behalf of the Corporation: (Signature) (Typed Name wlTitle) (Signature) (Typed Name wlTitle) (Signature) (Typed Name wlTitle) Signed and sealed this _ day of ,20_. (SEAL) Signature Typed w/Title STATE OF FLORIDA COUNTY OF DADE SWORN TO AND SUBSCRIBED before me this _ day of ,20_. My Commission Expires: Notary Public 09/09 00500-10 03-4122.F THIS PAGE INTENTIONALLY LEFT BLANK 09/09 00500-11 03-4122.F "'=I Construction Payment Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY (Name and Principal Place of Business): OWNER (Name and Address): CITY OF SUNNY ISLES BEACH 18070 Collins Avenue Sunny Isles Beach, Florida 33160 CONSTRUCTION CONTRACT Date: Amount: $ Description (Name and Location): Median Closure at NE 175th Terrace on Collins Ave. and SR A 1 A/Collins Ave. at 183rd St. Streetscape Improvements City of Sunny Isles Beach BOND Date (Not earlier than Construction Contract Date): Amount: $ Modifications to this Bond Form: CONTRACTOR AS PRINCIPAL Company SURETY (Corp. Seal) Company (Corp. Seal) Signature: Name and Title: Signature: Name and Title: CONTRACTOR AS PRINCIPAL Company SURETY (Corp. Seal) Company (Corp. Seal) Signature: Name and Title: Signature: Name and Title: EJCDC No. 191O-28B (1984 Edition) Prepared through the joint efforts of the Surety Association of America, Engineers' Joint Contract Documents Committee, The Associated General Contractors of America, American Institute of Architects, American Subcontractors Association, and the Associated Specialty Contractors. 09/09 00600-1 03-4122.F 1. The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2. With respect to the Owner, this obligation shall be null and void if the Contractor: 2.1. Promptly makes payment, directly or indirectly, for all sums due Claimants, and 2.2. Defends, indemnifies and holds harmless the Owner from all claims, demands, liens or suits by any person or entity who furnished labor, materials or equipment for use in the performance of the Construction Contract, provided the Owner has promptly notified the Contractor and the Surety (at the address described in Paragraph 12) of any claims, demands, liens or suits and tendered defense of such claims, demands, liens or suits to the Contractor and the Surety, and provided there is no Owner Default. 3. With respect to Claimants, this obligation shall be null and void if the Contractor promptly makes payment, directly or indirectly, for all sums due. 4. The Surety shall have no obligation to Claimants under this Bond until: 4.1. Claimants who are employed by or have a direct contract with the Contractor have given notice to the Surety (at the address described in Paragraph 12) and sent a copy, or notice thereof, to the Owner. stating that a claim is being made under this Bond and, with substantial accuracy, the amount of the claim. 4.2. Claimants who do not have a direct contract with the Contractor: 1. Have furnished written notice to the Contractor and sent a copy, or notice thereof, to the Owner, within 90 days after having last performed labor or last furnished materials or equipment included in the claim stating, with substantial accuracy, the amount of the claim and the name of the party to whom the materials were furnished or supplied or for whom the labor was done or performed: and 2. Have either received a rejection in whole or in part from the Cimtractor; or not received-'w,thin 30 days of furnishing the above notice any communication from the Contractor by which the Contractor has indicated the claim will be paid directly or indirectly: and 3. Not having been paid within the above 30 days, have sent a written notice to the Surety (at the address described in paragraph 12) and sent a copy, or notice thereof, to the Owner, stating that a claim is being made under this Bond and enclosing a copy of the previous written notice furnished to the Contractor. 5. If a notice required by Paragraph 4 is given by the Owner to the Contractor or to the Surety. that is sufficient compliance. 6. When the Claimant has satisfied the conditions of Paragraph 4, the Surety shall promptly and at the Surety's expense take the following actions: 6.1. Send an answer to the Claimant, with a copy to the Owner, within 45 days after receipt of the claim, stating the amounts that are undisputed and the basis for challenging any amounts that are disputed. 6.2. Payor arrange for payment of any undisputed amounts. 7. The Surety's total obligation shall not exceed the amount of this Bond, and the amount of this Bond shall be credited for any payments made in good faith by the Surety. 8. Amounts owned by the Owner to the Contractor under the Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, under any Construction Performance Bond. By the Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the performance of the Construction Contract are dedicated to satisfy obligations of the Contractor and the Surety under this Bond, subject to the Owner's priority to use the funds for the completion of the work. 9. The Surety shall not be liable to the Owner, Claimants or others for obligations of the Contractor that are unrelated to the Construction Contract. The Owner shall not be liable for payment of any costs or expenses of any Claimant under this Bond, and shall have under this Bond no obligations to make payments to, give notices on behalf of, or otherwise have obligations to Claimants under this Bond. 10. The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to relate subcontracts, purchase orders and other obligations. 11. No suit or action shall be commenced by a Claimant under this Bond other than in a court of competent jurisdiction in the location in which the work or part of the work is located or after the expiration of one year from the date (1) on which the Claimant gave the notice required by Subparagraph 4.1 or Clause 4.2 (Hi), or (2) on which the last labor or service was performed by anyone or the last materials or equipment were furnished by anyone under the construction Contract, whichever of (1) or (2) first occurs. If the provisions of this Paragraph are void or prohibited by law, the minimum period of limitation available to sureties as a defense in the jurisdiction of the suit shall be acceptable. 12. Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. Actual receipt of notice by Surety, the Owner or the Contractor, however accomplished, shall be sufficient compliance as of the date received at the address shown on the signature page. 13. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted here from and provisions confonning to such statutory or Qt!Jer !c:gal requirement shall be deemed incorporated herein. The intent is, that this Bond shall be construed as a statutory bond and not as a common law bond. 14. Upon request by any person or entity appearing to be a potential beneficiary of this Bond, the Contractor shall promptly furnish a copy of this Bond or shall permit a copy to be made. 15. DEFINITIONS 15.1. Claimant: An individual or entity having a direct contract with the Contractor or with a subcontractor of the Contractor to furnish labor. materials or equipment for use in the performance of the Contract. The intent of this Bond shall be to include without limitation in the terms "labor. materials or equipment" that part of water, gas, power, light, heat, oil, gasoline, telephone service or rental equipment used in the Construction Contract, architectural and engineering services required for performance of the work of the Contractor and the Contractor's subcontractors, and all other items for which a mechanic's lien may be asserted in the jurisdiction where the labor, materials or equipment were furnished. 15.2. Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 15.3. Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (FOR INFORMATION ONLY-Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or other party): EJCDC No. 1910-288 (1984 Edition) Prepared through the joint efforts of the Surety Association of America, Engineers' Joint Contract Documents Committee, The Associated General Contractors of America, American Institute of Architects, American Subcontractors Association, and the Associated Specialty Contractors. 09/09 00600-2 03-4122.F Construction Performance Bond Any singular reference to Contractor, Surety, Owner or other party shall be considered plural where applicable. CONTRACTOR (Name and Address): SURETY (Name and Principal Place of Business): OWNER (Name and Address): CITY OF SUNNY ISLES BEACH 18070 Collins Avenue Sunny Isles Beach, Florida 33160 CONSTRUCTION CONTRACT Date: Amount: $: Description (Name and Location): Median Closure at NE 175th Terrace on Collins Ave. and SR A 1 A/Collins Ave. at 183rd St. Streetscape Improvements City of Sunny Isles Beach BOND Date (Not earlier than Construction Contract Date): Amount: $: Modifications to this Bond Form: CONTRACTOR AS PRlNCIPAL Company SURETY (Corp. Seal) Company (Corp. Seal) Signature: Name and Title: Signature: Name and Title: CONTRACTOR AS PRlNCIPAL Company SURETY (Corp. Seal) Company (Corp. Seal) Signature: Name and Title: Signature: Name and Title: EJCDC No. 1910-28A (1984 Edition) Prepared through the joint efforts of the Surety Association of America, Engineers' Joint Contract Documents Committee, The Associated General Contractors of America, American Institute of Architects, American Subcontractors Association, and the Associated Specialty Contractors. 09/09 00601-1 03-4122.F 1. The Contractor and the Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 2. If the Contractor performs the Construction Contract, the Surety and the Contractor shall have no obligation under this Bond, except to participate in conferences as provided in Subparagraph 3.1. 3. If there is no Owner Default, the Surety's obligation under this Bond shall arise after: 3.1. The Owner has notified the Contractor and the Surety at its address described in Paragraph 10 below, that the Owner is considering declaring a Contractor Default and has requested and attempted to arrange a conference with the Contractor and the Surety to be held not later than fifteen days after receipt of such notice to discuss methods of performing the Construction Contract. If the Owner, the Contractor and the Surety agree, the Contractor shall be allowed a reasonable time to perform the Construction Contract, but such an agreement shall not waive the Owner's right, if any, subsequently to declare a Contractor Default: and The Owner has declared a Contractor Default and formally terminated the Contractor's right to complete the contract. Such Contractor Default shall not be declared earlier than twenty days after the Contractor and the Surety have received notice as provided in Subparagraph 3.1: and The Owner has agreed to pay the Balance of the Contract Price to the Surety in accordance with the terms of the Construction Contract or to a contractor selected to perform the Construction Contract in accordance with the terms of the contract with the Owner. 4. When the Owner has satisfied the conditions of Paragraph 3, the Surety shall promptly and at the Surety's expense take one of the following actions: 4.1. Arrange for the. Contractor, with consent of tEe Owner, to perform and complete the Construction Contract: or Undertake to perform and complete the Construction Contract itself, through its agents or through independent contractors: or Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for performance and completion of the Construction Contract, arrange for a contract to be prepared for execution by the Owner and the contractor selected with the Owner's concurrence, to be secured with performance and payment bonds executed by a qualified surety equivalent to the bonds issued on the Construction Contract, and pay to the Owner the amount of damages as described in Paragraph 6 in excess of the Balance of the Contract Price incurred by the Owner resulting from the Contractor's default: or Waive its right to perform and complete, arrange for completion, or obtain a new contractor and with reasonable promptness under the circumstances: 1. After investigation, determine the amount for which it may be liable to the Owner and, as soon as practicable after the amount is determined, tender payment therefor to the Owner: or 2. Deny liability in whole or in part and notify the Owner citing reasons therefor. 5. If the Surety does not proceed as provided in Paragraph 4 with reasonable promptness, the Surety shall be deemed to be in default on this Bond fifteen days after receipt of an additional written notice from the Owner to the Surety demanding that the Surety perform its obligations under this Bond, and the Owner shall be entitled to enforce any remedy available to the Owner. If the Surety proceeds as provided in Subparagraph 4.4, and the Owner refuses the payment tendered or the Surety has denied liability, in whole or in part, 3.2. 3.3. 4.2. 4.3. 4.4. without further notice the Owner shall be entitled to enforce any remedy available to the Owner. 6. After the Owner has terminated the Contractor's right to complete the Construction Contract, and if the Surety elects to act under Subparagraph 4.1, 4.2, or 4.3 above, then the responsibilities of the Surety to the Owner shall not be greater than those of the Contractor under the Construction Contract, and the responsibilities of the Owner to the Surety shall not be greater than those of the Owner under the Construction Contract. To the limit of the amount of this Bond, but subject to commitment by the Owner of the Balance of the Contract Price to mitigation of costs and damages on the Construction Contract, the Surety is obligated without duplication for: 6.1. The responsibilities of the Contractor for correction of defective work and completion of the Construction Contract: 6.2. Additional legal, design professional and delay costs resulting from the Contractor's Default, and resulting from the actions or failure to act of the Surety under Paragraph 4: and 6.3. Liquidated damages, or if no liquidated damages are specified in the Construction Contract, actual damages caused by delayed performance or non-performance of the Contractor. 7. The Surety shall not be liable to the Owner or others for obligations of the Contractor that are unrelated to the Construction Contract, and the Balance of the Contract Price shall not be reduced or set off on account of any such unrelated obligations. No right of action shall accrue on this Bond to any person or entity other than the Owner or its heirs. executors, administrators, or successors. 8. The Surety hereby waives notice of any change, including changes of time, to the Construction Contract or to related subcontracts, purchase orders and other obligations. 9. Any proceeding, legal or equitable, under this Bond may be instituted in any court of competent jurisdiction in the location in which the work or part of the work is located and shall be instituted within two years after Contractor Default or within two years after the Contractor ceased working or within two ye:us after the _ Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of limitation available to sureties as a defense in the jurisdiction of the suit shall be applicable. 10. Notice to the Surety, the Owner or the Contractor shall be mailed or delivered to the address shown on the signature page. II. When this Bond has been furnished to comply with a statutory or other legal requirement in the location where the construction was to be performed, any provision in this Bond conflicting with said statutory or legal requirement shall be deemed deleted here from and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. The intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 12. Definitions. 12.1. Balance of the Contract Price: The total amount payable by the Owner to the Contractor under the Construction Contract after all proper adjustments have been made. including allowance to the Contractor of any amounts received or to be received by the Owner in settlement of insurance or other claims for damages to which the Contractor is entitled, reduced by all valid and proper payments made to or on behalf of the Contractor under the Construction Contract. 12.2. Construction Contract: The agreement between the Owner and the Contractor identified on the signature page, including all Contract Documents and changes thereto. 12.3. Contractor Default: Failure of the Contractor, which has neither been remedied nor waived, to perform or otherwise to comply with the terms of the Construction Contract. 12.4. Owner Default: Failure of the Owner, which has neither been remedied nor waived, to pay the Contractor as required by the Construction Contract or to perform and complete or comply with the other terms thereof. (FOR INFORMA TION ONLY-Name, Address and Telephone) AGENT or BROKER: OWNER'S REPRESENTATIVE (Architect, Engineer or other party): EJCDC No. 191O-28A (1984 Edition) Prepared through the joint efforts of the Surety Association of America, Engineers' Joint Contract Documents Committee, The Associated General Contractors of America, American Institute of Architects, American Subcontractors Association, and the Associated Specialty Contractors. 09/09 00601-2 03-4122.F DOCUMENT 00650 ACKNOWLEDGEMENT OF CONFORMANCE WITH O.S.H.A. STANDARDS TO THE CITY OF SUNNY ISLES BEACH We acknowledge and agree that as contractors for the construction of the "Median Closure at NE 175th Terrace on Collins Ave. and SR A 1 A/Collins Ave. at 183rd St. Streetscape Improvements", that we have the sole responsibility for compliance with all requirements of the Federal Occupational Safety and Health Act of 1970, and all State and Local Safety and Health regulations, and agree to indemnify and hold harmless the City of Sunny Isles Beach, and Calvin, Giordano & Associates, Inc., Consulting Engineers against any and all legal liability or loss the District or the Engineer may incur due to failure to comply with such act. ATTEST CONTRACTOR By: ATTEST Title: DATE END OF DOCUMENT 09/09 00650-1 03-4122.F Engineers Joint Documents Committee Design and Construction Related Documents Instructions and License Agreement Instructions Before you use any EJCDC document: 1. Read the License Agreement. You agree to it and are bound by its terms when you use the EJCDC document. 2. Make sure that you have the correct version for your word processing software. How to Use: 1. While EJCDC has expended considerable effort to make the software translations exact, it can be that a few document controls (e.g., bold, underline) did not carry over. 2. Similarly, your software may change the font specification if the font is not available in your system. It will choose a font that is close in appearance. In this event, the pagination may not match the control set. 3. If you modify the document, you must follow the instructions in the License Agreement about notification. 4. Also note the instruction in the License Agreement about the EJCDC copyright. License Agreement You should carefully read the following terms and conditions before using this document. Commencement of use of this document indicates your acceptance of these terms and conditions. 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In no event will EJCDC be liable to you for any damages, including any lost profits, lost savings or other incidental or consequential damages arising out of the use or inability to use EJCDC Design and Construction Related Documents even if EJCDC has been advised of the possibility of such damages, or for any claim by any other party. Some states do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. General: You may not sublicense, assign, or transfer this license except as expressly provided in this Agreement. Any attempt otherwise to sublicense, assign, or transfer any of the rights, duties, or obligations hereunder is void. This Agreement shall be governed by the laws ofthe State of Virginia. Should you have any questions concerning this Agreement, you may contact EJCDC by writing to: Arthur Schwartz, Esq. General Counsel National Society of Professional Engineers 1420 King Street Alexandria, VA 223 14 Phone: (703) 684-2845 Fax: (703) 836-4875 e-mail: aschwartz@nspe.org You acknowledge that you have read this agreement, understand it and agree to be bound by its terms and conditions. You further agree that it is the complete and exclusive statement of the agreement between us which supersedes any proposal or prior agreement, oral or written, and any other communications between us relating to the subject matter of this agreement. 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 Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly By ----- ACEC National Society of Professional Engineers Professional Engineers in Private Practice lIsltf! American Society ifI "Ii of Civil Engineers AMf:RICM'l COUNCil. OF E:-I(,;INI~EIUNC COMI'ANI'H 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 ~ Knowledge for Creating .,. and Suslaining the Buill EnvIronment Construction Specifications Institute EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright itl2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 1 Copyright ~2002 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314 American Council of Engineering Companies 1015 15th Street, N.W., Washington, DC 20005 American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 These General Conditions have been prepared for use with the Suggested Forms of Agreement Between Owner and Contractor Nos. C-520 or C-525 (2002 Editions). 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-OOl) (2002 Edition). For guidance in the preparation of Supplementary Conditions, see Guide to the Preparation of Supplementary Conditions (No. C-800) (2002 Edition). EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright @2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 2 TABLE OF CONTENTS Page ARTICLE 1 - DEFINITIONS AND TERMINOLOGY .............................................................................................................. 6 1.01 Defined Terms .......................................................................................................................................................... 6 1.02 Terminology ...... .......... ....... .... .... ... ... ... ........ ... ........... ................ ............ ..... ... ............... ..... ...... ... ...... .... ....... ..... ... .....8 ARTICLE 2 - PRELIMINARY MATTERS ...............................................................................................................................9 2.01 Delivery of Bonds and Evidence of Insurance ......................................................................................................... 9 2.02 Copies of Documents.. .................. .............. ...... ........... ................ .................... .............. ............ ..... ..... .......... .......... 9 2.03 Commencement of Contract Times; Notice to Proceed ........................................................................................... 9 2.04 Starting the Work......... ............. .............. ..... ................ .................... ............................................... ...... ...................9 2.05 Before Starting Construction ...................................................................................................................................9 2.06 Preconstruction Conference.. ....... ............ ..... .............. ............................................................................... .............9 2.07 Initial Acceptance of Schedules ...............................................................................................................................9 ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE ......................................................................10 3.01 Intent ...................... ..... .................... ........... ............. .............. .......................................................... ..... .................. 10 3.02 Reference Standards ..................................................... .......... ................................................................ ............... 10 3.03 Reporting and Resolving Discrepancies ................................................................................................................ 10 3.04 Amending and Supplementing Contract Documents..............................................................................................11 3.05 Reuse of Documents ........................................................................................................................ ....................... 11 3.06 Electronic Data............ ................... ................ ..... ........ ........................................ ........ .......................... ........ ........ 11 ARTICLE 4 .: AVAILABILITY OF LANDS; SUB SURF ACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS................................................................................................11 4.01 Availability of Lands .............................................................................................................................................. 11 4.02 Subsurface and Physical Conditions .....................................................................................................................12 4.03 Differing Subsurface or Physical Conditions ........................................................................................................12 4.04 Underground Facilities................. ............ ...... ........ ............... ............. .......................... ............ ...... ..... ........... ....... 13 4.05 Reference Points............. ....... ......... ...................... ................... ..... .......................... ........... ............. ....................... 13 4.06 Hazardous Environmental Condition at Site .........................................................................................................13 ARTICLE 5 - BONDS AND INSURANCE .............................................................................................................................14 5.01 Performance, Payment, and Other Bonds .............................................................................................................14 5.02 Licensed Sureties and Insurers ..............................................................................................................................15 5.03 Certificates of Insurance.............. ..... .......... ........ ......... ....... ......................... .................... ................ ....... ....... ........ 15 5.04 Contractor's Liability Insurance ...........................................................................................................................15 5.05 Owner's Liability Insurance ..................................................................................................................................16 5.06 Property Insurance ......... ................ ........... ............ ................ ........................................ ...... ................ .......... ........ 16 5.07 Waiver of Rights ............................................................................................................................. .......................17 5.08 Receipt and Application of Insurance Proceeds .................................................................................................... 17 5.09 Acceptance of Bonds and Insurance; Option to Replace....................................................................................... 17 5.10 Partial Utilization, Acknowledgment of Property Insurer ..................................................................................... 18 ARTICLE 6 - CONTRACTOR'S RESPONSIBILITIES..........................................................................................................18 6.01 Supervision and Superintendence .......................................................................................................................... 18 6.02 Labor; Working Hours.......... .................. ............ ............................................................... .............. ............... ....... 18 6.03 Services, Materials, and Equipment ......................................................................................................................18 6.04 Progress Schedule .............. ......................... ................. ...................... ................ ............... .............. ............ .......... 18 6.05 Substitutes and "Or-Equals" .................................................................................................................................19 6.06 Concerning Subcontractors, Suppliers, and Others ..............................................................................................20 6.07 Patent Fees and Royalties..................... .............................. ......... ..................................... .................... .......... ....... 21 6.08 Permits ................... ........................ ........................ ............. ................................................................. .......... ........ 21 6.09 Laws and Regulations ................................................................................................................ ............................ 21 6.10 Taxes... ...................... ................................................. ........ .................. ............................................... ................... 22 6.11 Use of Site and Other Areas...................................................................................................................................22 6.12 Record Documents.......... ..................... ....... ........... .............................................................................. ............ ...... 22 6.13 Safety and Protection......... .............................................................................. ...................................................... 22 6.14 Safety Representative ........................ .................... ........ .......................................................................... ...............23 6.15 Hazard Communication Programs ........................................................................................................................ 23 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright@ 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 3 6.16 Emergencies ...................... ...... ......................... ... ............................. ................. ..................... ..... ... .... .......... .......... 23 6.17 Shop Drawings and Samples .................................................................................................................................23 6.18 Continuing the Work... ............. ............. ........... ...... ........... ......... ...................... ............. ..................... ........... .... ..... 24 6.19 Contractor's General Warranty and Guarantee.............................................................. ...................................... 24 6.20 Indemnification............ ........................................... .... ............... .... ............................................................... .........24 6.21 Delegation of Professional Design Services ....................................................................... ................................... 25 ARTICLE 7 - OTHER WORK AT THE SITE .........................................................................................................................25 7.01 Related Work at Site ......... ....... ................ ....... ..... ..... ........ .................................... ............ .............. .......................25 7.02 Coordination .............. .......... ....... ......... ..... ...... ........................ ...... .................................... .................. .......... ......... 26 7.03 Legal Relationships. ........ ........ ...... ..... ... ........ ............. .......... .... ...... ........... ......... ...... ..... ........ ... ... ... ....... .................26 ARTICLE 8 - OWNER'S RESPONSIBILITIES ......................................................................................................................26 8.01 Communications to Contractor........... .......... ....... .................. ............................. ............................. ...................... 26 8.02 Replacement of Engineer..... ............ ...... ......... ..... ........................................................................... ....... ........... ..... 26 8.03 Furnish Data............ .......... ............................. ........................... .............. ........................................... ...................26 8.04 Pay When Due...................... ............... .......... ..... .................... ........ ...................... .................... .......... ................... 26 8.05 Lands and Easements; Reports and Tests ..............................................................................................................26 8.06 Insurance ............... ................ .................. ......... ........ ....... ........ ............ ........................................... ...... ............ ..... 26 8.07 Change Orders........ ........................ .............. ....... ..................... ........................ .................................... .................26 8.08 Inspections, Tests, and Approvals .......................................................................................................................... 26 8.09 Limitations on Owner's Responsibilities ............................................................................................................... 27 8.10 Undisclosed Hazardous Environmental Condition................................................................................................ 27 8.11 Evidence of Financial Arrangements ..................................................................................................................... 27 ARTICLE 9 - ENGINEER'S STATUS DURING CONSTRUCTION.....................................................................................27 9.01 Owner's Representative .................................. ..... ...................... ................................................. ....... ............. ....... 27 9.02 Visits to Site ........... ............ ................................. ....................... .......................... ............... ............... ...... ........ ...... 27 9.03 Project Representative ........... ..... ............... ........................................... ................. ................... ........ ......... ....... ..... 27 9.04 Authorized Variations in- Work .............................................................................................................................. 27 9.05 Rejecting Defective Work..... .................. ...................... ...... ........... ........................ ............................ ..... ......... ....... 27 9.06 Shop Drawings, Change Orders and Payments.....................................................................................................28 9.07 Determinations for Unit Price Work.......... ................ ........... .................... ...................................... .................. ..... 28 9.08 Decisions on Requirements of Contract Documents and Acceptability of Work ...................................................28 9.09 Limitations on Engineer's Authority and Responsibilities.....................................................................................28 ARTICLE 10 - CHANGES IN THE WORK; CLAIMS ...........................................................................................................28 10.01 Authorized Changes in the Work ...........................................................................................................................28 10.02 Unauthorized Changes in the Work ....................................................................................................................... 29 10.03 Execution of Change Orders.. .............. ......... ............... ..... ......... ......... ............................................... ............. .......29 10.04 Notification to Surety ................. ....... ............ ............... ............................... ........... ........... ....... ....... .................. ..... 29 10.05 Claims ....... ....... ...... ....... ..... ...... ........ .... ..... .... .............. ........ .... ...... ........ ............... .... ........... ........ ....... .......... ..........29 ARTICLE 11 - COST OF THE WORK; ALLOWANCES; UNIT PRICE WORK.................................................................. 30 11.01 Cost of the Work ....................................................................................................................................................30 11.02 Allowances .............................................................................. ............................................................................... 31 11.03 Unit Price Work .....................................................................................................................................................31 ARTICLE 12 - CHANGE OF CONTRACT PRICE; CHANGE OF CONTRACT TIMES..................................................... 32 12.01 Change of Contract Price ........ .............. ....... ................. .......... ........... ....... ........................................... ......... ........ 32 12.02 Change of Contract Times ...... ............ ........ ................ .............. .............. ............................ .................. ................. 33 12.03 Delays....... ..... ......... ...................................... ................................. ............................... ...... ................ ................... 33 ARTICLE 13 - TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK....... 33 13.01 Notice of Defects .................................................................................................................................................... 33 13.02 Access to Work.. ........ ............................. .............. ......... ............. ................................................... ........ ................. 33 13.03 Tests and Inspections..................................... ........................... ..................................................... ........................33 13.04 Uncovering Work....... ..................................... ........... ............................... ..................................... ....... ................. 34 13.05 Owner May Stop the Work.....................................................................................................................................34 13.06 Correction or Removal of Defective Work.............................................................................................................34 13.07 Correction Period....................... ......................... ................................................................... ......................... ...... 34 13.08 Acceptance of Defective Work ...............................................................................................................................35 13.09 Owner May Correct Defective Work .....................................................................................................................35 ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION ..............................................................................36 14.01 Schedule of Values ................. ....... ........ ....... ........ ......................... .............. .......... ..................... ............ ......... ....... 36 14.02 Progress Payments ....... ............... ................. ............................ ........ ..................................................................... 36 14.03 Contractor's Warranty of Title .............................................................................................................................. 37 14.04 Substantial Completion........ ....................... .............................. .................................................. ........................... 37 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright ~ 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 4 14.05 Partial Utilization.. .... .... ...... ...... ...... .............. ... ......... ........... ............ ...... ............................ ....... ........ ......... ..... ...... 38 14.06 Final Inspection............. ............................................. .................. ..... ............... ..... ......... .......... ....... ..... .......... .......38 14.07 Final Payment.......... ...... .................... .... ..... ...... ................ ..................... .... ........... .............. ........... ........................38 14.08 Final Completion Delayed.......... .................... ................. ..... ............. ......... .......................... ................ ....... .......... 39 14.09 Waiver of Claims.... .... .... .................. .................. ........................................ ................. ..........................................39 ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION.........................................................................................39 15.01 Owner May Suspend Work .................................................................................................................................... 39 15.02 Owner May Terminate for Cause ..........................................................................................................................39 15.03 Owner May Terminate For Convenience........ .... .......... .......................... .... .................... .... ....... ............. .... ..... ...... 40 15.04 Contractor May Stop Work or Terminate ..............................................................................................................40 ARTICLE 16 - DISPUTE RESOLUTION .......... ..... ......... ........ ........... ... ............. .................. ........ ............................ ............ '" 41 16.01 Methods and Procedures ..........................................................................................................................,............41 ARTICLE 17 - MISCELLANEOUS ......................................................................................................................................... 41 17.01 Giving Notice .........................................................................................................................................................41 17.02 Computation of Times ............................ .... .... ..................................................................... ......... ......... ....... ..........41 17.03 Cumulative Remedies .................................. .... ...... .......... ........................ ... .................................... ................ ..... ... 41 17.04 Survival of Obligations........................... ........ ........... .... ................... ................................. ..... ........... ............ ........41 17.05 Controlling Law............. ..... ...... ..... ....... ............ ............. ......... .......... ......................... ................ ........ ............ ........41 17.06 Headings............................................ ....... ..................................................................... 41 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright <<:> 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 5 GENERAL CONDITIONS ARTICLE 1 - DEFINITIONS 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 defmed, 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. Agreement-- The written instrument which is evidence of the agreement between Owner and Contractor covering the Work. 3. Applicationfor Payment--The form acceptable to Engineer which is to be used by Contractor during the course of the Work in requesting progress or fmal payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 4. 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. 5. Bid--The offer or proposal of a Bidder submitted on the prescribed form setting forth the prices for the Work to be performed. 6. Bidder-- The individual or entity who submits a Bid directly to Owner. 7. Bidding Documents-- The Bidding Requirements and the proposed Contract Documents (including all Addenda). 8. 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. 9. Change Order--A document recommended by Engineer which is signed by Contractor and Owner 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. 10. 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. 11. 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. 12. 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 submittals, and the reports and drawings of subsurface and physical conditions are not Contract Documents. 13. 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). 14. 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) com- plete the Work so that it is ready for final payment as evidenced by Engineer's written recommendation of final payment. 15. Contractor-- The individual or entity with whom Owner has entered into the Agreement. 16. Cost of the Work--See Paragraph 11.01.A for defmition. 17. 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 defmed. 18. 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. 19. Engineer--The individual or entity named as such in the Agreement. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright@2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 6 20. 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. 21. General Requirements--Sections of Division 1 of the Specifications. The General Requirements pertain to all sections of the Specifications. 22. 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. 23. Hazardous Waste--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. 24. Laws and Regulations; Laws or Regulations- -Any and all applicable laws, rules, regulations, ordinanc- es, codes, and orders of any and all governmental bodies, agencies, authorities, and courts having jurisdiction. 25. Liens--Charges, security interests, or encumbrances upon Project funds, real property, or personal property. 26. Milestone--A principal event specified in the Contract Documents relating to an intermediate comple- tion date or time prior to Substantial Completion of all the Work. 27. 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. 28. Notice to Proceed--A written notice given by Owner to Contractor fixing the date on which the Con- tract Times will commence to run and on which Contractor shall start to perform the Work under the Contract Documents. 29. Owner--The individual or entity with whom Contractor has entered into the Agreement and for whom the Work is to be performed. 30. PCBs--Polychlorinated biphenyls. 31. 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. 32. 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. 33. Project--The total construction of which the Work to be performed under the Contract Documents may be the whole, or a part. 34. 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. 35. Radioactive Material--Source, special nucle- ar, or byproduct material as defined by the Atomic Energy Act of 1954 (42 USC Section 2011 et seq.) as amended from time to time. 36. Related Entity -- An officer, director, partner, employee, agent, consultant, or subcontractor. 37. Resident Project Representative--The autho- rized representative of Engineer who may be assigned to the Site or any part thereof. 38. 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. 39. Schedule ofSubmittals--A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to support scheduled performance of related construction activities. 40. 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. 41. 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 ofthe Work. 42. 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. 43. 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright (\) 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 7 ~ administrative requirements and procedural matters applicable thereto. 44. 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. 45. Substantial Completion--The time at which the Work (or a specified part thereot) has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereot) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereot) 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. 46. Successful Bidder-- The Bidder submitting a responsive Bid to whom Owner makes an award. 47. Supplementary Conditions-- That part of the Contract Documents which amends or supplements these General Conditions. 48. Supplier--A manufacturer, fabricator, suppli- er, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Workby Contractor or any Subcontractor. 49. Underground Faci/ities--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, storm water, other liquids or chemicals, or traffic or other control systems. 50. Unit Price Work--Work to be paid for on the basis of unit prices. 5 I. W 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. 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 I. 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. C.Day I. The word "day" means a calendar day of24 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 52. Work Change Directive--A written statement to Contractor issued on or after the Effective Date of the Agreement and signed by Owner and recommended by Engineer ordering an addition, deletion, or revision in tne 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright ~ 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 8 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 fmal position said services, materials, or equipment complete and ready for intended use. 3. The words "perfonn" 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," "perfonn," or "pro- vide" 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 Docu- ments, 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 MAITERS 2.0 I 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 of Insurance: 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 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. In no event will the Contract Times com- mence to run later than the sixtieth day after the day of Bid opening or the thirtieth day after the Effective Date of the Agreement, whichever date is earlier. 2.04 Starting the Work A. Contractor shall start to perfonn 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; indicating the times (numbers of days or dates) for starting and completing the various stages of the Work, including any Milestones specified in the Contract Documents; 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 subdi- vides the Work into component parts in sufficient detail to serve as the basis for progress payments during perfonnance 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, 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 A. The Contract Times will commence to run on made to Contractor until acceptable schedules are the thirtieth day after the Effective Date of the Agreement submitted to Engineer. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright lid 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 9 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. 2.03 Commencement of Contract Times; Notice to Proceed 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. 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 Docu- ments. 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 Regula- tions 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 respon- sibility 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 Documents 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.l6.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, ambigu- ity, or discrepancy in the Contract Documents unless Contractor knew or reasonably should have known thereof. B. Resolving Discrepancies 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright <!:> 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 10 11 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 viola- tion 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 or other individual or entity performing or furnishing all of the Work under a direct or indirect contract with Contractor, 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 thereot) 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 fmal 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 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.. 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 A V AILABILITY SUBSURFACE AND PHYSICAL HAZARDOUS ENVIRONMENTAL REFERENCE POINTS OF LANDS; CONDITIONS; CONDITIONS; 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. 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 EJCDC C-700 Standal'd General Conditions of the Construction Contract. Copyright@ 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 11 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 completemiss ofSucll 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. 4.03 Differing Subsurface or Physical Conditions A. Notice: If Contractor believes that any subsur- face 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 COnnec- tion 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, detennine 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 tfuit 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 anyone 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, explo- ration, 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright@ 2002 National Society of Professional Engineers for EJCOC. All rights reserved. 00700 - 12 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 liable to Contractor for any claims, costs, losses, or damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) sustained by Contractor on or in connection with any other project or anticipated project. 4.04 Underground Facilities A. Shown or Indicated: The information and data shown or indicated in the Contract Documents with respect to existing Underground Facilities at or contiguous to the Site is based on information and data furnished to Owner or Engineer by the owners of such Underground Facilities, including Owner, or by others. Unless it is otherwise expressly provided in the Sup- plementary Conditions: 1. Owner and Engineer shall not be responsible for the accuracy or completeness of any such information or data; and 2. the cost of all of the following will be included in the Contract Price, and Contractor shall have full responsibility for: a. reviewing and checking all such information and data, b. locating all Underground Facilities shown or indicated in the Contract Documents, c. coordination of the Work with the owners of such Underground Facilities, including Owner, during construction, and d. the safety and protection of all such Under- ground Facilities and repairing any damage thereto resulting from the Work. B. Not Shown or Indicated 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 Under- ground 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 iri 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 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. 1. If an Underground Facility is uncovered or revealed at or contiguous to the Site which was not shown or indicated, or not shown or indicated with reasonable accuracy in the Contract Documents, Contractor shall, promptly after becoming aware thereof and before further disturbing conditions affected thereby or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.16.A), identify the owner of such Underground Facility and give written notice to that owner and to Owner and Engineer. Engineer will EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright @ 2002 National Society of Professional Engineers for EJCnc. All rights reserved. 00700 - 13 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, opmlOns 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 re- vealed 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 encounfers 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, ifany. 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 stoP" page 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. 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. 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. G shall obligate Owner to indemnify any individual or entity from and against the conse- quences. 6fthat hidividiial ' s or entity's oWh -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 F. If after receipt of such written notice A. Contractor shall furnish performance and Contractor does not agree to resume such Work based on payment bonds, each in an amount at least equal to the a reasonable belief it is unsafe, or does not agree to Contract Price as security for the faithful performance and resume such Work under such special conditions, then payment of all of Contractor's obligations under the Owner may order the portion of the Work that is in the Contract Documents. These bonds shall remain in effect area affected by such condition to be deleted from the until one year after the date when fmal payment becomes Work. If Owner and Contractor cannot agree as to due or until completion of the correction period specified EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright (!:) 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 14 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 Compa- nies" 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 5.01.B 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. 5.03 Certificates of Insurance 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 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 sus- tained: a. by any person as a result of an offense directly or indirectly related to the employmeht ofsiich 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: I. with respect to insurance required by Paragraphs 5.04.A.3 through 5.04.A.6 inclusive, include as additional insured (subject to any customary exclusion regarding professional liability) Owner and Engineer, and any other individuals or entities identified in the Supple- mentary Conditions, all of whom shall be listed as addi- tional 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; A. Contractor shall purchase and maintain such liability and other insurance as is appropriate for the Work being performed and as will provide protection EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright @ 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 15 3. include completed operations insurance; 4. include contractual covering Contractor's indemnity Paragraphs 6.11 and 6.20; liability insurance obligations under 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 insur- ance, 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 Supple- mentary 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. 5.05 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. 5.06 Property Insurance A. Unless otherwise provided in the Supple- mentary Conditions, Owner shall purchase and maintain property insurance upon the Work at the Site in the amount of the full replacement cost thereof (subject to such deductible amounts as may be provided in the Supplementary Conditions or required by Laws and Regulations). This insurance shall: 1. 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; 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, false work, 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 specifi- cally 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 7. be maintained in effect until fmal 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. Owner 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 certifi- cates 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 accor- dance 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright lid 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 16 deductible amounts that are identified in the Supple- mentary 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. E. If Contractor requests in writing that other special insurance be included in the property insurance policies provided under Paragraph 5.06, Owner shall, if possible, include such insurance, and the cost thereof will be charged to Contractor by appropriate Change Order. Prior to commencement of the Work at the Site, Owner shall in writing advise Contractor whether or not such other insurance has been procured by Owner. 5.07 Waiver of Rights 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 Supple- mentary 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 Owner 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. loss 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 fmal payment pursuant to Paragraph 14.07. C. Any insurance policy maintained by Owner covering any loss, damage or consequential loss referred to in Paragraph 5.07.B 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 of Insurance Proceeds A. Any insured loss under the policies of insurance required by Paragraph 5.06 will be adjusted with Owner and made payable to Owner as fiduciary for the insureds, as their interests may appear, subject to the requirements of any applicable mortgage clause and of Paragraph 5.08.B. Owner 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, and the Work and the cost thereof covered by an appropriate Change Order. B. Owner 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 Owner's exercise of this power. If such objection be made, Owner 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, Owner as fiduciary shall adjust and settle the loss with the insurers and, if required in writing by any party in interest, Owner 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright <1:>2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 17 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 2.0l.B. 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 any 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 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 superin- tendent 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 layout the Work and perform construction as required by the Contract Docu- ments. Contractor shall at all times maintain good disci- pline 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. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright@ 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 18 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 adjust- ments will comply with any provisions of the General Re- quirements applicable thereto. 2) it will conform substantially to the detailed requirements of the item named in the Contract Documents. 2. Substitute Items 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. 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.l, it will be considered a proposed substitute item. 6.05 Substitutes and "Or-Equals" A. Whenever an item of material or equipment is specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier, the specification or description is intended to establish the type, function, appearance, and quality required. Unless the specification or description contains or is followed by words reading that no like, equivalent, or "or-equal" item or no substitution is permitted, other items of material or equipment or material or equipment of other Suppliers may be submitted to Engineer for review under the circumstances described below. 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 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. 1. "Or-Equal" Items: If in Engineer's sole discretion an item of material or equipment proposed by Contractor is functionally equal to that named and sufficiently similar so that no change in related Work will be required, it may be considered by Engineer as an "or-equal" item, in which case review and approval of the proposed item may, in Engineer's sole discretion, be accomplished without compliance with some or all of the requirements for approval of proposed substitute items. For the purposes of this Paragraph 6.05.A.l, a proposed item of material or equipment will be considered functionally equal to an item so named if: 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 substi- tute item will: a) perform adequately the functions and achieve the results called for by the general design, a. in the exercise of reasonable judgment Engineer determines that: b) be similar in substance to that specified, and 1) it is at least equal in materials of construction, quality, durability, appearance, strength, and design characteristics; c) be suited to the same use as that specified; 2) will state: 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, a) the extent, if any, to which the use of the proposed substitute item will preju- dice Contractor's achievement of Substantial Completion on time; 3) it has a proven record of performance and availability of responsive service; and b) whether or not use of the proposed substitute item in the Work will require a change in any of the Contract Docu- ments (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 b. Contractor certifies that, if approved and incorporated into the Work: I) there will be no increase in cost to the Owner or increase in Contract Times, and EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright (!) 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 19 c) whether or not incorporation or use of the proposed substitute item in con- nection 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 esti- mate 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 Proce- dures: 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 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 detennination. D. Special Guarantee: Owner may require Contractor to furnish at Contractor's expense a special perfonnance guarantee or other surety with respect to any substitute. Documents (or in the prOVlSlons 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 Subcon- tractor, Supplier, or other individual or entity (including those acceptable to Owner as indicated in Paragraph 6.06.B), whether initially or as a replacement, against whom Owner may have reasonable objection. Contractor shall not be required to employ any Subcontractor, Supplier, or other individual or entity to furnish or perfonn 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 reason- able 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 consti- tute 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 perfonning 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, nor 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.B Whether or not Engineer approves a substitute item so proposed or submitted by Contractor, Contractor shall reimburse Owner for the 2. shall anything in the Contract Documents charges of Engineer for evaluating each such proposed create any obligation on the part of Owner or substitute. Contractor shall also reimburse Owner for the Engineer to payor to see to the payment of any moneys charges of Engineer for making changes in the Contract due any such Subcontractor, Supplier, or other individual EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright <<:> 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 20 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 per- forming or furnishing any of the Work to communicate with Engineer through Contractor. F. The divisions and sections of the Specifica- tions and the identifications of any Drawings shall not control Contractor in dividing the Work among Subcon- tractors 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 appro- priate 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. 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 ofthe 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 Supple- mentary 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 applica- ble 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 ifthere 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. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright <<:l 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 21 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' perfonnance of the Work. 6.11 Use of Site and Other Areas A. Limitation on Use of Site and Other Areas 1. Contractor shall confme construction equip- ment, the storage of materials and equipment, and the operations of workers to the Site and other areas pennitted 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 perfonnance ofthe Work. 2. Should any claim be made by any such owner or occupant because of the perfonnance 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. 3. To the fullest extent pennitted by Laws and Regulations, Contractor shall indemnify and hold hannless 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 perfonnance 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 confonn 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 com- pletion 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 Engi- neer for Owner. 6.13 Safety and Protection A. Contractor shall be solely responsible for initiating, maintaining and supervising all safety precau- tions 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: I. all persons on the Site or who may be 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 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 Draw- EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright (!;) 2002 National Society oCProfessional Engineers for EJCDC. All rights reserved. 00700 - 22 ings 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 14.07.B 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 respol1sible for coordi- nating 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 protec- tion 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 wiJI be issued. 6.17 Shop Drawings and Samples A. Contractor shall submit Shop Drawings and Samples to Engineer for review and approval in accor- dance with the acceptable SchedUle of Submittals (as required by Paragraph 2.07). Each submittal will be identified as Engineer may require. 1. Shop Drawings 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: Contractor shall also submit Samples to Engineer for review and approval in accor- dance with the acceptable schedule of Shop Drawings and Sample submittals. 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright It:> 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 23 a. Submit number of copies specified in the General Requirements. 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 A. Contractor shall carry on the Work and adhere limited to all fees and charges of engineers, architects, to the Progress Schedule during all disputes or attorneys, and other professionals and all court or EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright i!d 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 24 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 Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop Drawing's or Sample Submittal; and, in addition, by a specific notation made on each Shop Drawing or Sample submit- ted 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 Docu- ments. 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 con- struction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item ftmctions. 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.l7.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.l7.C.1. E. Resubmittal Procedures 1. Contractor shall make corrections required by Engineer and shall return the required number of cor- rected 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 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. 6.19 Contractor's General Warranty and Guarantee A. Contractor warrants and guarantees to Owner that all Work will be in accordance with 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: 1. abuse, modification, or improper maintenance or operation by persons other than Contractor, Sub- contractors, 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 acceptabil- ity by Engineer; 6. any inspection, test, or approval by others; or 7. any correction of defective Work by Owner. 6.20 Indemnification 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 employ- ee (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 limitation 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. 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 other submittals (except design calculations and design drawings) will be only for the purpose stated in Paragraph 6.l7.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 Work 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 Con- tract 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 B. If professional design services or and Owner, if Owner is performing other work with certifications by a design professional related to systems, Owner's employees, proper and safe access to the Site, a materials or equipment are specifically required of reasonable opportunity for the introduction and storage of Contractor by the Contract Documents, Owner and materials and equipment and the execution of such other Engineer will specify all performance and design criteria work, and shall properly coordinate the Work with theirs. that such services must satisfy. Contractor shall cause Contractor shall do all cutting, fitting, and patching of the such services or certifications to be provided by a Work that may be required to properly connect or properly licensed professional, whose signature and seal otherwise make its several parts come together and EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright I!) 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 25 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 Condi- tions: 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 responsibili- ties will be provided. B. Unless otherwise provided in the Supplementary Conditions, Owner shall have sole authority and responsibility for such coordination. 7.03 Legal Relationships A. Paragraphs 7.01.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 8 - OWNER'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 l4.02.C 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 insur- ance 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-700 Standard General Conditions of the Construction Contract. Copyright i!d 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 26 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 Condition Hazardous Environmental A. Owner's responsibility in respect to an undis- closed Hazardous Environmental 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 Owner's Representative A. Engineer will be Owner's representative during the construction period. The duties and responsi- bilities 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 inter- vals 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 ResidentProject 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 and authority and limitations thereon of such other individual or entity will be as provided in the Supplementary Conditions. 9.04 Authorized Variations in Work 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 Docu- ments. 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 Rejecting Defective 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 Dbcuments. 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. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright@ 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 27 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 wm 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 Acceptability 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 [mal 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 1O.05.B. 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. 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 Limitations on Engineer's Authority 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 ofthem. 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 respon- sible-dfor 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 ofthe 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 require- ments 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 responsi- bility set forth in this Paragraph 9.09 shall also apply to, the Resident Project Representative, if any, and assistants, if any. ARTICLE 10 - CHANGES IN THE WORK; CLAIMS 10.01 Authorized Changes in the Work A. Without invalidating the Contract and without notice to any surety, Owner may, at any time or from time to time, order additions, deletions, or revisions in the D. When functioning as interpreter and judge Work by a Change Order, or a Work Change Directive. under this Paragraph 9.08, Engineer will not show Upon receipt of any such document, Contractor shall EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright @ 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 28 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. 10.03 Execution a/Change Orders A. Owner and Contractor shall execute appropri- ate Change Orders recommended by Engineer covering: 1. changes in the Work which are: (i) ordered by Owner pursuant to Paragraph 10.0 LA, (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 carryon 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.B. 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 adju-strneht 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. 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 1O.05.C or denial pursuant to Paragraphs 1O.05.C.3 or 10.05.D will be [mal 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. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright (i:) 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 29 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 11 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.B, 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 11.01.B. 1. 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 pay- ments, 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. - 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. b. Cost, including transportation and mainte- nance, 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 .perfor- mance 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 equip- ment, 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright@ 2002 National Society of ProCessional Engineers for EJCDC. All rights reserved. 00700 - 30 3. Payments made by Contractor to Subcontractors for Work performed by Subcontractors. If required by Owner, Contractor shall obtain competitive 5.06.D), provided such losses 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, expresses, 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, attor- neys, 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.I or specifically covered by Paragraph 11.01.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 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 11.01.A and 11.01.B. C. Contractor's Fee: When all the Work is performed on the basis of cost-plus, 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 11.0 I.A and 11.0 I.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 I. 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 contemp lated 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 I. 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright @ 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 31 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. 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: I. the quantity of any item of Unit Price Work performed by Contractor differs materially and signifi- cantly from the estimated quantity of such item indicated in the Agreement; and 2. there is no corresponding adjustment with respect 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: I. where the Work involved is covered by unit prices contained in the Contract Documents, by applica- tion 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 12.01.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 12.01.B.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.l and 11.0I.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 under Paragraphs 11.0I.A.l and 11.0 I.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; d. no fee shall be payable on the basis of costs itemized under Paragraphs 11.0 I.A.4, 11.0 I.A.5, and 11.01.B; 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 anyone change, the adjustment in Contractor's fee shall be computed on the basis of the net change in accordance with Paragraphs 12.0 I.C.2.a through 12.0 I.C.2.e, inclusive. EJCnC C-700 Standard General Conditions of the Construction Contract. Copyright <<:> 2002 National Society of Professional Engineers for EJCne. All rights reserved. 00700 - 32 ' 12.02 Change of Contract 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 contemplat- ed 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 If 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.C. 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 projector anticipated project. 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 OF DEFECTIVE 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 reasonab!e times for thejr o~~~rvati(m, 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: I. for inspections, tests, or approvals covered by Paragraphs 13.03.C and 13.03.D below; 2. that costs incurred in connection with tests or inspections conducted pursuant to Paragraph 13.04.B shall be paid as provided in said Paragraph 13.04.C; and 3. as otherwise specifically provided in the Con- tract 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright Cbl 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 33 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. E. 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 Contractor'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. 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. ""i'~1'~~ 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. 13.05 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, (:bsts, 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.ll.A 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 D. If, the uncovered Work is not found to be defective, Contractor shall be allowed an increase in the 2. correct such defective Work; or Contract Price. or an extension of the Contract Times, or both, directly attributable to such uncovering, exposure, observation, inspection, testing, replacement, and EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright <<:l2002 National Society of Professional Engineers for EJCnc. All rights reserved. 00700 - 34 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 re- moved 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 - 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, take possession of all or part of the Work and suspend Contractor's services related thereto, take posses- sion of Contractor's tools, appliances, construction equipment and machinery at the Site, an-d incorporate ii1 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. 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 fmal 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright lid 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 35 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 - PAYMENTS TO CONTRACTOR AND COMPLETION 14.01 Schedule of Values A. The Schedule of Values established as provid- ed in Paragraph 2.07.A will serve as the basis for progress payments and will be incorporated into a form of Applica- tion 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 1. 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 of Applications 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 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 indicat- ed; b. the quality of the Work is generally in accor- dance 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 fmal detennination 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 perfonned have been exhaustive, extended to every aspect of the Work in progress, or involved detailed inspections of the Work beyond the responsi- bilities 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 perfonnance 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright@2002 National Society of Professional Engineers for EJCnc. All rights reserved. 00700 - 36 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 fmal 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 defmitive certificate of Substantial Completion (with a revised tentative list of items to be completed or correct- ed) reflecting such changes from the tentative certificate as Engineer believes justified after consideration of any objections from Owner. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright <9 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 37 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.B.2. Engineer may also refuse to recommend any such payment or, because of subse- quently 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 replace- ment; b. the Contract Price has been reduced by Change Orders; 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. Payment 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.D) become due, and when due will be paid by Owner to Contractor. D. Reduction in Payment I. 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 furnish- ing 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. there are other items entitling Owner to a set-off against the amount recommended; or d. 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 l5.02.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.l. 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, Contractor, and Engineer shall make an 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. D. At the time of delivery of the tentative certificate of Substantial Completion, Engineer will deliver to Owner and Contractor a written recommen- dation as to division of responsibilities pending fmal 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 condi- tions. 1. 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 substan- tially 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 coniplete, 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 and Contractor and will notify Contractor in writing of all 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, m the opinion of Engineer, satisfactorily completed all corrections identified during the fmal 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 inspec;tidn,Irtarked~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 5.04.8. 7; b. consent of the surety, ifany, to fmal 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 l4.07.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 anyway 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 EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright@2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 38 satisfactory to Owner to indemnify Owner against any Lien. B. Engineer's Review of Application and Acceptance 1. If, on the basis of Engineer's observation of the Work during construction and fmal 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 fmal 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, indicat- ing in writing the reasons for refusing to recommend fmal payment, in which case Contractor shall make the necessary corrections and resubmit the Application for Payment. C. Payment Becomes Due 1. Thirty days after the presentation to Owner of the Application for Payment and accompanying docu- mentation, 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. 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 fmal 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 fmal payment, except that it shall not constitute a waiver of Claims. 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 fi~the date ()n ~~ich Work wlfi be resumed. Contractor shall resume the Work on the date so fixed. Contractor shall be granted an adjust- ment 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 Terminatefor 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-700 Standard General Conditions of the Construetion Contraet. Copyright lid 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 39 1. 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 I5.02.B, Contractor shall not be entitled to receive any further 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.B 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 tenninated 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 perfonnance bond under the provisions of Paragraph 5.0I.A, the termination procedures of that bond shall supersede the provisions of Paragraphs 15.02.B, 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, tenninate 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 tennination, including fair and reasonable sums for overhead and profit on such Work; 2. expenses sustained prior to the effective date of tennination 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 tenninated contracts with Subcontractors, Suppliers, and others; and 4. reasonable expenses directly attributable to tennination. 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 tennination. 15.04 ContNictor May Stop Work or Termiiiaie 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 fmally 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 tenns 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 fmally 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 pennitted by this Paragraph. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright@ 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 40 ARTICLE 16 - DISPUTE RESOLUTION 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. 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 and the other party to the Contract. Timely submission of the request shall stay the effect of Paragraph lO.05.E. B. Owner and Contractor shall participate in the mediation process in good faith. The process shall 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.C or a denial pursuant to Paragraphs lO.05.C.3 or 10.05.D shall become final aild biIfdiiigU-30 days. after- teriIliriation of the mediation unless, within that time period, Owner or Contractor: 1. elects in wntmg 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. 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 from 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 Regula- tions,byspecial- warranty or gu.arantee, 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. 17.04 Survival of Obligations A. All representations, indemnifications, warran- ties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Docu- ments, 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. EJCDC C-700 Standard General Conditions of the Construction Contract. Copyright@ 2002 National Society of Professional Engineers for EJCDC. All rights reserved. 00700 - 41 SECTION 00800 FIRST AMENDED SUPPLEMENTARY CONDITIONS The following supplements modify, change from or add to the Standard General Conditions of the Construction Contract, EJCDC Document 1910-8, 1996 Edition. Where any Article of the General Conditions is modified or any Paragraph, Subparagraph or Clause thereof is modified or deleted by these supplements, the unaltered provisions shall remain in effect. ARTICLE 1 - DEFINITIONS AND TERMINOLOGY Add the following sentence to Paragraph 1.01.28 entitled "Notice of Award": "When requested by OWNER, the Notice of Award may be issued by the ENGINEER. " Add the following sentence to Paragraph 1.01.29 entitled "Notice to Proceed": "When requested by OWNER, the Notice to Proceed may be issued by ENGINEER. " Add the following terms after Paragraph 1.01 50: 1.51 ARCHITECT/ENGINEER - The person, firm or corporation named as the ENGINEER in the Agreement. 1.52 Provide - As used in the Project Manual, means to furnish and install, complete and ready for intended use. 1.53 Product - As used in the Project Manual, includes materials, fabrications, systems and equipment. 1 .54 Project Manual - The volume of written construction documents, including the Bidding Documents, sample forms, and the Contract Documents, such as the Conditions of the Contract and the Specifications. 1.55 Retainage - The percentage of the Contract Price, retained by Owner from the progress payments to the Contractor for Work performed until the Work is completed. It shall be payable to Contractor in accordance with the Contract Documents. ARTICLE 2 - PRELIMINARY MATTERS Add the following to Paragraph 2.01: "If the Work is to be commenced prior to execution of the Agreement in response to a letter of intent, CONTRACTOR shall, prior to commencement 09/09 00800-1 03-4122.F of the Work, submit evidence satisfactory to OWNER that such bonds will be furnished. " In the first line of Paragraph 2.02. change the term "...ten..." to read: "...six(6l...". Delete Paragraph 2.03. and replace with the following: "The date of commencement of the Work is the date established in a Notice to Proceed." Add the following to Paragraph 2.05.: B. CONTRACTOR shall perform no portion of the Work at any time without Contract Documents or, where specified, approved Shop Drawings for such portion of the Work. C. By executing the Contract, CONTRACTOR represents that he has visited the site, familiarized himself with the local conditions under which the Work is to be performed, and correlated his observations with the requirements of the Contract Documents." ARTICLE 3 - CONTRACT DOCUMENTS: INTENT, AMENDING, REUSE Add the following to Paragraph 3.02.A.: "3. Sections of Division One - General Requirements govern the execution of all sections of the Specifications." ARTICLE 4 - AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; REFERENCE POINTS In Paragraph 4.02.A., change the term "...Supplementary Conditions..." to read: "...bidding requirements...". In Paragraph 4.02.B., change the term "Supplementary Conditions..." to read: " ... bidding requirements...". ARTICLE 5 - BONDS AND INSURANCE In the first line of Paragraph 5 .04., following the word". ..insurance...", insert the words: "... with a company or companies licensed to do business in the State of Florida,..." . In the last line of Paragraph 5.04.A.6., following the word "...vehicle.", insert the words: 09/09 00800-2 03-4122.F - "..., or arising out of operation of laws and regulations for damages because of bodily injury or death of any person or for damage to property." Add the following after Paragraph 5.04.8.7.: 8. Include all major divisions of coverage and be on a comprehensive basis including: I. Premises Operations (including X, C, and U coverages as applicable) . II. Independent contractor's Protective. iii. Products and Completed Operations. iv. Personal Injury Liability with Employment Exclusion deleted. v. Contractual Liability. vi. Owned, non-owned and hired motor vehicles. vii. Broad Form property Damage including Completed Operations. 9. Provide coverage for not less than the following amounts. a. Workers' Compensation, etc. under paragraphs 5.4.1 and 5.4.2: 1 . State Including employers liability limits $1,000,000 each accident, $1,000,000 disease policy limit, $1,000,000 disease each employee Statutory 2. Applicable Federal (e.g. Longshoreman's and/or Maritime) 3. Employer's Liability $ 1,000,000.00 b. Contractor's Liability Insurance under Article 5.4, which shall also include completed operations and product liability coverages and eliminate the exclusion with respect to property under the care, custody and control of custody and control of Contractor: 1 . General Aggregate (Except Products - Completed Operations) $ 1,000,000.00 2. Products Aggregate Completed Operations $ 1,000,000.00 09/09 00800-3 03-4122.F 09/09 - 3. Personal and Advertising Injury (Per $ 1,000,000.00 Person/Organization) 4. Each Occurrence (Bodily Injury and $ 1,000,000.00 Property Damage) 5. Property Damage liability insurance will $ 1,000,000.00 provide Explosion, Collapse and Underground coverages where applicable. 6. Professional Liability, Omissions insurance for engineers and other professionals Errors & architects, consulting $ 1,000,000.00 7.. Excess Liability General Aggregate Each Occurrence $ 1,000,000.00 $ 1,000,000.00 8. Professional Liability Insurance, as it $ 1,000,000.00 applies Automobile Liability under paragraph 5.4.6: Bodily Injury: Each Person $ 1,000,000.00 Each Accident $ 1,000,000.00 c. 1 . Property Damage: Each Occurrence $ 1,000,000.00 OR 2. Bodily Injury and Property Damage Combined Single Limit: Each Occurrence Aggregate $ 1,000,000.00 $ 5,000,000.00 d. Additional liability coverage for OWNER and ENGINEER shall be provided by endorsement as additional insureds on Contractor's General Liability Policy. Add the following names: OWNER - City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 00800-4 03-4122.F ENGINEER - James E. Spinks III, P.E., P.E. No. 66775 Calvin Giordano & Associates 1800 Eller Drive, Suite 600 Fort Lauderdale, Florida 33316 (954) 921-7781 L1VS Associates 2121 Ponce de Leon Blvd., Suite 610 Coral Gables Florida 33134 10. The additional liability coverage for ENGINEER is not to be construed as to requiring, in any way, that either OWNER or CONTRACTOR be obligated to supply insurance protecting ENGINEER for its liability emanating from professional errors or omissions. 11 In conformance with the requirements of Section 725.06, Florida Statutes, the specific considerations for CONTRACTOR's promises are: a. One dollar ($1.00) in hand paid by OWNER, ENGINEER, and ENGINEER's employees to CONTRACTOR, receipt whereof is hereby acknowledged and the adequacy of which CONTRACTOR accepts as completely fulfilling the obligations of OWNER, ENGINEER, and ENGINEER's employees under the requirements of Section 725.06, Florida Statutes, and; b. The entry of OWNER and CONTRACTOR into the construction contract because, but for CONTRACTOR's promises as contained in the General Conditions, OWNER would not have entered into the construction contract with CONTRACTOR." Add the following after Paragraph 5.06.E: "F. The form of policy for this coverage shall be Completed Value. G. If, under the provisions of this insurance, there are mandatory deductibles, or if OWNER elects to increase the mandatory deductibles or purchase this insurance with voluntary deductible amounts, then OWNER shall be responsible for payment of the full amount of the deductible in the event of a paid claim." Delete Paragraph 5.07 in its entirety. ARTICLE 6 - CONTRACTOR'S RESPONSIBILITIES Add the following after Paragraph 6.05.F: 09/09 00800-5 03-4122.F "G. The use of asbestos or asbestos-based fiber materials is prohibited in this Project." Add the following after Paragraph 6.08: "6.08.A. The OWNER will secure and pay for only the following governmental charges and inspection fees: a. special assessments, b. capital connection fees, c. threshold and special inspection fees, d. permanent utility meter installation fees, e. permanent utility hook-up fees, and f. impact fees. 6.08.8. CONTRACTOR shall pay for all building permits and charges of utility owners for connections to the Work, and OWNER will pay charges of such utility owners for capital costs related thereto such as plant investment fees." Add the following after the last sentence in Paragraph 6.10: In accordance with Exhibit A hereto, entitled Tax Exemption Agreement to Contract, the Owner may directly purchase all materials and equipment identified in the Contract Documents for incorporation into the Project ("Owner-Provide Materials"). Delete the last sentence of Paragraph 6.12. and substitute the following: "These shall be available to ENGINEER for examination during construction and shall be delivered "to ENGINEER for OWNER upon Substantial Completion of the Work." At the end of Paragraph 6.13.8, add the following sentences: "The Occupational Safety and Health Administration excavation safety standards, 29 CFR 1926.650 Subpart P trench safety standards are in effect during the period of construction of the Project. In compliance with current State of Florida statutes, the Contractor or subcontractor performing trench excavation work on the Project shall comply with the applicable trench safety standards." In the sixth line of Paragraph 6.20.A., change the parenthetical insert to read as follows: "...(including but not limited to fees and charges of ENGINEER, other engineers, architects, attorneys and other professionals, particularly including, but not limited to reasonable ENGINEER's attorney's fees, and court costs)..." . 09/09 00800-6 03-4122.F ARTICLE 9 - ENGINEER'S STATUS DURING CONSTRUCTION Change the first sentence of Paragraph 9.01.A. to read as follows: "If OWNER and ENGINEER agree, ENGINEER will be OWNER's representative during the construction period." ARTICLE 1 0 - CHANGES IN THE WORK; CLAIMS Add the following: "10.06. Without invalidating the agreement, Owner may, at any time execute appropriate Change Orders for additions and/or deletions in the work of up to 25 % of the total contract amount, without a change in the contract unit prices bid." ARTICLE 13 - TESTS AND INSPECTIONS; CORRECTION, REMOVAL OR ACCEPTANCE OF DEFECTIVE WORK Delete13.03.B.and replace with: "All testing shall be paid for by the Contractor." Add the following sentence to Paragraph 13;07.A.: "Specific and special warranties specified in the Contract Documents are in addition to, and not in lieu of, the contractors general warranty. CONTRACTOR shall not be relieved of general warranty obligations by the specification of specific products or procedures." 13.09. In the first sentence of the paragraph OWNER, change the first line from "If Contractor fails within a reasonable time after written notice of Engineer..." to read: "If Contractor fails within ten (10) calendar days after written notice of Engineer... " ARTICLE 14 - PAYMENTS TO CONTRACTOR AND COMPLETION In the first sentence of Paragraph 14.02.A.1., change the phrase "At least twenty days before each progress payment is scheduled (but not more often than once a month). ..." to read: "By no later than the first day of the month, ...". Following Paragraph 14.02.A.3 add: 4. An original Partial Release of Lien is required from the General Contractor along with the application for Payment No. 1 and for each 09/09 00800-7 03-4122.F 09/09 subsequent application thereafter. For each application for payment (excluding Application No.1) the Contractor shall submit with the application Partial Releases of Liens for all Notice to Owners that have been received for the project by the Owner and Engineer". 5. With each Application for Payment, the Contractor shall submit supporting records and other evidence, in a form and amount acceptable to the City and the Engineer, to demonstrate the expenses incurred and the Work performed. This shall include, but not be limited to documentation related to the purchase of Owner-Provided Material and the reduction in the Contract Sum as a result of such expenditures. 6. Each application for Payment shall be based on the most recent schedule of values submitted by Contractor in accordance with the Contract Documents. The schedule of values shall allocate the entire guaranteed maximum Contract Price among the various portions of the Work, except that the Contractor's Fee shall be shown as a separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Engineer may require. This schedule, unless objected to by the Engine_er, ,shall be used as a basis for reviewing the Contractor's Applications for Payment. 7. Applications for payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage of completion shall be the lesser of: (1) the percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by the Contractor on account of that portion of the Work for which the Contractor has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Contract Price allocated to that portion of the Work in the schedule of values. 8. Subject to the provisions of the Contract Documents, the amount of progress payments shall be computed as follows: a) take that portion of the Contract Price properly allocable to the computed Work as determined by multiplying the percentage of completion of each portion of the Work in the schedule of values. Pending final determination of the costs to the Owner of changes in the Work, amounts not in dispute shall be included in the Application for Payment along with Change Order, Work Change Directive or Written Amendment indicating the parties' agreement with all or part of such costs for additional Work. b) add the portion of the Contract Price properly allocable to materials and equipment delivered and suitably stored at the site for subsequent incorporation in the Work, or, if approved in advance by Owner, suitably stored off-site at a location agreed upon in writing. 00800-8 03-4122.F e) add the Contractor's Fee, less the ten percent (10%) Retainage. The Contractor's Fee shall be computed upon the Cost of the Work described in the preceding clauses at the rate in accordance with Paragraph 11.01.C or, if the Contractor's Fee is stated as a fixed sum, then it shall be an amount that bears the same ratio to that fixed-sum fee as the Cost of the Work in the two preceding clauses bears to a reasonable estimate of the probable Cost of Work upon completion. subtract the aggregate of the previous payments made by the Owner; subtract the shortfall, if any, indicated by the Contractor in the supporting records and other evidence as mutually agreed between the Owner or Engineer and Contractor to demonstrate expenditures incurred to substantiate prior Applications for Payment, or resulting from errors subsequently discovered by Owner, or designee; subtract the amounts, if any, for which the Architect has withheld or nullified Certificate for Payment in accordance with the provisions of the Contract Documents." c) d) f) In Paragraph 14.02.8., change the beginning of the sentence:from "Ten days..." to read: "Forty-five days...". In Paragraph 14.02.C.1, insert the following: 2. The Contractor shall promptly pay each subcontractor, upon receipt of payment from the Owner, out of the amount paid to the Contractor on account of such Subcontractor's portion of the Work, the amount to which said Subcontractor is entitled, reflecting percentages actually retained from payments to the Contractor on account of such Subcontractor's portion of the Work. The Contractor shall, by appropriate agreement with each Subcontractor, require each Subcontractor to make payments to Subsubcontractors, if such Subsubcontractors are permitted by the Contract Documents, to make payments to Subsubcontractors in the same manner. 3. Neither the Owner nor the Engineer shall have an obligation to payor see to the payment of money to a Subcontractor, except as provided by law. 4. Payment by Contractor to material suppliers shall be treated in the manner as provided in Paragraph 14.02.C.2. 5. Except with the Owner's prior approval, payments to Subcontractors shall be subject to Retainage of not less than ten percent (10%). The Owner and the Contractor shall agree upon a mutually acceptable procedure for review and approval of payments and retention for Subcontractors. 6. Upon mutual agreement by Owner and Contractor, payment in full may be made to those Subcontractors whose Work is fully completed during the early stages of the Project. Notwithstanding Paragraphs 14.02.A.8 09/09 00800-9 03-4122.F and 14.02.C.5 above, at such times as the Work as set forth in the schedule of values has been 50% completed, and upon mutual agreement of the Owner and Contractor, no further Retainage shall be withheld from progress payments with respect to such portion of the Work. Agreement as to any such reduction in retained amounts will not constitute a waiver of or otherwise prejudice the Owner's right to subsequently reinstate full retainage, as to that subcontractor, should circumstances justify such action in the Owner's sole judgment. 7. Upon Substantial Completion of the entire Work of the Contractor, a sum, sufficient to increase payments to the Contractor to one hundred percent (100%) of the Contract Sum, less amounts, if any for incomplete Work and unsettled claims, shall be paid to Contractor with the next sequential payment application after Substantial Completion is obtained. Delete Paragraph 14.05 and replace with the following: A. The Owner may occupy or use any completed or partially completed portion of the Work at any stage when such portion is designated by separate agreement with the Contractor, provided such occupancy or use is <::oD_Ser]~~dby rb~ insurer, in aGco[daoce with _p_aragraph 5.06.A.5and as authorized by public authorities having jurisdiction over the Work. Such partial occupancy or use may commence whether or not the portion is substantially complete, provided Owner and Contractor have accepted in writing the responsibilities assigned to each of them for payments, Retainage, if any, security, maintenance, heat, utilities, damage to Work and insurance, and have agreed in writing concerning the period for correction of Work and commencement of warranties required by the Contract Documents. When the Contractor considers a portion substantially complete, the Contractor shall prepare and submit a comprehensive list to the Engineer of the items to be completed or corrected prior to final payment. The Failure to include an item on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. Consent of the Contractor to partial occupancy or use shall not be unreasoanbaly withheld. The stage of the progress of the Work shall be determined by written agreement between the Owner and the Contractor, or if no agreement is reached, by decision of the Engineer. B. Immediately or prior to such partial occupancy or use, the Owner, Contractor, and Engineer shall jointly inspect the area to be occupied or the portion of the Work to be used in order to determine and record the condition of the Work. C. Unless otherwise agreed upon, partial occupancy or use of a portion or portions of the Work shall not constitute acceptance of the Work not complying with the Contract Documents." After the last sentence in Paragraph 14.04.B, insert the following: 09/09 00800-10 03-4122.F "C. Once 1) the definitive certificate of completion has been issued to the Owner and the Contractor and 2) once consent of the surety, if any, has been obtained, the Owner shall make payment of Retainage applying to such Work or designated portion thereof. Such payment shall be adjusted for Work that is incomplete or not in accordance with the requirements of the Contract Documents." After the last sentence in the Paragraph 14.04.8, insert the following: "Final payment, constituting the entire unpaid balance of the Contract Price, shall be made by the Owner to the Contractor when the Contractor has fully performed the Contract except for Contractor's responsibility to correct Work as provided in Paragraphs 13.06 and 13.07, and to satisfy other requirements, if any, which extend beyond final payment and after the Engineer sends written notice to Owner that the Work is acceptable and in accordance with Paragraphs 14.07.8 and 14.07.C." Delete Paragraph 14.07.A.2 and 14.07.A.3 insert the following: "The final Application for Payment shall be accompanied (except as previously delivered) by: (1) an affidavit that payrolls, bills for materials and equipment, and other indebtedness connected with the Work for which the Owner or the Owner's property might be responsible or encumbered (less amounts withheld by Owner) have been paid or otherwise been satisfied, (2) a certificate evidencing that insurance required by the Contract Documents to remain in force after final payment is currently in effect and will not be canceled or allowed to be expired until at least 30 days' prior written notice has been given to the Owner, (3) a written statement that the Contractor knows of no substantial reason that the insurance will not be renewable to cover the period required by the Contract Documents, (4) consent of the surety, if any, to final payment, and (5) if required by the Owner, other data establishing payment or satisfaction of obligations, such as receipts, releases, and waivers of liens, claims, security interests of encumbrances arising out of the Contract, including releases from all subcontractors and others that supplied materials and services in this project, to the extent and in such form as may be designated by the Owner, (6) all documentation as required by the Contract Documents, and (7) acceptance by the Owner and governing agencies. If a Subcontractor refuses to furnish a release or waiver required by the Owner, the Owner may require that the Contractor furnish a bond or other collateral satisfactory to the Owner to indemnify the Owner against such lien. If such lien remains unsatisfied after payments are made, the Contractor shall refund to the Owner all money that the Owner may be compelled to pay in discharging the lien, including all reasonable attorneys' fees and costs. The final payment will become due when the Contractor submits the information above to the Engineer." ARTICLE 15 - SUSPENSION OF WORK AND TERMINATION 09/09 00800-11 03-4122.F In the twentieth line of Paragraph 15.02.8., insert the following after the words...such excess...; ": (including but not limited to fees and charges of ENGINEER, other engineers, architects, attorneys and other professionals, particularly including, but not limited to reasonable Engineer's attorney's fees, and court costs)..." . ARTICLE 16 - DISPUTE RESOLUTION Delete this Article in its entirety. ARTICLE 17 - MISCELLANEOUS Add 17.05.8: "The venue for any cause of action shall be Miami-Dade County., Florida" After Article 17 add the following article: ARTICLE 18 - OWNER-PROVIDED MATERIALS The Contractor and Owner desire to enter into an arrangement whereby certain purchases under the Contract may be made by the Owner as a result of Owner's status of being exempt from sales and use tax. 1. Notwithstanding anything in the Contract to the contrary, the Owner shall directly purchase all materials and equipment identified in the Contract Documents as required for incorporation into the Project ("Owner-Provided Materials"). The Owner does hereby grant to the Contractor the full authority as an agent of the Owner to prepare, place and execute Purchase Orders for and in the name of the Owner for all Owner-Provided Materials. The Contractor as agent of the Owner shall sign such Purchase Orders. 2. The Owner will be liable for the timely payment for all Owner-Provided Materials. The Contractor will submit requisitions for orders of Owner-Provided Materials to the Owner for approval when required. Vendors will render statements ("OPM Invoices") to the Owner for any Owner-Provided Materials purchased. The Owner will provide copies of all OPM Invoices to the Contractor upon approval by. the Owner. After reviewing the OPM Invoices, the Contractor will return these orM Invoices with proper back up to the Owner for payment. The Owner shall make payment directly to the respective vendors as provided in the OPM Invoices. The Own'er will send such vendor payments along with Contractor payment to the Contractor who will, as Owner's agent, distribute such vendor payments to the respective vendors in return for Releases of Lien. The Owner will provide Contractor with any tax exemption certificates or other documents required or useful to provide 09/09 00800-1 2 03-4122.F ! to the vendors of Owner-Provided Materials to evidence the tax-exempt status of the Owner. 3. The Contract Price and shall be reduced by the sum of all Costs of the Work paid by the Owner for Owner-Provided Materials plus any applicable sales and use tax amounts initially included in the Contract Sum and GMP for such Owner-Provided Materials. 4. The Contractor shall maintain separate accounting records for all transactions carried out under the authority of this Agreement. Such records shall be open to the Owner during normal business hours of the Contractor. 5. The Contractor shall select, obtain approvals, submit samples, price shop drawings, pursue, receive, inspect, and accept or reject all Owner-Provided Materials purchased in the manner described herein per the Contract. The Contractor shall remain responsible for the proper installation of all Owner-Provided Materials and will continue to warrant its installation of these Owner-Provided Materials as provided in the Contract. This Agreement will not be an acceptable excuse for delay to the construction schedule. 6. The authority granted the Contractor hereunder may be revoked by the Owner at any time ..!;!eo~ written notice delivered to the Contractor at its offices ~it~~~~'Ii","'J"\~'~~ d' . lb' h at:.<J\,i~~'tt~~~ff.;{~ii.~'i'e(~~{\(';;~1~ unng norma usmess ours. 7. The Owner agrees that the Contractor's Fee as set forth in the Contract shall not be reduced as a result of any Owner-Provided Materials deduct change orders; i.e., the Contractor's Fee shall continue to apply to the total sum of all remaining Costs of the Work plus the costs of all Owner-Provided Materials and plus the applicable tax amounts. Likewise, all agreed charging rates based on the Contract Price, including without limitation for bonds and insurance, shall continue to be charged based on the total sum of the Contract Price amount plus the costs of all Owner-Provided Materials and plus the applicable tax amounts." END OF DOCUMENT 09/09 00800-1 3 03-4122.F IN WITNESS WHEREOF, the parties hereto have made and executed this First Amended Supplemental Conditions on the respective dates under each signature: City of Sunny Isles Beach through its City Commission, signing by and through its Mayor, authorized to execute same by Commission action on the _ day of _; and CONTRACTOR authorized to execute same. CITY OF SUNNY ISLES BEACH, through its City Commission ATTEST: By: Norman S. Edelcup, Mayor _day of ,2009 Jane Hines, City Clerk Approved as to form and legality by Office of the City Attorney By: Rick Conner, City Manager _day of ,2009 By: Hans Ottinot, City Attorney ATTEST: By [CORPORATE SEAL] [CORPORATE SEAL] Address for giving notices License No. Agent for service of process (If CONTRACTOR is a corporation, attached evidence of authority to sign). _day of 09/09 ,2009 (CITY SEAL) 00800-1 4 03-4122.F THIS PAGE LEFT lNTENTIONALL Y BLANK. 09/09 00800-1 5 03-4122.F SECTION 00810 ADDITIONAL SUPPLEMENTAL CONDITIONS FEDERAL LABOR STANDARDS PROVISIONS (Davis-Bacon Act, Copeland Act, and Contract Works Hours & Safety Standards Act) The Project to which the construction work covered by this contract pertains is being assisted by the United States of America and the following Federal Labor Standards Provisions are included in this Contract pursuant to the provisions applicable to such Federal assistance. A.1.( I) Minimum Wages. 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 thereofraUefaftime ofpaymenf c6mpu"tecfat rates.. not les~:i""tliari those containeain 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 29 CFR 5.5(a)(1 )(iv); 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 29 CFR Part 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 29 CFR Part 5.5(a)(1 )(ii) 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) Any class of laborers or mechanics which is not listed in the wage determination and which is to be employed uflder the contract shall be classified in conformance with the wage determination. EPA shall approve an additional classification and wage rate and fringe benefits; therefore, only when the following criteria have been met: 09/09 00810-1 03-4122.F (1) The work to be performed by the classification requested is not perfon:ned 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 EPA or its designee 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 EPA or its designee to the Administrator of the Wage and Hour Division, employment Standards Administration, U. S. Department of Labor, Washington, D. C. 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise EPA or its designee or will notify EPA or its designee within the 30-day period that additional time is necessary. (Approved by the Office of Management and Budget under OMB control number 1215-0140.) ( c) In the event that the Contractor, the laborers or mechanics to be employed in the Classification or their representatives, andEPA or its designee do not~~r~~ on the proposed classificationaria wage rate (inCluding the amount designed for fringe benefits, where appropriate), EPA or its designee shall refer the questions, including the views of all interested parties and the recommendation of EPA or its designee, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise EPA or its designee or will notify EPA or its designee within the 30-day period that the additional time is necessary. (Approved by the Office of Management and Budget under OMB Control Number 1215-0140.) (d) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(b) or (c) of this paragraph, 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. (Hi) 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. (Approved by the Office of Management and Budget under OMS Control Number 1215-0140. ) 09/09 00810-2 03-4122.F 2. Withholding. EPA or its designee 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, EPA, or its designee may, after written notice to the contractor, sponsor, applicant, or owners, 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. EPA or its designee may, after written notice to the contractor, disburse such amounts withheld for and on account of the contractor or subcontractor to the respective employees to whom they are due. The Comptroller General shall make such disbursements in the case of direct Davis- Bacon Act contracts. 3.( i) Payrolls and Basic Records. Payrolls and basic records relating thereto shall be maintained by the contractor during the course of the work 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 actualwages paid. Whenever the 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, arid records which show the costs anticipated or the actual cost incurred in providing such 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 registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (Approved by the Office of Management and Budget under OMBControl Numbers 1215-0140 and 1215-0017). (ii)(a)The contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to EPA or its designee 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 owners, as the case may be, for transmission to EPA or its designee. The payrolls submitted shall set out accurately and completely all of the 09/09 00810-3 03-4l22.F information requiredto be maintained under 29 CFR Part 5.5(a)(3)(I). This information may be submitted in any form desired. Optional Form WH-347 is available for tbi~ purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029-005-00014-1), U. S. Government Printing Office, Washington, DC 20402. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. (Approved by the Office of Management and Budget under OMS Control Number 1215-0149). (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 maintained under 29 CFR Part 5.5 (a)(3)(I) 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'indfrectiyfromthe full wages earned, other than permissible deductions as set forth in 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 Option 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 apy 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(1) of this section available for inspection, copying, or transcription by authorized representatives of EPA or its designee 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, EPA or its designee 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 to make such records available may be grounds for debarment action pursuant to 29 CFR Part 5.12. 4.( i) 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. 09/09 00810-4 03-4122.F S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, 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 registered in the program, but who has been certified' by the Bureau of Apprenticeship and Training 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 fhe 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 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 ~PPI.~l1tl~e lllu~tb.eLpajd ~tnotless thC)n tl:le rat~ specified in the r.egist~red 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 the determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, 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 arid 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 09/09 00810-5 03-4122.F 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 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 contract will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an accepfable 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 will insert in any subcontracts the clauses contained in29 CFR 5.5(a)(1) through (10J and sl!<::h _other c1a!l~es a~ EPA or its designee 'may by approprfatelnstructlon-s require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contract shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the contract clauses in 29 CFR Part 5.5. 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 gavis-Bacon and~elat~,d 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 referenced 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 EPA or its designee, the U. S. Department of Labor, or the employees or their representatives. 10.( i) Certification of Eligibility. 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) or to be awarded EPA contracts or participate in EPA programs pursuant to Executive Order 12549. 09/09 00810-6 03-4122.F (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)C1) or to be awarded EPA contracts or participate in EPA programs pursuant to Executive Order 12549. (Hi) The penalty for rnaking false statements is prescribed in the U. S. Criminal Code, 18 U. S. C. 1001. Additionally, U. S. Criminal Code, Section 1010, Title 18, U. S. C., Federal Housing Administration transactions, provides in part Whoever, for the purpose of. . .influencing in any way the action of such Administration. . .makes, utters or publishes any statement, knowing the same to be false. . .shall be fined not more than $5,000 or imprisoned not more than two years, or both. 11. Complaints, Proceedings, or Testimony by Employees. No laborer or mechanic to whom the wage, salary, or other labor standards provisions of this contract are applicable shall be discharged or in any other manner discriminated against by the contractor or any subcontractor because such employee has filed any complaint or instituted or caused to be instituted any proceeding or has testified or is about to testify in any proceeding under or relating to the labor standards applicable under this contract to his employer. B. Contr(ict Wor.\< H9~r.~ aD_d ~_af~ty ~~Cln~tud_s ~c:t. As ~sed in the 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 subparagraph (1) of this paragraph, 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 teititory), for liquidated damages. Sucn 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 subparagraph (1) of this paragraph, 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 subparagraph (1) of this paragraph. (3) Withholding for unpaid wages and liquidated damages. EPA or its designee shall upon its own action or upon written request of an authorized representative of the Departmeht 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 contract, or any other Federally-assisted contract subject to the Contract Work Hours and Safety Standard~,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 09/09 00810-7 03-4122.F subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in subparagraph (2) of this paragraph. (4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in subparagraph (1) through (4) of this paragraph 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 subparagraphs (1) through (4) of this paragraph. C. Health and Safety (1) No laborer or mechanic shall be required to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health and safety as determined under construction safety and health standards promulgated by the Secretary of Labor by regulation. (2) The contractor shall comply with all regulations issued by the Secretary of Labor pursuant to Title 29 Part 1926 (formerly part 1518) and failure to comply may result in imposition of sanctions pursuant to the Contract Work Hours and Safety Standards Act (Public Law 91-54.83 State 96). (3) The contractor shall include the provisions of this Article in every subcontract so t~at_~_~ch_prc:>y'isions vyill pe binding on each. su~col'!!ractor. The contractor shall take such action with respect to any subcontract as the Secretary of Housing and Urban Development or the Secretary of Labor shall direct as a means of enforcing such provisions. 11. Guidance to Contractor for Compliance with Labor Standards Provisions a) Contracts with Two Wage Decisions If the contract includes two wage decisions, the contractor, and each subcontractor who works on the site, must submit either two separate payrolls (one for each wage decision) or one payroll which identifies each worker twice and the hours worked under each wage decision. One single payroll, reflecting each worker once, may be submitted provided the Contractor uses the higher rate in the wage decisions for each identical job classification. However, where a job classification is not listed in a wage decision and is needed for that portion of the work, the classification must be added to the wage decision. A worker may not be paid at the rate for a classification using the hourly rate for that same classification in another wage decision. After the additional classification is approved, the contractor may pay the higher of the two rates and submit one payroll, if desired. b) Complying with Minimum Hourly Amounts 1) The minimum hourly amount due to a worker in each classification is the total of the amounts in the Rates and Fringe Benefits (if any) columns of the applicable wage decision. 2) The contractor may satisfy this minimum hourly amount by any combination of cash and bona fide fringe benefits, regardless' of the individual amounts reflected in the Rates and Fringe Benefits columns. 09/09 00810-8 03-4122.F 3) A contractor payment for a worker which is required by law is not a fringe benefit in meeting the minimum hourly amount due under the applicable wage decision. For example, contractor payments for FICA or unemployment insurance are not a fringe benefit; however, contractor payments for health insurance or retirement are a fringe benefit. Generally, a fringe benefit is bona fide if (a) it is available to most workers and (b) involves payments to a third party. 4) The hourly value of the fringe benefit is calculated by dividing the contractor==s annual cost (excluding any amount contributed by the worker) for the fringe benefit by 2080. Therefore, for workers with overtime, an additional payment may be required to meet the minimum hourly wages since generally fringe benefits have no value for any time worked over 40 hours weekly. (If a worker is paid more than the minimum rates required by the wage decision, this should not be a problem. As long as the total wages received by a worker for straight time equals the hours worked times the minimum hourly rate in the wage decision, the requirement of the Davis- Bacon and Related Acts has been satisfied.) c) Overtime For any project work over 40 hours weekly, a worker generally must be paid 150% of the actual hourly cash rate received, not the minimum required by the wage d~cisjQn.(Jhe_ Dgyjs:-J;~a_~on~Dd Rel~ted A~t?d on.ly e~taplish~s minimum rates and does not address overtime; the Contract Work Hours Act contains the overtime requirement and uses basic rate of pay as the base for calculation, not the minimum rates established by the Davis-Bacon and Related Acts.) d) Deductions Workers who have deductions, not required by law, from their pay must authorize these deductions in writing. The authorization must identify the purpose of each deduction and the amount, which may be a specific dollar amount or a percentage. A copy of the authorization must be submitted with the first payroll containing the deduction. If deducted amounts increase, another authorization must be submitted. If deducted amounts decrease, no revision to the original authorization is needed. Court-ordered deductions, such as child support, may be identified by the responsible payroll person in a separate document. This document should identify the worker, the amount deducted and the purpose. A copy of the court order should be submitted. e) Classifications Not Included in the Wage Decision If a classification not in the wage decision is required, please advise the owner==s representative in writing and identify the job c1assification(s) required. In some instances, the State agency may allow the use of a similar classification in the wage decision. Otherwise, the contractor and affected workers must agree on a minimum rate, which cannot be lower than the lowest rate for any trade in the wage decision. Laborers (including any subcategory of the laborer classification) and truck drivers are not considered a trade for this purpose. If the classification involves a power equipment operator, the minimum cannot be lower than the lowest rate for any power equipment operator in the wage decision. The owner will provide forms to 09/09 00810-9 03-4122.F document agreement on the minimum rate by the affected workers and contractor. The U.S. Department of Labor (USDOL) must approve the proposed classification and rate. The contractor may pay the proposed rate until the USDOL makes a determination. Should the USDOL require a higher rate, the contractor must make wage restitution to the affected worker(s) for all hours worked under the proposed rate. f) Supervisory Personnel Foremen and other supervisory personnel who spend at least 80% of their time supervising workers are not covered by the Davis-Bacon and Related Acts. Therefore, a wage decision will not include such supervisory classifications and their wages are not subject to any minimums under the Davis-Bacon and Related Act or overtime payments under the Contract Work Hours and Safety Standards Act. However, foremen and other supervisory personnel who spend less than 80% of their time engaged in supervisory activities are considered workers/mechanics for the time spent engaged in manual labor and must be paid at least the minimum in the wage decision for the appropriate c1assification(s) based on the work performed. g) Sole Proprietorships / Independent Contractors / Leased Workers Th~ na!ur~ of t~~ relationship ~etween ~ prit:De contrpctor and a worker does not affect the requirement to comply with the labor standards provisions of this contract. The applicability of the labor standards provisions is based on the nature of the work performed. If the work performed is primarily manual in nature, the worker is subject to the labor standards provisions in this contract. For example, if John Smith is the owner of ABC Plumbing and performs all plumbing work himself, then Mr. Smith is subject to the labor standards provisions, including minimum wages and overtime. His status as owner is irrelevant for labor standards purposes. If a worker meets the IRS standards for being an independent contractor, and is employed as such, this means that the worker must submit a separate payroll as a subcontractor rather than be included on some other payroll. The worker is still subject to the labor standards provisions in this contract, including minimum wages and overtime. If a contractor or subcontractor leases its workers, they are subject to the labor standards provisions in this contract, including minimum wages and overtime. The leasing firm must submit payrolls and these payrolls must reflect information required to determine compliance with the labor standards provisions of this contract, including a classification for each worker based on the nature of the work performed, number of regular hours worked, and number of overtime hours worked. h) Apprentices / Helpers A worker may be classified as an apprentice only if participating in a federal or state program. Documentation of participation must be submitted. Generally, the apprentice program specifies that the apprentice will be compensated at a percentage of journeyman rate. For Davis-Bacon Act purposes, the hourly rate cannot be lower than the percentage of the hourly rate for the classification in the applicable wage decision. 09/09 00810-10 03-4122.F If the worker does not participate in a federal or state apprentice program, then the worker must be classified according to duties performed. This procedure may require classification in the trade depending on tools used, or as a laborer if specialized tools of the trade are not used. The contractor may want to consult with the Wage and Hour Division of the U.S. Department of Labor located in most large cities regarding the appropriate classification. Presently, no worker may be classified as a helper. As with apprentices not participating in a formal apprentice program, the worker must be classified according to duties performed and tools used. 09/09 00810-11 03-4122.F - DAVIS BACON CERTIFICATION The American Recovery and Reinvestment Act states that the construction work covered by this contract pertains is being assisted by the United States of America and the following Federal Labor Standards Provisions are included in this Contract pursuant to the provisions applicable to such Federal assistance. To meet this requirement, the undersigned hereby certifies that all of the that the construction work covered by this contract pertains is being assisted by the United States of America and the following Federal Labor Standards. 09/09 00810-12 03-4122.F BUY AMERICAN CERTIFICATION Section 1605 of the American Recovery and Reinvestment Act states that: "None of the funds appropriated or otherwise made available Vt) this Act may be used for a project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States. 1/ To meet this requirement, the undersigned hereby certifies that all of the material, equipment and accessories which are to be incorporated into the (Name of Construction Contract) to be partially funded by monies from the American Recovery and Reinvestment Act, has been manufactured from domestic construction material as defined by 40 CFR 35.936-13(D). Name of Contractor Date Signature of Authorized Official Title 09/09 00810-13 03-4122.F SECTION 00300 BID FORM Bid of ~}F'I. fjJTM\>tll SC~ / +-,~J C Address ef:D SW \c...l~ COlI{\..' J ~Glni) (})vh I Fe. -S30~O Phone ~"'- -'788' f) (tV To furnish all materials, equipment and labor and to perform all work in accordance with the Contract Documents for construction of: Median Closure at NE 175th Terrace on Collins Ave. and SR A 1 A/Collins Ave. at 183rd St. Streetscape Improvements located in the CITY OF SUNNY ISLES BEACH. To: CITY OF SUNNY ISLES BEACH 18070 Collins Avenue Sunny Isles Beach, Florida 33160 The undersigned Bidder has carefully examined the Bidding Documents and the site of the proposed work and is familiar with the nature and extent of the work and any local conditions that may in any manner affect the work to be done. The undersigned Bidder agrees to do all the work and furnish all materials called for by the Bidding Documents, in the manner prescribed therein and to the standards of quality and perform ance established by the Engineer for the unit price amounts stated in the spaces herein provided, for each of the items or combination of items stipulated. Unit price line items shall include cost of implementing all applicable safety requirements. Bidder acknow ledges that estimated quantities scheduled are approximated for the sole purpose of obtaining comparative bids for determination of the lowest responsible responsive bidder and actual quantities required may increase or decrease. Bidder further agrees that payments will be made on the basis of actual quantities placed and accepted in the construction II ~...ft . ~~ r4 .... !'''''''~.. J R -0 ~, '''-''....... -'"" '-- OCT 2 0 2009 CITY OF SU~ ~N''t' ISLES nsp.CH Exhibit "B" I J 'I I 09/09 00300-1 03-4122.F UCT-lth::~UUg FP{ 1 U8: be AM CALVI N & G lUP{l)ANU t-'AX NU, U [I, U:J/U4 MEDIAN CLOSUR.E AT NE 175TH TERRACE ON COLLINS AVE. AND SR A1AfCOL-l-INS AVE. AT 183RD ST STREETSCAPE IMPROVEMENTS Bid Estimated Estimated Item Oeseri tion Quantity Unit Unit Price Total ... 1.S _~ "")0 ,000 J\ 10 I f)l"10 J\ '10'lOOD 7 EA . 2 EA 9 EA 7 EA . 00 19 EA 0 5,270 SF 1 '-\~l~ _~ 1 )IO~1.. :5 0 292 SF ..J \, ,s 1... 1e EA ..i 2,lliQ 268 EA i!o ,1e EA 416 EA 1,057 EA 263 EA 30 EA 1 EA 1 EA 4 EA 1 EA 6 EA 6 EA 7 I.F 415 LF I. General 1 Mobllization/Damobillzation 1< 5% of total bldl Maintainance of Traffic. to included but not limited to all required barricades. board arrows, and off- duly officers as required for lraffic control, during the entire construction 2 time. 1-5 ~ "J",000 LS }b '2'\000 Sub-Total General II. Median Closure at NE 175th Terrace 3 Proposed Median Closure (completel including all labor, equipment,permits and materials necessary far final product. Complete median closure to include, but not limited to, all excavation, backfill, compaction, .base, aubgracl8,paving, curbing, strlplnQ, signage. landscape end irrigation alii Indicated in plans. Sub-Total MedIan Closure at NE 176th Terraco Ill. Straetscape Improvoments A. Treesnd Palm protection, removal and relocation 4, Tree and Palm protection 3"~24" caliper 5 Tree and Palm removal 3" . , 2" caliper 6 Tree and Palm removal 13" - 24" caliper 7 Tree and Palm relocation 3" . 12" caliper B Tree and Palm relocation 13" - 24" celiper B, PavIng 9 Pavers set on sand 10. Pavers set on concrete C. Plnnts '1 Silver Bunonwood 12' th 6' csd 4' ,ct 3 tk 2" clpr 12 Small Leaf Clusia 48" ah 48" as 14" ncd 1:3 CDcoplum 48" ah 36" as 14" ncd 14 Flax I.llIy 18" an 18" as 1 0. ncd Hi Dwerf Fig 18" an 18" liS 10 ncd 16 BeachBlllnl,et Flower 12" ah 12" as 6" ncd 17 Dete Palm 24' oh 11' ct bb 0, Irrigation Equipment (FurnIsh Dnd Installl 18 Automatic Controller Rainbird esp-lxm-sm8 19 Rain Sensor Switch Hunter mini-click-c-bpsw 20 Automatic Electric Valve Rainbird 160-peb-prs-d 21 Gate Valve Nibco T-1 1:3 22 Valve Box OU8zite pg 1 324bb 1 a 23 Valve Bolt Covers Quazite PEl 1324caOo. 24 ,., /2" Irrigation Mein PVC plastic pipe and fittIngs 25 2" Irrigation Main PVC plastic pipe and fittings E. Sprinklers Including ABBociated SwlngJo!nt, Piping, and AninRII 26 Toro 570z-4p 409 EA.l ~O 09/09 . Add#3 00300-2 ~ "'"l\.) I~\) \\ ~~CX1\") ~ '"\0, tnQ -1 \l:2."1C 03-4122.F OCT-16-2009 FRI 09:58 AM CALVIN & GIORDANO FAX NO. U p, U4/U4 MEDIAN CLOSURE AT NE 175TH TERRACE ON COLLINS AVE. AND SR A1A/COLLINS AVE. AT 183RD ST STREETSCAPE IMPROVEMENTS Bid Estimated Estimated ltam Description Quantity Unit Unit Price Total F. Furnishings IFurnillh and Install) 27 Steel Bench Dumor 119 Series 74"1 x28"d x 32"ht 6 EA ~ '2l~loo ~ 28 Steel litter Aeceptable Dumor 84-22-1to 28"dla x 32"ht , l t ~OO J 'I boD 4 EA 29 Bus Stop Shelter Tolar Shelters 6549.000301354 soler lighting 13'1 x 4'-S"d x 8'-2"ht EA ~ '10 /(")l"}() -' J.O. t1t) \) . G. L1ghtlnEl 30 Pole Light Holophal'le Fixture # ee.1 odmh24-b-5-n-s.b.f2 , 5,000 CJt>,DCo City Manufacturing pole II was 12-bk-2pcb-p3 8 EA 31 Uplight t1ydrel series 7000 /17000-70cmtS.1 20-mfl-wh- .~ \ ,\tOO ~ air 44 EA H. Miscellaneous 32 Clear and Grubbing 1 LS 33 Removal of Existing Concrete 1,000 SY 34 Base Optional 1,SOO Sy 35 Valve Boxell Adjust 3 EA 36 Manhole Adjust 1 EA 37 Curb and Gutter Cone. Type F 130 LF Sub-Total Straatscape Improvemants J ~ 11, 6 3"\ ,.,.... 09/09 . Add#3 00300-3 03-4122. F - BID SECURITY Accompanying this Bid is a certified or cashier's check or a bid bond in the amount of 1 5 % of the bid payable to the Owner which may be forfeited as liquidated damages if, in the event this proposal is accepted, the undersigned fails to execute the Agreement and furnish and pay for the required performance and payment bonds for the Owner within 10 days after acceptance of the Bid; otherwise said certified or cashier's check or bid bond will be returned to the undersigned. The undersigned Bidder agrees to commence work within 1Q days after the date of written Notice to Proceed, and further agrees to substantially complete the work within 130 consecutive calendar days after the date of written Notice to Proceed, subject to such extensions of time allowed by the Conditions of the Contract. The undersigned Bidder also agrees to complete the entire work within 160 days after the Contract time commences to run. The undersigned Bidder agrees that this Bid shall be good and may not be withdrawn for a period of 60 days after the scheduled closing time for receiving bids. The undersigned agrees to forfeit to the Owner, as liquidated damages for each calendar day elapsing between the date established as the date of substantial completion and the actual date of such substantial completion of the contract work, the amount of $1,500.00 per calendar day. The undersigned further agrees to forfeit to the Owner, as liquidated damages for each calenda r day elapsing between the date established as the date of final completion and the actual date of final completion of the contract work, the amount of $1,000.00 per calenda r day. 09/09 00300-4 03-4122.F ADDENDA Bidder a ~edgeS the 1.L,2. ,3. Dated this 20 day of OG.f- (month) cum No.'s ,4. ,5. ~9. (year) Contrac~or: -%/Je)<. Q.~T.~ Authorized Representative Title ~\ OE,tJ-r ~~ l<ftt.. UJ()f'+ ~Ot'c ~tW-D C1vk 1 r t Address: 55~(!;f) * SEAL * Attachments: Subcontractor List Bid Se curity Trench Safety Act documentation END OF DOCUMENT I I I I II . i J I 09/09 00300-5 03-4122.F - DOCUMENT 00401 BID BOND BIDDER (Name and Address): SURETY (Name and Address of Principa/ P/ace of Business): OWNER (Name and Address): CITY OF SUNNY ISLES BEACH 18070 Collins Avenue Sunny Isles Beach, Florida 33160 BID BID DUE DATE: PROJECT (Brief Description inc/uding Location): BOND BOND NUMBER: DATE: (Not /ater than Bid Due Date): PENAL SUM: IN WITN ESS WHEREOF, Surety and Bidder, intending to be legally bound hereby, subject to the terms printed on the reverse side hereof, do each cause this Bid Bond to be duly executed on its behalf by its authorized officer, agent, or representative. BIDDER SURETY (Seal) (Seal) Bidder's Name and Corporate Seal Surety's Name and Corporate Seal By: By: Signature and Title Signature and Title (Attach Power of Attorney) Attest: Attest: Signature and Title Signature and Title Note: (1 ) (2) Above addresses are to be used for giving required notice. Any singular reference to Bidder, Surety, Owner or other party shall be considered plural where applicable. 09/09 00401 -1 03-4122.F 1. Bidder and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to pay to Owner upon default of Bidder any difference between the total amount of Bidder's bid and the total amount of the bid of the next lowest, responsible and responsive bidder as determined by Owner for the Work required by the Contract Documents, provided that: 1.1. If there is no such next lowest, responsible and responsive bidder, and Owner does not abandon the Project, then Bidder and Surety shall pay to Owner the penal sum set forth on the face of this Bond, and 1.2. In no event shall Bidder's and Surety's obligation hereunder exceed the penal sum set forth on the face of this Bond. 2. Default of Bidder shall occur upon the failure of Bidder to deliver within the time required by the Bidding Documents (or any extension thereof agreed to in writing by Owner) the executed Agreement required by the Bidding Documents and any performance and payment bonds required by the Bidding Documents and Contract Documents. 3. This obligation shall be null and void if: 3.1. Owner accepts Bidder's bid and Bidder delive-rs within the time required by the Bidding Documents (or any extension thereof agreed to in writing by Owner) the executed Agreement required by the Bidding Documents and any performance and payment bonds required by the Bidding Documents and Contract Documents, or 3.2. All bids are rejected by Owner, or 3.3. Owner fails to issue a notice of award to Bidder within the time specified in the Bidding Documents (or any extension thereof agreed to in writing by Bidder and, if applicable, consented to by Surety when required by paragraph 5 hereof). 4. Payment under this Bond will be due and payable upon default by Bidder and within 30 calendar days after receipt by Bidder and within 30 calendar days after receipt by Bidder and Surety of written notice of default from Owner, which notice will be given with reasonable promptness, identifying this Bond and the Project and including a statement of the amount due. 5. Surety waives notice of and any and all defenses based on or arising out of any time extension to issue notice of award agreed to in writing by Owner and Bidder, provided that the total time for issuing notice of award including extensions shall not in the aggregate exceed 120 days from Bid Due Date without Surety's written consent. 6. No suit or action shall be commenced under this Bond prior to 30 calendar days after the notice of default, as required in Paragraph 4 above, is received by Bidder and Surety and in no case later than one year after Bid Due Date. 7. Any suit or action under this Bond shall be commenced only in a court of competent jurisdiction located in the state in which the Project is located. 8. Notices required hereunder shall be in writing and sent to Bidder and Surety at their respective addresses shown on the face of this Bond. Such notices may be sent by personal delivery, commercial courier or by United States Registered or Certified Mail, return receipt requested, postage pre-paid, and shall be deemed to be effective upon receipt by the party concerned. 9. Surety shall cause to be attached to this Bond a current and effective Power of Attorney evidencing the authority of the officer, agent or representative who executed this Bond on behalf of Surety to execute, seal and deliver such Bond and bind the Surety thereby. 10. This Bond is intended to conform to all applicable statutory requirements. Any applicable requirement of any applicable statute that has been omitted from this Bond shall be deemed to be included herein as if set forth at length. If any provision of this Bond conflicts with any applicable provision of this Bond conflicts with any applicable provision of any applicable statute, then the provision of said statute shall govern and the remainder of this Bond that is not in conflict therewith shall continue in full force and effect. 11. The term "bid" as used herein includes a bid, offer or proposal as applicable. 09/09 00401-2 03-4122.F I I I I I . .... .-... I I I I I I I I , I I , I I - DOCUMENT 00401 BID BOND BIDDER (Name and Address): Tenex Enterprises, Inc. 850 SW 14th Court pnwp~nnRp~rh, Fl 11060 SURETY (Name and Address of Principal Place of Business): . First Sealord Surety, lNc. 789 E. Lancaster Ave. ._ .__.__H. ._ nnY!-J-Jappya, PA. 12085 OWNER (Name and Address): . CITY OF SUNNY ISLES BEACH 18070 Collins Avenue Sunny Isles Beach, Flbrida33160 BID BID DUE DATE: 10/20/09. PROJECT (Brief Description including Location): Me(H:m'Clo~ure 175 Terr on Collins Ave. and SRAIA at 183 St. BOND _ -SaND NUMBER: 09 -<\(,~h DATE: (Not/ater thaI) Bid Due Date): 10 /20 /09 PENAL SUM: . . Five Percent IN WITNESS WHEREOF, Surety and Bidder,intending to be legally bbund hereby, subject to the terms printed on the reverse side herebf,doeach cause this. Bid Bond to be duly execUted on its behalf by its authorized officer, agent, or representative. BIDDER SURETY Tenex Enterprises, Inc.. (Seal) :~~d:~S N~J J S'gnatureand Title ou adi President By: Signature.and TitleMichele .Council Attach Power of Attorney) Attorney in Fact Attest: Attest: Note: (1 ) (2) Above addresses are to be used for giving required notice. Any singular reference to Bidder, Surety, Owner or other party shall be considered plural, where applicable. 09/09 0040,1-1 03-4122.F I I I I I I I I I I I I I I I I I I I .. 1. Bidder and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors and assigns to p.ay to Owner: upon default of Bidder any difference. between the' total amount of Bidder's bid and the total amount of the bid of the next lowest, responsible and responsive bidder as determined by Owner for the Work required by the Contract Documents, provided that: 1 .1. If there is no such next lowest, responsible and'responsive bidder,' and Owner .does riot '. abandon. the Project, jhen Bidder and Surety shall pay teOwnerthe penal sum set'f6rthon .. .. .'.---." ....-:-~'-:c..-:the-face-ofthis-Bond;'.and..':- ..'--. - .",......:.-.-....- 1.2. In 'no. . event shall Bidder's" and, Surety's obligation hereunder' exceed the penal sum set forth on the face of this Bond. 2;' Default of Bidder : shall OCcur upon the failure of Bidder .todeliver within the time required by the Bidding bocuIT,lents (or any extension thereof agreed to in writing by. Owner) the executed Agreement required by the Bidding Documents and any . performance and payment bonds required . by the Bidding Documents and Contract Documents. . 3. . This obligationshaUbenulland void if: ..' . 3.1. Owner. accept~ Bidder's bid 'and Bidder. dem/irrs within. the. time required by the B}dding'Documents (or any extension ~hereof . agreed to in writing. by Owner) the executed Agreement . required by. the Bidding ;Documents . and any. performance.. and payment. boridsrequired .' by the Bidding . Documents and. Contract. Documents, or" 3.2. All bids are rejected by OWner. or . 3.3. Owner. fails to issue a notice of award te Bidder.withinthe time specified in the Bidding . Documents (or' aiW extension' thereof agreed to in' writing by Bidder and, if applicable, . consented to by. Surety when required by . paragraph 5 hereof). . . . '. . .' '. . '. . . 4. Payment under this Bond wlUbedue and payable . upcin~ef.aldtby Bidderjll1d within 30 calendar days after . receipt by. Bidder arid .within' 30 calendar days after receipt by Bidder arid Surety of written notice of default fro'mOwrier,which notice will be give/') with reasonable promptness, . identifying this Bond . and the Project and . including a statemEmt of the amoLlnt due. 5. Surety waives notice of and any and all defenses based on or arising out of any time extension to issue notice of award agreed to in writing by Owner and Bidder, provided that the total time for issuing notice of award including extensions shall not in the aggregate exceed 120 days from Bid Due Date. without Surety's written consent. . 6. No suit or action shall be commenced. under this Bond prior to 30' calendar days after. the notice of defaLllt, . as required in Paragraph 4 above',' is received by Bidder and Surety and in no case later than one year after' Bid -.-'-Oue-Oata;'.'-- _____,____u'"'___ -- -- - ------......... . 7.. Any. suit or. action under this Bond shall be commenced only in a .court of competent jurisdiction' located inthe state in which the Project is located. . 8; Notices required hereunder shall be in writing and sent to. Bidder and Surety at their respective addresses shown on the .lace of this. Bond. . Such notices may be sent by personal delivery, commercial courier or by United States Registered or Certified Mail, return receipt requested, postagepre~paid, and shall be deemed to be effective upon receipt by the party concerned. 9. Surety shaH cause to be attached to' this Bond a current arideffectivePoVl(ef 01 Attorney eiiiaeni:iii~i the authority of the officer, agent or representative' who executed this Bond on behalf 'of Surety to ex'ecute, seal and deliver such Bond and bind the Surety thereby. 10.' This Bond is int'~ndedtoconform teal! applicable statutory requirements. Any applicable requirement of any applicable statute that has been omitted from this Bond sh~1I be deemed to be included herein as if set forth . at length. If any provision of this Bond conflicts 'with any applic.able . provision. of. this Bond conflicts with any applicable provision of any applicable statute, then the provision of said statute shall govern. and the remainder of . this . Bond . that is . not in confiict therewith shall continue in fuli force and effect. 11.. .. The ,term "bid'~ as used herein inclLldes a bid, offer or proposal as applicable. 09/09 00401.2 03-4122.F ~ .... ~ =-.7 ~ _ = ~~ i L,ff ~ ~"'_ First Sealord Surety, Inc. Power of Attorney :::,;; g ~ 1,'" . ... - .' -, ,-~ Power No: MIA-0495-09-10376 KNOW ALL MEN BY THESE PRESENTS: That First Sealord Surety, Inc., a corporation of the Commonwealth of Pennsylvania, (hereinafter the "Company") has' made, constituted ancj appointed, and by these presents does make, constitute and appoint '., " , ," Michele Council and/or Gladys Keith all of Lake Placid, Florida its true and lawful Attorney-in-Fact, to make, execute and deliver on its behalf insurance policies, surety bonds, undertakings and other instruments of a similar nature as follows: ********** Not To Exceed Five Million Dollars---------------------------($5,OOO,OOO.OO) ********** Such insurance policies, surety bonds, undertakings and instruments for said purposes, when duly executed by the aforesaid Attorney-in-Fact, shall be binding up'on the said Corporation as fully andJo the same extent as if signed by the duly authorized officers of the Corporation and sealed with its ~ c9ffio!atepe,!ll; ~nd~1l ttri"act~of~aiqAtt2rn2y-i'l_-Fa"pt, pUlJluagt to th",e a~thority ~erebygive~, aje berepYjatified ~nd'~on!l"rm~d. ,=-~. ~ ~ "~ = ~ r-'~ .~. ~ .~ ~ ~,~ ~ ~.. ..~:;~; ~. .~. ~--- -~ ~ J ~-~_E ~:- --W .~-_ ~, -~~ i -~ ~- ~. ~ 'g ;c This appointmen-t isE"made pursuant to' the following Efy-Laws wrnch were=duly adopted by the' Board of Directors of the said Corporation on April 7,~003' with all Amendments thereto and are still in full force and effect: i "Article XII: Policies, Bonds, Recognitions, Stipulations, Consents of Surety, Underwriting Undertakings, and Instruments Relating Thereto. Section 12-1. Insurance policies, bonds, recognitions, stipulations, consents of surety and underwriting undertakings of the Corporation, and releases, agreements and other writings relating in any way thereto or to any claim or loss thereunder, shall be signed in the name and on behalf of the Corporation: a) by the Chairman of the Board, the President or a Vice President, and by the Secretary or an Assistant Secretary; or b) by an Attorney- in-Fact for the Corporation appointed and authorized by the Chairman of the Board, the President, or a Vice President to make such signature; or c) by such other officers or representatives as the Board may from time to time determine. The seal of the Corporation shall if appropriate be affixed thereto by any such officer, Attorney-in-Fact or representative. The authority of such Attorney-in-Fact and Agents shall be as prescribed in the instrument evidencing their appointment. Any such appointment and all authority granted thereby may be revoked at any time by the Board of Directors or by any person empowered to make such appointment." lit tiN WJJNESS WHEREOF}First Sealortl SjJrely, Inc. Gas caIiSedIHieseTpresents tq;1le'-dulfsignecfand its"cdrporate,seaf tope tlereunto affixec$ anC{fdulYi _ J a!tested!j,is~otj, day of January, ~Oa4.; i ~ I~~_ r _ ~_}" ~ ~.f'" ~, r."j I \ ~. -, If"" 1 ~0 - ' , fi.7e~~\ 1i~\ 199-~\-<..~ ./ (sea')~iW~l Attest: I;~~~ ~ ~ II!' 'Gary,l,~' Bragg, Se9retafY Commonwealth of Pennsylvania County of Montgomery By: First Sealord Surety, Inc. ,~ ,Joel ~. Coope~man, Vice President ,11111\1 "I, . ,\\\; .11: On this 20th day of January, 2004, before me personally appeared Joel D. Cooperman, Vice President of First Sealord Surety, Inc., with whom 1 am personally acquainted, who, being by me duly sworn, said that he resides in the Commonwealth of Pennsylvania, that he is Vice President of First , Sealord qurety, Inc., the corporation d~scribeQin and which executed "the foregoing instrument; that he knows the corporate seal of the said . = ~ C'orporatiORlthatthe seal affixed to saId i'nstrument is sucw-corporate seal; that iLwas so,affixed,1:lyorder of the Board of Directors ,ofsaidlCofpora(Jon;~ J::.~~';fi",mef"':E~ro.7~~;by,.ef'"::::'P:bll:. fu::;a;:' at. ....'" ~)7 MyCommlsslonElcplrellAug.5,2010 ~'...$\o\.~I:"'C.1 .....4;;;-.:-:(,":'/ CERTIFICATE Member, Pennsylvanla ,t.uocIallon 01 Notarlel I, the underSl!;l't\'ed Secretary of First Sealord Surety, Inc. do hereby certify that the original Power of Attorney of which the foregoing is a full, true and I correct copy, is in full force and effect on the date of this Certificate and I do further certify that the Officer who executed the said Power of Attorney Was one of the Officers authorized by the Board of Directors to appoint an Attorney-in-Fact as provided in Section 12-1 of the By-Laws of First Sea lord Surety, Inc. This Certificate may be signed and sealed by facsimile under and by authority of the following provisions of the By-Laws of First Sealord Surety, Inc.: "Section 12-2. The use of a printed facsimile of the corporate seal of the Corporation and of the signature of the Secretary or an Assistant Secretary on any ~.rtificfltion of the CO[C!3ctness of a copy of an ilJ.~trument executed by an authorized person pursuant to Article XII, Section 12-1 of the By-Laws g appoiflting'<I_nd C!.uthq'riziriQ anf.ttqrneJ-in~Fa~tto,signin the narjle~ang on behalf gf the Corpgralionsure.lyjJonds, i!nderwriling underjakings,,pr otJj-er ~_ J irtr~e~ts~eS~ri~:d iniaid;teC~ot', ii~h?like.iffe~t~s if~;h~aJland sUqf~ s~n'!,tur~ha~_geen ~anUallY atpxi ar i:df:'\ 'J I I In'Witness Whereof, I have hereunto se't my hand and affix~d the corporate seal of the Corp~ration to these presents - - . "= this ,u; day of ~. 20-12/ This power of attorney is void unless the Bond number is inserted in this paragraph (insert Bond # here @ ), the bond number is the sa~e number,as on,m,e original bond, d the bord nU~,ber has be~n inserted, by !In officergr empl~yee of,the gompany or by the agent. (Seal)' ~ - i ~ ~ ~ 1 F P1rsl~ea ... i I: -f~ -il ,_b -~ l:~ urelY..ll?OAiJoc [Ed'io fnodOo~ ~ ~:w ~::; - \ r ... SWORN STATEMENT PURSUANT TO SECTION 287.133(3)(a), FLORIDA STATUTES, ON PUBLIC ENTITY CRIMES THIS FORM MUST BE SIGNED AND SWORN TO IN THE PRESENCE OF A NOTARY PUBLIC OR OTHER OFFICIAL AUTHORIZED TO ADMINISTER OATHS. This sworn statement is submitted to CH~ of S UYH') )' :fc. I t. ~ [print name of the public entity] 1 . (Jc--~ by HM-t \ 0 :Vov (, t\i:) ~ [print individual's name and title] for ftIJp;'i ~"'(. ~ C [print name of e~tity submitting sworn statement] whose business address is ~t&o Su \~ \A" ~a-(t- ~ tt'\ f~ (1D l_ I P'L 3,3 It' C.. G.J I and (if applicable) its Federal Employer Identification Number (FEIN) is ~ ZZ 06 P (; / 9 (If the entity has no ,F,EIN, include the Social Security Number of the individual signing this sworn statement: JAr .) I 2. I understand that a "public entity crime" as defined in Paragraph 287.133(1 )(g), Florida Statutes, means a violation of any state or federal law by a person with respect to and directly related to the transaction of business with any public entity or with an agency or political subdivision of any other state or of the United States, including, but not limited to, any bid or contract for goods or services to be provided to any public entity or an agency or political subdivision of any other state or of the United States and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material misrepresentation. 3. I un derstand that "convicted" or "conviction" as defined in Paragraph 287.133(1 )(b), Florida Statues, means a finding of guilt or a conviction of a public entity crime, with or with out an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere. 4. I understand that an "affiliate" as defined in Paragraph 287.133(1 )(a), Florida Statutes, means: I i I I I J I 1. A predecessor or successor of a person convicted of a public entity crime; or 2. An entity under the control of any natural person who is active in the management of the entity and who has been convicted of a public entity crime. The term "affiliate" inclu des those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate, The ownership by one person of shares constituting a controlling interest in another person, or a pooling of equipment or income among persons when not for fair market value under an arm's length agreement, shall be a prima facie case that one person controls another person. A person who knovvingly enters into a joint venture with a person who has been convicted of a public entity crime in Florida during the preceding 36 months shall be considered an affiliate. 6. I understand that a "person" as defined in Paragraph 287.133(1 )(e), Florida Statutes, means any natural person or entity organized under the laws of any state or of the United States with the legal power to enter into a binding contract and which bids or applies to bid on contracts for the provision of goods or services let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term "person" inclu des those officers, directors, executives, partners, shareholders, employees, members, Form PUR 7068 (Rev. 06/11/92) 09/09 00402-1 03-4122.F and agents who are active in management of an entity. 6. Based on information and belief, the statement which I have marked below is true in relation to the entity submitting this sworn statement. [Indicate which statement applies] V Neither the entity submitting this sworn statement, nor any of its officers, directors, e~ves, partners, shareholders, employees, members, or agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989. However, there has been a subsequent proceeding before a Hearing Officer of the State of Florida, Division of Adm inistrative Hearings and the Final Order entered by the Hearing Officer of the State of Florida, Division of Administrative Hearings and the Final Order entered by the Hearing Offic:er determined that it was not in the public interest to place the entity submitting this sworn statement on the convicted vendor list. [attach a copy of the final order] I UND~R_$TAN[)ItlA T.THE _SLJBMISSIQN OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC ENTITY IDENTIFIED IN PARAGRAPH 1 (ONE) ABOVE IS FOR THAT PUBLIC ENTITY ONLY AND, THAT THIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALENDAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA STATUTES FOR CATEGORY TWO OF ANY CHANGE IN THE INFORMATION CONTAINED IN THIS FORM. It- GC.~ [signature] Sworn to and subscribed before me this -l c.; \-\r-... day of C?(;...:~,_~ Personally known \ / - , 20.eJ. '. OR Produced identification Notary Public - State of ~ lJ r- \. J c. (Type of ide ntification) M .. ~:li~:r~~., RYAN SPRADUN Y commiSSion ex f~1:'~'E MYCOMMISSIOIUOD920502 , ~" ,'~"<' EXPIRES: August 27, 2013 "'~;:f..r.,~~" Bonded Thru Notary Public Underwriters (rinte ped or st commissioned name of notary public) Form PUR 7068 (Rev. 06/11/92) 09/09 00402-2 03-4122.F DOCUMENT 00403 TRENCH SAFETY ACT (90-96, Laws of Florida) Bidder a cknowledges that included in the appropriate bid items of the proposal and in the Total Bid Price are costs for complying with the Florida Trench Safety Act (90-96, Laws of Florida) effective October 1, 1990. The bidder further identifies the costs of such compliance to be summarized below: Trench Safety Measure (Description) Unit of Measure (LFSF) Unit (Quantity) Unit Cost Extended Cost A. B. C. D. ~4 Total $ If applicable, the Contractor certifies that all trench excavation done within his control in excess of five feet in depth shall be in accordance with the Florida Department of Transportation's Special Provisions Article 125-1 and Subarticle 125-4.1 (TRENCH EXCAVATION SAFETY SYSTEM AND SHORING, SPECIAL - TRENCH EXCAVATION). Failure to complete the above may result in the bid being declared non-responsive. Contractor agrees that the above safety compliances and costs are included in his bid package. ~;L~ Signature of Bidding Contractor END OF DOCUMENT 09/09 00403-1 03-4122.F .~ WV Florida Department of Transportation JEB BUSH GOVERNOR 605 Suwannee Street Tallahassee, FL 32399-0450 DENVER J. STUTLER, JR. SECRETARY POLICY Effective: March 16, 2006 Office: Equal Opportunity Topic No: 001-275-015-i 01 SADV ANT AGED BUSINESS ENTERPRISE UTILIZATION It is tl1 e policy of the Florida Department of Transportation that disadvantaged businesses, as defined by 49 Code of Federal Regulations, Pari 26, shall have an opportunity to participate in the performance of Department contracts in a non- discriminatory environment. The objectives of the Disadvantaged Business Enterprise Program are to ensure non-discrimination in the award and administration of contracts, ensure firms fully meet eligibility standards, help remove barriers to participation, create a level playing field, assist in development of a firm so it can compete successfully outside of the program, provide flexibility, and ensure narrow tailoring of the program. The Department, its contractors, suppliers, and consultants shall take all necessary and reaso nable steps to ensure that disadvantaged businesses have an opportunity to compete for and perform the contract work of the Department in a non-discriminatory environment. I I The Department shall require its contractors, suppliers, and consultants to not discriminate on the basis of race, color, national origin, religion, gender, age, or disabi lity in the award and performance of its contracts. This r>olicy covers in part the applicable federal regulations and the applicable statutory refere nces contained therein for the Disadvantaged Business Enterprise Program Plan, Chapters 337 and 339, Florida Statutes, and Rule Chapter 14-78, Florida Administrative Code. -- I , I Februa ry 2007 00404-1 03-4122.0. t ~ ~i~CY\V~ 275-030.11 B EQUAL OPPORTUNITY OFFICE 04/05 Page 1 013 DBE AFFIRMATIVE ACTION PLAN POLICY STATEMENT It is the policy- of that disadvantaged businesses, as defined by 49 CFR Part 26, Subpart D and implemented under Rule Chapter 14-78, F.AC., shall have the opportunity to participate as subcontractors and suppliers on all contracts awarded by the Florida Department of Transportation. The requirements of Rule Chapter 14-78. F.AC.. shall applv to all contracts entered into between the Florida Department of Transportation and Subcontractors and/or suppliers to will also be bound by the requirements of Rule Chapter 14-78 F.AC. , and its subcontractors shall take all necessary and reasonable steps in accordance with Chapter 14-78, F.AC., to ensure that disadvantaged businesses have the opportunity to compete and perform work contracted with the Florida Department of Transportation. \ I I I I . I , and its subcontractors shall not discriminate on the basis of race, color, religion, national origin, disability, sex, or age in the administration of contracts with the Department of Transportation. , has designated and appointed a Liaison Officer to develop, maintain, and monitor the DBE Affirmative Action Plan implementation. The Liaison Officer will be responsible for disseminating this policy statement throughout and to disadvantaged controlled businesses. rhe statement is posted on notice boards of the Company. x , President x I' ! I I II I February 2007 00404-2 03-4122.D. 275-030-11 B EQUAL OPPORTUNITY OFFICE 04/05 Page2013 I. DESIGNATION OF LIAISON OFFICER will aggressively recruit disadvantaged businesses as subcontractors and suppliers for all contracts with the Florida Department of Transportation. The Company has appointed a Liaison Officer to develop and maintain this Affirmative Action Plan in accordance with the requirements of Rule Chapter 14-78, F.A.C. The Liaison Officer will have primary responsibility for developing, maintaining, and monitoring the Company's utilization of disadvantaged subcontractors in addition to the following specific duties: (1) The Liaison Officer shall aggressively solicit bids from disadvantaged business subcontractors for all Florida Department of Transportation contracts; (2) The Liaison Officer will submit all records, reports, and documents required by the Florida Department of Transportation, and shall maintain such records for a period of not less than three years, or as directed by any specific contractual requirements of the Florida Department of Transportation. The following individual has been designated Liaison Officer with responsibility for implementing the Company's affirmative action program in accordance with the requirements of the Florida Department Transportation. II. AFFIRMATIVE ACTION METHODS In order to formulate a realistic Affirmative Action Plan, has identified the following known barriers to participation by disadvantaged subcontractors, before describing its proposed affirmative action methods: 1. Lack of qualified disadvantaged subcontractors in our specific geographical areas of work; 2. Lack of certified disadvantaged subcontractors who seek to perform Florida Department of Transportation work; 3. Lack of interest in performing on Florida Department of Transportation contracts; 4. Lack of response when requested to bid; 5. Limited knowledge of Florida Department of Transportation plans and specifications to prepare a responsible bid. In view of the barriers to disadvantaged businesses stated above, it shall be the policy of to provide opportunity by utilizing the following affirmative action methods to ensure participation on the contracts with the Florida Department of Transportation. will: 1. Provide written notice to all certified DBE subcontractors in the geographical area where the work is to be subcontracted by the Company; 2. Advertise in minority focused media concerning subcontract opportunities with the Company; 3. Select portions of the work to be performed by DBEs in order to increase the likelihood of meeting co ntract goals (including, where appropriate, breaking down contracts into economically feasible Febnl.ar~SW!iJ1acilitate DBE participation); 00404-3 03-4122.0. I II I I I I I 275-030-118 EQUAL OPPORTUNITY OFFICE 04/05 Page 3013 4. Provide adequate information about the plans, specifications, and requirements of the contract, not rejecting subcontractors without sound reasons based on a thorough investigation of their capabilities; 5. Waive requirements of performance bonds where it is practical to do so; 6. Attend pre-bid meetings held by the Florida Department of Transportation to apprise disadvantaged subcontractors of opportunities with the Company; 7. Follow up on initial solicitations of interest to DBE subcontractors to determine with certainty whether the DBE company is interested in the subcontract opportunity. understands that this list of affirmative action methods is not exhaustive and will include additional approaches after having established familiarity with the disadvantaged subcontracting community and/or determined the stated approaches to be ineffective. III. IMPLEIJIENT A TION On contracts with specific DBE goals, will make every effort to meet contract goals as stated by utilizing its affirmative action methods. On projects with no specific goals, the Company will, as an expression of good faith, seek to utilize DBE sUbcoritractors where work is to be subcontracted. IV. REPORTING shall keep and maintain such records as are necessary to determine the Company's compliance with its DBE Affirmative Action Plan. The Company will design its record keeping system to indicate: 1. The number of DBE subcontractors and suppliers used by the Company, identifying the items of work, materials and services provided; 2. The efforts and progress being made in obtaining DBE subcontractors through local and community sources; 3. Documentation of all contracts, to include correspondence, telephone calls, newspaper advertisements, etc., to obtain DBE participation on all Florida Department of Transportation projects; 4. The Company shall comply with Florida Department of Transportation's requirements regarding payments to subcontractors including DBEs for each month (estimate period) in which the companies have worked. V. DBE DIRECTORY will utilize the DBE Directory published by the Florida Department of Transportation. The Company will distribute Form Number 275-030-01, Schedule A Certification Form Number 1, to potential DBE contractors and assist in their completion. February 2007 00404-4 03-4122.D. 11 TENEX ENTERPRISES I N COR P 0 RAT E D DBE AFFIRMATIVE ACTION PLAN POLICY STATEMENT It is the policy of TENEX ENTERPRISES, INC. that disadvantaged businesses, as defined by 49 CFR Part 26, Subpart D and implemented under Ruler Chapter 14-78, F.A.C., shall have the maximum opportunity to participate as subcontractors and suppliers on all contracts awarded by the Florida Department of Transportation. The requirements of Rule Chapter 14-78, F.A.C., shall apply to all contracts entered into between the Florida Department of Transportation and TENEX ENTERPRISES, INC. Subcontractors and/or suppliers to the TENEX ENTERPRISES, INC. will also be bound by the requirements of Rule Chapter 14-78 F.A.C. TENEX ENTERPRISES, INC., and its subcontractors shall take all necessary and reasonable steps in accordance with Chapter 14-78, F.A.C., to ensure that disadvantaged businesses have the maximum opportunity to compete and perform work contracted with the Florida Department of Transportation. TENEX ENTERPRISES, INC., and its subcontractors shall not discriminate on the basis of, race, color, religion, national origin, disability, sex, or age in the administration of contracts with the Department of Transportation. TENEX ENTERPRISES, INC., has designated and appointed a Liaison Officer to develop, maintain, and monitor the DBE Affirmative Action Plans implementation. The Liaison Officer will be responsible for disseminating this policy statement throughout TENEX ENTERPRISES, INC. and to disadvantaged controlled businesses. The statement is posted on notice boards of the Company. x ~ amicfFouladl, President Tenex Enterprises, Inc. 850 SW 14 CT POMPANO BEACH,FL 33060 x IJ~/c)9 f ' - I. DESIGNATION OF L1ASON OFFICER TENEX ENTERPRISES, INC. will aggressively recruit disadvantaged businesses as subcontractors and suppliers for all contracts with the Florida Department of Transportation. The Company has appointed a Liaison Officer to develop and maintain this Affirmative Action Plan in accordance with the requirements of Rule Chapter 14-78, F.A.C. The Liaison Officer will have primary responsibility for developing, maintaining, and monitoring the Company's utilization of disadvantaged subcontractors in addition to the following specific duties: (1) The Liaison Officer shall aggressively solicit bids from disadvantaged business subcontractors for all Florida Department of Transportation contracts; (2) The Liaison Officer will submit all records, reports, and documents required by the Florida Department of Transportation, and shall maintain such records for a period of not less than three years, or as directed by any specific contractual requirements of the Florida Department of Transportation The following individual has been designated Liaison Officer with responsibility for implementing the Company's affirmative action program in accordance with the requirements of the Florida Department of Transportation. Hamid Fouladi FEIN # 52-2069619 TENEX ENTERPRISES, INC. 850 SW 14 CT POMPANO BEACH,FL 33060 Tel: (954)788-8100 Fax (954) 788-0005 II. AFFIRMATIVE ACTION METHODS In order to formulate a realistic Affirmative Action Plan, TENEX ENTERPRISES, INC. has identified the following known barriers to participation by disadvantaged subcontractors, before describing its proposed affirmative action methods: 1. Lack of qualified disadvantaged subcontractors in our specific geographical areas of work; 2. Lack of certified disadvantaged subcontractors who seek to perform Florida Department of Transportation work; 3. Lack of interest in performing on Florida Department of Transportation contracts; 4. Lack of response when requested to bid; 5. Limited knowledge of Florida Department of Transportation plans and specifications to prepare a responsible bid. I I I In view of the barriers to disadvantaged businesses stated above, it shall be the policy of TENEX ENTERPRISES, INC. to provide maximum opportunity by utilizing the following affirmative action methods to ensure participation on the contracts with the Florida Department of Transportation. TENEX ENTERPRISES, INC. will: 1. Provide written notice to all certified DBE subcontractors in the geographical area where the work is to be subcontracted by the Company; 2. Advertise in minority focused media concerning subcontract opportunities with the Company; 3. Select portions of the work to be performed by DBEs in order to increase the likelihood of meeting contract goals (including, where appropriate, breaking down contracts into economically feasible units to facilitate DBE participation) 4. Provide adequate information about the plans, specification, and requirements of the contract, not rejecting subcontractors without sound reasons based on a thorough investigation of their capabilities; 5. Waive requirements of performance bonds where it is practical to do so; 6. Attend pre-bid meetings held by the Florida Department of Transportation to apprise disadvantaged subcontractors of opportunities with the Company, 7. Follow up on initial solicitations of interest to DBE subcontractors to determine with certainty whether the DBE company is interested in the subcontract opportunity. TENEX ENTERPRISES, INC. understands that this list of affirmative action methods is not exhaustive and will include additional approaches after having established familiarity with the disadvantaged subcontracting community and/or determined the stated approaches to be ineffective. III. IMPLEMENTATION On contracts with specific DBE goals, TENEX ENTERPRISES, INC. will make every effort to meet contract goals as stated by utilizing its affirmative action methods. On projects with no specific goals, the Company will, as an expression of good faith, seek to utilize DBE subcontractors where work is to be subcontracted. ~ IV. REPORTING TENEX ENTERPRISES, INC., shall keep and maintain such records as are necessary to determine the Company's compliance with its DBE Affirmative Action Plan. The Company will design its record keeping system to indicate: 1. The number of DBE subcontractors and suppliers used by the Company, identifying the items of work, materials and services provided; 2. The efforts and progress being made in obtaining DBE subcontractors through local and community sources; 3. Documentation of all contracts, to include correspondence, telephone calls, newspaper advertisements, etc., to obtain DBE participation on all Florida Department of Transportation projects; 4. The Company shall comply with Florida Department Of Transportation's requirements regarding payments to subcontractors including DBE's for each month (estimate period) in which the companies have worked. V. DBE DIRECTORY TENEX ENTERPRISES, INC. will utilize the DBE Directory published by the Florida Department of Transportation. The Company will distribute Form Number 275-030-01, Schedule A Certification Form Number 1, to potential DBE contractors and assist in their completion. STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION BID OPPORTUNITY LIST Please complete and mail or fax to: Equal Opportunity Office 605 Suwannee St., MS 65 Tallahassee, FL 32399-0450 TELEPHONE: (850) 414-4747 FAX: (850) 414-4879 275-030-10 EQUAL OPPORTUNITY OFFICE 04/05 This information may also be included in your bid or proposal package. Prime Contractor/Consultant: 1iA\p,-y eJjT ') ~~ ( _ Address/Telephone Number: ~ ~v t"tU_ (A1:;f\- (9~t~ !6rL ( +(_ ~~tx""0 Bid/Proposal Number: 09 - D9 - 0 ( Quote Submitted MMIYR: /O/74n i , , 49 CFR Part 26.11 requires the Florida Department of Transportation to develop and maintain a "bid opportunity list." The list is intended to be a listing of all firms that are participating, or attempting to participate, on DOT-assisted contracts. The list mllstinclude all firmsthat bid on primec:S>Q.t~ac!s, or ~id or quote subc_ontracts and m_a!eriCils supplies on DOT-assisted- projects, including both DBEs and non-DBEs. For consulting companies this list must include all subconsultants contacting you and expressing an interest in teaming with you on a specific DOT assisted project. Prime contractors and consultants must provide information for Nos.1, 2, 3 and 4 and should provide any information they have available on Numbers 5,6,7, and 8 for themselves, and their subcontractors and subconsultants. 1. Federal Tax 10 Number: ,{72 a;, 9 b 19 2. Firm Name: "1'~e; 1<- -f.~" -:+-r-L. J 3_ Phone: 'jSV - ='6..g~ c(.tCl"'O 4. Address: p:;~, ~ 11 14~ '^- LA- ') () ,,-,1\ ~(NIO A,. .L " F L ~.? b c:- .c;:> 5. Year Firm Established: )9f~ ., 1. Federal Tax 10 Number: 2. Firm Name: 3. Phone: 4. Address: 5. Year Firm Established: 6. o DBE o Non-DBE 7. o Subcontractor o Subconsultant 6. o DBE o Non-DBE 7. o Subcontractor o Subconsultant 6. o DBE o Non-DBE 8. Annual Gross Receipts o Less than $1 million o Between $1 - $5 million ,EfBetween $5 - $10 million o Between $10 - $15 million o More than $15 million 8. Annual Gross Receipts o Less than $1 million o Between $1 - $5 million o Between $5 - $10 million o Between $10 - $15 million o More than $15 million 1. Federal Tal< 10 Number: 2. Firm Name: 3. Phone: 4. Address: 5. Year Firm Established: I I II I February 2007 7. 0 Subcontractor o Subconsultant 00404-5 8. Annual Gross Receipts D Less than $1 million D Between $1 - $5 million D Between $5 - $10 million D Between $10 - $15 million D More than $15 million 03-4122.0. -- STATE OF FLORIDA DEPARTMENT OF TRANSPORTATION 275-030-11A EQUAL OPPORTUNITY OFFICE 04/05 ANTICIPATED DBE PARTICIPATION STATEMENT I I 1 I Financial Project Number: Contract Number: OJ -0<1- -0 \ Federal Aid Project Number (if applicable): Prime Contractor Name: ~~ bY- Contract Dollar Amount: ~ ') -=\-N' L Is the prime contractor a Florida Department of Transportation Certified Disadvantaged Business Enterprise (DB E)? (yes 0 ) (no ~) Expected amount of contract dollars to be subcontracted to DBE(s): $ '\ St OOv It is our intent to subcontract ~ % of the contract dollars to DBE(s). Listed below are the proposed DBE sub-contractors: DBE (s) Name Type of Work/Specialty ~~~U t ~.~') 11,^,^\(\,,",~ "CA:Y \'"'1') Dollar Amount/Percentaoe 100/0 I II I I I~ ---~ SUbmitted0 . -::~ """"Q FM-~-'ritle: r Ile'b I~ E-mail Address: ~M\.IIJ Qtt,K?(eM-c!f~rl~6\. c-'\ Telephone Number: Fax Num~f (Jb tf) 7 r q( - ~ toO Date: / p;' /~/d' i F~ )( '. ~ sy 7 'b'b - oc:>o <;. Note: This information is used to track and report anticipated DBE participation in all state and federally funded FOOT contracts. The anticipated OBE amount will not become a part of the contractual terms. This form must be submitted at the pre-construction or pre-work conference. DOT staff must forward this to the Equal Opportu nity Office, 605 Suwannee Street, MS 65 Tallahassee, FL 32399-0450 or fax to (850) 414-4879. If you have any questions, please contact the EOO at (850) 414-4747. I I I II February 2007 00404-6 03-4122.0. Document 00405 Restrictions, Prohibitions, Controls, and labor Provisions: 1. Equal Employment Opportunity: In connection with the carrying out of any project, the Agency shall not discriminate against any employee or applicant because of race, age, creed, color, sex or national origin. The Agency will take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, age, creed, color, sex, or national origin. Such action shall include, but not be limited to, the following: Employment upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selection for training, including apprenticeship. The Agency shall insert the foregoing provision modified only to show the particular contractual relationship in all its contracts in connection with the development or operation of the project, except contracts for standard commercial supplies or raw materials, and shall require all such contractors to insert a similar provision in all subcontracts, except demolition, removal, site improvements, or similar work, the Agency shall post, in conspicuous pi aces available to employees and applicants for employment for project work, notices to be provided by the Department setting forth the provisions of the nondiscrimination clause. 2. Title VI - Civil Rights Act of 1964: Execution of this Agreement constitutes a certification that the Agency vvi II comply with all requirements imposed by Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d. et. Seq.l, the Regulations of the Federal Department of Transportation issued thereunder, and the assurance by the Agency pursuant thereto. 3. Title VIII - Civil Rights Act of 1968: Execution of this Agreement constitutes a certification that the Agency wi II comply with all requirements imposed by the Title VIII of the Civil Rights Act of 1968, (42 U.S.C. 3601, et seq.), which among other things, prohibits discrimination in housing on the basis of race, color, national origin, creed, sex, and age. 4. American with Disabilities Act of 1990 (ADA): Execution of this Agreement constitutes a certification th at the Agency will comply with all the requirements imposed by the ADA (42 U.S.C. 12102, et. Seq.), the regulations of the federal government issued thereunder, and the assurance by the Agency pursua nt thereto. 5. Prohibited Interests: Neither the Agency nor contractors or their subcontractors shall enter into any contract, subcontract, or arrangement in connection with the project or any property included or planned to be included in the project, in which any member, officer, or employee of the Agency during his tenure or for two years thereafter has any interest, direct or indirect. If any such present or former member, officer, or employee involuntarily acquires or had acquired prior to beginning of his tenure any such interest, and if such interest is immediately disclosed to the Agency relating to such contract, subcontract, or arrangement. The Agency shall insert in all contracts entered into in connection with the project or any property included in any project, and shall require its contractors to insert in each of their subcontractors to insert in each of their subcontracts, the following provisions: "No me mber, officer, or employee of the Agency during his tenure or for two years thereafter shall have any interest, direct or indirect, in this contract or the proceeds thereof." The provisions of this subsection shall not be applicable to any agreement between the Agency and its fiscal depositories, or to any agreement for the utility services the rates for which are fixed or controlled by a Governme ntal agency. 6. Interest of Member of, or Delegated to, Congress: No member or delegate to the Congress of the United States ~ hall be admitted to any share or part of the Agreement or any benefit arising there from. 09/09 00405-1 03-4122.F DOCUMENT 00420 INFORMATION REQUIRED FROM BIDDERS GENERAL INFORMATION The Bidder shall furnish the following information. Failure to comply with this requirement may cause its rejecti on. Additional sheets shall be attached as required. 1. Contractor's Name/Address: ~K e-...Yr 'J ~ ~~~ Nt ~t- l' ~ ~ ,!? ~'\ () G. c::> 2. Contractor's Telephone Number: 9$" - 775~ - t /(;fzO 3. Contractor's License: (~(~LC?\\.l \ '1.-.<.. Primary Classification: b(- \. 4. t-lumber of years as a Contractor in construction work of the type involved in this Contract: ~ 5. List the names and titles of all officers of Contractor's firm: .fI~(o ~uvt\.O:l- - PQ~\OD'V" 6. t-lame of person who inspected site or proposed work for your firm: tJame: -W ~ 10 TovtAdJ~ Oq/ zif1 Date of Inspection: 7. Sll\\~ 'Nhat is the last project of this nature you have completed? Coil, I"S "'~ S 1 P-q,;-, S c-I'<& [j .:.- iI<~.... · e>"sY"1 <;. C ~ I D ff 01 ~{()-() c. '+,\ C> ~ Sc,.J (\ J\ '\ ":\- ~lv<::. ~.:P((; t\ Have you ever failed to complete work awardeato you; if so, where and why? 8. J\to- 09/09 00420-1 03-4122.F 9. Name three individuals or corporations for which you have performed work and to which you refer: CQr:t f\T-rkV H cD Q (\.J H fJ10 1\..'\ 10. List the following information concerning all contracts on hand as of the date of submission of this proposal. (In case of co-venture, list the information for all co-ventures). NAME OF PROJECT CITY TOTAL CONTRACT VALUE CONTRACTED DATE OF COMPLETION % COMPLETION TO DATE c;~ f\f-rkG- t-Lc-:J We>{\.. ;L - ON - I- ( -A--N- .~ (Continue list on inset sheet, if necessary) 11. What equipment do you own that is available for the work? ..Q;zZ)\.... I (1C) ^- On'L, ~f) ~T, 0 ~ ~ T !L(;N.. (\.c/lrr,/ [c,,1I(6IN/Y7J~1 ~VC-~ I AT"" ~ o'l-_ 12. equipment will you purchase for the proposed work? NOTE: Attach additional sheets if required. If requested by the City, the Bidder shall furnish a notarized financial statement, references and other information, sufficiently comprehensive to permit an appraisal of his current financial condition. 09/09 00420-2 03-4122.F LIST OF SUBCONTRACTORS The Bidder SHALL list below the name and address of each Subcontractor who will perform work under this Contract in excess of one-half percent of the total bid price, and shall also list the portion of the work which will be done by such Subcontractor. After the opening of Proposals, changes or substitutions will be allowed with written approval of the City of Sunny Isles Beach. Subcontractors must be properly licensed. Work to be Performed Subcontractor' s Name/Address 5~-^~rj \ )~~~ 1rV\.Jc:,V'~ :2.\ t \ v0 ~....\(\~J ~c:.r\~ ~l::e) - ~t::...J ~ to ~ ') H-:>t \'"J' v..,oJ \E;( ~... .~ 0 f'. 1. It._~~.,,"",~ 2. .J 1---'" J C; ~ ~ c:" 3. J \ '--<.-\- t : '--""\ 4. 5. 6. 7. 8. 9. 10. NOTE: i\.ttach additional sheets if required. 09/09 00420-3 03-4122.F Addendum NO.1 CITY OF SUNNY ISLES BEACH Median Closure at 17Sth Terrace & Collins Ave and 5R A1A Collins at 183 5t 5treetscape Improvements CITY BID NO. 09-09-01 To All Bidders: Bidders for the above-referenced project shall take note of the following changes, additions, deletions, clarifications, etc. to the Plans and Specifications, which in accordance with the Contract Documents shall become a part of and have precedence over anything shown or described otherwise. 1. Mandatory Pre-Bid Conference Minutes (Q&A). END OF SECTION 09-09-01 Mandatory Pre-Bid Conference QA Page 1 of 3 Addendum NO.2 CITY OF SUNNY ISLES BEACH Median Closure at 17Sth Terrace & Collins Ave and SR A1A Collins at 183 St Streetscape Improvements CITY RFQ NO. 09-09-01 To All Bidders: Bidders for the above-referenced project shall take note of the following changes, additions, deletions, clarifications, etc. to the Plans and Specifications, which in accordance with the Contract Documents shall become a part of and have precedence over anything shown or described otherwise. 1. Mandatory Pre-Submittal Conference Sign-In Sheet. END OF SECTION -"'" UGT-ll:h~UU8 rl-U U8: be AM GAL V 1 N & ti lUl{l)ANU l-AX NU. U p, Uc/U4 n'.. , DOCUMENT 00900 ADDENDUM Addendum No- 3 (October 15. 2009) to Contract doc\-lments CITY OF SUNNY ISLES BEACH Median Closure at 175th Terrace on Collins Ave. and SR A 1 A/Collins Ave. at 1 83rd St. Streetscape Improvements CITY OF SUNNY ISLES BEACH BID NO. 09-09-01 CGA PROJECT NO. 03-4122.F To All Bidders: Bidders for the above-referenced project shall take note of the following changes, additions, deletions, clarifications, etc. to the Plans and Specifications, which in accordance with the Contract Documents shall become a part of and have precedence over anything shown or described otherwise. IN THE CONTRACT DOCUMENTS: 1. In Document 00300 replace sheets 00300-2 and 00300-3 in its entirety. All other doclunents, specifications, drawings, terms and conditions remain the same. Bidders must acknowledge receipt of Addendum on Page 00300-5 END OF ADDENDUM 09/09 00900-' 03-4122.F Rug 20 2008 10:05AM PRITCHARD ~~m~i!~_ .'t..-.:.( .', ";;j."~ ~"'~.;. .i'''-CT~~ t;i, .0: .~~;.~:~ \~< ,~~.f)i;~~,\%'1J -'";-}.....::... " _. . ."!-.. '. 954-530-9668 p.2 STATE OF FLORIDA DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD 1940 NORTH MONROE STREET . TALLAHASSEE FL 32399-0783 .~ PRITCHARD" CALVIN E TENEX ENTERPRISES INC 771 RANCH RD. WESTON FL 33326 Congratulations! With this license you become one of the nearly one mlllion . ,Floridians licensed by the Department of Business and Professional Regulation. Our professionals and businesses range from architects to yacht brokers, from boxers to baroaque restaurants, and they keep Florida's economy strong. Every day we wOrk to improve the way we do business In order to serve you better. For Information about our services, please log onto www.myflorldallcense.com. There you can find more Information about our divisions and the regulations that Impact you, subscribe to department newsletters and learn more about the Department's Initiatives. Our mission at the Department is: LIcense Efficiently, Regulate Fairly. We constantly strive to serve you better so that you can serve your customers. Thank you for doing business in Florida, and congratulations on your new IIcensel DETACH HERE .~; . ~ . , ----... . '--'1'" .- - -_ . AC# ~IC '" 7 3 "0>0.8' ;"8'0' n.....,'" 2' 8"4:" . .C..........;'O,l:..',j"..>:!I.:-..f '.;.:.t.:.....~I: . .W' :' '.' I: . .....,.. . V~ .V~lCt. :.".. ~~_'.'. '~~''''f. ,1","" .~ ". :;....~ .... Th' ..G~~m..it!ONT'iiI~~I"(!: .\>j.,... . e O:'-;l:, " ~. TO'n.. . Named 'beldw: lS., :Cm-lti'I~t,:SD ", .' "'\.-' 'U'~er.tb.B '. p#6v.i,~il.;'pn~ :6~/~~~~:f' Expi:rl,ft1i'on ---'aa.-t-Ef;-: X:ctQ .~l.",2;O '11;O~J. "S' '. . .' . '., ,; '. ,',: . .. : ~.. :' .'~:'?:~?~~', .1' .' :>.:' ,;,~.~~;f:"". . 'PRI!l':C~'i .eM'VIU.d!:..,:;. 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',' ,,::'(;y . :;.,-' ~ '~i~'l"_,-.;::-~""",._."_.,.,,..:,._._..,...,...,._,-:t.:"...._.,'-._,:~.....,'-,......'".._:~--:::.C:,..:~:::;l;~~"::~.l.~.o;7..:...~~.f1 ./.. ,," .;w... '_____ ,Ji-"'.,'I:..\ .. """-,,, ... _ .,,.__,,,,,."-';_ - '<"'i)~/ ~"'i;':j[jj/j..'i-;~';0t!/f'.''.~;,]Jf2S:o:..'''''~._-- '--" "'",,,:t:S;t;;;!.L~;.g;'h12:-:i~~'~7'1SE'.~:;--57/"'~1 ~ i t/ ,/': 51 ,"-J (~1 f.7 ,/ ./ .'::~3A:MAJOI{RQA[)S (ASPl;iAL T ~NQ CONCRETI 0~~~~[]~;~~~~ij;f::~1.:~}t.~{:'\.. ~~5:r:~:}~[i..,:' ".. :':', , ,...."F,QUCADI';HAMIQ:$.9uAUFyl NGJ'~;' n::~':TE'NEX'ENTERPRISES INC'::' ,:::....., ", ';i)~~~;~~q:;~~)1~i:~J:;,";;",.;-,;",.. ^,<'~l':" ';'. '~':J7PMPA~Qm_EACH FL 330608526 K ,~:r~~'EX5I~~$.;;P:~/31 12010..::.:" ~I", ',/, '. ~U,._..';~,,'.. .,:,;-. " / ~:9 ;r/ ,/, :iM l! (~j jqH, ':?~:;..~,~,.~,.,~.i,'~:_,:..._.,. .c.o~,,~~~t1';'..f~j~~;::f.::?~1~~';;~~~t1tt::::"~~f _".-_,.,._..,,__,.. ~}"'I:if '-'''~ ,,' l~ ,). .::; ;:. f' - . --'--- __,_"'''''"';;;L."';;'I5t:1!!,;~;;.;;;~Z;1=2~~; B' D".:";~.t..,^/' fARO' '. CERTIFICATE OF COMPETENCY ~~~iV VJ-\Detach and SIGN the reverse side of this : . ~ COUNTY card IMMEDIATELY upon receipt! You ..__._,--.......shotJIdcarry this card with you at all times. Contractor must obtain a photo I.D. Certificate of Competency Card every four years. <;~:it~~~~t~i~~~~~~~~~~i,~ ~~j};:t~:;~~ , ,....j ........f;Jf; ..........~.........' ....':"'. ...:,.'.'-' ... ...~...;.. ...: 1-,' _. ()~". _'.' . 0' .....r\(.,~.-"'... r'~-. ,~~':. CER-TJFICATE',:OF\CbMPETEN'CY.::"i-_'l'\G:, c'i.\~":':;I'\ 7;?"".,:':C ;::.:~::,'.r-;?<~~{.~-! .' ~',-:.?\:::;:;:~'l.Q.:~.;; d~~;;'e~_!)~:;~,'i' ,;:~::,,'~\':;:.~r;. f.~: ~L;~~:.~3~'MAJq:R;Rd~Oi{t.:SPHA'd~AN6c'QNQ.Rg'c . ;.. _,~",,~<;..,~~:;j.61€?7X>'.<,:~~':'::; :::;:.\:~~'::;.,:~,::'i":':; ,: ' ;::->:.'~ ~::', '~-:., ..'~'-; F.'btJtP;b~ "HAMID':"'~~QtJA('lF'(ING':.' . ~.~,', "r, .;:: .~_: '-.:~TEN6X'-Eflr'~RP'RisES=:r~,fC:~;'.;~~'''';: " .... -:~"",~:. i:::::;;~'~~'Q~S:0J:.'j~4:cf::~:;,:~~=:.:~~ :?S<::., ':>f"<, ,::. .' ,..'. '::_ -'~ /:,. POMPANO BEACH Fl'330608526 .. :':.. :.',',': .,~:i;;: ';~'~.&~~~~~:~~~1;i~;b:~~~~:~' ~:};; ~;'~~~_.,~,;:~::;.';-'.:: ~ :.{: .. ,-, ,;~, ..' ..-~..:.., ...y.:.,..... :".'. ~. ','~ .-......... :~' ".~'" ."'" r- FOULADI, HAMID 10037 N SPRING WAY CORAL SPRINGS FL 33076 L ' ---1 503-207 (Rev, 3/07) BP200731047 ~ TE EX ENTERPRISES Company History Tenex Enterprises} Inc. was established in 1998 to engage in Roads and Public Works Construction with a strong commitment to excellence and safety. At Tenex we always seek only the best in each area of the work and actively promote and challenge individuals to rise to their full potential. Hard work is recognized and rewarded not only monetarily} but in every challenging assignment. As a result of these principals} the company has grown beyond its early expectations. The vision for the company is to have a core group of highly skilled and dedicated individuals both in management and the trades that can tackle any construction project in South Florida. During the history of the company} most of the projects undertaken have been from South Florida Municipalities. Please turn to the next page for a list of works completed accompanied with references. Company History City of Weston Contact: Sabrina Baglieri Assistant Director Construction Services Tel.: 954. 921. 7781 Jeffrey Skidmore Assistant City Manager / COO Tel.: 954. 389. 4321 PROJECT: Tequesta Trace Park Improvements Weston Library Park Three Village Road & Country Isles Public Works Facility Fueling Station Utilities Repair 1-75 @ Arvida South Bound Off Ramp Imp. Saddle Club Rd. & South Post Rd. Roundabout AYSO Facility @ Weston Regional Park Tequesta Park, Drainage Improvement Bonaventure Mater Plan - Phase V Construction of Eagle Point Park South Post Road Improvements Swale Stabilization Sidewalk Improvements Bonaventure & Saddle Club Road Improvements Road & Sidewalk Improvements Raquet Club. Road & Sidewalk Improvements Blatt Road City of Hallandale Beach Contact: Carlos Hernandez Assistant City Engineer Tel. (954) 457-1609 PROJECT: Ansin Boulevard Road & Drainage Improvements 25th yer / 3CTA 2000-2001-006 AMOUNT: $ 798,878.75 $ 2,074,501.00 $ 2,450,202.50 $ 286,000.00 $ 963,050.00 $ 888,292.00 $ 1,300,000.00 $ 391,340.80 $ 477,180.00 $ 836,494.00 $ 500,000.00 $ 1,350,000.00 $ 279,706.00 $ 200,000.00 $ 679,737.00 $ 410,000.00 $ 355,000.00 AMOUNT: $ 832,839.00 $ 351,110.00 P age I 2 of 6 COMPLETION: April 2009 Oct 2008 Aug 2008 Nov 2006 July 2006 April 2006 June 2005 June 2005 Feb. 2005 Dec. 2004 Dec. 2003 Dec. 2003 July 2003 Dee. 2001 Dec. 2000 June 2000 June 2000 COMPLETION: Dee. 2004 Oct. 2001 Company History Town of Lauderdale By The Sea Contact: John Olinzock Assistant to Town Manager / Project Manager Tel.: 954.776.0576 PROJECT: North Seagrape Drive Improvements City of Sunny Isles Beach Contact: Mr. Bill Evans, Public Works Director Tel.: 305-792-1711 PROJECT: Golden Shores Entrance Wall Atlantic Blvd. Parking Lot & Drainage Improvements City of Margate Contact: Samuel A. May Interim Public Works Director Tel.: 954. 972. 8126 PROJECT: Margate Blvd Streetscape Improvements East & West Palm Drive Coral Gate Park Royal Palm Blvd. & MW 61st and 63rd Ave East River Dr. Restoration AMOUNT: $ 1,160,373.18 AMOUNT: $ 198,180.00 $ 300,000.00 AMOUNT: $ 3,835,237.41 $ 734,018.25 $ 940,174.00 $ 71,425.00 $ 430,000.00 P age I 3 of 6 COMPLETION: October 2008 COMPLETION: Nov. 2005 Jan. 2005 COMPLETION: Aug. 2008 Aug. 2008 Aug. 2008 Oct. 2005 Mar. 2005 Company History City of Ft. Lauderdale Contact: Mike Fayyaz Assistant City Engineer Tel.: 954. 828.6527 PROJECT: Ft Lauderdale Airport Drainage Dillard Park Improvements Victoria Park Neighborhood Improvements SE 26th Ave Idlewyld Dr. - Las Olas Gateway Merchant Sunrise Blvd. Sunset Memorial Gardens Fence Wall AMOUNT: $ 364,753.00 $ 43,800.00 $ 84,420.00 $ 950,000.00 $ 135,558.00 $ 132,965.00 P age I 4 of 6 COMPLETION: Nov. 2006 Sept 2006 Sep 2006 Dec. 2003 Sep.2001 July 2009 (In Progress) Catholic Cemeteries of the Archdiocese of Miami Contact: Catholic Cemeteries of the Archdiocese of Miami Ine. John Kissel Project Coordinator Tel.: 305. 206. 6163 PROJECT: Lady of Mercy Roadway City of Tamarac Contact: Alan Lam, Project Manager Tel.: 954.597.3712 PROJECT: Southgate Boulevard Streetscape, Inc. NW 70th Ave Traffic Calming Improvements Westwood Drive Culvert Improvements AMOUNT: $ 700,000.00 AMOUNT: $ 1,239,469.00 $ 769,113.00 $ 174,580.00 COMPLETION: Oct. 2004 COMPLETION: Dec. 2006 Oct. 2006 March 2007 Company History City of Parkland Contact: Jim Berkman Public Services Director Tel.: 954-753-040 PROJECT: Trails End Sidewalk Improvements City of Coral Springs Contact: Art Resnick Purchasing Agent II 954-344-1100 PROJECT: Whispering Woods Park Creation of Wetland Area City of Lauderdale Lakes Contact: Phil A Alleyene Office of Engineer 954-562-2970 PROJECT: C-13 Greenway Trail AMOUNT: $ 317,652.00 AMOUNT: $ 324,800.00 $ 1,174,770.60 AMOUNT: $ 721,997.00 P age I 5 of 6 COMPLETION: March 2007 COMPLETION: Aug. 2008 Oct. 2007 COMPLETION: Dec 2006 Company History City of Lauderhill Contact: Mr. Indar Maharaj 954-730-3010 PROJECT: AMOUNT: Wolk Park Improvements $ 315,149.80 Florida Department of Transportation Contact: Jorge Ortiz Project Coordinator 305-986-0846 PROJECT: AMOUNT: SR 824 Pembroke Rd. $ 4,823.222.45 P age I 6 of 6 COMPLETION: Dec 2006 COMPLETION: Jun 2007 ACORD CERTIFICATE OF LIABILITY INSURANCE I DATE (MM/DDIYYYY) TM. 06/1012009 PRODUCER Phone, (813) 988-1234 Fax: 813-988-<;g89 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ASSOCIATES AGENCY,INC. ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE PO BOX 16190 HOLDER. THIS CERTIFICATE OOES NO~~MEND, EXTEND OR 11470 N. 53RO ST. .;.,.."" l>YC "'" ...,~~ 1:2", 'w TEMPLE TERRACE FL 33687 INSURERS AFFORDING COVERAGE NAIC# ",oen<:', Liell: R!XI1788 INSURED INSURER A: SOUTHERN OWNERS INSURANCE CO TENEX ENTERPRISES lNC INSURER B: AUTO OWNERS INSURANCE CO. 850 SW 14 COURT INSURER C: ZURICH POMPANO BEACH FI. 33060 INSURER D: INSURER E: COVERAGES ITHE POLICies OF INSURANCE USTEO BELOW.HAVE SEEN ISSUED TO THE INSURED NAMED ASDVE FOR THE POliCY PERIOD INDICATED, NOTwlTr'.sTANDING Am REQUIREME/IlT.TERM OR CONDITION OF Ni'( CO/llTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAiN.. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SU8JECT TO AlL THE TERMS. EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE UMITS SHOWl MAY HAVE BEEN REDUCED BY PAID CLAIMS. PN5R1 AD01. TYPE OF INSURANCE POUCY NUMBER '6'~~ :':~= POUCY exJtlRAnON LIMITS L TR ,INSR! OATE M~lIOn""" ~ERAL LIABILITY . 20698033 06125109 06125/10 EACH OCCURRENCE S 1,000,000 X COMMERCiAl GENERAlLlABIUTY (WAAGe TO RENTED S 300,000 PREMISES (Ea oceurencel l CLAIMSMADEW OCCUR MED, EX? (Anyone person) S 10,000 A !YES ~ oorllractualliallllity PERSONAL & ArN INJURY S 1.000,000 X ineludes 'xc:u" GENERAL AGGREGATE S 3,000,000 - GEN'L AGGREGATE LIMIT APPLIES PER: PROOUCT~OMPIO? AGG. S 3,000,000 I' fXl PRO- nl POliCY X JECT LOC I ~roMOBlLE LIABILITY 47~2811101 06125/09 06125/10 I COMBINED SINGLE LIMIT' I I X ANY AUTO (Ea acddent) S 1,000,000 f-- "-- ALL OWNED AUTOS BODILY INJURY (per Person) S liES I-'-- SCHEDULED AUTOS S ~ HIRED AUTOS BODILY INJURY ~. NON-OWNEO AUTOS (per acddent) S - I PROPERTY DAMAGE S {Per acddentl GARAGE LIABIUTY . I I AUTD ONLY. lOA ACClOeNT S ~ Am AUTO OTHER TI'.AN EAACC ,$ AUTO ONLY: AGG $ +s ~ESS1UMBRELLA LIABIUTY 4732811102 06/25/09 r 06125110 EACH OCCURRENCE Is 3,000,000 X OCCUR 0 CLAIMS MAoe AGGREGATE s 3,000,000 $ M DEOUCTIBLE S X RETENTION S . 10,000 S WORKERS COMPENSATION AND I t ~~~T~~S I, I OTHER EMPLOYERS' UABILlTY . ANY PROPRIETOItlPARTNER/EXECUTlVE E.L EACH ACCIDENT S OFACERlME:MBEJt EXCLUOED? E.L DISEASE.EA EMPLOYEE S tf f\*$. dueribe ~d" E.L DISEASE.pOLlCY UMIT S SPfClAL P1tOVlSIONS ___ I OTHER: Builders Risk lncl Flood SRSS334145 C6130/09 06130/10 $800,000 UMIT C . $5,000 DEDUCT DESCRIPTION OF OPERA TIONSILOCA TIONSNEHICI.ESIEXCLUSIONS ADDEO BY ENDORSEMENT! SPECIAl. PROVISIONS CERTIFICATE HOLDER CANCEt.I.A TlON SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION OAT!: THEREOF, THE ISSUING INSURER 'MLL ENDEAVOR TO MAIL30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. BUT F"JLURETO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANI' KIND UPON THE INSURER,ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE P4lZ..c()~_~ '77'- Attention: Bill Owen ACORD 25 (2001/08) Certificate # 179325 . @ACORDCORPORATION 1988 ......--, ACORO@ CERTIFICATE OF LIABILITY INSURANCE I DATE (MMlDDIYYYY) ~ 6/10/2009 P~ODUCER (813)890-0415 FAX: (813) 885-4311 I THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION Prime Group Insurance Services ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE I HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR 5440 Beaumont Center Blvd. ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. Suite #445 Tampa FL 33634 INSURERS AFFORDING COVERAGE NAIC# INSURED INSURER A: Employers Preferred Ins. Co. Tenex Enterprises, Inc. INSURER B: I 850 SW 14th Court INSURER c: , INSURER D: I Pompano ,Beach FL 33060 INSURER E; ; COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT INITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OSUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. I~~ ~~~ lYP""FI POUCY NUMBER ~m~~~6~~ POUCYEXPIRATIONi UMITS !. .E....ENERAL UASILllY I I I EACH OCCURRENCE S ----- 5MMERCIAL GENERAL LIABILITY , ~~~ISE" E8 cccurrancel S ; ! MEO EXP (Ally one """"'n) Cl..AJMS II.ADE 0 OCCUR! I s I j - i ; i PERSONAL & I'DV INJURY S I I Is I I-- G1:NERAL AGGREGATE i PRODUCTS - CCMPIOP AGG I s I nN'L AGGREGATE UMIT APnS PER: POLICY n ~,tl,fl.; lOC , I I ~OMOSILE WASIUlY I 1$ , , COMBINED SINGLE LIMIT Am AUTO (Ea aced"nl) j I-- , I BODILY INJURY I AlL OWNED AUTOS I. ; - Is - SCHEDULED AUTOS I (Per p.rson) I - HIRJ:O AUTOS i 60DILY INJURY Is I NON-CWNED AUTOS I (1'.... accident) -.,.- 1$ I PROPERlY DAMAGE I I (Per accident) ! I ~~GE LIABilITY I j I I AUTO ONLY- EA ACCIDENT S I' I Am AUTO . , I OTHER THAN EA ACC S AUTO ONLY: AGG. $ ! , I 1$ I EXCESSI UMBREllA LlABIUTI EACH OCCURRENCE a-OCCUR 0 ClAJMS MADE I ;GGREGATE - .. I ! s ! I j S RDEDUCTI8LE I S I I I I ! RETENnON s . s A WORKERS COMPeNSATION I I 1'/30/2010 J X I live STATU- I X IOJbl-j AND EMPLOYERS-LIASIUTI Y! II AI-lY PROPRIETORJPARTNERlEXECUTNE 0 I ; I E.L EACH ACCIOENT S 1 000 000 OFFICER/MEMBER e.XCLUDED?' I , I (Mandaloryln NH)' ~CV70614a2 6/30/2009 E,L. DISEASE - EA EMPLOYE S 1. 000,000 I'f ~es. describe under I S ECIAL PROVISIONS below ! E.L DISEASE - POLICY LIMIT S 1 000 000 laTHER I ! , I ; OESCRIPTlON OF OPERATIONS! LOCATIONS! VEHICLES! exCLUSIONS ADDEO BY ENDORSEMENT! SPECIAL PROVISIONS - . . . .. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OFTHEABOVE DESCRIBED POUCIES BE CANCELLED BEFORE THE EXPIRATION CATE THEREOF, THE ISSUING INSUltER WILL ENDEAVOR TO MAIL ~ DAYS WRJmN NOTlCE TO THE CERnFlCA TE HOLDER NAMED TO THE LEFl. BUT FAILURE TO 00 SO SHALL I/,IPOSE NO OBUGATlON OR LlABIUTY OF ANY KINO UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHOmzEDREPRESENTAnVE #2: ~ ~c-: f~H~ ~d Ellsasser ACORD 25 (2009/01) INS025 (200901) @ 1988-2009 ACORD CORPORATION. All rights reserved. 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'0 ... 0 0 3 0 0 i::- i::- i::- i::- i::- 0 i::- i::- i::- 3: u u u u u cO u u u u To: From: Date: Re: City of Sunny Isles Beach 18070 Collins Avenue Sunny Isles Beach, Florida 33160 City Commission Norman S. Edelcup, Mayor Lewis J. Thaler, Vice Mayor Roslyn Brezin, Commissioner Gerry Goodman, Commissioner George "Bud" Scholl, Commissioner (305) 947-0606 City Hall (305) 947-2150 Building Department (305) 949-3 113 Fax Rick Conner, City Manager Hans OUinot, City Attorney Jane A. Hines, CMC, City Clerk MEMORANDUM The Honorable Mayor and CB Commission Rick Conner, City Manager~ V October 29,2009 Award of Bid No. 09-09-01 to Tenex Enterprises, Inc. for the Median Closure at l7Sth Terrace on Collins Avenue and SR AlA/Collins Avenue at l83rd Street Streets cape Improvements Project RECOMMENDATION It is recommended that the City Commission award Bid No. 09-09-01 to Tenex Enterprises, Inc., for the Collins Avenue Streetscape Improvements Project in an amount not to exceed $487,634. BACKGROUND The City has long desired a consistent streetscape theme along the west side of Collins Avenue. We recently completed the section between 187th Street and the William Lehman Causeway using the low bidder, Tenex Enterprises, Inc. They did an excellent job, were under budget, and ahead of schedule. We subsequently completed the design for the median closure at 175th Terrace on Collins Avenue and Collins Avenue at 183rd Street. Bids were opened on October 20, 2009, with four responses. After review of the bids, staff determined that Tenex Enterprises, Inc. is the lowest responsive responsible bid, and are asking the Commission to award them the contact for an amount not to exceed $487,634.00. Tenex has proven themselves as a capable firm on several City projects, including Atlantic Isles. The consultant on the project, Calvin, Giordano and Associates has also recommended this contractor. Liquidated Damages in the amount of $1,500 per day, with no limits, are included in the contract. REASONS We have obtained Stimulus Funds in the amount of $456,000 from the MPO and wish to move forward as quickly as possible. ADDITIONAL INFORMATION We did a preliminary plan of which this is part. We will not have to acquire any easements. The expected time for completion of the construction is spring 2010. Funding is currently available in Capital Account No. 20-600-5621. Funding a\'ailable: Apprcl\'al: Agenda Item No,: Commission Meeting Date: ..J () - ~ 9,. D~ Finance Department City Manager Cover Memo Bid 09-09-01 Tenex for Collins Ave Streets cape City of Sunny Isles Beach Bid No. 09-09-01 For Median Closure at Collins Avenue (SR AlA) & 175 Terrace and Collins Avenue (SR AlA) & 183 Street Streetscape Improvements 18070 Collins Avenue, 1st Floor Meeting Room Sunny Isles Beach, FL 33160 Tuesday, October 20,2009, 10:00 a.m. PRESENT: Jane A. Hines, CMC, City Clerk Francesca Pellot, Administrative Coordinator Rick Conner, City Manager Jorge Vera, Assistant City Manager Fernando Amuchastegui, Assistant City Attorney Bill Evans, Public Works Director Sabrina Baglieri, Calvin, Giordano & Associates, Inc. Audience: Interested Parties 4 Responses to Bid No. 09-09-01 were received: 1. Tenex Enterprises, Inc Attn: Hamid Fouladi, President 850 SW 14th Court Pompano Beach, FL 33060 Phone: 954.788.8100 Fax: 954.788.0005 C.l.original and .2.- copies received) Base Bid Amount: $487,634.00 2. Budget Construction Co., Inc. Attn: Ellis A. Sanchez, Vice President 12450 NW South River Drive Miami, FL 33178 Phone: 305.883.9878 Fax: 305.888.1816 Cl.original and ...1.copies made) Base Bid Amount: $487,207.00 3. Southeastern Engineering Contractors, Inc. Attn: Eduardo Dominguez, President 12054 NW 98th Avenue Hialeah Gardens, FL 33018 Phone: 305.557.4226 Fax: 305.557.8568 Email: ed.sec@comcast.net C..l.original and.2.- copies received) Base Bid Amount: $508,591.28 4. West Construction, Inc. Attn: Martha A. Morgan, President 318 South Dixie Highway, Suite 4-5 Lake Worth, FL 33460 Phone: 561.588.2027 Fax: 561.582.9419 C..l.original and.2.- copies received) Base Bid Amount: $554,446.99 Submitted by: ~~~ Jane A. Hines, CMC, City Clerk FIRST AMENDMENT TO CITY OF SUNNY ISLES BEACH AND TENEX ENTERPRISES~ INC. AGREEMENT FOR THE MEDIAN CLOSURE AT l7STH TERRACE ON COLLINS AVENUE AND SR AlA/COLLINS AVENUE AT l83RD STREET STREETSCAPE IMPROVEMENTS PROJECT CONTRACT NO.C09l0-035 THIS FIRST AMENDMENT TO THE TENEX ENTERPRISES, INC., AGREEMENT FOR THE MEDIAN CLOSURE AT 17STH TERRACE ON COLLINS AVENUE AND SR AlA/COLLINS AVENUE AT 183RD STREET STREETSCAPE IMPROVEMENTS PROJECT, executed this Z~pi- day of (V1~ ' 2010, is attached hereto and made a part of the original Agreement between the parties app oved via Resolution No. 2009-1495, between the City of Sunny Isles Beach ("City") and Tenex Enterprises, Inc. ("Contractor") a business corporation licensed in the State of Florida, whose Federal Identification # is .$2- '2.OCp~l<o I q The City and Contractor hereby agree as follows: 1. INCORPORATION OF FEDERALLY MANDATED CONTRACT DOCUMENTS: The City wishes to amend the original Agreement with the Contractor for the median closure at 175th Terrace on Collins Avenue and SR AlA/Collins Avenue at 183rd Street Streetscape Improvements Project to include updated form "FL325", effective 10/09/2009, published by the Department of Labor, and updated form "275-030-11B", Equal Opportunity Office, effective 02/08. In addition, the City wishes to incorporate the following federally mandated contract documents into the original Agreement between the parties, including (1) Form FHW A-1273 (Rev. 3-94), required contract provisions federal aid construction contracts, and (2) Executive Order 11246 - equal employment opportunity. These forms are attached hereto as Exhibit "A" and made a part of the original Agreement between the parties. 2. OTHER PROVISIONS REMAIN IN EFFECT: Except as specifically modified herein, all terms and conditions of the Original Agreement between the parties, approved via Resolution No.2009- 1495, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this document as of the date mentioned above. CONTRACTOR: Tenex Enterprises, Inc. ~~ y -.., Nl \4Ve-1 CA,o bcm-^'CAJrz... Print Name 1 C0910-035 FIRST AMENDMENT TO THE TEN EX ENTERPRISES, INC. AGREEMENT FOR THE MEDIAN ENCLOSURE AT 175m TERRACE ON COLLINS A VENUE AND SR AlA/COLLINS A VENUE AT 183RD STREET STREETSCAPE IMPROVEMENTS PROJECT ATTEST: B~A~ Jane A. Hines, CMC, City Clerk ACH APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY: /-{.1/lAA ~tA ~ ~rA... ffans Ottinot, City Attorney 2 C091O-035 FIRST AMENDMENT TO THE TENEX ENTERPRISES, INC. AGREEMENT FOR THE MEDIAN ENCLOSURE AT 175111 TERRACE ON COLLINS AVENUE AND SR AlA/COLLINS AVENUE AT l83RD STREET STREETSCAPE IMPROVEMENTS PROJECT . ( 275-030-11 B EQUAL OPPORTUNITY OFFICE 02/08 Page 1 of 3 DBE AFFIRMATIVE ACTION PLAN POLICY 5T A TEMENT It is the policy of that disadvantaged businesses, as defined by 49 CFR Part 26, Subpart D and implemented under Rule Chapter 14-78, FAC., shall have the opportunity to participate as subcontractors and suppliers on all contracts awarded by the Florida Department of Transportation. The requirements of Rule Chapter 14-78, FAC., shall apply to all contracts entered into between the Florida Department of Transportation and Subcontractors and/or suppliers to will also be bound by the requirements of Rule Chapter 14-78 FAC. , and it's subcontractors shall take all necessary and reasonable steps in accordance with Chapter 14-78, FAC., to ensure that disadvantaged businesses have the opportunity to compete and perform work contracted with the Florida Department of Transportation. , and its subcontractors shall not discriminate on the basis of race, color, religion, national origin, disability, sex, or age in the administration of contracts with the Department of Transportation. , has designated and appointed a Liaison Officer to develop, maintain, and monitor the DBE Affirmative Action Plan implementation. The Liaison Officer will be responsible for disseminating this policy statement throughout and to disadvantaged controlled businesses. The statement is posted on notice boards of the Company. x , President x Date , . 275-030-11 B EQUAL OPPORTUNITY OFFICE 02/08 Page 2 of 3 I. DESIGNATION OF LIAISON OFFICER will aggressively recruit disadvantaged businesses as subcontractors and suppliers for all contracts with the Florida Department of Transportation. The Company has appointed a Liaison Officer to develop and maintain this Affirmative Action Plan in accordance with the requirements of Rule Chapter 14-78, FAC. The Liaison Officer will have primary responsibility for developing, maintaining, and monitoring the Company's utilization of disadvantaged subcontractors in addition to the following specific duties: (1) The Liaison Officer shall aggressively solicit bids from disadvantaged business subcontractors for all Florida Department of Transportation contracts; (2) The Liaison Officer will submit all records, reports, and documents required by the Florida Department of Transportation, and shall maintain such records for a period of not less than three years, or as directed by any specific contractual requirements of the Florida Department of Transportation. The following individual has been designated Liaison Officer with responsibility for implementing the Company's affirmative action program in accordance with the requirements of the Florida Department Transportation. (Liaison Officer's Name) (Your Company's Name) (Your Company's Address) (Phone Number for Liaison Officer) (Enter FEIN or Tax ld Number) II. AFFIRMATIVE ACTION METHODS In order to formulate a realistic Affirmative Action Plan, has identified the following known barriers to participation by disadvantaged subcontractors, before describing its proposed affirmative action methods: 1. Lack of qualified disadvantaged subcontractors in our specific geographical areas of work; 2. Lack of certified disadvantaged subcontractors who seek to perform Florida Department of Transportation work; 3. Lack of interest in performing on Florida Department of Transportation contracts; 4. Lack of response when requested to bid; 5. Limited knowledge of Florida Department of Transportation plans and specifications to prepare a responsible bid. In view of the barriers to disadvantaged businesses stated above, it shall be the policy of to provide opportunity by utilizing the following affirmative action methods to ensure participation on the contracts with the Florida Department of Transportation. will: 1. Provide written notice to all certified DBE subcontractors in the geographical area where the work is to be subcontracted by the Company; 2. Advertise in minority focused media concerning subcontract opportunities with the Company; 3. Select portions of work to be performed by DBEs in order to increase the likelihood of meeting contract goals (including, where appropriate, breaking down contracts into economically feasible units to facilitate DBE participation); 275-030-11 B EQUAL OPPORTUNITY OFFICE 02/08 Page 3 of 3 4. Provide adequate information about the plans, specifications, and requirements of the contract, not rejecting subcontractors without sound reasons based on a thorough investigation of their capabilities; 5. Waive requirements of performance bonds where it is practical to do so; 6. Attend pre-bid meetings held by the Florida Department of Transportation to apprise disadvantaged subcontractors of opportunities with the Company; 7. Follow up on initial solicitations of interest to DBE subcontractors to determine with certainty whether the DBE company is interested in the subcontract opportunity. understands that this list of affirmative action methods is not exhaustive and will include additional approaches after having established familiarity with the disadvantaged subcontracting community and/or determined the stated approaches to be ineffective. III. IMPLEMENTATION On contracts with specific DBE goals, will make every effort to meet contract goals as stated by utilizing its affirmative action methods. On projects with no specific goals, the Company will, as an expression of good faith, seek to utilize DBE subcontractors where work is to be subcontracted. IV. REPORTING shall keep and maintain such records as are necessary to determine the Company's compliance with its DBE Affirmative Action Plan. The Company will design its record keeping system to indicate: 1. The number of DBE subcontractors and suppliers used by the Company, identifying the items of work, materials and services provided; 2. The efforts and progress being made in obtaining DBE subcontractors through local and community sources; 3. Documentation of all contracts, to include correspondence, telephone calls, newspaper advertisements, etc., to obtain DBE participation on all Florida Department of Transportation projects; 4. The Company shall comply with Florida Department of Transportation's requirements regarding payments to subcontractors including DBEs for each month (estimate period) in which the companies have worked. V. DBE DIRECTORY by the Florida Department of Transportation. will utilize the DBE Directory published The Company will distribute Form Number 275-030-01, Schedule A Certification Form Number 1, to potential DBE contractors and assist in their completion. - Page 1 of 5 General Decision Number: FLOB0325 10/09/2009 FL325 State: Florida Construction Type: Highway County: Miami-Dade County in Florida. HIGHWAY CONSTRUCTION PROJECTS Modification Number o Publication Date 10/09/2009 ELEC0349-008 08/31/2009 Rates Fringes ELECTRICIAN. . . . . . . . . . . . . . . . . . . . . . $ 25.05 7.56 ENGI0487-018 01/01/2009 Rates Fringes OPERATOR: Crane All Tower Cranes (Must have 2 operators) Mobile, Rail, Climbers, Static- Mount; All Cranes with Boom Length 150 Feet & Over (With or without jib) Friction, Hydro, Electric or Otherwise; Cranes 150 Tons & Over (Must have 2 operators); Cranes with 3 Drums (When 3rd drum is rigged for work); Gantry & Overhead Cranes; Hydro Cranes Over 25 Tons but not more than 50 Tons ; Hydro/Friction Cranes; & All Type of Flying Cranes; Boom Truck.... ..............$ 28.30 Cranes with Boom Length Less than 150 Feet (With or without jib); Hydro Cranes 25 Tons & Under, & Over 50 Tons; Boom Truck....$ 27.57 OPERATOR: Oiler.................$ 22.24 7.65 7.65 7.65 IRON0272-006 10/01/2006 Rates Fringes IRONWORKER, STRUCTURAL...........$ 26.70 6.43 SUFL2009-222 08/05/2009 Rates Fringes CARPENTER, Including Formwork....$ 15.50 2.19 http://www.wdol.gov/wdollscafiles/davisbacon/FL325.dvb 10/12/2009 CEMENT MASON/CONCRETE FINISHER...$ 15.00 HIGHWAY/PARKING LOT STRIPING: Operator (Striping Machine) .....$ 11.97 HIGHWAY/PARKING LOT STRIPING: Painter. . . . . . . . . . . . . . . . . . . . . . . . . $ 14.38 IRONWORKER, REINFORCING..........$ 15.00 LABORER: Asphalt Raker..........$ 10.47 LABORER: Asphalt Shoveler.......$ 10.70 LABORER: Common or General......$ 10.01 LABORER: Flagger................$ 11.00 LABORER: Grade Checker..........$ 10.50 LABORER: Landscape and Irrigation. . . . . . . . . . . . . . . . . . . . . . . $ 9.98 LABORER: Luteman................$ 10.32 LABORER: Mason Tender - Cement/Concrete..................$ 12.00 LABORER: Pipelayer..............$ 16.00 LABORER: Power Tool Operator (Hand Held Drills/Saws, Jackhammer and Power Saws........$ 10.00 OPERATOR: Asphalt Paver...... ...$ 11.92 OPERATOR: Asphalt Plant.........$ 12.20 OPERATOR: Asphalt Spreader......$ 10.76 OPERATOR: Auger................. $ 19.40 OPERATOR: Backhoe Loader Combo. . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 18.00 OPERATOR: Backhoe/Excavator.....$ 14.69 OPERATOR: Boom.. .......... ......$ 16.61 OPERATOR: Bulldozer.............$ 16.50 OPERATOR: Distributor...........$ 12.33 OPERATOR: Drill.................$ 13.00 OPERATOR: Grader/Blade..........$ 16.11 OPERATOR: Loader................ $ 9.68 http://www . wdo I. gOY /wdo 1/ scafi les/ dayisbacon/FL3 25 .dy b Page 2 of5 8.64 2.23 1. 73 2.45 1. 76 0.00 3.46 3.79 0.55 0.00 0.00 1. 80 0.00 2.30 2.09 0.00 0.00 0.44 1. 39 2.22 0.00 2.22 0.00 1. 59 1. 65 3.02 10/12/2009 '~! Page 3 of 5 OPERATOR: Mechanic.. ............$ 16.20 3.25 OPERATOR: Milling Machine.......$ 11.50 1. 68 OPERATOR: Oil Distributor.......$ 11.15 0.48 OPERATOR: Paver... ....... .......$ 12.85 0.00 OPERATOR: Piledriver............$ 14.50 2.16 OPERATOR: Roller................$ 10.31 2.00 OPERATOR: Scraper...............$ 12.31 1. 83 OPERATOR: Screed................$ 10.29 0.00 OPERATOR: Tractor...............$ 13.00 1. 00 OPERATOR: Trencher..............$ 12.56 0.22 PAINTER: Spray and Steel.........$ 16.62 0.00 TRAFFIC SIGNALIZATION: Traffic Signal Installation......$ 14.58 0.65 TRUCK DRIVER: 10 Yard Haul Away Truck.......................$ 12.50 0.00 TRUCK DRIVER: 3 Axle Truck......$ 9.81 0.00 TRUCK DRIVER: 4 Axle Truck......$ 13.33 0.00 TRUCK DRIVER: Distributor.......$ 13.22 2.01 TRUCK DRIVER: Dump Truck........$ 10.29 4.25 TRUCK DRIVER: Lowboy Truck......$ 12.00 0.00 TRUCK DRIVER: Material Truck....$ 13.15 9.80 TRUCK DRIVER: Tractor Haul Truck. ........... . . . . . . . ... ... . . . $ 10.64 0.00 TRUCK DRIVER: Water Truck.......$ 10.50 0.00 TRUCK DRIVER.....................$ 9.76 0.34 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 be added after award only as provided in the labor standards contract clauses (29 CFR 5.5 (a) (1) (ii) ) . 1...._.11._".,.., ..,_J~l ,,~.,I..,_J~l/~~~r:l~~/_J~.,:~I..~~~_/CT 'J"l(: _J.,\.. 1 (111 '1/'1 (1(10 - Page 4 of 5 In the listing above, the "SU" designation means that rates listed under the identifier do not reflect collectively bargained wage and fringe benefit rates. Other designations indicate unions whose rates have been determined to be prevailing. 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 for sUIlUTlaries 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 http://www . wdo 1. gOY Iwdo II scafi lesl davisbacon/FL3 25 .dv b ] 0/] 212009 Page 5 of 5 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 ~ --~1 ~__m_ (~~ P-::JVlAPZ -r e- ~?'> \:. 1"'7.. 'b/ C . ""'" Executive Order 11246--Equal employment opportunity Source: The provisions of Executive Order 11246 of Sept. 24, 1965, appear at 30 FR 12319, 12935, 3 CFR, 1964-1965 Comp., p. 339, unless otherwise noted. Under and by virtue of the authority vested in me as President of the United States by the Constitution and statutes of the United States, it is ordered as follows: Part I--Nondiscrimination in Government Employment [Part I superseded by Executive Order 11478 of Aug. 8, 1969, 34 FR 12985, 3 CFR, 1966-1970 Comp., p. 803] Part I1--Nondiscrimination in Employment by Government Contractors and Subcontractors Subpart A--Duties of the Secretary of Labor Sec. 201. The Secretary of Labor shall be responsible for the administration and enforcement of Parts II and III of this Order. The Secretary shall adopt such rules and regulations and issue such orders as are deemed necessary and appropriate to achieve the purposes of Parts II and III of this Order. [Sec. 201 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Subpart B--Contractors' Agreements Sec. 202. Except in contracts exempted in accordance with Section 204 of this Order, all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions: "During the performance of this contract, the contractor agrees as follows: "(1) 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, or transfer; recruitment or recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selection for 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. "(2) 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. "(3) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. "(4) The contractor will comply with all provisions of Executive Order No. 11246 of Sept. 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. "(5) The contractor will furnish all information and reports required by Executive Order No. 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 his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. "(6) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, 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 No. 11246 of Sept. 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. "(7) 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 No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of Labor 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, the contractor may request the United States to enter into such litigation to protect the interests of the United States." [Sec. 202 amended by Executive Order 11375 of Oct. 13, 1967, 32 FR 14303, 3 CFR, 1966-1970 Comp., p. 684; Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] - Sec. 203. (a) Each contractor having a contract containing the provisions prescribed in Section 202 shall file, and shall cause each of his subcontractors to file, Compliance Reports with the contracting agency or the Secretary of Labor as may be directed. Compliance Reports shall be filed within such times and shall contain such information as to the practices, policies, programs, and employment policies, programs, and employment statistics of the contractor and each subcontractor, and shall be in such form, as the Secretary of Labor may prescribe. (b) Bidders or prospective contractors or subcontractors may be required to state whether they have participated in any previous contract subject to the provisions of this Order, or any preceding similar Executive order, and in that event to submit, on behalf of themselves and their proposed subcontractors, Compliance Reports prior to or as an initial part of their bid or negotiation of a contract. (c) Whenever the contractor or subcontractor has a collective bargaining agreement or other contract or understanding with a labor union or an agency referring workers or providing or supervising apprenticeship or training for such workers, the Compliance Report shall include such information as to such labor union's or agency's practices and policies affecting compliance as the Secretary of Labor may prescribe: Provided, That to the extent such information is within the exclusive possession of a labor union or an agency referring workers or providing or supervising apprenticeship or training and such labor union or agency shall refuse to furnish such information to the contractor, the contractor shall so certify to the Secretary of Labor as part of its Compliance Report and shall set forth what efforts he has made to obtain such information. (d) The Secretary of Labor may direct that any bidder or prospective contractor or subcontractor shall submit, as part of his Compliance Report, a statement in writing, signed by an authorized officer or agent on behalf of any labor union or any agency referring workers or providing or supervising apprenticeship or other training, with which the bidder or prospective contractor deals, with supporting information, to the effect that the signer's practices and policies do not discriminate on the grounds of race, color, religion, sex or national origin, and that the signer either will affirmatively cooperate in the implementation of the policy and provisions of this order or that it consents and agrees that recruitment, employment, and the terms and conditions of employment under the proposed contract shall be in accordance with the purposes and provisions of the order. In the event that the union, or the agency shall refuse to execute such a statement, the Compliance Report shall so certify and set forth what efforts have been made to secure such a statement and such additional factual material as the Secretary of Labor may require. [Sec. 203 amended by Executive Order 11375 of Oct. 13, 1967, 32 FR 14303, 3 CFR, 1966-1970 Comp., p. 684.; Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] . I Sec. 204. The Secretary of Labor may, when he deems that special circumstances in the national interest so require, exempt a contracting agency from the requirement of including any or all of the provisions of Section 202 of this Order in any specific contract, subcontract, or purchase order. The Secretary of Labor may, by rule or regulation, also exempt certain classes of contracts, subcontracts, or purchase orders (1) whenever work is to be or has been performed outside the United States and no recruitment of workers within the limits of the United States is involved; (2) for standard commercial supplies or raw materials; (3) involving less than specified amounts of money or specified numbers of workers; or (4) to the extent that they involve subcontracts below a specified tier. The Secretary of Labor may also provide, by rule, regulation, or order, for the exemption of facilities of a contractor which are in all respects separate and distinct from activities of the contractor related to the performance of the contract: Provided, That such an exemption will not interfere with or impede the effectuation of the purposes of this Order: And provided further, That in the absence of such an exemption all facilities shall be covered by the provisions of this Order. Subpart C--Powers and Duties of the Secretary of Labor and the Contracting Agencies Sec. 205. The Secretary of Labor shall be responsible for securing compliance by all Government contractors and subcontractors with this Order and any implementing rules or regulations. All contracting agencies shall comply with the terms of this Order and any implementing rules, regulations, or orders of the Secretary of Labor. Contracting agencies shall cooperate with the Secretary of Labor and shall furnish such information and assistance as the Secretary may require. [Sec. 205 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 206. (a) The Secretary of Labor may investigate the employment practices of any Government contractor or subcontractor to determine whether or not the contractual provisions specified in Section 202 of this Order have been violated. Such investigation shall be conducted in accordance with the procedures established by the Secretary of Labor. (b) The Secretary of Labor may receive and investigate complaints by employees or prospective employees of a Government contractor or subcontractor which allege discrimination contrary to the contractual provisions specified in Section 202 of this Order. [Sec. 206 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 207. The Secretary of Labor shall use his best efforts, directly and through interested Federal, State, and local agencies, contractors, and all other available instrumentalities to cause any labor . , union engaged in work under Government contracts or any agency referring workers or providing or supervising apprenticeship or training for or in the course of such work to cooperate in the implementation of the purposes of this Order. The Secretary of Labor shall, in appropriate cases, notify the Equal Employment Opportunity Commission, the Department of Justice, or other appropriate Federal agencies whenever it has reason to believe that the practices of any such labor organization or agency violate Title VI or Title VII of the Civil Rights Act of 1964 or other provision of Federal law. [Sec. 207 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 208. (a) The Secretary of Labor, or any agency, officer, or employee in the executive branch of the Government designated by rule, regulation, or order of the Secretary, may hold such hearings, public or private, as the Secretary may deem advisable for compliance, enforcement, or educational purposes. (b) The Secretary of Labor may hold, or cause to be held, hearings in accordance with Subsection (a) of this Section prior to imposing, ordering, or recommending the imposition of penalties and sanctions under this Order. No order for debarment of any contractor from further Government contracts under Section 209(a)(6) shall be made without affording the contractor an opportunity for a hearing. Subpart D--Sanctions and Penalties Sec. 209. (a) In accordance with such rules, regulations, or orders as the Secretary of Labor may issue or adopt, the Secretary may: (1) Publish, or cause to be published, the names of contractors or unions which it has concluded have complied or have failed to comply with the provisions of this Order or of the rules, regulations, and orders of the Secretary of Labor. (2) Recommend to the Department of Justice that, in cases in which there is substantial or material violation or the threat of substantial or material violation of the contractual provisions set forth in Section 202 of this Order, appropriate proceedings be brought to enforce those provisions, including the enjoining, within the limitations of applicable law, of organizations, individuals, or groups who prevent directly or indirectly, or seek to prevent directly or indirectly, compliance with the provisions of this Order. (3) Recommend to the Equal Employment Opportunity Commission or the Department of Justice that appropriate proceedings be instituted under Title VII of the Civil Rights Act of 1964. - . ( (4) Recommend to the Department of Justice that criminal proceedings be brought for the furnishing of false information to any contracting agency or to the Secretary of Labor as the case may be. (5) After consulting with the contracting agency, direct the contracting agency to cancel, terminate, suspend, or cause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failure of the contractor or subcontractor to comply with equal employment opportunity provisions of the contract. Contracts may be cancelled, terminated, or suspended absolutely or continuance of contracts may be conditioned upon a program for future compliance approved by the Secretary of Labor. (6) Provide that any contracting agency shall refrain from entering into further contracts, or extensions or other modifications of existing contracts, with any noncomplying contractor, until such contractor has satisfied the Secretary of Labor that such contractor has established and will carry out personnel and employment policies in compliance with the provisions of this Order. (b) Pursuant to rules and regulations prescribed by the Secretary of Labor, the Secretary shall make reasonable efforts, within a reasonable time limitation, to secure compliance with the contract provisions of this Order by methods of conference, conciliation, mediation, and persuasion before proceedings shall be instituted under subsection (a)(2) of this Section, or before a contract shall be cancelled or terminated in whole or in part under subsection (a)(5) of this Section. [Sec. 209 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 210. Whenever the Secretary of Labor makes a determination under Section 209, the Secretary shall promptly notify the appropriate agency. The agency shall take the action directed by the Secretary and shall report the results of the action it has taken to the Secretary of Labor within such time as the Secretary shall specify. If the contracting agency fails to take the action directed within thirty days, the Secretary may take the action directly. [Sec. 210 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 211. If the Secretary shall so direct, contracting agencies shall not enter into contracts with any bidder or prospective contractor unless the bidder or prospective contractor has satisfactorily complied with the provisions of this Order or submits a program for compliance acceptable to the Secretary of Labor. ~ [Sec. 211 amended by Executive Order 12086 of Oct. 5, 1978,43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 212. When a contract has been cancelled or terminated under Section 209(a)(5) or a contractor has been debarred from further Government contracts under Section 209(a)(6) of this Order, because of noncompliance with the contract provisions specified in Section 202 of this Order, the Secretary of Labor shall promptly notify the Comptroller General of the United States. [Sec. 212 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Subpart E--Certificates of Merit Sec. 213. The Secretary of Labor may provide for issuance of a United States Government Certificate of Merit to employers or labor unions, or other agencies which are or may hereafter be engaged in work under Government contracts, if the Secretary is satisfied that the personnel and employment practices of the employer, or that the personnel, training, apprenticeship, membership, grievance and representation, upgrading, and other practices and policies of the labor union or other agency conform to the purposes and provisions of this Order. Sec. 214. Any Certificate of Merit may at any time be suspended or revoked by the Secretary of Labor if the holder thereof, in the judgment of the Secretary, has failed to comply with the provisions of this Order. Sec. 215. The Secretary of Labor may provide for the exemption of any employer, labor union, or other agency from any reporting requirements imposed under or pursuant to this Order if such employer, labor union, or other agency has been awarded a Certificate of Merit which has not been suspended or revoked. Part III--Nondiscrimination Provisions in Federally Assisted Construction Contracts Sec. 301. Each executive department and agency which administers a program involving Federal financial assistance shall require as a condition for the approval of any grant, contract, loan, insurance, or guarantee thereunder, which may involve a construction contract, that the applicant for Federal assistance undertake and agree to incorporate, or cause to be incorporated, into all construction contracts paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to such grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, - insurance, or guarantee, the provisions prescribed for Government contracts by Section 202 of this Order or such modification thereof, preserving in substance the contractor's obligations thereunder, as may be approved by the Secretary of Labor, together with such additional provisions as the Secretary deems appropriate to establish and protect the interest of the United States in the enforcement of those obligations. Each such applicant shall also undertake and agree (1) to assist and cooperate actively with the Secretary of Labor in obtaining the compliance of contractors and subcontractors with those contract provisions and with the rules, regulations and relevant orders of the Secretary, (2) to obtain and to furnish to the Secretary of Labor such information as the Secretary may require for the supervision of such compliance, (3) to carry out sanctions and penalties for violation of such obligations imposed upon contractors and subcontractors by the Secretary of Labor pursuant to Part II, Subpart D, of this Order, and (4) to refrain from entering into any contract subject to this Order, or extension or other modification of such a contract with a contractor debarred from Government contracts under Part II, Subpart D, of this Order. [Sec. 301 amended by Executive Order 12086 of Oct. 5, 1978,43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 302. (a) "Construction contract" as used in this Order means any contract for the construction, rehabilitation, alteration, conversion, extension, or repair of buildings, highways, or other improvements to real property. (b) The provisions of Part II of this Order shall apply to such construction contracts, and for purposes of such application the administering department or agency shall be considered the contracting agency referred to therein. (c) The term "applicant" as used in this Order means an applicant for Federal assistance or, as determined by agency regulation, other program participant, with respect to whom an application for any grant, contract, loan, insurance, or guarantee is not finally acted upon prior to the effective date of this Part, and it includes such an applicant after he becomes a recipient of such Federal assistance. Sec. 303. (a) The Secretary of Labor shall be responsible for obtaining the compliance of such applicants with their undertakings under this Order. Each administering department and agency is directed to cooperate with the Secretary of Labor and to furnish the Secretary such information and assistance as the Secretary may require in the performance of the Secretary's functions under this Order. (b) In the event an applicant fails and refuses to comply with the applicant's undertakings pursuant to this Order, the Secretary of Labor may, after consulting with the administering department or agency, take any or all of the following actions: (1) direct any administering department or agency to cancel, terminate, or suspend in whole or in part the agreement, contract or other arrangement with such - applicant with respect to which the failure or refusal occurred; (2) direct any administering department or agency to refrain from extending any further assistance to the applicant under the program with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been received by the Secretary of Labor from such applicant; and (3) refer the case to the Department of Justice or the Equal Employment Opportunity Commission for appropriate law enforcement or other proceedings. (c) In no case shall action be taken with respect to an applicant pursuant to clause (1) or (2) of subsection (b) without notice and opportunity for hearing. [Sec. 303 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 304. Any executive department or agency which imposes by rule, regulation, or order requirements of nondiscrimination in employment, other than requirements imposed pursuant to this Order, may delegate to the Secretary of Labor by agreement such responsibilities with respect to compliance standards, reports, and procedures as would tend to bring the administration of such requirements into conformity with the administration of requirements imposed under this Order: Provided, That actions to effect compliance by recipients of Federal financial assistance with requirements imposed pursuant to Title VI of the Civil Rights Act of 1964 shall be taken in conformity with the procedures and limitations prescribed in Section 602 thereof and the regulations of the administering department or agency issued thereunder. Part IV--Miscellaneous Sec. 401. The Secretary of Labor may delegate to any officer, agency, or employee in the Executive branch of the Government, any function or duty of the Secretary under Parts II and III of this Order. [Sec. 401 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 402. The Secretary of Labor shall provide administrative support for the execution of the program known as the "Plans for Progress." Sec. 403. (a) Executive Orders Nos. 10590 (January 19, 1955), 10722 (August 5, 1957), 10925 (March 6, 1961), 11114 (June 22, 1963), and 11162 (July 28, 1964), are hereby superseded and the President's Committee on Equal Employment Opportunity established by Executive Order No. 10925 is hereby abolished. All records and property in the custody of the Committee shall be transferred to the Office of Personnel Management and the Secretary of Labor, as appropriate. - ,- . (b) Nothing in this Order shall be deemed to relieve any person of any obligation assumed or imposed under or pursuant to any Executive Order superseded by this Order. All rules, regulations, orders, instructions, designations, and other directives issued by the President's Committee on Equal Employment Opportunity and those issued by the heads of various departments or agencies under or pursuant to any of the Executive orders superseded by this Order, shall, to the extent that they are not inconsistent with this Order, remain in full force and effect unless and until revoked or superseded by appropriate authority. References in such directives to provisions of the superseded orders shall be deemed to be references to the comparable provisions of this Order. [Sec. 403 amended by Executive Order 12107 of Dec. 28, 1978, 44 FR 1055, 3 CFR, 1978 Comp., p. 264] Sec. 404. The General Services Administration shall take appropriate action to revise the standard Government contract forms to accord with the provisions of this Order and of the rules and regulations of the Secretary of Labor. Sec. 405. This Order shall become effective thirty days after the date of this Order. - REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS Page I. General. . . . . , . . . , , , , . . . . . . . . . . , . . . . . . . . . . . .. 1 II. Nondiscrimination. . . . . . . . . . . . . . . . . . . . . , . . . . . .. 1 III. Nonsegregated Facilities . . . . . . . . . . . . . . . . . . . . . . .. 3 IV. Payment of Predetermined Minimum Wage ......... 3 V. Statements and Payrolls ................,......, 5 VI. Record of Materials, Supplies, and Labor ........... 5 VII. Subletting or Assigning the Contract ............... 5 VIII. Safety: Accident Prevention ..................... 6 IX. False Statements Concerning Highway Projects. . . . .. 6 X. Implementation of Clean Air Act and Federal Water Pollution Control Act ...................... 6 XI. Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion ............... 6 XII. Certification Regarding Use of Contract Funds for Lobbying .................................... 8 ATTACHMENTS A. Employment Preference for Appalachian Contracts (included in Appalachian contracts only) I. GENERAL 1. These contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superinten- dence and to all work performed on the contract by piecework, station work, or by subcontract. 2. Except as otherwise provided for in each section, the contractor shall insert in each subcontract all of the stipulations contained in these Required Contract Provisions, and further require their inclusion in any lower tier subcontract or purchase order that may in turn be made. The Required Contract Provisions shall not be incorporated by reference in any case. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with these Required Contract Provisions. 3. A breach of any of the stipulations contained in these Required Contract Provisions shall be sufficient grounds for termination of the contract. 4. A breach of the following clauses of the Required Contract Provisions may also be grounds for debarment as provided in 29 CFR 5.12: Section I, paragraph 2; Section IV, paragraphs 1, 2, 3, 4, and 7; Section V, paragraphs 1 and 2a through 2g. 5. Disputes arising out of the labor standards provisions of Section IV (except paragraph 5) and Section V of these Required Contract Provisions shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the U.S. Department of Labor (DOL) as set forth in 29 CFR 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 DOL, or the contractor's employees or their representatives. 6. Selection of labor: During the performance of this contract, the contractor shall not: a. discriminate against labor from any other State, possession, or territory of the United States (exceptfor employment preference for Appalachian contracts, when applicable, as specified in Attachment A), or b. employ convict labor for any purpose within the limits of the project .unless it is labor performed by convicts who are on parole, supervised release, or probation. II. NONDISCRIMINATION (Applicable to all Federal-aid construction contracts and to all Form FHWA-1273 (Rev. 3-94) related subcontracts of $10,000 or more.) 1. Equal Employment Opportunity: Equal employment opportu- nity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract. The Equal Opportu- nity Construction Contract Specifications set forth under 41 CFR 60- 4.3 and the provisions of the American Disabilities Act of 1990 (42 U,S.C. 12101 et ~.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated by reference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO: a. The contractor will work with the State highway agency (SHA) and the Federal Government in carrying out EEO obligations and in their review of his/her activities under the contract. b. The contractor will accept as his operating policy the following statement: "It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, color, national origin. age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selection for training, including apprentice- ship, preapprenticeship, and/or on-the-job training." 2. EEO Officer: The contractor will designate and make known to the SHA contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active contractor program of EEO and who must be assigned adequate authority and responsibility to do so. 3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action, or who are substantially involved in such action, will be made fully cognizant of, and will implement, the contractor's EEO policy and contractual responsibili- ties to provide EEO in each grade and classification of employment. To ensure that the above agreement will be met, the following actions will be taken as a minimum: a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be reviewed and explained. The meetings will be conducted by the EEO Officer. b, All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer. covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor. c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minority group employees. d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees. e. The contractor's EEO policy and the procedures to imple- ment such policy will be brought to the attention of employees by means of meetings, employee handbooks, or other appropriate means. 4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer." All such advertisements will be placed Page 1 , '. in publications having a large circulation among minority groups in the area from which the project work force would normally be derived. a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minority group applicants. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such identified sources procedures whereby minority group applicants may be referred to the contractor for employment consider- ation. b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, he is expected to observe the provisions of that agreement to the extent that the system permits the contractor's compliance with EEO contract provisions. (The DOL has held that where implementation of such agreements have the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Executive Order 11246, as amended.) c. The contractor will encourage his present employees to refer minority group applicants for employment. Information and proce- dures with regard to referring minority group applicants will be discussed with employees. 5. Personnel Actions: Wages. working conditions. and employee benefits shall be established and administered, and personnel actions of every type, including hiring, upgrading, promotion, transfer, demotion, layoff, and termination, shall be taken without regard to race, color, religion, sex, national origin, age or disability. The following procedures shall be followed: a. The contractor will conduct periodic inspections of project sites to insure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discrimi- natory wage practices. c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimina- tion. Where evidence is found, the contractor will promptly take corrective action, If the review indicates that the discrimination may extend beyond the actions reviewed, such corrective action shall include all affected persons. d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with his obligations under this contract, will attempt to resolve such com- plaints, and will take appropriate corrective action within a reasonable time. If the investigation indicates that the discrimination may affect persons other than the complainant, such corrective action shall include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of his avenues of appeal. 6. Training and Promotion: a. The contractor will assist in locating, qualifying, and increasing the skills of minority group and women employees, and applicants for employment. b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs, i.e., apprenticeship, and on-the-job training programs for the geographical area of contract performance. Where feasible, 25 percent of apprentices or trainees in each occupation shall be in their first year of apprenticeship or training. In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated in the special provision, c. The contractor will advise employees and applicants for employment of available training programs and entrance require- ments for each. d. The contractor will periodically review the training and promotion potential of minority group and women employees and will encourage eligible employees to apply for such training and promo- tion, 7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use his/her best efforts to obtain the cooperation of such unions to increase opportunities for Page 2 - minority groups and women within the unions, and to effect referrals by such unions of minority and female employees. Actions by the contractor either directly or through a contractor's association acting as agent will include the procedures set forth below: a. The contractor will use best efforts to develop, in coopera- tion with the unions, joint training programs aimed toward qualifying more minority group members and women for membership in the unions and increasing the skills of minority group employees and women so that they may qualify for higher paying employment. b. The contractor will use best efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability. c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to fumish such information to the contractor, the contractor shall so certify to the SHA and shall set forth what efforts have been made to obtain such information, d. In the event the union is unable to provide the contractor with a reasonable flow of minority and women referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, national origin, age or disability; making full efforts to obtain qualified and/or qualifiable minority group persons and women. (The DOL has held that it shall be no excuse that the union with which the contractor has a collective bargaining agreement providing for exclusive referral failed to refer minority employees.) In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the SHA. 8. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, religion, sex, national origin, age or disability in the selection and retention of subcontractors, including procure- ment of materials and leases of equipment. a, The contractor shall notify all potential subcontractors and suppliers of his/her EEO obligations under this contract. b. Disadvantaged business enterprises (DBE), as defined in 49 CFR 23, shall have equal opportunity to compete for and perform subcontracts which the contractor enters into pursuant to this contract. The contractor will use his best efforts to solicit bids from and to utilize DBE subcontractors or subcontractors with meaningful minority group and female representation among their employees. Contractors shall obtain lists of DBE construction firms from SHA personnel. c. The contractor will use his best efforts to ensure subcontrac- tor compliance with their EEO obligations. 9. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following completion of the contract work and shall be available at reasonable times and places for inspection by authorized representatives of the SHA and the FHWA. a. The records kept by the contractor shall document the following: (1) The number of minority and non-minority group members and women employed in each work classification on the project; (2) The progress and efforts being made in cooperation with unions. when applicable, to increase employment opportunities for minorities and women; (3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minority and female employees; and (4) The progress and efforts being made in securing the services of DBE subcontractors or subcontractors with meaningful minority and female representation among their employees. b. The contractors will submit an annual report to the SHA Form FHWA-1273 (Rev. 3-94) I '. each July for the duration of the project, indicating the number of minority, women, and non-minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. If on-the job training is being required by special provision. the contractor will be required to collect and report training data. III. NONSEGREGATED FACILITIES (Applicable to all Federal-aid construction contracts and to all related subcontracts of $1 0,000 or more.) a. By submission of this bid, the execution of this contract or subcontract, or the consummation of this material supply agreement or purchase order, as appropriate, the bidder, Federal-aid construc- tion contractor, subcontractor, material supplier, or vendor, as appropriate, certifies that the firm does not maintain or provide for its employees any segregated facilities at any of its establishments, and that the firm does not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. The firm agrees that a breach of this certification is a violation of the EEO provisions of this contract, The firm further certifies that no employee will be denied access to adequate facilities on the basis of sex or disability. b. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, timeclocks, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive, or are, in fact, segregated on the basis of race, color, religion, national origin, age or disability, because of habit, local custom, or otherwise. The only exception will be for the disabled when the demands for accessibility override (e.g. disabled parking). c. The contractor agrees that it has obtained or will obtain identical certification from proposed subcontractors or material suppliers prior to award of subcontracts or consummation of material supply agreements of $10,000 or more and that it will retain such certifications in its files. IV. PAYMENT OF PREDETERMINED MINIMUM WAGE (Applicable to all Federal-aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural minor collectors, which are exempt.) 1. General: a, All mechanics and laborers employed or working upon the site of the work 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 (29 CFR 3) issued by the Secretary of labor under the Copeland Act (40 U,S.C. 276c)) the full amounts of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment. The payment shall be computed at wage rates not less than those contained in the wage determination of the Secretary of labor (hereinafter "the wage determination") which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor or its subcon- tractors and such laborers and mechanics. The wage determination (including any additional classifications and wage rates conformed under paragraph 2 of this Section IV and the DOL poster (WH-1321) or Form FHWA-1495) 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. For the purpose of this Section. contributions made or costs reasonably anticipated for bona fide fringe benefits under Section 1 (b )(2) of the Davis-Bacon Act (40 U.S.C. 276a) on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of Section IV, paragraph 3b, hereof. Also, for the purpose of this Section, 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 paragraphs 4 and 5 of this Section IV. Form FHWA-1273 (Rev. 3-94) b. 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. c. All rulings and interpretations of the Davis-Bacon Act and related acts contained in 29 CFR 1, 3, and 5 are herein incorporated by reference in this contract. 2. Classification: a. The SHA contracting officer shall require that any class of laborers or mechanics employed under the contract, which is not listed in the wage determination, shall be classified in conformance with the wage determination. b. The contracting officer shall approve an additional classifica- tion, wage rate and fringe benefits only when the following criteria have been met: (1) the work to be performed by the additional classifica- tion requested is not performed by a classification in the wage determination; (2) the additional classification is utilized in the area by the construction industry; (3) the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and (4) with respect to helpers, when such a classification prevails in the area in which the work is performed. c. If the contractor or subcontractors, as appropriate, the laborers and mechanics (if known) to be employed in the additional classification 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 contracting officer to the DOL, Administrator of the Wage and Hour Division, Employment Standards Administration, Washington, D.C. 20210. The Wage and Hour 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 contract- ing officer within the 30-day period that additional time is necessary. d, In the event the contractor or subcontractors, as appropri- ate, the laborers or mechanics to be employed in the additional 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 Wage and Hour Administrator for determination, Said Administrator, or an authorized representative, will issue a determina- tion 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 e. The wage rate (including fringe benefits where appropriate) determined pursuant to paragraph 2c or 2d of this Section IV shall be paid to all workers performing work in the additional classification from the first day on which work is performed in the classification. 3. Payment of Fringe Benefits: a. 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 or subcontractors, as appropriate, shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly case equivalent thereof. b, If the contractor or subcontractor, as appropriate, does not make payments to a trustee or other third person, he/she may consider as a 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 planor program. Page 3 , '. 4. Apprentices and Trainees (Programs of the U.S. DOL) and Helpers: a. Apprentices: (1) 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 DOL, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State apprenticeship agency recognized by the Bureau, or if a person is employed in his/her first 90 days of probationary employ- ment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State apprenticeship agency (where appropriate) to be eligible for probationary employ- ment as an apprentice. (2) The allowable ratio of apprentices to journeyman-level employees 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 employee 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 listed in the wage determination for the classification of work actually performed. I n addition, any apprentice 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. Where a contractor or subcontractor 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-level hourly rate) specified in the contractor's or subcontractor's registered program shall be observed. (3) 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 journeyman-level 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 for the Wage and Hour Division determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. (4) In the eventthe Bureau of Apprenticeship and Training, or a State apprenticeship agency recognized by the Bureau, with- draws approval of an apprenticeship program, the contractor or subcontractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the comparable work performed by regular employees until an acceptable program is approved. b. Trainees: (1) 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 DOL, Employment and Training Administration. (2) The ratio of trainees to journeyman-level employees on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. 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. (3) Every trainee must be paid at not less than the rate specified in the approved program for his/her level of progress, expressed as a percentage of the journeyman-level 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 Page 4 Division determines that there is an apprenticeship program associ- ated with the corresponding journeyman-level wage rate on the wage determination which provides for less than full fringe benefits for apprentices, in which case such trainees shall receive the same fringe benefits as apprentices, (4) In the event the Employment and Training Administra- tion withdraws approval of a training program, the contractor or subcontractor 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. c. Helpers: Helpers will be permitted to work on a project if the helper classification is specified and defined on the applicable wage determination or is approved pursuant to the conformance procedure set forth in Section IV.2. Any worker listed on a payroll at a helper wage rate, who is not a helper under a approved definition, shall be paid not less than the applicable wage rate on the wage determina- tion for the classification of work actually performed. 5. Apprentices and Trainees (Programs of the U.S. DOT): Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal-aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular programs. The ratio of apprentices and trainees to journeymen shall not be greater than permitted by the terms of the particular program. 6. Withholding: The SHA shall upon its own action or upon written request of an authorized representative of the DOL withhold, or cause to be withheld, from the contractor or subcontractor 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, as 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 subcontrac- tor 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, all or part of the wages required by the contract, the SHA contracting officer may, after written notice to the contractor, 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. 7. Overtime Requirements: No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers, mechanics, watchmen, or guards (including apprentices, trainees, and helpers described in paragraphs 4 and 5 above) shall require or permit any laborer, mechanic, watchman, or guard in any workweek in which he/she is employed on such work, to work in excess of 40 hours in such workweek unless such laborer, mechanic, watchman, or guard receives compensation at a rate not less than one-and-one-half times his/her basic rate of pay for all hours worked in excess of 40 hours in such workweek. 8, Violation: Liability for Unpaid Wages; Liquidated Damages: In the event of any violation of the clause set forth in paragraph 7 above, the contractor and any subcontractor responsible thereof shall be liable to the affected employee for his/her 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, mechanic, watchman, or guard employed in violation of the clause set forth in paragraph 7, in the sum of $10 for each calendar day on which such employee was required or permit- ted to work in excess of the standard work week of 40 hours without payment of the overtime wages required by the clause set forth in paragraph 7. 9. Withholding for Unpaid Wages and Liquidated Damages: Form FHWA-1273 (Rev. 3-94) The SHA shall upon its own action or upon written request of any authorized representative of the DOL withhold, or cause to be withheld, from any monies 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 8 above. V. STATEMENTS AND PAYROLLS (Applicable to all Federal-aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural collectors, which are exempt.) 1. Compliance with Copeland Regulations (29 CFR 3): The contractor shall comply with the Copeland Regulations of the Secretary of Labor which are herein incorporated by reference. 2. Payrolls and Payroll Records: a. Payrolls and basic records relating thereto shall be maintained by the contractor and each subcontractor during the course of the work and preserved for a period of 3 years from the date of completion of the contract for all laborers, mechanics, apprentices, trainees, watchmen, helpers, and guards working at the site of the work. b. The payroll records shall contain the name, social security number, and address of each such employee; his or her correct classification; hourly rates of wages paid (including rates of contribu- tions or costs anticipated for bona fide fringe benefits or cash equivalent thereof 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. In addition, for Appala- chian contracts, the payroll records shall contain a notation indicating whether the employee does, or does not, normally reside in the labor area as defined in Attachment A, paragraph 1. Whenever the Secretary of Labor, pursuant to Section IV, paragraph 3b, has found 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 and each subcontractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, that the plan or program has been communicated in writing to the laborers or mechanics affected, and show the cost anticipated or the actual cost incurred in providing benefits. Contractors or subcontractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprentices and trainees, and ratios and wage rates prescribed in the applicable programs. c. Each contractor and subcontractor shall furnish, each week in which any contract work is performed, to the SHA resident engineer a payroll of wages paid each of its employees (including apprentices, trainees, and helpers, described in Section IV, para- graphs 4 and 5, and watchmen and guards engaged on work during the preceding weekly payroll period). The payroll submitted shall set out accurately and completely all of the information required to be maintained under paragraph 2b of this Section V. This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superin- tendent of Documents (Federal stock number 029-005-0014-1), U,S, Government Printing Office, Washington. D.C. 20402, The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. d. Each payroll submitted shall be accompanied by a "State- ment of Compliance," signed by the contractor or subcontractor or his/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 maintained under paragraph 2b of this Section V and that such information is correct and complete; (2) that such 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 Form FHWA-1273 (Rev. 3-94) either directly or indirectly from the full wages earned. other than permissible deductions as set forth in the Regulations, 29 CFR 3; (3) that each laborer or mechanic has been paid not less that the applicable wage rate and fringe benefits or cash equivalent for the classification of worked performed, as specified in the applicable wage determination incorporated into the contract. e. 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 2d of this Section V. f. The falsification of any of the above certifications may subject the contractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 231. g. The contractor or subcontractor shall make the records required under paragraph 2b of this Section V available for inspec- tion, copying, or transcription by authorized representatives of the SHA, the FHWA, or the DOL, 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 SHA, the FHWA, the DOL, or all may, after written notice to the contractor, sponsor, applicant, or owner, take such actions 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. VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR 1. On all Federal-aid contracts on the National Highway System, except those which provide solely for the installation of protective devices at railroad grade crossings, those which are constructed on a force account or direct labor basis, highway beautification contracts, and contracts for which the total final construction cost for roadway and bridge is less than $1,000,000 (23 CFR 635) the contractor shall: a. Become familiar with the list of specific materials and supplies contained in Form FHWA-47, "Statement of Materials and Labor Used by Contractor of Highway Construction Involving Federal Funds," prior to the commencement of work under this contract. b. Maintain a record of the total cost of all materials and supplies purchased for and incorporated in the work, and also of the quantities of those specific materials and supplies listed on Form FHWA-47, and in the units shown on Form FHWA-47. c. Furnish, upon the completion of the contract, to the SHA resident engineer on Form FHWA-47 together with the data required in paragraph 1 b relative to materials and supplies, a final labor summary of all contract work indicating the total hours worked and the total amount earned. 2. At the prime contractor's option, either a single report covering all contract work or separate reports for the contractor and for each subcontract shall be submitted. VII. SUBLETTING OR ASSIGNING THE CONTRACT 1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the State. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635). a. "Its own organization" shall be construed to include only workers employed and paid directly by the prime contractor and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of Page 5 , '. a subcontractor, assignee, or agent of the prime contractor. b. "Specialty Items" shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid on the contract as a whole and in general are to be limited to minor components of the overall contract. 2. The contract amount upon which the requirements set forth in paragraph 1 of Section VII is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions. 3, The contractor shall furnish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract require- ments, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the SHA contracting officer determines is necessary to assure the performance of the contract. 4. No portion of the contract shall be sublet, assigned or otherwise disposed of except with the written consent of the SHA contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the SHA has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. VIII. SAFETY: ACCIDENT PREVENTION 1. In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed actions as it determines, or as the SHA contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 2. It is a condition of this contract. and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surround- ings or under conditions which are unsanitary, hazardous or danger- ous to his/her health or safety, as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333). 3. Pursuant to 29 CFR 1926.3. it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U,S.C. 333). IX. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS In order to assure high quality and durable construction in confor- mity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal-aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion. or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, the following notice shall be posted on each Federal-aid highway project (23 CFR 635) in one or more places where it is readily available to all persons concerned with the project: NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL-AID HIGHWAY PROJECTS 18 U.S.C. 1020 reads as follows: "Whoever. being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knowingly makes any false state- ment. false representation, or false report as to the character, quality, Page 6 quantity, or cost of the material used or to be used. or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or Whoever knowingly makes any false statement, false representa- tion, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or Whoever knowingly makes any false statement or false representa- tion as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 1. 1916, (39 Stat. 355), as amended and supple- mented; Shall be fined not more that $10,000 or imprisoned not more than 5 years or both." X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT (Applicable to all Federal-aid construction contracts and to all related subcontracts of $100,000 or more.) By submission of this bid or the execution of this contract, or subcontract, as appropriate, the bidder, Federal-aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows: 1. That any facility that is or will be utilized in the performance of this contract, unless such contract is exempt under the Clean Air Act, as amended (42 U.S.C. 1857 et ~., as amended by Pub.L. 91-604), and under the Federal Water POllution Control Act, as amended (33 U.S.C. 1251.!ll~., as amended by Pub.L. 92-500), Executive Order 11738, and regulations in implementation thereof (40 CFR 15) is not listed, on the date of contract award, on the U.S. Environmental Protection Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20. 2. That the firm agrees to comply and remain in compliance with all the requirements of Section 114 of the Clean Air Act and Section 308 of the Federal Water Pollution Control Act and all regulations and guidelines listed thereunder. 3. That the firm shall promptly notify the SHA of the receipt of any communication from the Director, Office of Federal Activities, EPA, indicating that a facility that is or will be utilized for the contract is under consideration to be listed on the EPA List of Violating Facilities. 4. That the firm agrees to include or cause to be included the requirements of paragraph 1 through 4 of this Section X in every nonexempt subcontract, and further agrees to take such action as the government may direct as a means of enforcing such requirements. XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION 1. Instructions for Certification - Primary Covered Transac- tions: (Applicable to all Federal-aid contracts - 49 CFR 29) a. By signing and submitting this proposal, the prospective primary participant is providing the certification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary participant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. c. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later deter- mined that the prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this Form FHWA-1273 (Rev. 3-94) I t. transaction for cause of default. d. The prospective primary participant shall provide immediate written notice to the department or agency to whom this proposal is submitted if any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. e. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "person," "primary covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the department or agency to which this proposal is submitted for assistance in obtaining a copy of those regulations. f. The prospective primary participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transac- tion with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. g. The prospective primary participant further agrees by submitting this proposal that it will include the clause titled "Certifica- tion Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," provided by the department or agency entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicita- tions for lower tier covered transactions. h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the nonprocurement portion of the "Lists of Parties Excluded From Federal Procurement or Nonprocurement Programs" (Nonprocurement List) which is compiled by the General Services Administration. i. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. j, Except for transactions authorized under paragraph f of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government, the department or agency may terminate this transaction for cause or default. Form FHWA-1273 (Rev. 3-94) Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Primary Covered Transactions 1. The prospective primary 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 3-year period preceding this proposal been convicted of or had a civil judgement rendered against them for commission of fraud or a criminal offense in connection with obtain- ing, 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 governmental 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 3-year period preceding this applica- tion/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. 2. Where the prospective primary participant is unable to certify to any ofthe statements in this certification, such prospective participant shall attach an explanation to this proposal. 2. Instructions for Certification - LowerTier Covered Transac- tions: (Applicable to all subcontracts, purchase orders and other lower tier transactions of $25,000 or more - 49 CFR 29) a. By signing and submitting this proposal, the prospective lower tier is providing the certification set out below, b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the depart- ment, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. c. The prospective lower tier participant shall provide immedi- ate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. d. The terms "covered transaction," "debarred," "suspended," "ineligible," "primary covered transaction," "participant," "person," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certifica- tion Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-Lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred. suspended, ineligible. or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and Page 7 \ , frequency by which it determines the eligibility of its principals, Each participant may, but is not required to, check the Nonprocurement List. h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. i. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Government. the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions: 1, The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended. proposed for debarment, declared ineligible, or volun- tarily excluded frorn participation in this transaction by any Federal department or agency. 2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. Page 8 ... XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING (Applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000 - 49 CFR 20) 1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the rnaking of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b. If any funds other than Federal appropriated funds have been paid or will be paid to any person for influencing or attempting to influence an officer or ernployee of any Federal agency, a Member of Congress, an officer or ernployee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant. loan. or cooperative agreement, the undersigned shall complete and submit Standard Forrn-LLL, "Disclosure Form to Report Lobbying." in accordance with its instructions. 2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 3. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly. Form FHWA-1273 (Rev. 3-94) .~ .. .. ATTACHMENT A. EMPLOYMENT PREFERENCE FOR APPALACHIAN CONTRACTS (Applicable to Appalachian contracts only.) 1. During the performance of this contract, the contractor under- taking to do work which is. or reasonably may be, done as on-site work, shall give preference to qualified persons who regularly reside in the labor area as designated by the DOL wherein the contract work is situated, or the subregion, or the Appalachian counties of the State wherein the contract work is situated, except: a. To the extent that qualified persons regularly residing in the area are not available. b. For the reasonable needs of the contractor to employ supervisory or specially experienced personnel necessary to assure an efficient execution of the contract work. c. For the obligation of the contractor to offer employment to present or former employees as the result of a lawful collective bargaining contract, provided that the number of nonresident persons employed under this subparagraph 1 c shall not exceed 20 percent of the total number of employees employed by the contractor on the contract work, except as provided in subparagraph 4 below. 2. The contractor shall place a job order with the State Employ- ment Service indicating (a) the classifications of the laborers, mechanics and other employees required to perform the contract work, (b) the number of employees required in each classification, Form FHWA-1273 (Rev. 3-94) - (c) the date on which he estimates such employees will be required, and (d) any other pertinent information required by the State Employ- ment Service to complete the job order form. The job order may be placed with the State Employment Service in writing or by telephone. If during the course of the contract work, the information submitted by the contractor in the original job order is substantially modified, he shall promptly notify the State Employment Service. 3. The contractor shall give full consideration to all qualified job applicants referred to him by the State Employment Service. The contractor is not required to grant employment to any job applicants who, in his opinion, are not qualified to perform the classification of work required. 4. If, within 1 week following the placing of a job order by the contractor with the State Employment Service, the State Employment Service is unable to refer any qualified job applicants to the contrac- tor, or less than the number requested, the State Employment Service will forward a certificate to the contractor indicating the unavailability of applicants. Such certificate shall be made a part of the contractor's permanent project records. Upon receipt of this certificate, the contractor may employ persons who do not normally reside in the labor area to fill positions covered by the certificate, notwithstanding the provisions of subparagraph 1 c above. 5. The contractor shall include the provisions of Sections 1 through 4 of this Attachment A in every subcontract for work which is, or reasonably may be, done as on-site work. Page 9 SECOND AMENDMENT TO CITY OF SUNNY ISLES BEACH AND TENEX ENTERPRISES, INC. AGREEMENT FOR SR AlA/COLLINS AVENUE AT 183RD STREET STREETSCAPE IMPROVEMENTS PROJECT CONTRACT NO. C0910-044 THIS SECOND AMENDMENT TO THE TENEX ENTERPRISES, INC., AGREEMENT FOR SR AlA/COLLINS AlENUE AT 183RD STREET STREETS CAPE IMPROVEMENTS PROJECT, executed this Jl-. day of ~\HJ.6 , 2010, is attached hereto and made a part of the Original Agreement between the parties and approved via Resolution No. 2009-1495, between the City of Sunny Isles Beach ("City") and Tenex Enterprises, Inc. ("Contractor") a business corporation licensed in the State of Florida, whose Federal Identification # is S z.. 2-00 q (..:.( q . The City and Contractor hereby agree as follows: 1. ADDITIONAL SCOPE OF WORK: The City wishes to add to the original Agreement with the Contractor for the SR AlA/Collins Avenue at 183rd Street Streetscape Improvements Project to include brick paver installation from 172nd Street south on Collins Avenue to approximately 300 feet north of Atlantic Isles Boulevard ("Services"), as more fully described in Attachment "A", attached hereto and made a part hereof. 2. COST: The Contractor agrees to charge an amount not to exceed One Hundred Twenty-One Thousand Seven Hundred Thirty-Two Dollars and Fifty Cents ($121,732.50) for said Services, which, when combined with change orders 1 and 2 totaling $75,668.75 approved via Resolution No. 2010-1557, brings the total amount not to exceed to Six Hundred Eighty-Five Thousand Thirty-Five Dollars and Twenty-Five Cents ($685,035.25). 3. TERM: The Second Amendment shall be effective upon execution by the City. 4. DATE OF COMPLETION: Contractor agrees to complete the services described herein within forty-five (45) days of Notice to Proceed. 5. LIQUIDATED DAMAGES: The Services described in the scope of work shall be completed no later than forty-five (45) days from the date of Notice to Proceed. Upon failure of Contractor to achieve completion of the Services by the Date of Completion, plus approved time extensions (if applicable), the Contractor shall pay to the City the sum of Five Hundred Dollars ($500.00) for each calendar day after the Date of Completion. This amount is not a penalty but rather represents liquidated damages for the City's inability to obtain beneficial use of the affected sidewalk areas. Liquidated damages are hereby fixed and agreed upon between the parties, recognizing the impossibility of precisely ascertaining the amount of damages that will be sustained by the City as a consequence of such delay, and both parties desire to obviate any question of dispute concerning the amount of said damages and the cost and effect of the failure of Contractor to complete the Services on time. 6. EARL Y COMPLETION INCENTIVE: In the event the Services are completed prior to the Date of Completion, then the Contractor shall be entitled to payment from the City in the sum of Five Hundred Dollars ($500.00) for each calendar day the Services are complete prior to the Date of Completion, less any offsets the City may be entitled to in accordance with the contract documents. 1 SIB C0910-044 SECOND AMENDMENT TO THE TENEX ENTERPRISES, INC. STREETSCAPE AGREEMENT 7. OTHER PROVISIONS REMAIN IN EFFECT: Except as specifically modified herein, all terms and conditions of the Original Agreement between the parties, approved via Resolution No.2009- 1495, as well as the First Amendment thereto, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this document as of the date mentioned above. ;;n;; 19na re rtll~~ f!Z~~~' Print Name CONTRACTOR: Tenex Ente ':ises;-Inc; ~ BY: Hamid Fouladi, President WITNESSES: ~ + -J-~ Sig at e .QNl'"^ ~r=J to Prmt ame BY:~ ~a~ Jane A. Hines, CMC, City Clerk BY: ATTEST: APPROVED AS TO FORM AND LEGAL SUFFI NCY 2 S\~ C0910-044 SECOND AMENDMENT TO THE TENEX ENTERPRISES, INC. STREETSCAPE AGREEMENT 1111~f~~~~ Pre JP( Isa I TO Rick Conner CC Jorge Vera I'Rt I.lECT Nt I, O\XNEll 6/2/2010 06021O-A Amendment to 183rd St Street8cape Improvements Project 9/9/2001 City lIIan:lgcr Cit)' of Sunn)' lob Beach I HII711 Collins .\vcn",' Sunn)' l~le~ n,'nch. FI. 3.\I(~1 DATE I'R()]>( )SAL N(). PIt( ~IEcr Cily of Sunny hIes Belich .-\..iSI:1Il1 Cil)' l\lnnng,'r Cil)' of Sunn}' Isles Beach PREPARED BY SCOPE PAYMENT TERMS T Bill Evans F&ll'avcn;: From l72nd St. South on CoUim A\'e to .-\pprox. 30(l FJ' N. of :\llamie hlcs I~\'J. NET 30 ITEM DESCRIPTION QTY UNIT UNIT PRICE LINE TOTAL 1 Mobilization 1 LS S 1,500.00 $ 1>>500.00 I 2 MOT 1 LS S 6,720.00 $ 6>>720.00 3 Concrete Removal 1958 SY $ 6.00 $ 11>>748.00 4 Base Optional 195H SY $ 8.00 $ 15,664.00 5 Paver Set on Sand 1575H SF $ 4.75 $ 74>>850.50 6 Paver Set on Concrete 1875 SF $ 6.00 $ 11>>250.00 Conflict Resolution: N. Miami Beaach Water Line * (protective Concrete Pad over Water l\lain, If Required) = 5180 / SY ~ Duration of the Amended Portion of the Contract Work to be 60 Days Or Less I [ExcluSions: Pennit Fccs, Survey, Asbuih Sub-Toml Is 121,732.50 I 1- -- -- - TOlal 1$ 121,732.50 All material Is guaranteed to be specified. All work to be completed In a workmanlike manner according to standard practices. Any alteration or deviation above specifications Involving extra costs will be executed only upon written orders. and will becoming an extra charge over the above estimates. ~I agree~ontlngent upon strIkes accidents, or delays beyond the control. Sf"" ,,,. b~ I 0 T ex Enterprises, Inc. Representative The above price, speclffcatlons, and conditions are satlsractory and are hereby accepted. Your authorized to do the work as speclffed. Payment will be made as outlined above. To accept this proposal, sIgn below & return. Sign: Date: ATTACHMENT "A" 850 S\'(' 14rh Coun, Pomp:mo Beach, 1'1. 330MI · Phone (954) 788-8100. Fax (954) 788-0005 ~\~ THIRD AMENDMENT TO CITY OF SUNNY ISLES BEACH AND TENEX ENTERPRISES, INC. AGREEMENT FOR SR AlA/COLLINS AVENUE AT l83RD STREET STREETS CAPE IMPROVEMENTS PROJECT CONTRACT NO. C09l0-050 THIS THIRD AMENDMENT TO THE TENEX ENTERPRISES, INC., AGREEMENT FOR SR AlA/COLLINS A VENUE AT l83RD STREET STREETS CAPE IMPROVEMENTS PROJECT, executed this ~~ day of .JVl,.....h' 2010, is attached hereto and made a part of the original Agreement between the parties approve via ResolutIOn No. 2009-1495, between the CIty of Sunny Isles Beach ("City") and Tenex Enterprises, Inc. ("Contractor") a business corporation licensed in the State of Florida, whose Federal Identification # is !S)..... 'Zo~~ (p t C\ The City and Contractor hereby agree as follows: 1. INCORPORATION OF FEDERALLY MANDATED CONTRACT DOCUMENTS: The City wishes to amend the original Agreement with the Contractor for SR AlA/Collins Avenue at 183rd Street Streetscape Improvements Project to include updated form "FL325", effective 10/09/2009, published by the Department of Labor, and updated form "275-030-11B", Equal Opportunity Office, effective 02/08. In addition, the City wishes to incorporate the following federally mandated contract documents into the original Agreement between the parties, including (1) Form FHW A-1273 (Rev. 3-94), required contract provisions federal aid construction contracts, and (2) Executive Order 11246 - equal employment opportunity. These forms are attached hereto as composite Exhibit "A" and made a part of the original Agreement between the parties. 2. EXTENSION OF TIME: The parties agree that Contractor shall have an extension oftime of 60 (sixty) days to complete the Work described in the Contract Documents. 3. OTHER PROVISIONS REMAIN IN EFFECT: Except as specifically modified herein, all terms and conditions of the Original Agreement between the parties, approved via Resolution No.2009- 1495, as well as the First and Second Amendments thereto, shall remain in full force and effect. (The remainder of this page has been intentionally left blank.) 1 SIB C0910-0S0 THIRD AMENDMENT TO THE TEN EX ENTERPRISES, INC. r IN WITNESS WHEREOF, the parties hereto have executed this document as of the date mentioned above. tBP-SSES: - ." ~ ~------- 19nature ~;(( ~v~5. Print Name CONTRACTOR: Tenex Enterprises BY: WITNESSES: Signature Print Name ATTEST: B~1~ Jane A. Hines, CMC, City Clerk COler, City Manager BY: APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY: ~"'LAa!.A~ ~~ 'ffans Ottinot, City Attorney 2 S/.lJ C0910-050 THIRD AMENDMENT TO THE TENEX ENTERPRISES, INC. 275-030-118 EQUAL OPPORTUNITY OFFICE 02108 Page 1 of 3 DBE AFFIRMATIVE ACTION PLAN POLICY STATEMENT It is the policy of that disadvantaged businesses, as defined by 49 CFR Part 26, Subpart 0 and implemented under Rule Chapter 14-78, FAC., shall have the opportunity to participate as subcontractors and suppliers on all contracts awarded by the Florida Department of Transportation. The requirements of Rule Chapter 14-78, FAC., shall apply to all contracts entered into between the Florida Department of Transportation and Subcontractors and/or suppliers to will also be bound by the requirements of Rule Chapter 14-78 FAC. , and it's subcontractors shall take all necessary and reasonable steps in accordance with Chapter 14-78, FAC., to ensure that disadvantaged businesses have the opportunity to compete and perform work contracted with the Florida Department of Transportation. , and its subcontractors shall not discriminate on the basis of race, color, religion, national origin, disability, sex, or age in the administration of contracts with the Department of Transportation. , has designated and appointed a Liaison Officer to develop, maintain, and monitor the DBE Affirmative Action Plan implementation. The Liaison Officer will be responsible for disseminating this policy statement throughout and to disadvantaged controlled businesses. The statement is posted on notice boards of the Company. x , President x Date Composite Exhibit "A" ~\I R 275'{)30-11B EQUAL OPPORTUNITY OFFICE 02108 Page 2 of3 I. DESIGNA liON OF LIAISON OFFICER will aggressively recruit disadvantaged businesses as subcontractors and suppliers for all contracts with the Florida Department of Transportation. The Company has appointed a Liaison Officer to develop and maintain this Affirmative Action Plan in accordance with the requirements of Rule Chapter 14-78, FAC. The Liaison Officer will have primary responsibility for developing, maintaining, and monitoring the Company's utilization of disadvantaged subcontractors in addition to the following specific duties: (1) The Liaison Officer shall aggressively solicit bids from disadvantaged business subcontractors for all Florida Department of Transportation contracts; (2) The Liaison Officer will submit all records, reports, and documents required by the Florida Department of Transportation, and shall maintain such records for a period of not less than three years, or as directed by any specific contractual requirements of the Florida Department of Transportation. The following individual has been designated Liaison Officer with responsibility for implementing the Company's affirmative action program in accordance with the requirements of the Florida Department Transportation. (Liaison Officer's Name) (Your Company's Name) (Your Company's Address) (Phone Number for Liaison Officer) (Enter FEIN or Tax Id Number) II. AFFIRMA liVE ACTION METHODS In order to formulate a realistic Affirmative Action Plan, has identified the following known barriers to participation by disadvantaged subcontractors, before describing its proposed affirmative action methods: 1. Lack of qualified disadvantaged subcontractors in our specific geographical areas of work; 2. Lack of certified disadvantaged subcontractors who seek to perform Florida Department of Transportation work; 3. Lack of interest in performing on Florida Department of Transportation contracts; 4. Lack of response when requested to bid; 5. Limited knowledge of Florida Department of Transportation plans and specifications to prepare a responsible bid. In view of the barriers to disadvantaged businesses stated above, it shall be the policy of to provide opportunity by utilizing the following affirmative action methods to ensure participation on the contracts with the Florida Department of Transportation. will: 1. Provide written notice to all certified DBE subcontractors in the geographical area where the work is to be subcontracted by the Company; 2. Advertise in minority focused media concerning subcontract opportunities with the Company; 3. Select portions of work to be performed by DBEs in order to increase the likelihood of meeting contract goals (including, where appropriate, breaking down contracts into economically feasible units to facilitate DBE participation); S/q 275-030-118 EQUAL OPPORTUNITY OFFICE 02108 Page 3 of 3 4. Provide adequate information about the plans, specifications, and requirements of the contract, not rejecting subcontractors without sound reasons based on a thorough investigation of their capabilities; 5. Waive requirements of performance bonds where it is practical to do so; 6. Attend pre-bid meetings held by the Florida Department of Transportation to apprise disadvantaged subcontractors of opportunities with the Company; 7. Follow up on initial solicitations of interest to DBE subcontractors to determine with certainty whether the DBE company is interested in the subcontract opportunity. understands that this list of affirmative action methods is not exhaustive and will include additional approaches after having established familiarity with the disadvantaged subcontracting community and/or determined the stated approaches to be ineffective. III. IMPLEMENTATION On contracts with specific DBE goals, will make every effort to meet contract goals as stated by utilizing its affirmative action methods. On projects with no specific goals, the Company will, as an expression of good faith, seek to utilize DBE subcontractors where work is to be subcontracted. IV. REPORTING shall keep and maintain such records as are necessary to determine the Company's compliance with its DBE Affirmative Action Plan. The Company will design its record keeping system to indicate: 1. The number of DBE subcontractors and suppliers used by the Company, identifying the items of work, materials and services provided; 2. The efforts and progress being made in obtaining DBE subcontractors through local and community sources; 3. Documentation of all contracts, to include correspondence, telephone calls, newspaper advertisements, etc., to obtain DBE participation on all Florida Department of Transportation projects; 4. The Company shall comply with Florida Department of Transportation's requirements regarding payments to subcontractors including DBEs for each month (estimate period) in Which the companies have worked. V. DBE DIRECTORY by the Florida Department of Transportation. will utilize the DBE Directory published The Company will distribute Form Number 275-030-01, Schedule A Certification Form Number 1, to potential DBE contractors and assist in their completion. S'r) , Page 1 of 5 General Decision Number: FL080325 10/09/2009 FL325 State: Florida Construction Type: Highway County: Miami-Dade County in Florida. HIGHWAY CONSTRUCTION PROJECTS Modification Number o Publication Date 10/09/2009 ELEC0349-008 08/31/2009 Rates Fringes ELECTRICIAN...... ..... ...... .....$ 25.05 7.56 ENGI0487-018 01/01/2009 Rates Fringes OPERATOR: Crane All Tower Cranes (Must have 2 operators) Mobile, Rail, Climbers, Static- Mount; All Cranes with Boom Length 150 Feet & Over (With or without jib) Friction, Hydro, Electric or Otherwise; Cranes 150 Tons & Over (Must have 2 operators); Cranes with 3 Drums (When 3rd drum is rigged for work); Gantry & Overhead Cranes; Hydro Cranes Over 25 Tons but not more than 50 Tons ; Hydro/Friction Cranes; & All Type of Flying Cranes; Boom Truck. . . . . . . . . . . . . . . . . . $ 28.30 Cranes with Boom Length Less than 150 Feet (With or without jib); Hydro Cranes 25 Tons & Under, & Over 50 Tons; Boom Truck....$ 27.57 OPERATOR: Oiler. ..... ..... ... ...$ 22.24 7.65 7.65 7.65 IRON0272-006 10/01/2006 Rates Fringes IRONWORKER, STRUCTURAL... ........$ 26.70 6.43 SUFL2009-222 08/05/2009 Rates Fringes CARPENTER, Including Formwork. ...$ 15.50 2.19 ~' I [I . . ~ Page 2 of 5 CEMENT MASON/CONCRETE FINISHER...$ 15.00 8.64 HIGHWAY/PARKING LOT STRIPING: Operator (Striping Machine) .....$ 11.97 2.23 HIGHWAY/PARKING LOT STRIPING: Painter. . . . . . . . . . . . . . . . . . . . . . . . . $ 14.38 1. 73 IRONWORKER, REINFORCING..... ... ..$ 15.00 2.45 LABORER: Asphalt Raker... ..... ..$ 10.47 1. 76 LABORER: Asphalt Shoveler.. .....$ 10.70 0.00 LABORER: Common or General......$ 10.01 3.46 LABORER: Flagger... ........ .....$ 11.00 3.79 LABORER: Grade Checker..... .....$ 10.50 0.55 LABORER: Landscape and Irrigation. . . . . . . . . . . . . . . . . . . . . . . $ 9.98 0.00 LABORER: Luteman................$ 10.32 0.00 LABORER: Mason Tender - Cement/Concrete. . . . . . . . . . . . . . . . . . $ 12.00 1. 80 LABORER: Pipelayer..............$ 16.00 0.00 LABORER: Power Tool Operator (Hand Held Drills/Saws, Jackhammer and Power Saws... .....$ 10.00 2.30 OPERATOR: Asphalt Paver.. .......$ 11.92 2.09 OPERATOR: Asphalt Plant.. .......$ 12.20 0.00 OPERATOR: Asphalt Spreader......$ 10.76 0.00 OPERATOR: Auger................. $ 19. 40 0.44 OPERATOR: Backhoe Loader Combo. . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 18.00 1. 39 OPERATOR: Backhoe/Excavator.....$ 14.69 2.22 OPERATOR: Boom... ........ .......$ 16.61 0.00 OPERATOR: Bulldozer..... ........$ 16.50 2.22 OPERATOR: Distributor.... .......$ 12.33 0.00 OPERATOR: Drill.. ... ..... .......$ 13.00 1. 59 OPERATOR: Grader/Blade... .......$ 16.11 1. 65 OPERATOR: Loader. ... ............$ 9.68 3.02 ., ~ /.r.I Page 3 of5 OPERATOR: Mechanic. ........ .....$ 16.20 3.25 OPERATOR: Milling Machine:, .....$ 11.50 1. 68 OPERATOR: Oil Distributor.. .....$ 11.15 0.48 OPERATOR: Paver.. .......... .....$ 12.85 0.00 OPERATOR: Piledriver.,..... .....$ 14.50 2.16 OPERATOR: Roller. .......... .....$ 10.31 2.00 OPERATOR: Scraper..........,....$ 12.31 1. 83 OPERATOR: Screed................$ 10.29 0.00 OPERATOR: Tractor.......... .....$ 13.00 1. 00 OPERATOR: Trencher... .... ... ....$ 12.56 0.22 PAINTER: Spray and Steel..... ....$ 16.62 0.00 TRAFFIC SIGNALIZATION: Traffic Signal Installation......$ 14.58 0.65 TRUCK DRIVER: 10 Yard Haul Away Truck... ...... ....... ... ....$ 12.50 0.00 TRUCK DRIVER: 3 Axle Truck......$ 9.81 0.00 TRUCK DRIVER: 4 Axle Truck.. ....$ 13.33 0.00 TRUCK DRIVER: Distributor... ....$ 13.22 2.01 TRUCK DRIVER: Dump Truck........$ 10.29 4.25 TRUCK DRIVER: Lowboy Truck.. ....$ 12.00 0.00 TRUCK DRIVER: Material Truck....$ 13.15 9.80 TRUCK DRIVER: Tractor Haul Truck. . . . . . . . . . . . . . . . . . . . . . . . . . . . $ 10. 64 0.00 TRUCK DRIVER: Water Truck... ....$ 10.50 0.00 TRUCK DRIVER.....................$ 9.76 0.34 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 be added after award only as provided in the labor standards contract clauses (29 CFR 5.5(a) (1) (ii)). · . a J I / J Page 4 of 5 ---------------------------------------------------------------- In the listing above, the "SU" designation means that rates listed under the identifier do not reflect collectively bargained wage and fringe benefit rates. Other designations indicate unions whose rates have been determined to be prevailing. ---------------------------------------------------------------- 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 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 Part 7). Write to: 29 CFR Wage and Hour Administrator .... ) I 1'1 Page 5 of 5 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 C '-J \~' \ \ -~ ~ J-Y\^^ 7 }J Po.;) C/ L.A 0 ;: -r t:- NC.-;c (rv7 ZV <- - .S'; . Executive Order 11246--Equal employment opportunity Source: The provisions of Executive Order 11246 of Sept. 24, 1965, appear at 30 FR 12319, 12935, 3 CFR, 1964-1965 Comp., p. 339, unless otherwise noted. Under and by virtue of the authority vested in me as President of the United States by the Constitution and statutes of the United States, it is ordered as follows: Part I--Nondiscrimination in Government Employment [Part I superseded by Executive Order 11478 of Aug. 8, 1969, 34 FR 12985, 3 CFR, 1966-1970 Comp., p. 803] Part II--Nondiscrimination in Employment by Government Contractors and Subcontractors Subpart A--Duties of the Secretary of Labor Sec. 201. The Secretary of Labor shall be responsible for the administration and enforcement of Parts II and III of this Order. The Secretary shall adopt such rules and regulations and issue such orders as are deemed necessary and appropriate to achieve the purposes of Parts II and III of this Order. [Sec. 201 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Subpart B--Contractors' Agreements Sec. 202. Except in contracts exempted in accordance with Section 204 of this Order, all Government contracting agencies shall include in every Government contract hereafter entered into the following provisions: "During the performance of this contract, the contractor agrees as follows: "(1) 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, or transfer; recruitment or recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selection for 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 .y ; /J provisions of this nondiscrimination clause. U(2) 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. U(3) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the agency contracting officer, advising the labor union or workers' representative of the contractor's commitments under Section 202 of Executive Order No. 11246 of September 24, 1965, and shall post copies of the notice in conspicuous places available to employees and applicants for employment. U(4) The contractor will comply with all provisions of Executive Order No. 11246 of Sept. 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor. U(5) The contractor will furnish all information and reports required by Executive Order No, 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 his books, records, and accounts by the contracting agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders. U(6) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of such rules, regulations, or orders, this contract may be cancelled, 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 No. 11246 of Sept. 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order No. 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. U(7) 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 No. 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as may be directed by the Secretary of La,bor 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, the contractor may request the United States to enter into such litigation to protect the interests of the United States. U [Sec. 202 amended by Executive Order 11375 of Oct. 13, 1967, 32 FR 14303, 3 CFR, 1966-1970 Comp., p. 684; Executive Order 12086 of Oct, 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] , .~ / r, Sec. 203. (a) Each contractor having a contract containing the provisions prescribed in Section 202 shall file, and shall cause each of his subcontractors to file, Compliance Reports with the contracting agency or the Secretary of Labor as may be directed. Compliance Reports shall be filed within such times and shall contain such information as to the practices, policies, programs, and employment policies, programs, and employment statistics of the contractor and each subcontractor, and shall be in such form, as the Secretary of Labor may prescribe. (b) Bidders or prospective contractors or subcontractors may be required to state whether they have participated in any previous contract subject to the provisions of this Order, or any preceding similar Executive order, and in that event to submit, on behalf of themselves and their proposed subcontractors, Compliance Reports prior to or as an initial part of their bid or negotiation of a contract. (c) Whenever the contractor or subcontractor has a collective bargaining agreement or other contract or understanding with a labor union or an agency referring workers or providing or supervising apprenticeship or training for such workers, the Compliance Report shall include such information as to such labor union's or agency's practices and policies affecting compliance as the Secretary of Labor may prescribe: Provided, That to the extent such information is within the exclusive possession of a labor union or an agency referring workers or providing or supervising apprenticeship or training and such labor union or agency shall refuse to furnish such information to the contractor, the contractor shall so certify to the Secretary of Labor as part of its Compliance Report and shall set forth what efforts he has made to obtain such information. (d) The Secretary of Labor may direct that any bidder or prospective contractor or subcontractor shall submit, as part of his Compliance Report, a statement in writing, signed by an authorized officer or agent on behalf of any labor union or any agency referring workers or providing or supervising apprenticeship or other training, with which the bidder or prospective contractor deals, with supporting information, to the effect that the signer's practices and policies do not discriminate on the grounds of race, color, religion, sex or national origin, and that the signer either will affirmatively cooperate in the implementation of the policy and provisions of this order or that it consents and agrees that recruitment, employment, and the terms and conditions of employment under the proposed contract shall be in accordance with the purposes and provisions of the order. In the event that the union, or the agency shall refuse to execute such a statement, the Compliance Report shall so certify and set forth what efforts have been made to secure such a statement and such additional factual material as the Secretary of Labor may require. [Sec. 203 amended by Executive Order 11375 of Oct. 13, 1967,32 FR 14303, 3 CFR, 1966-1970 Comp., p. 684.; Executive Order 12086 of Oct. 5, 1978,43 FR 46501, 3 CFR, 1978 Comp., p. 230] \" . \,,, . J Sec. 204. The Secretary of Labor may, when he deems that special circumstances in the national interest so require, exempt a contracting agency from the requirement of including any or all of the provisions of Section 202 of this Order in any specific contract, subcontract, or purchase order. The Secretary of Labor may, by rule or regulation, also exempt certain classes of contracts, subcontracts, or purchase orders (1) whenever work is to be or has been performed outside the United States and no recruitment of workers within the limits of the United States is involved; (2) for standard commercial supplies or raw materials; (3) involving less than specified amounts of money or specified numbers of workers; or (4) to the extent that they involve subcontracts below a specified tier, The Secretary of Labor may also provide, by rule, regulation, or order, for the exemption of facilities of a contractor which are in all respects separate and distinct from activities of the contractor related to the performance of the contract: Provided, That such an exemption will not interfere with or impede the effectuation of the purposes of this Order: And provided further, That in the absence of such an exemption all facilities shall be covered by the provisions of this Order. Subpart C--Powers and Duties of the Secretary of Labor and the Contracting Agencies Sec. 205. The Secretary of Labor shall be responsible for securing compliance by all Government contractors and subcontractors with this Order and any implementing rules or regulations. All contracting agencies shall comply with the terms of this Order and any implementing rules, regulations, or orders of the Secretary of Labor. Contracting agencies shall cooperate with the Secretary of Labor and shall furnish such information and assistance as the Secretary may require. [Sec. 205 amended by Executive Order 12086 of Oct. 5, 1978,43 FR 46501,3 CFR, 1978 Comp., p. 230] Sec. 206. (a) The Secretary of Labor may investigate the employment practices of any Government contractor or subcontractor to determine whether or not the contractual provisions specified in Section 202 of this Order have been violated. Such investigation shall be conducted in accordance with the procedures established by the Secretary of Labor. (b) The Secretary of Labor may receive and investigate complaints by employees or prospective employees of a Government contractor or subcontractor which allege discrimination contrary to the contractual provisions specified in Section 202 of this Order. [Sec. 206 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 207. The Secretary of Labor shall use his best efforts, directly and through interested Federal, State, and local agencies, contractors, and all other available instrumentalities to cause any labor ..) I I union engaged in work under Government contracts or any agency referring workers or providing or supervising apprenticeship or training for or in the course of such work to cooperate in the implementation of the purposes of this Order. The Secretary of Labor shall, in appropriate cases, notify the Equal Employment Opportunity Commission, the Department of Justice, or other appropriate Federal agencies whenever it has reason to believe that the practices of any such labor organization or agency violate Title VI or Title VII of the Civil Rights Act of 1964 or other provision of Federal law. [Sec. 207 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 208. (a) The Secretary of Labor, or any agency, officer, or employee in the executive branch of the Government designated by rule, regulation, or order of the Secretary, may hold such hearings, public or private, as the Secretary may deem advisable for compliance, enforcement, or educational purposes. (b) The Secretary of Labor may hold, or cause to be held, hearings in accordance with Subsection (a) of this Section prior to imposing, ordering, or recommending the imposition of penalties and sanctions under this Order. No order for debarment of any contractor from further Government contracts under Section 209(a)(6) shall be made without affording the contractor an opportunity for a hearing. Subpart D--Sanctions and Penalties Sec. 209. (a) In accordance with such rules, regulations, or orders as the Secretary of Labor may issue or adopt, the Secretary may: (1) Publish, or cause to be published, the names of contractors or unions which it has concluded have complied or have failed to comply with the provisions of this Order or of the rules, regulations, and orders of the Secretary of Labor. (2) Recommend to the Department of Justice that, in cases in which there is substantial or material violation or the threat of substantial or material violation of the contractual provisions set forth in Section 202 of this Order, appropriate proceedings be brought to enforce those provisions, including the enjoihing, within the limitations of applicable law, of organizations, individuals, or groups who prevent directly or indirectly, or seek to prevent directly or indirectly, compliance with the provisions of this Order. (3) Recommend to the Equal Employment Opportunity Commission or the Department of Justice that appropriate proceedings be instituted under Title VII of the Civil Rights Act of 1964. , \ oJ J 4 ' J (4) Recommend to the Department of Justice that criminal proceedings be brought for the furnishing of false information to any contracting agency or to the Secretary of Labor as the case may be. (5) After consulting with the contracting agency, direct the contracting agency to cancel, terminate, suspend, or cause to be cancelled, terminated, or suspended, any contract, or any portion or portions thereof, for failure of the contractor or subcontractor to comply with equal emploYlTlent opportunity provisions of the contract. Contracts may be cancelled, terminated, or suspended absolutely or continuance of contracts may be conditioned upon a program for future compliance approved by the Secretary of Labor. (6) Provide that any contracting agency shall refrain from entering into further contracts, or extensions or other modifications of existing contracts, with any noncomplying contractor, until such contractor has satisfied the Secretary of Labor that such contractor has established and will carry out personnel and employment policies in compliance with the provisions of this Order. (b) Pursuant to rules and regulations prescribed by the Secretary of Labor, the Secretary shall make reasonable efforts, within a reasonable time limitation, to secure compliance with the contract provisions of this Order by methods of conference, conciliation, mediation, and persuasion before proceedings shall be instituted under subsection (a)(2) of this Section, or before a contract shall be cancelled or terminated in whole or in part under subsection (a)(5) of this Section. [Sec. 209 amended by Executive Order 12086 of Oct. 5,1978,43 FR 46501,3 CFR, 1978 Comp., p. 230] Sec. 210. Whenever the Secretary of Labor makes a determination under Section 209, the Secretary shall promptly notify the appropriate agency. The agency shall take the action directed by the Secretary and shall report the results of the action it has taken to the Secretary of Labor within such time as the Secretary shall specify. If the contracting agency fails to take the action directed within thirty days, the Secretary may take the action directly. [Sec. 210 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 211. If the Secretary shall so direct, contracting agencies shall not enter into contracts with any bidder or prospective contractor unless the bidder or prospective contractor has satisfactorily complied with the provisions of this Order or submits a program for compliance acceptable to the Secretary of Labor. "'" I I [Sec. 211 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 212. When a contract has been cancelled or terminated under Section 209(a)(5) or a contractor has been debarred from further Government contracts under Section 209(a)(6) of this Order, because of noncompliance with the contract provisions specified in Section 202 of this Order, the Secretary of Labor shall promptly notify the Comptroller General of the United States. [Sec. 212 amended by Executive Order 12086 of Oct. 5, 1978,43 FR 46501, 3 CFR, 1978 Comp., p. 230] Subpart E--Certificates of Merit Sec. 213. The Secretary of Labor may provide for issuance of a United States Government Certificate of Merit to employers or labor unions, or other agencies which are or may hereafter be engaged in work under Government contracts, if the Secretary is satisfied that the personnel and employment practices of the employer, or that the personnel, training, apprenticeship, membership, grievance and representation, upgrading, and other practices and policies of the labor union or other agency conform to the purposes and provisions of this Order. Sec. 214. Any Certificate of Merit may at any time be suspended or revoked by the Secretary of Labor if the holder thereof, in the judgment of the Secretary, has failed to comply with the provisions of this Order. Sec. 215. The Secretary of Labor may provide for the exemption of any employer, labor union, or other agency from any reporting requirements imposed under or pursuant to this Order if such employer, labor union, or other agency has been awarded a Certificate of Merit which has not been suspended or revoked. Part III--Nondiscrimination Provisions in Federally Assisted Construction Contracts Sec. 301. Each executive department and agency which administers a program involving Federal financial assistance shall require as a condition for the approval of any grant, contract, loan, insurance, or guarantee thereunder, which may involve a construction contract, that the applicant for Federal assistance undertake and agree to incorporate, or cause to be incorporated, into all construction contracts paid for in whole or in part with funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to such grant, contract, loan, insurance, or guarantee, or undertaken pursuant to any Federal program involving such grant, contract, loan, .. .. . · J J I.' , insurance, or guarantee, the provisions prescribed for Government contracts by Section 202 of this Order or such modification thereof, preserving in substance the contractor's obligations thereunder, as may be approved by the Secretary of Labor, together with such additional provisions as the Secretary deems appropriate to establish and protect the interest of the United States in the enforcement of those obligations. Each such applicant shall also undertake and agree (1) to assist and cooperate actively with the Secretary of Labor in obtaining the compliance of contractors and subcontractors with those contract provisions and with the rules, regulations and relevant orders of the Secretary, (2) to obtain and to furnish to the Secretary of Labor such information as the Secretary may require for the supervision of such compliance, (3) to carry out sanctions and penalties for violation of such obligations imposed upon contractors and subcontractors by the Secretary of Labor pursuant to Part II, Subpart 0, of this Order, and (4) to refrain from entering into any contract subject to this Order, or extension or other modification of such a contract with a contractor debarred from Government contracts under Part II, Subpart 0, of this Order. [Sec. 301 amended by Executive Order 12086 of Oct. 5, 1978,43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 302. (a) "Construction contract" as used in this Order means any contract for the construction, rehabilitation, alteration, conversion, extension, or repair of buildings, highways, or other improvements to real property, (b) The provisions of Part II of this Order shall apply to such construction contracts, and for purposes of such application the administering department or agency shall be considered the contracting agency referred to therein. (c) The term "applicant" as used in this Order means an applicant for Federal assistance or, as determined by agency regulation, other program participant, with respect to whom an application for any grant, contract, loan, insurance, or guarantee is not finally acted upon prior to the effective date of this Part, and it includes such an applicant after he becomes a recipient of such Federal assistance, Sec. 303. (a) The Secretary of Labor shall be responsible for obtaining the compliance of such applicants with their undertakings under this Order. Each administering department and agency is directed to cooperate with the Secretary of Labor and to furnish the Secretary such information and assistance as the Secretary may require in the performance of the Secretary's functions under this Order, (b) In the event an applicant fails and refuses to comply with the applicant's undertakings pursuant to this Order, the Secretary of Labor may, after consulting with the administering department or agency, take any or all of the following actions: (1) direct any administering department or agency to cancel, terminate, or suspend in whole or in part the agrel:ment, contract or other arrangement with such .J J " applicant with respect to which the failure or refusal occurred; (2) direct any administering department or agency to refrain from extending any further assistance to the applicant under the program with respect to which the failure or refusal occurred until satisfactory assurance of future compliance has been received by the Secretary of Labor from such applicant; and (3) refer the case to the Department of Justice or the Equal Employment Opportunity Commission for appropriate law enforcement or other proceedings. (c) In no case shall action be taken with respect to an applicant pursuant to clause (1) or (2) of subsection (b) without notice and opportunity for hearing. [Sec. 303 amended by Executive Order 12086 of Oct. 5, 1978, 43 FR 46501, 3 CFR, 1978 Comp., p. 230] Sec. 304. Any executive department or agency which imposes by rule, regulation, or order requirements of nondiscrimination in employment, other than requirements imposed pursuant to this Order, may delegate to the Secretary of Labor by agreement such responsibilities with respect to compliance standards, reports, and procedures as would tend to bring the administration of such requirements into conformity with the administration of requirements imposed under this Order: Provided, That actions to effect compliance by recipients of Federal financial assistance with requirements imposed pursuant to Title VI of the Civil Rights Act of 1964 shall be taken in conformity with the procedures and limitations prescribed in Section 602 thereof and the regulations of the administering department or agency issued thereunder. Part IV--Miscellaneous Sec. 401. The Secretary of Labor may delegate to any officer, agency, or employee in the Executive branch of the Government, any function or duty of the Secretary under Parts II and III of this Order. [Sec. 401 amended by Executive Order 12086 of Oct. 5, 1978,43 FR 46501,3 CFR, 1978 Comp., p. 230] Sec. 402. The Secretary of Labor shall provide administrative support for the execution of the program known as the "Plans for Progress," Sec. 403. (a) Executive Orders Nos. 10590 (January 19, 1955), 10722 (August 5, 1957), 10925 (March 6, 1961), 11114 (June 22, 1963), and 11162 (July 28, 1964), are hereby superseded and the President's Committee on Equal Employment Opportunity established by Executive Order No. 10925 is hereby abolished. All records and property in the custody of the Committee shall be transferred to the Office of Personnel Management and the Secretary of Labor, as appropriate. "'" (b) Nothing in this Order shall be deemed to relieve any person of any obligation assumed or imposed under or pursuant to any Executive Order superseded by this Order. All rules, regulations, orders, instructions, designations, and other directives issued by the President's Committee on Equal Employment Opportunity and those issued by the heads of various departments or agencies under or pursuant to any of the Executive orders superseded by this Order, shall, to the extent that they are not inconsistent with this Order, remain in full force and effect unless and until revoked or superseded by appropriate authority. References in such directives to provisions of the superseded orders shall be deemed to be references to the comparable provisions of this Order. [Sec. 403 amended by Executive Order 12107 of Dec. 28, 1978, 44 FR lOSS, 3 CFR, 1978 Comp., p. 264] Sec. 404. The General Services Administration shall take appropriate action to revise the standard Government contract forms to accord with the provisions of this Order and of the rules and regulations of the Secretary of Labor. Sec~ 405. This Order shall become effective thirty days after the date of this Order. y J j , REQUIRED CONTRACT PROVISIONS FEDERAL-AID CONSTRUCTION CONTRACTS I. II. III. IV. V. VI. VII. VIII. IX. X. XI. XII. Page General .................................,... 1 Nondiscrimination ,.....,..,.....'............. 1 Nonsegregated Facilities ....... . . . . . . . . . . . . . , . .. 3 Payment of Predetermined Minimum Wage .......,. 3 Statements and Payrolls ...............,......., 5 Record of Materials, Supplies, and Labor . . . . . . . . . .. 5 Subletting or Assigning the Contract . . . . . . . . . . . . . .. 5 Safety: Accident Prevention ..................... 6 False Statements Concerning Highway Projects. . . . .. 6 Implementation of Clean Air Act and Federal Water Pollution Control Act . . . . . . . . . . . . . . . . . . . . .. 6 Certification Regarding Debarment, Suspension, Ineligibility, and Voluntary Exclusion ............... 6 Certification Regarding Use of Contract Funds for Lobbying ........................,.....,..... 8 ATTACHMENTS A. Employment Preference for Appalachian Contracts (included in Appalachian contracts only) I. GENERAL 1. These contract provisions shall apply to all work performed on the contract by the contractor's own organization and with the assistance of workers under the contractor's immediate superinten- dence and to all work performed on the contract by piecework, station work, or by subcontract. 2. Except as otherwise provided for in each section, the contractor shall insert in each subcontract all of the stipulations contained in these Required Contract Provisions, and further require their inclusion in any lower tier subcontract or purchase order that may in turn be made. The Required Contract Provisions shall not be incorporated by reference in any case. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with these Required Contract Provisions. 3. A breach of any of the stipulations contained in these Required Contract Provisions shall be sufficient grounds for termination of the contract. 4. A breach of the following clauses of the Required Contract Provisions may also be grounds for debarment as provided in 29 CFR 5.12: Section I, paragraph 2; Section IV, paragraphs 1, 2, 3, 4, and 7; Section V, paragraphs 1 and 2a through 2g. 5. Disputes arising out ofthe labor standards provisions of Section IV (except paragraph 5) and Section V of these Required Contract Provisions shall not be subject to the general disputes clause of this contract. Such disputes shall be resolved in accordance with the procedures of the U.S. Department of Labor (DOL) as set forth in 29 CFR 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 DOL, or the contractor's employees or their representatives. 6. Selection of Labor: During the performance of this contract, the contractor shall not: a. discriminate against labor from any other State, possession, or territory of the United States (except/or employment preference for Appalachian contracts, when applicable, as specified In Attachment A), or b. employ convict labor for any purpose within the limits of the project unless it is labor performed by convicts who are on parole. supervised release, or probation. II. NONDISCRIMINATION (Applicable to all Federal-aid construction contracts and to all Form FHWA-1273 (Rev. 3-94) related subcontracts of $10,000 or more.) 1. Equal Employment Opportunity: Equal employment opportu- nity (EEO) requirements not to discriminate and to take affirmative action to assure equal opportunity as set forth under laws, executive orders, rules, regulations (28 CFR 35, 29 CFR 1630 and 41 CFR 60) and orders of the Secretary of Labor as modified by the provisions prescribed herein, and imposed pursuant to 23 U.S.C. 140 shall constitute the EEO and specific affirmative action standards for the contractor's project activities under this contract. The Equal Opportu- nity Construction Contract Specifications set forth under 41 CFR 60- 4.3 and the provisions of the American Disabilities Act of 1990 (42 U.S.C. 12101 et~.) set forth under 28 CFR 35 and 29 CFR 1630 are incorporated byreference in this contract. In the execution of this contract, the contractor agrees to comply with the following minimum specific requirement activities of EEO: a. The contractor will work with the State highway agency (SHA) and the Federal Govemment in carrying out EEO obligations and in their review of hislher activities under the contract. b. The contractor will accept as his operating policy the following statement: "It is the policy of this Company to assure that applicants are employed, and that employees are treated during employment, without regard to their race, religion, sex, color, national origin, age or disability. Such action shall include: employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of payor other forms of compensation; and selection for training, including apprentice- ship, preapprenticeship, and/or on-the-job training." 2. EEO OffIcer: The contractor will designate and make known to the SHA contracting officers an EEO Officer who will have the responsibility for and must be capable of effectively administering and promoting an active contractor program of EEO and who must be assigned adequate authority and responsibility to do so. 3. Dissemination of Policy: All members of the contractor's staff who are authorized to hire, supervise, promote, and discharge employees, or who recommend such action, or who are substantially involved in such action, will be made fully cognizant of, and will implement, the contractor's EEO policy and contractual responsibili- ties to provide EEO in each grade and classification of employment. To ensure thatthe above agreement will be met, the following actions will be taken as a minimum: a. Periodic meetings of supervisory and personnel office employees will be conducted before the start of work and then not less often than once every six months, at which time the contractor's EEO policy and its implementation will be reviewed and explained. The meetings will be conducted by the EEO Officer. b. All new supervisory or personnel office employees will be given a thorough indoctrination by the EEO Officer, covering all major aspects of the contractor's EEO obligations within thirty days following their reporting for duty with the contractor. c. All personnel who are engaged in direct recruitment for the project will be instructed by the EEO Officer in the contractor's procedures for locating and hiring minority group employees. d. Notices and posters setting forth the contractor's EEO policy will be placed in areas readily accessible to employees, applicants for employment and potential employees. e. The contractor's EEO policy and the procedures to imple- ment such policy will be brought to the attentIon of employees by means of meetings, employee handbooks, or other appropriate means. 4. Recruitment: When advertising for employees, the contractor will include in all advertisements for employees the notation: "An Equal Opportunity Employer.. All such advertisements will be placed , Page 1; ~ , in publications having a large circulation among minority groups in the area from which the project work force would normally be derived. a. The contractor will, unless precluded by a valid bargaining agreement, conduct systematic and direct recruitment through public and private employee referral sources likely to yield qualified minority group applicants. To meet this requirement, the contractor will identify sources of potential minority group employees, and establish with such identified sources procedures whereby minority group applicants may be referred to the contractor for employment consider- atIon. b. In the event the contractor has a valid bargaining agreement providing for exclusive hiring hall referrals, he is expected to observe the provisions of that agreement to the extent that the system permits the contractor's compliance with EEO contract provisions. (The DOL has held that where implementation of such agreements have the effect of discriminating against minorities or women, or obligates the contractor to do the same, such implementation violates Executive Order 11246, as amended.) c. The contractor will encourage his present employees to refer minority group applicants for employment. Information and proce- dures with regard to referring minority group applicants will be discussed with employees. 5. Personnel Actions: Wages, working conditions, and employee benefits shall be established and administered, and personnel actions of every type, Including hiring, upgrading, promotion, transfer, demotIon, layoff, and termination, shall be taken without regard to race, color, religion, sex, national origin, age or disability. The following procedures shall be followed: a. The contractor will conduct periodic inspections of project sites to insure that working conditions and employee facilities do not indicate discriminatory treatment of project site personnel. b. The contractor will periodically evaluate the spread of wages paid within each classification to determine any evidence of discrimi- natory wage practices. c. The contractor will periodically review selected personnel actions in depth to determine whether there is evidence of discrimina- tion. Where evidence is found, the contractor will promptly take corrective action. If the review indicates that the discnmination may extend beyond the actions reviewed, such corrective action shall include all affected persons. d. The contractor will promptly investigate all complaints of alleged discrimination made to the contractor in connection with his obligations under this contract, will attempt to resolve such com- plaints, and will take appropriate corrective action within a reasonable time. If the investigatIon indicates that the discrimination may affect persons other than the complainant, such corrective action shall Include such other persons. Upon completion of each investigation, the contractor will inform every complainant of all of his avenues of appeal. 6. Training and Promotion: a. The contractor will assist in locating, qualifying, and increasing the skills of minority group and women employees, and applicants for employment. b. Consistent with the contractor's work force requirements and as permissible under Federal and State regulations, the contractor shall make full use of training programs, i.e., aprrenticeship, and on-the-job training programs for the geographica area of contract performance. Where feasible, 25 percent of apprentices or t~ainees In each occupation shall be in their first year of apprenticeship or training. In the event a special provision for training is provided under this contract, this subparagraph will be superseded as indicated inthe special provision. c. The contractor will advise employees and applicants for employment of available training programs and entrance require- ments for each. d. The contractor will periodically review the training and promotion potential of minority group and women employees and will encourage eligible employees to apply for such training and promo- tion. 7. Unions: If the contractor relies in whole or in part upon unions as a source of employees, the contractor will use his/her best efforts to obtain the cooperation of such unions to increase opportunities for Page 2 minority groups and women within the unions, and to effect referrals by such unions of minority and female employees. Actions by the contractor either directly or through a contractor's association acting as agent will include the procedures set forth below: a. The contractor will use best efforts to develop, in coop'era- tion with the unions, joint training programs aimed toward qualifying more minority group members and women for membership in the unions and increasing the skills of minority group employees and women so that they may qualify for higher paying employment. b. The contractor will use best efforts to incorporate an EEO clause into each union agreement to the end that such union will be contractually bound to refer applicants without regard to their race, color, religion, sex, national origin, age or disability. c. The contractor is to obtain information as to the referral practices and policies of the labor union except that to the extent such information is within the exclusive possession of the labor union and such labor union refuses to furnish such information to the contractor, the contractor shall so certify to the SHA and shall set forth what efforts have been made to obtain such information. d. In the event the union is unable to provide the contractor with a reasonable flow of minority and women referrals within the time limit set forth in the collective bargaining agreement, the contractor will, through independent recruitment efforts, fill the employment vacancies without regard to race, color, religion, sex, national origin, age or disability; making full efforts to obtain qualified and/or qualifiable minority group persons and women. (The DOL has held that it shall be no excuse that the union with which the contractor has a collective bargaining agreement providing for exclusive referral failed to refer minority employees.) In the event the union referral practice prevents the contractor from meeting the obligations pursuant to Executive Order 11246, as amended, and these special provisions, such contractor shall immediately notify the SHA. 8. Selection of Subcontractors, Procurement of Materials and Leasing of Equipment: The contractor shall not discriminate on the grounds of race, color, reliQion, sex, national origin, age or disability in the selection and retention of subcontractors, including procure- ment of materials and leases of equipment. a. The contractor shall notify all potential subcontractors and suppliers of his/her EEO obligations under this contract. b. Disadvantaged business enterprises (DBE). as defined in 49 CFR 23, shall have equal opportunity to compete for and perform subcontracts which the contractor enters into pursuant to this contract. The contractor will use his best efforts to solicit bids from and to utilizB DBE subcontractors or subcontractors with meaningful minority group and female representation among their employees. Contractors shall obtain lists of DBE construction firms from SHA personnel. c. The contractor will use his best efforts to ensure subcontrac- tor compliance with their EEO obligations. 9. Records and Reports: The contractor shall keep such records as necessary to document compliance with the EEO requirements. Such records shall be retained for a period of three years following completion of the contract work and shall be available at reasonable times and places for inspection by authorized representatives of the SHA and the FHWA. a. The records kept by the contractor shall document the following: (1) The number of minority and non-minority group members and women employed in each work classification on the project; (2) The progress and efforts being made in cooperation with unions, when applicable, to increase employment opportunities for minorities and women; (3) The progress and efforts being made in locating, hiring, training, qualifying, and upgrading minority and female employees; and (4) The progress and efforts being made in securing the services of DBE subcontractors or subcontractors with meaningful minority and female representation among their employees. b. The contractors will submit an annual report to the .SflA ... Form FHWA-1273 (Rev. 3-94) J each July for the duration of the project, indicating the number of minority, women, and non-minority group employees currently engaged in each work classification required by the contract work. This information is to be reported on Form FHWA-1391. If on-the job training is being required by special provision, the contractor will be required to collect and report training data. III. NONSEGREGATED FACILITIES (Applicable to all Federal-aid construction contracts and to all related subcontracts of $10,000 or more.) a. By submission of this bid, the execution of this contract or subcontract, or the consummation of this material supply agreement or purchase order, as appropriate, the bidder, Federal-aid construc- tion contractor, subcontractor, material supplier, or vendor, as appropriate, certifies that the firm does not maintain or provide for its employees any segregated facilities at any of its establishments, and that the firm does not permit its employees to perform their services at any location, under its control, where segregated facilities are maintained. The firm agrees that a breach of this certification is a violation of the EEO provisions of this contract. The firm further certifies that no employee will be denied access to adequate facilities on the basis of sex or disability. b. As used in this certification, the term "segregated facilities" means any waiting rooms, work areas, restrooms and washrooms, restaurants and other eating areas, lime clocks, locker rooms, and other storage or dressing areas, parking lots, drinking fountains, recreation or entertainment areas, transportation, and housing facilities provided for employees which are segregated by explicit directive, or are, in fact, segregated on the basis of race, color, religion, national origin, age or disability, because of habit, local custom, or otherwise. The only exception will be for the disabled when the dem.ands for accessibility override (e.g. disabled parking). c. The contractor agrees that it has obtained or will obtain identical certification from proposed subcontractors or material suppliers prior to award of subcontracts or consummation of material sUPP'ly agreements of $10,000 or more and that it will retain such certifications in its files. IV. PAYMENT OF PREDETERMINED MINIMUM WAGE (Applicable to all Federal-aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural minor collectors, which are exempt.) 1. General: a. All mechanics and laborers employed or working upon the site of the work will be paid unconditionally and not less often than once a week and without subsequent deduct/on or rebate on any account [except such payroll deductions as are permitted by regulations (29 CFR 3) issued by the Secretary of Labor under the Copeland Act (40 U.S.C. 276c)] the full amounts of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment. The payment shall be computed at wage rates not less than those contained in the wage determination of the Secretary of Labor (hereinafter "the wage determination") which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the contractor or its subcon- tractors and such laborers and mechanics. The wage determination (including any additional classifications and wage rates conformed under paragraph 2 of this Section IV and the DOL poster (WH-1321) or Form FHWA-1495) shall be posted at all times by the contractor and its subcontractors at the site of the work in a proll}inent and accessible place where it can be easily seen by the workers. For the purj>?se of this Section, contributions made or costs reasonably anticipated for bona fide fringe benefits under Section 1 (b )(2) of the Davis-Bacon Act (40 U.S.C. 276a)on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of Section IV, paragraph 3b, hereof. Also, for the purpose of this Section, 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 appropnate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in paragraphs 4 and 5 of this Section IV. Form FHWA-1273 (Rev. 3-94) b. 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. c. All rulings and interpretations of the Davis-Bacon Act and related acts contained in 29 CFR 1, 3, and 5 are herein incorporated by reference in this contract. 2. Classification: a. The SHA contracting officer shall require that any class of laborers or mechanics employed under the contract, which is not listed in the wage determination, shall be classified in conformance with the wage determination. b. The contracting officer shall approve an additional classifica- tion, wage rate and fringe benefits only when the following criteria have been met: (1) the work to be performed by the additional classifica- tion requested is not performed by a classification in the wage determination; (2) the additional classification is utilized in the area by the construction industry; (3) the proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and (4) with respect to helpers, when such a classification prevails in the area in which the work is performed. c. If the contractor or subcontractors, as appropriate, the laborers and mechanics (if known) to be employed in the additional classification or their representatives, and the contracting officer agree on the classificallon and wage rate (including the amount designated for fringe benefits where appropriate), a report of the acllon taken shall be sent by the contracting officer to the DOL, Administrator oflhe Wage and Hour Division, Employment Standards Administration, Washington, D.C. 20210. The Wage and Hour 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 contract- ing officer within the 30-day period that additional time is necessary. d. In the event the contractor or subcontractors, as appropri- ate, the laborers or mechanics to be employed in the additional 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 Wage and Hour Administrator for determination. Said Administrator, or an authorized representative, will issue a determina- tion within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 3D-day period that additional time is necessary e. The wage rate (Including fringe benefits where appropriate) determined pursuant to paragraph 2c or 2d of this Section IV shall be paid to all workers performing work in the additional classification from the first day on which work is performed in the classification. 3. Payment of Fringe Benefits: a. 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 or subcontractors, as appropriate, shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly case equivalent thereof. b. If the contractor or subcontractor, as appropriate, does not make payments to a trustee or other third person, he/she may consider as a 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. '1..\ . , ~ Page J 4. Apprentices and Trainees (Programs of the U.S. DOL) and Helpers: a. Apprentices: (1) 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 DOL, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State apprenticeship agency recognized by the Bureau, or if a person is employed in his/her first 90 days of probationary employ- ment as an apprentice In such an apprenticeship program, who Is not individually registered In the program, but who has been certified by the Bureau of Apprenticeship and Training or a State apprenticeship agency (where appropriate) to be eligible for probationary employ- ment as an apprentice. (2) The allowable ratio of apprentices to journeyman-level employees 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 employee 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 listed in 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 not less than the applicable wage rate on the wage determination for the work actually performed. Where a contractor or subcontractor 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-fevel hourly rate) speCified In the contractor's or subcontractor's registered program shall be observed. (3) 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 joumeyman-level 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 for the Wage and Hour Division determInes that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. (4) In the event the Bureau of Apprenticeship and Training, or a State apprenticeship agency recognized by the Bureau, with- draws approval of an apprenticeship program, the contractor or subcontractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the comparable work performed by regular employees until an acceptable program is approved. b. Trainees: (1) 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 DOL, Employment and Training Administration. (2) The ratio of trainees to journeyman-level employees on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. 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. (3) Every trainee must be paid at not less than the rate specified in the approved program for hislher level of progress, expressed as a percentage of the journeyman-level 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 Page 4 Division determines that there is an apprenticeship program associ- ated with the correspondingjoumeyman-Ievel wage rate on the wage determination which provides for less than full fringe benefits for apprentices, in which case such trainees shall receive the same fringe benefits as apprentices. (4) In the event the Employment and Training Administra- tion withdraws afProval of a training program, the contractor or subcontractor wil no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. c. Helpers: Helpers will be permitted to work on a project if the helper classification is specified and defined on the applicable wage determination or is approved pursuant to the conformance procedure set forth in Section IV.2. Any worker listed on a payroll at a helper wage rate, who is not a helper under a approved definition, shall be paid not less than the applicable wage rate on the wage determina- tion for the classification of work actually performed. 5. Apprentices and Trainees (Programs ofthe U.S. DOT): Apprentices and trainees working under apprenticeship and skill training programs which have been certified by the Secretary of Transportation as promoting EEO in connection with Federal-aid highway construction programs are not subject to the requirements of paragraph 4 of this Section IV. The straight time hourly wage rates for apprentices and trainees under such programs will be established by the particular frograms. The ratio of apprentices and trainees to journeymen shal not be greater than permitted by the terms of the particular program. 6. Withholding: The SHA shall upon its own action or upon written request of an authorized representative of the DOL withhold, or cause to be withheld, from the contractor or subcontractor 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, as 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 subcontrac- tor 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, all or part of the wages required by the contract, the SHA contracting officer may, after written notice to the contractor, 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. 7. Overtime Requirements: No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers, mechanics, watchmen, or guards (including apprentices, trainees, and helpers described in paragraphs 4 and 5 above) shall require or permit any laborer, mechanic, watchman, or guard In any workweek in which he/she is employed on such work, to work in excess of 40 hours in such workweek unless such laborer, mechanic, watchman, or guard receives compensation at a rate not less than one-and-one-half times his/her basic rate of pay for all hours worked in excess of 40 hours in such workweek. 8. Violation: Liability for Unpaid Wages; Liquidated Damages: In the event of any violation of the clause set forth in paragraph 7 above, the contractor and any subcontractor responsible thereof shall be liable to the affected employee for hislher 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 orto such territory) for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer, mechanic, watchman, or guard employed in violation of the clause set forth in paragraph 7, in the sum of :ji1 0 for each calendar day on which such employee was required or permit- ted to work in excess of the standard work week of 40 hours without payment of the overtime wages required by the clause set forth in paragraph 7. 9. Withholding for Unpaid Wages and Liquidated Damages: Form FHWA-1273 (Rev. 3-94) . \ The SHA shall upon its own action or upon written request of any authorized representative of the DOL withhold, or cause to be withheld, from any monies 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 above. V. STATEMENTS AND PAYROLLS (Applicable to all Federal-aid construction contracts exceeding $2,000 and to all related subcontracts, except for projects located on roadways classified as local roads or rural collectors, which are exempt.) 1. Compliance with Copeland Regulations (29 CFR 3): The contractor shall comply with the Copeland Regulations of the Secretary of Labor which are herein incorporated by reference. 2_ Payrolls and Payroll Records: a. Payrolls and basic records relating thereto shall be maintained by the contractor and each subcontractor during the course of the work and preserved for a period of 3 years from the date of completion of the contract for all laborers, mechanics, apprentices, trainees, watchmen, helpers, and guards working at the site of the work. b. The payroll records shall contain the name, social security number, and address of each such employee; his or her correct classification; hourly rates of wages paid (including rates of contribu- tions or costs anticipated for bona fide fringe benefits or cash equivalent thereof 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. In addition, for Appala- chian contracts, the payroll records shall contain a notation indicating whether the employee does, or does not, normally reside In the labor area as defined in Attachment A, paragraph 1. Whenever the Secretary of Labor, pursuant to Section IV, paragraph 3b, has found that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providil)g benefits under a plan or program described in Section 1 (b)(2)(B) of the Davis Bacon Act, the contractor and each subcontractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, that the plan or program has been communicated in writing to the laborers or mechanics affected, and show the cost anticipated or the actual cost incurred in providing benefits. Contractors or subcontractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprentices and trainees, and ratios and wage rates prescribed in the applicable programs. c. Each contractor and subcontractor shall furnish, each week in which any contract work is performed, to the SHA resident engineer a payroll of wages paid each of its employees (including apprentices, trainees, and helpers, described in Section IV, para- graphs 4 and 5, and watchmen and guards engaged on work during the preceding weekly payroll period). The payroll submitted shall set out accurately and completely all of the information required to be maintained under paragraph 2b of this Section V. This information may be submitted in any form desired. Optional Form WH-347 is available for this purpose and may be purchased from the Superin- tendent of Documents (Federal stock number 029-005-0014-1), U.S. Govemment Printing Office, Washington, D.C. 20402_ The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. d. Each payroll submitted shall be accompanied by a "State- ment of Compliance," signed by the contractor or subcontractor or his/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 maintained under paragraph 2b of this Section V and that such information is correct and complete; (2) that such laborer or mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages eamed, without rebafe, either directly or indirectly, and that no deductions have been made Form FHWA-1273 (Rev. 3-94) either directly or indirectly from the full wages eamed, other than permissible deductions as set forth in the Regulations, 29 CFR 3; (3) that each laborer or mechanic has been paid not less that the applicable wage rate and fringe benefits or cash equivalent for the classification of worked performed, as specified in the applicable wage determination incorporated into the contract. e. 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 2d of this Section V. f. The falsification of any of the above certifications may subject the contractor to civil or criminal prosecution under 18 U.S.C. 1001 and 31 U.S.C. 231. g. The contractor or subcontractor shall make the records required under paragraph 2b of this Section V available for inspec- tion, copying, or transcription by authorized representatives of the SHA, the FHWA, or the DOL, 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 SHA, the FHWA, the DOL, or all may, after written notice to the contractor, sponsor, applicant, or owner, take such actions 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. VI. RECORD OF MATERIALS, SUPPLIES, AND LABOR 1. On all Federal-aid contracts on the National Highway System, except those which provide solely for the installation of protective devices at railroad grade crossin!ils, those which are constructed on a force account or direct labor baSIS, highway beautification contracts, and contracts for which the total final construction cost for roadway and bridge is less than $1,000,000 (23 CFR 635) the contractor shall: a. Become familiar with the list of specific materials and supplies contained in Form FHWA-47, 'Statement of Materials and Labor Used by Contractor of Highway Construction Involving Federal Funds," prior to the commencement of work under this contract. b. Maintain a record of the total cost of all materials and supplies purchased for and Incorporated in the work, and also of the quantities of those specific materials and supplies listed on Form FHWA-47, and in the units shown on Form FHWA-47. c. Furnish, upon the completion of the contract, to the SHA resident engineer on Form FHW A-47 together with the data required in paragraph 1 b relative to materials and supplies, a final labor summary of all contract work Indicating the total hours worked and the total amount earned. 2. At the prime contractor's option, either a single report covering all contract work or separate reports for the contractor and for each subcontract shall be submitted. VII. SUBLETTING OR ASSIGNING THE CONTRACT 1. The contractor shall perform with its own organization contract work amounting to not less than 30 percent (or a greater percentage if specified elsewhere in the contract) of the total original contract price, excluding any specialty items designated by the State. Specialty items may be performed by subcontract and the amount of any such specialty items performed may be deducted from the total original contract price .before computing the amount of work required to be performed by the contractor's own organization (23 CFR 635). a. "Its own organization" shall be construed to include only workers employed and paid directly by the prime contractor and equipment owned or rented by the prime contractor, with or without operators. Such term does not include employees or equipment of " Page 5 .. a subcontractor, assignee, or agent of the prime contractor. b. "Specialty Items. shall be construed to be limited to work that requires highly specialized knowledge, abilities, or equipment not ordinarily available in the type of contracting organizations qualified and expected to bid on the contract as a whole and in general are to be limited to minor components of the overall contract. 2. The contract amount upon which the requirements set forth in paragraph 1 of Section VII is computed includes the cost of material and manufactured products which are to be purchased or produced by the contractor under the contract provisions. 3. The contractor shall fumish (a) a competent superintendent or supervisor who is employed by the firm, has full authority to direct performance of the work in accordance with the contract require- ments, and is in charge of all construction operations (regardless of who performs the work) and (b) such other of its own organizational resources (supervision, management, and engineering services) as the SHA contracting officer determines is necessary to assure the performance of the contract. 4. No portion ofthe contract shall be sublet, assigned or otherwise disposed of except with the written consent of the SHA contracting officer, or authorized representative, and such consent when given shall not be construed to relieve the contractor of any responsibility for the fulfillment of the contract. Written consent will be given only after the SHA has assured that each subcontract is evidenced in writing and that it contains all pertinent provisions and requirements of the prime contract. VIII. SAFETY: ACCIDENT PREVENTION 1. In the performance of this contract the contractor shall comply with all applicable Federal, State, and local laws governing safety, health, and sanitation (23 CFR 635). The contractor shall provide all safeguards, safety devices and protective equipment and take any other needed achons as it determines, or as the SHA contracting officer may determine, to be reasonably necessary to protect the life and health of employees on the job and the safety of the public and to protect property in connection with the performance of the work covered by the contract. 2. It is a condition of this contract, and shall be made a condition of each subcontract, which the contractor enters into pursuant to this contract, that the contractor and any subcontractor shall not permit any employee, in performance of the contract, to work in surround- ings or under conditions which are unsanitary, hazardous or danger- ous to hislher health or safety, as determined under construction safety and health standards (29 CFR 1926) promulgated by the Secretary of Labor, in accordance with Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333). 3. Pursuant to 29 CFR 1926.3, it is a condition of this contract that the Secretary of Labor or authorized representative thereof, shall have right of entry to any site of contract performance to inspect or investigate the matter of compliance with the construction safety and health standards and to carry out the duties of the Secretary under Section 107 of the Contract Work Hours and Safety Standards Act (40 U.S.C. 333). IX. FALSE STATEMENTS CONCERNING HIGHWAY PROJECTS In order to assure high quality and durable construction in confor- mity with approved plans and specifications and a high degree of reliability on statements and representations made by engineers, contractors, suppliers, and workers on Federal-aid highway projects, it is essential that all persons concerned with the project perform their functions as carefully, thoroughly, and honestly as possible. Willful falsification, distortion, or misrepresentation with respect to any facts related to the project is a violation of Federal law. To prevent any misunderstanding regarding the seriousness of these and similar acts, the following notice shall be posted on each Federal-aid highway project (23 CFR 635) in one or more places where it is readily available to all persons concerned with the project: NOTICE TO ALL PERSONNEL ENGAGED ON FEDERAL-AID HIGHWAY PROJECTS 18 U.S.C. 1020 reads as follows: 'Whoever, being an officer, agent, or employee of the United States, or of any State or Territory, or whoever, whether a person, association, firm, or corporation, knOWingly makes any false state- ment, false representation, or false report as to the character, quality, Page 6 - - quantity, or cost of the material used or to be used, or the quantity or quality of the work performed or to be performed, or the cost thereof in connection with the submission of plans, maps, specifications, contracts, or costs of construction on any highway or related project submitted for approval to the Secretary of Transportation; or Whoever knowingly makes any false statement, false representa- tion, false report or false claim with respect to the character, quality, quantity, or cost of any work performed or to be performed, or materials furnished or to be furnished, in connection with the construction of any highway or related project approved by the Secretary of Transportation; or Whoever knowingly makes any false statement or false representa- tion as to material fact in any statement, certificate, or report submitted pursuant to provisions of the Federal-aid Roads Act approved July 1, 1916, (39 Stat. 355), as amended and supple- mented; Shall be fined not more that $10,000 or imprisoned not more than 5 years or both. " X. IMPLEMENTATION OF CLEAN AIR ACT AND FEDERAL WATER POLLUTION CONTROL ACT (Applicable to all Federal-aid construction contracts and to all related subcontracts of $100,000 or more.) By submission of this bid or the execution of this contract, or subcontract, as appropriate, the bidder, Federal-aid construction contractor, or subcontractor, as appropriate, will be deemed to have stipulated as follows: 1. That any facility that is or will be utilized in the performance of this contract, unless such contract is exempt under the Clean Air Act, as amended (42 U.S.C. 1857 !!!~., as amended by Pub.L. 91-604), and under the Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 !!!~., as amended by Pub.L. 92-500), Executive Order 11738, and regulalions in implementation thereof (40 CFR 15) is not listed, on the date of contract award, on the U.S. Environmental Protection Agency (EPA) List of Violating Facilities pursuant to 40 CFR 15.20. 2. That the firm agrees to comply and remain in compliance with all the requirements of Section 114 of the Clean Air Act and Section 308 of the Federal Water Pollution Control Act and all regulations and guidelines listed thereunder. 3. That the firm shall promptly notify the SHA of the receipt of any communication from the Director, Office of Federal Activities, EPA, indicating that a facility that is or will be utilized for the contract is under consideration to be listed on the EPA List of Violating Facilities. 4. That the firm agrees to include or cause to be included the requirements of paragraph 1 through 4 of this Section X in every nonexempt subcontract, and further agrees to take such action as the govemment may direct as a means of enforcing such requirements. XI. CERTIFICATION REGARDING DEBARMENT, SUSPENSION, INELIGIBILITY AND VOLUNTARY EXCLUSION 1. Instructions for Certification - Primary Covered Transac- tions: (Applicable to all Federal-aid contracts - 49 CFR 29) a. By signing and submitting this proposal, the prospective primary participant is providing the certification set out below. b. The inability of a person to provide the certification set out below will not necessarily result in denial of participation in this covered transaction. The prospective participant shall submit an explanation of why it cannot provide the certification set out below. The certification or explanation will be considered in connection with the department or agency's determination whether to enter into this transaction. However, failure of the prospective primary p'articipant to furnish a certification or an explanation shall disqualify such a person from participation in this transaction. c. The certification in this clause is a material representation of fact upon which reliance was placed when the department or agency determined to enter into this transaction. If it is later deter- mined thatthe prospective primary participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the department or agency may terminate this '"' Form FHWA-1273 (Rev. 3-94) .., ~ transaction for cause of default. d. The prospective primary participant shall provide immediate written notice to the department or agency to whom this proposal is submitted if any time the prospective primary participant learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances. e. The terms "covered transaction," "debarred," "suspended," "ineligible," "lower tier covered transaction," "participant," "person," "primary covered transaction," "principal," "proposal," and "voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the department or agency to which this proposal is submitted for assistance in obtaining a copy of those regulations. f. The prospective primary participant agrees by submitting this proposal that, should the proposed covered transaction be entered IOta, it shall not knowingly enter into any lower tier covered transac- tion with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency entering into this transaction. g. The prospective primary participant further agrees by submitting this proposal that it will include the clause titled "Certifica- tion Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion-lower Tier Covered Transaction," provided by the department or agency entering into this covered transaction, without modification, in all lower tier covered transactions and in all solicita- tions for lower tier covered transactions. h. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous, A participant may decide the method and frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the nonprocurement portion of the "lists of Parties Excluded From Federal Procurement or Nonprocurement Programs. (Nonprocurement list) which is compiled by the General Services Administration. i. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in, good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. j., Except for transactions authorized under paragraph f of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Govemment. the department or agency may terminate this transaction for cause or default. Form FHWA-1273 (Rev. 3-94) -- Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Excluslon-.Primary Covered Transactions 1. The prospective primary 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 3-year period preceding this proposal been convicted of or had a civil judgement rendered against them for commission of fraud or a criminal offense in connection with obtain- ing, 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 othelWise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph 1b of this certification; and d. Have not within a 3-year period preceding this applica- tion/proposal had one or more public transactions (Federal, State or local) terminated for cause or default. 2. Where the prospective primary participant is unable to certify to any ofthe statements in this certification, such prospective participant shall attach an explanation to this proposal. 2. Instructions for Certification - LowerTier Covered Transac- tions: (Applicable to all subcontracts, purchase orders and other lower tier transactions of $25,000 or more - 49 CFR 29) a. By signing and submitting this proposal, the prospective lower tier is providing the certification set out below. b. The certification in this clause is a material representation of fact upon which reliance was placed when this transaction was entered into. If it is later determined that the prospective lower tier participant knowingly rendered an erroneous certification, in addition to other remedies available to the Federal Government, the depart- ment, or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. c. The prospective lower tier participant shall provide immedi- ate written notice to the person to which this proposal is submitted if at any time the prospective lower tier participant learns that its certification was erroneous by reason of changed circumstances. d. The terms .covered transaction," "debarred," .suspended," "ineligible," "primary covered transaction," .participant," .person," "principal," "proposal," and .voluntarily excluded," as used in this clause, have the meanings set out in the Definitions and Coverage sections of rules implementing Executive Order 12549. You may contact the person to which this proposal is submitted for assistance in obtaining a copy of those regulations. e. The prospective lower tier participant agrees by submitting this proposal that, should the proposed covered transaction be entered into, it shall not knowingly enter into any lower tier covered transaction with a person who is debarred, suspended, declared ineligible, or voluntarily excluded from participation in this covered transaction, unless authorized by the department or agency with which this transaction originated. f. The prospective lower tier participant further agrees by submitting this proposal that it will include this clause titled "Certifica- tion Regarding Debarment, Suspension, ineligibility and Voluntary Exclusion-lower Tier Covered Transaction," without modification, in all lower tier covered transactions and in all solicitations for lower tier covered transactions. g. A participant in a covered transaction may rely upon a certification of a prospective participant in a lower tier covered transaction that is not debarred, suspended, ineligible, or voluntarily excluded from the covered transaction, unless it knows that the certification is erroneous. A participant may decide the method and ,,') Page 7 . .. frequency by which it determines the eligibility of its principals. Each participant may, but is not required to, check the Nonprocurement List. h. Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render in good faith the certification required by this clause. The knowledge and information of participant is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings. i. Except for transactions authorized under paragraph e of these instructions, if a participant in a covered transaction knowingly enters into a lower tier covered transaction with a person who is suspended, debarred, ineligible, or voluntarily excluded from participation in this transaction, in addition to other remedies available to the Federal Govemment, the department or agency with which this transaction originated may pursue available remedies, including suspension and/or debarment. Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion--Lower Tier Covered Transactions: 1. The prospective lower tier participant certifies, by submission of this proposal, that neither it nor its principals is presently debarred, suspended, proposed for debarment, declared ineligible, or volun- tarily excluded from participation in this transaction by any Federal department or agency. 2. Where the prospective lower tier participant is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this proposal. Page 8 ---- XII. CERTIFICATION REGARDING USE OF CONTRACT FUNDS FOR LOBBYING (Applicable to all Federal-aid construction contracts and to all related subcontracts which exceed $100,000 - 49 CFR 20) 1. The prospective participant certifies, by signing and submitting this bid or proposal, to the best of his or her knowledge and belief, that: a. No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. b. If any funds other than Federal appropriated funds have been paid or will be paid to al)Y person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. 2. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by 31 U.S.C. 1352. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. 3. The prospective participant also agrees by submitting his or her bid or proposal that he or she shall require that the language of this certification be included in all lower tier subcontracts, which exceed $100,000 and that all such recipients shall certify and disclose accordingly. .\ Form FHWA-1273 (Rev. 3-94) .. ATTACHMENT A. EMPLOYMENT PREFERENCE FOR APPALACHIAN CONTRACTS (Applicable to Appalachian contracts only.) 1. During the performance of this contract, the contractor under- taking to do work which is, or reasonably may be, done as on-site work, shall give preference to qualified persons who regularly reside in the labor area as designated by the DOL wherein the contract work is situated, or the subregion, or the Appalachian counties of the State wherein the contract work is situated, except: a. To the extent that qualified persons regularly residing in the area are not available. b. For the reasonable needs of the contractor to employ supervisory or specially experienced personnel necessary to assure an efficient execution of the contract work. c. For the obligation of the contractor to offer employment to present or fOmler employees as the result of a lawful collective bargaining contract, provided that the number of nonresident persons employed under this subparagraph 1 c shall not exceed 20 percent of the total number of employees employed by the contractor on the contract work, except as provided in subparagraph 4 below. 2. The contractor shall place a job order with the State Employ- ment Service indicating (a) the classifications of the laborers, mechanics and other employees required to perfoml the contract work, (b) the number of employees required in each classification, Form FHWA-1273 (Rev. 3-94) (c) the date on which he estimates such employees will be required, and (d) any other pertinent Information required by the State Employ- ment Service to complete the job order fOml. The Job order may be placed with the State Employment Service in writing or by telephone. If during the course of the contract work, the information submitted by the contractor in the original job order is substantially modified, he shall promptly notify the State Employment Service. 3. The contractor shall give full consideration to all qualified job applicants referred to him by the State Employment Service. The contractor is not required to grant employment to any job applicants who, in his opinion, are not qualified to perform the classification of work required. 4. If, within 1 week following the placing of a job order by the contractor with the State Employment Service, the State Employment Service is unable to refer any qualified job applicants to the contrac- tor, or less than the number requested, the State Employment Service will forward a certificate to the contractor Indicating the unavailability of applicants. Such certificate shall be made a part of the contractor's permanent project records. Upon receipt of this certificate, the contractor may employ persons who do not normally reside in the labor area to fill positions covered by the certificate, notwithstanding the provisions of subparagraph 1 c above. 5. The contractor shall include the provisions of Sections 1 through 4 of this Attachment A in every subcontract for work which is, or reasonably may be, done as on-site work. . .. Page g 0' 'v" FOURTH AMENDMENT TO CITY OF SUNNY ISLES BEACH AND TENEX ENTERPRISES, INC. AGREEMENT FOR SR AlA/COLLINS A VENUE AT 183RD STREET STREETSCAPE IMPROVEMENTS PROJECT CONTRACT NO. C0910-062 THIS FOURTH AMENDMENT TO THE TENEX ENTERPRISES, INC., AGREEMENT FOR SR AlA/COLLINS A VENUE AT l83RD STREET STREETSCAPE IMPROVEMENTS PROJECT ("STREETSCAPE IMPROVEMENTS PROJECT"), executed this -JL day of j;t~~OlO, is attached hereto and made a part of the original Agreement between the parties approv d VIa ResolutIOn No. 2009-1495, between the City of Sunny Isles Beach ("City") and Tenex Enterprises, Inc. ("Contractor") a business corporation licensed in the State of Florida, whose Federal Identification # is 52-- Zo (0 "t& t q . The City and Contractor (collectively "the Parties") hereby agree as follows. 1. INCORPORATION OF FEDERALLY MANDATED CONTRACT DOCUMENTS. The City wishes to amend the original Agreement with the Contractor for SR A 1 A/Collins A venue at 183 rd Street Streetscape Improvements Project to require the Parties to comply with the provisions contained in FHW A-I273, except for the following modifications or additional requirements: a. Certify monthly to the Florida Department of Transportation compliance with Section II _ Nondiscrimination and Section III - Nonsegregated Facilities. b. In addition to the requirements of Section V, No. 2(c), include gender and race in the weekly annotated payroll records. c. In modification to the requirements of Section V, No. 2(c), do not include Social Security numbers and addresses of employees shall not be included on submitted payrolls for contracts let after January 18, 2009. In lieu of a Social Security number, an employee identifying number must be listed. The employer may use the last four digits of the Social Security number or another assigned number as the employee identifying number. d. Section VI - Record of Materials, Supplies, and Labor, no longer applies and FHW A 47 form is not required. 2. CERTIFICATION OF NO LOCAL HIRING PREFERENCE. The City certifies that it does not have local hiring preference and will not give hiring preference for local workers, or discriminate against the employment of labor from any other state, in the construction of the Streetscape Improvements Project. 3. RECORD RETENTION. The City agrees to maintain all financial records and all other project documentation in connection with the Streetscape Improvements Project for a minimum period of five (5) years following contract completion and acceptance. The City further agrees that if any litigation, claim, negotiation, audit or other action is started before the expiration of the five year period, the records shall be retained until all litigation, claims or audit findings involving the records have been resolved, J U l I C091O-062 FOURTH AMENDMENT TO THE TEN EX ENTERPRISES. INC. AGREEMENT FOR SR A lA/COLLINS A VENUE AT 183RO STREET STREETSCAPE IMPROVEMENTS PROJECT 4. COMPLIANCE WITH DAVIS BACON ACT. The Contractor agrees and certifies that all mechanics, laborers, employees, apprentices or trainees, employed or working on the Streetscape Improvements Project have been paid at wage rates, and that the wage rates of payments, contributions or costs for fringe benefits have not been less than those required by the Davis Bacon Act, and that the payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 C.F.R. ~ 5.5(a)(3)(i) except that full social security numbers and home addresses shall not be included on weekly transmittals. 5. OTHER PROVISIONS REMAIN IN EFFECT: Except as specifically modified herein, all terms and conditions of the Original Agreement between the parties, approved via Resolution No. 2009- 1495, shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have executed this document as of the date mentioned above. r~:n ~nature f'/\\ '" c-. \ S ~c.- L. Print Name CONTRACTOR: Tenex Enterprises, Inc. ~c . 7: H 'd F I d' P 'd ami au a I, resl ent ~f Wa~S: c/' _ ~nature ~ h hkA L(~o-- Print Name By~A~ Jane A. Hines, CMC, City Clerk BY: IS~ACH ATTEST: ., ~. APPROVED AS TO FORM AND LEGAL SUFFICIENCY BY;.,~~~... ifAAA ~ -9~ Hans Ottinot, City Attorney 2 C0910-062 FOURTH AMENDMENT TO THE TEN EX ENTERPRISES, INC. AGREEMENT FOR SR AlA/COLLINS A VENUE AT 183RD . 1 STREETSTREETSCAPEIMPROVEMENTSPROJECT