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HomeMy WebLinkAboutRES 301 Draft 01 2010-2012 .. COUNTY OF HAWAII -'. �' /:• STATE OF HAWAII OF.M/.� RESOLUTION NO. 301 12 A RESOLUTION TO APPROVE AND ADOPT A CORRECTED MAP OF THE SPECIAL IMPROVEMENTS TO BE CONSTRUCTED OR IMPROVED, TOGETHER WITH FINAL DETAILS, AND PLANS AND SPECIFICATIONS FOR A WATER DELIVERY SYSTEM FOR THE KONA OCEAN VIEW PROPERTIES SUBDIVISION. WHEREAS, on August 3, 2011, the Hawai`i County Council (the "Council") adopted Resolution No. 99-11, a Resolution of Determination to Proceed to Create and Define a Water System Improvement District for the Kona Ocean View Properties Subdivision; and WHEREAS, Resolution No. 99-11, directs the Manager of the Department of Water Supply ("DWS") to prepare a corrected map of the special improvements to be constructed or improved as part of the Water System showing the exact location of the improvements, together with final details, and plans and specifications (the "documents") for the work in such form as will readily permit and encourage genuine competition between contractors in the calling of bids and awarding of a contract for the special improvements; and WHEREAS, DWS has contracted Nancy E. Burns, P.E., LLC to prepare and furnish the documents; and WHEREAS,the documents consist of the "Kona Ocean View Properties Water System Improvements"prepared by Nancy E. Burns, P.E., LLC, showing the exact location of the improvements, together with final details, and plans and specifications, a copy of which is attached to this Resolution as Exhibit "A" and incorporated herein by reference made a part hereof; and WHEREAS, documents also consist of the Department of Water Supply, County of Hawai`i Project Manual, Job No. 1008-934, "Invitation for Bids" for the construction of the Kona Ocean View Properties Water System Improvements, a copy of which is attached to this Resolution as Exhibit "B" and incorporated herein by reference and made a part hereof; and WHEREAS, the documents have been reviewed by the engineering staff of DWS and the U.S. Department of Agriculture; and WHEREAS, in accordance with Section 12-19, Hawai`i County Code 1983 (2005 Edition, as amended), the Council, having the opportunity to review and question the documents, may proceed to approve and adopt the documents; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII , that the documents attached to this Resolution as Exhibit"A" and Exhibit "B" are hereby approved and adopted and shall be used as the basis for the calling of bids and awarding of a contract for the work as provided in Resolution No. 99-11. BE IT FURTHER RESOLVED that this Resolution shall take effect immediately upon adoption thereof. BE IT FINALLY RESOLVED that the Clerk of the County of Hawai`i shall transmit copies of this Resolution to the Honorable Mayor William P. Kenoi; Finance Director Nancy Crawford; Corporation Counsel Lincoln Ashida; Department of Water Supply Manager Quirino Antonio; Water Board Chair Robert Meierdiercks; Bond Counsel Brian T. Hirai, McCorriston Miller Mukai MacKinnon LLP; and Legislative Auditor Colleen Schrandt. Dated at , Hawai`i this day of , 2012. INTRODU ED BY: f 4110 COUN• M BER, COUNTY O' HAWAI`I COUNTY COUNCIL ROLL CALL VOTE County of Hawai`i AYES NOES ABS EX Hilo, Hawai`i BLAS FORD I hereby certify that the foregoing RESOLUTION was by HOFFMANN the vote indicated to the right hereof adopted by the COUNCIL of the IKEDA County of Hawai`i on ONISHI PILAGO ATTEST: SMART YAGONG YOSHIMOTO Reference: 0-840/Waived PWPRC COUNTY CLERK CHAIRPERSON&PRESIDING OFFICER RESOLUTION NO. 301 12 2 ,wa•+z Trodv awc - s s to W .3 E� i 3f� aE2 k k �o a g o T A 1-- 5 a° L-J 86 W M a J ! =`s _.—El ZF W 00 W F o Y 3 F o W 0 e a k. 4 g I 4P o � tl a a E..4 Z -4 hi � _g ill i 4///r ty s 1:4 W g W F mo aW o 5 Uv __, Z — z N- O 4t r:4 O ;14 124 rT Z 1� ca)O x i : W = »p= oi U E-4 N f ° L_, !!!!!!!VJ;< Z :m ZOO Y w ,,Z 0 < ,,V' ' W L.4 w EM4 Z I- Z - �;� ,. voszons.ns,„I, 41 ›m4 ,.a -,..,...„„„m,......0... 4,4,.... , „,,..% , (O Q i '+ 71;;;;77.1:617111:::Irt1414r121111117:1 I'p'fr 0 p4 -4t Wco co m cw Z i _ , ¢* O 4 i : � a t 1 *NA Z it_ 9 J i''r_ V) `.03 a`" a Count. 840 (Res. 301-12) Z ON'4Z•18dV 3.1V0 ------, 414111 Ili '. t t a_ = E2 MI. .. ..i!l _nli•rt-FA*.WI% , . 66 >N, 'X 74 Tz cr,-. 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MIHN \ 1 EXHIBIT B DEPARTMENT OF WATER SUPPLY COUNTY OF HAWAII HILO, HAWAII PROJECT MANUAL JOB NO. 2008-934 INVITATION FOR BIDS FOR THE CONSTRUCTION OF THE KONA OCEAN VIEW PROPERTIES WATER SYSTEM IMPROVEMENTS DISTRICT OF NORTH KONA COUNTY OF HAWAII - STATE OF HAWAII MAY 2012 TABLE OF CONTENTS Pages Bidding Requirements Advertisement for Bids 00100-1 to 00100-2 RUS Bulletin 1780-26 Instructions to Bidders . 00200-1 to 00200-13 Bid Form 00410-1 to 00410-13 Bid Bond EJCDC C-430 1 to 2 Contract Documents Notice of Award EJCDC C-510 1 Standard form of Agreement between Owner and Contractor for Construction Contract (Stipulated Price) EJCDC C-520 i and 1 to 8 Standard General Conditions of the Construction Contract .EJCDC C-700 i to iv and 1 to 62 Supplementary Conditions 00800-1 to 00800-10 Performance Bond .EJCDC C-610 1 to 4 Payment Bond .EJCDC C-615 1 to 3 Change Order Form EJCDC C-941 1 to 2 Notice to Proceed EJCDC C-550 1 Contractor's Application for Payment EJCDC C-620 1 to 3 Certificate of Substantial Completion ...EJCDC C-625 1 to 2 Kona Ocean View Properties Water System Improvement Plans Sheets dated xx/xx/xx (Bound Separately) Title Sheet 1 of 16 Site Plan ..2 of 16 Typical Sections and Notes .3 of 16 General Notes ..4 of 16 Traffic Control Plan .5 of 16 Erosion Control Details 6 of 16 Plan and Profile Water Line Extension Mamalahoa Highway(State ROW) ..7 of 16 Plan and Profile Water Line Puukala Road .8 of 16 Plan and Profile Water Line Puukala Road .9 of 16 Plan and Profile Water Line Puukala Loop Road 10 of 16 Plan and Profile Water Line Puukala Loop Road 11 of 16 Plan and Profile Water Line Puukala Loop Road 12 of 16 Plan and Profile Water Line Road"B" 13 of 16 Plan and Profile Water Line Road"C" .14 of 16 Miscellaneous Details 15 of 16 2" and 4"Pressure Reducing Valve Unit .16 of 16 EXHIBIT B Technical Specifications: The following Standard Specifications shall be used as applicable: "Water System Standards, State of Hawaii" dated 2002, as amended. "Standard Specifications for Public Works Construction" Departments of Public Works County of Kauai, City and County of Honolulu, County of Maui, County of Hawaii of the State of Hawaii dated September 1986. "Standard Details for Public Works Construction" Departments of Public Works County of Kauai, City and County of Honolulu, County of Maui, County of Hawaii of the State of Hawaii as amended. Work within the Mamalahoa Highway shall be done in accordance with the State of Hawaii Department of Transportation"Standard Plans" dated 2008 and"Standard Specifications for Road, Bridge, and Public Works Construction dated 1994 as amended. ii EXHIBIT B RUS Bulletin 1780-26 Attachment E Page 1 Advertisement for Bids Department of Water Supply, County of Hawai`i Owner 345 Kekuanao`a Street, Suite 20 Address Hilo, HI 96720 Separate sealed Bids for the construction of the KONA OCEAN VIEW PROPERTIES WATER SYSTEM IMPROVEMENTS, DWS Job No. 2008-934, District of North Kona, County of Hawaii, State of Hawaii. The project generally consisting of water mains, valves, fire hydrants, service laterals, valve boxes, meter boxes, fittings, all water system appurtenances, paving,traffic control,best management practices and all other items necessary to complete the water system in accordance with the plans and the Water System Standards, State of Hawai`i, dated 2002, as amended, will be received by the Department of Water Supply, County of Hawaii, at: 1) 345 Kekuanao`a Street, Suite 20, Hilo, Hawaii, or 2) Office of the Mayor, West Hawai`i Civic Center 75-5044 Ane Keohokalole Highway, Building C, 2°' Floor Kailua-Kona, Hawai`i until , (Local Time) , (year), and then at said office publicly opened and read aloud. The Contract Documents may be examined at the following location(s): 345 Kekuanao`a Street, Suite 20 Hilo Hawaii 96720 Copies of the Contract Documents may be obtained at the Issuing Office, Department of Water Supply, located at 345 KekuanaO'a Street, Suite 20, Hilo Hawai`i upon payment of$50.00_for each set. To be eligible to submit a bid,the Bidder and/or his subcontractor(s) must possess all required valid State of Hawai`i contractor's licenses. Plans, specifications,instructions,terms and conditions, and OFFICIAL bid forms must be obtained at the Office of the Manager-Chief Engineer, Suite 20, 345 KekOanaO`a Street, Hilo, Hawaii, upon payment for each set. Deposit will be refunded if all plans are returned to the Department in usable form within ten (10)working days after bid opening. The Department of Water Supply will, at the request of the bidder, forward by mail any plans, specifications and forms upon receipt of the required payment and a postage fee. The bidder shall contact the Department for the postage fee amount. The Department will not assume responsibility for the timely delivery and receipt of the bidding documents by the prospective bidder(s). Prospective bidders must file with the Manager-Chief Engineer their "Intent to Bid" not later than ten(10) calendar days prior to the time advertised for opening of bids. 00100-I EXHIBIT B RUS Bulletin 1780-26 Attachment E Page 2 A properly executed and notarized Standard Qualification Questionnaire for Offerors form ("Questionnaire") provided by the Department of Water Supply is required to be filed with the Manager- Chief Engineer for evaluation no later than eight (8) calendar days prior to the time advertised for the opening of bids unless the bidder has previously filed a Questionnaire within the previous two(2)years of the date of opening of bids or as requested. The bidder's attention is directed to the following: 1) The Hawaii products preference pursuant to HRS 103D-1002 is applicable for this solicitation. Persons wishing to certify and qualify a product not currently listed as a Hawaii Product shall submit a Certification for Hawaii Product Preference (form SPO-038) to: Department of Water Supply, Manager-Chief Engineer, 345 KekuanaO`a Street, Suite 20, Hilo HI 96720. View the current Hawaii Products List on the State Procurement Office (SPO) website at http://hawaii.gov/spo, click on Procurement of Goods, Services and Construction-Chapter 103D, HRS; under Procurement, click on Preferences, Hawaii Products and select Hawaii Products List to view. For each product, one form shall be completed and submitted (i.e. 3 products should have 3 separate forms completed). The form is available on the SPO webpage at htth: hawyaii.govspo under the Quicklinks' menu; click on `Forms for Vendors, Contractors, and Service Providers' to view and complete form SPO-038 online. A pre-bid conference will be held on at the Department of Water Supply Administration Office at 345 Kekuanao`a Street, Suite 20, Hilo, Hawai`i. All potential interested bidders, offerors, subcontractors, and union representatives are invited to attend. Date 00100-2 EXHIBIT B RUS Bulletin 1780-26 Attachment F Page 1 Instructions to Bidders TABLE OF ARTICLES Page Article 1 - Defined Terms 1 Article 2 - Copies of Bidding Documents 1 Article 3 - Qualifications of Bidders 2 Article 4 - Examination of Bidding Documents, Other Related Data, and Site 2 Article 5 - Pre-Bid Conference 5 Article 6 - Site and Other Areas 5 Article 7 - Interpretations and Addenda 5 Article 8 - Bid Security 6 Article 9 - Contract Times 6 Article 10 - Liquidated Damages 6 Article 11 - Substitute and "Or-Equal" Items 6 Article 12 - Subcontractors, Suppliers, and Others 7 Article 13 - Preparation of Bid 8 Article 14 - Basis of Bid; Comparison of Bids 9 Article 15 - Submittal of Bid 10 Article 16 - Modification and Withdrawal of Bid 10 Article 17 - Opening of Bids 10 Article 18 - Bids to Remain Subject to Acceptance 10 Article 19 - Evaluation of Bids and Award of Contract 11 Article 20 - Contract Security and Insurance 11 Article 21 - Signing of Agreement 11 ARTICLE 1 - DEFINED TERMS 1.01 Terms used in these Instructions to Bidders will have the meanings indicated in the General Conditions and Supplementary Conditions. Additional terms used in these Instructions to Bidders have the meanings indicated below: A. Issuing Office--The office from which the Bidding Documents are to be issued and where the bidding procedures are to be administered. ARTICLE 2 - COPIES OF BIDDING DOCUMENTS 2.01 Complete sets of the Bidding Documents in the number and for the deposit sum, if any, stated in the Advertisement for Bids may be obtained from the Issuing Office. The deposit will be refunded to each document holder of record who returns a complete set of Bidding Documents in good condition within 10 days after opening of Bids. 2.02 Complete sets of Bidding Documents must be used in preparing Bids; neither Owner nor Engineer assumes any responsibility for errors or misinterpretations resulting from the use of incomplete sets of Bidding Documents. 00200-1 EXHIBIT B RUS Bulletin 1780-26 Attachment F Page 2 2.03 Owner and Engineer in making copies of Bidding Documents available on the above terms do so only for the purpose of obtaining Bids for the Work and do not confer a license or grant for any other use. ARTICLE 3 - QUALIFICATIONS OF BIDDERS 3.01 To demonstrate Bidder's qualifications to perform the Work, eight (8) days prior to the time advertised for the opening of bids, Bidder shall submit written evidence such as financial data, previous experience, present commitments, and such other data as may be called for below. A. Standard Qualification Questionaire for Offerors must be completed as indicated in the Advertisement for Bids, unless the bidder has previously filed within the previous two (2) years of the date of opening of bids or as requested.. ARTICLE 4 - EXAMINATION OF BIDDING DOCUMENTS, OTHER RELATED DATA,AND SITE 4.01 Subsurface and Physical Conditions A. 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 Bidding Documents. 2. Those drawings of physical conditions in or relating to existing surface and subsurface structures at or contiguous to the Site (except Underground Facilities) that Engineer has used in preparing the Bidding Documents. B. Copies of reports and drawings referenced in paragraph 4.01.A will be made available by Owner to any Bidder on request. Those reports and drawings are not part of the Contract Documents, but the "technical data" contained therein upon which Bidder is entitled to rely as provided in paragraph 4.02 of the General Conditions has been identified and established in paragraph 4.02 of the Supplementary Conditions. Bidder is responsible for any interpretation or conclusion Bidder draws from any "technical data" or any other data, interpretations, opinions, or information contained in such reports or shown or indicated in such drawings. 4.02 Underground Facilities A. Information and data shown or indicated in the Bidding Documents with respect to existing Underground Facilities at or contiguous to the Site is based upon information and data furnished to Owner and Engineer by owners of such Underground Facilities, including Owner, or others. 00200-2 EXHIBIT B RUS Bulletin 1780-26 Attachment F Page 3 4.03 Hazardous Environmental Condition A. The Supplementary Conditions identify those reports and drawings relating to a Hazardous Environmental Condition identified at the Site, if any, that ENGINEER has used in preparing the Bidding Documents. B. Copies of reports and drawings referenced in paragraph 4.03.A will be made available by Owner to any Bidder on request. Those reports and drawings are not part of the Contract Documents, but the "technical data" contained therein upon which Bidder is entitled to rely as provided in paragraph 4.06 of the General Conditions has been identified and established in paragraph 4.06 of the Supplementary Conditions. Bidder is responsible for any interpretation or conclusion Bidder draws from any "technical data" or any other data, interpretations, opinions, or information contained in such reports or shown or indicated in such drawings. 4.04 Provisions concerning responsibilities for the adequacy of data furnished to prospective Bidders with respect to subsurface conditions, other physical conditions and Underground Facilities, and possible changes in the Bidding Documents due to differing or unanticipated conditions appear in paragraphs 4.02, 4.03, and 4.04 of the General Conditions. Provisions concerning responsibilities for the adequacy of data furnished to prospective Bidders with respect to a Hazardous Environmental Condition at the Site, if any, and possible changes in the Contract Documents due to any Hazardous Environmental Condition uncovered or revealed at the Site which was not shown or indicated in the Drawings or Specifications or identified in the Contract Documents to be within the scope of the Work appear in paragraph 4.06 of the General Conditions. 4.05 On request, Owner will provide Bidder access to the Site to conduct such examinations, investigations, explorations, tests, and studies as Bidder deems necessary for submission of a Bid. Bidder shall fill all holes and clean up and restore the Site to its former condition upon completion of such explorations, investigations, tests, and studies. Bidder shall comply with all applicable Laws and Regulations relative to locating of excavation and utility. 4.06 Additional Owner Provided Information: A. Reference is made to Article 7 of the General Conditions for the identification of the general nature of other work that is to be performed at the Site by Owner or others (such as utilities and other prime contractors) that relates to the Work contemplated by these Bidding Documents. On request, Owner will provide to each Bidder for examination access to or copies of Contract Documents (other than portions thereof related to price) for such other work. B. Paragraph 6.13.0 of the General Conditions states that if an Owner safety program exists it will be noted in the Supplementary Conditions. 00200-3 EXHIBIT B RUS Bulletin 1780-26 Attachment F Page 4 4.07 It is the responsibility of each Bidder before submitting a Bid to: A. Examine and carefully study the Bidding Documents, the other related data identified in the Bidding Documents, and any Addenda; B. Visit the Site and become familiar with and satisfy Bidder as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work; C. Become familiar with and satisfy Bidder as to all Federal, State, and local Laws and Regulations that may affect cost, progress, or performance of the Work; D. Carefully study all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) which have been identified in the Supplementary Conditions as provided in paragraph 4.02 of the General Conditions, and (2) reports and drawings of Hazardous Environmental Conditions at the Site which have been identified in the Supplementary Conditions as provided in paragraph 4.06 of the General Conditions; E. Obtain and carefully study (or accept consequences for not doing so) all additional or supplementary examinations, investigations, explorations, tests, studies, and data concerning conditions (surface, subsurface, and Underground Facilities) at or contiguous to the Site which may affect cost, progress, or performance of the Work or which relate to any aspect of the means, methods, techniques, sequences, and procedures of construction to be employed by Bidder, including applying any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Bidding Documents, and safety precautions and programs incident thereto; F. Agree at the time of submitting its Bid that no further examinations, investigations, explorations, tests, studies, or data are necessary for the determination of its Bid for performance of the Work at the price(s) bid and within the times and in accordance with the other terms and conditions of the Bidding Documents; G. Become aware of the general nature of the work to be performed by Owner and others at the Site that relates to the Work as indicated in the Bidding Documents; H. Correlate the information known to Bidder, information and observations obtained from visits to the Site, reports and drawings identified in the Bidding Documents, and all additional examinations, investigations, explorations, tests, studies, and data with the Bidding Documents; 00200-4 EXHIBIT B RUS Bulletin 1780-26 Attachment F Page 5 I. Promptly give Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Bidder discovers in the Bidding Documents and confirm that the written resolution thereof by Engineer is acceptable to Bidder; and J. Determine that the Bidding Documents are generally sufficient to indicate and convey understanding of all terms and conditions for the performance of the Work. 4.08 The submission of a Bid will constitute an incontrovertible representation by Bidder that Bidder has complied with every requirement of this Article 4, that without exception the Bid is premised upon performing and furnishing the Work required by the Bidding Documents and applying any specific means, methods, techniques, sequences, and procedures of construction that may be shown or indicated or expressly required by the Bidding Documents, that Bidder has given Engineer written notice of all conflicts, errors, ambiguities, and discrepancies that Bidder has discovered in Bidding Documents and the written resolutions thereof by Engineer are acceptable to Bidder, and that the Bidding Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performing and furnishing the Work. ARTICLE 5 - PRE-BID CONFERENCE 5.01 A pre-Bid conference will be held at 10:00 a.m. on { } at office of the Department of Water Supply, 345 Kekuanao`a Street, Suite 20, Hilo, Hawai`i Representatives of Owner and Engineer will be present to discuss the Project. Bidders are encouraged to attend and participate in the conference. Engineer will transmit to all prospective Bidders of record such Addenda as Engineer considers necessary in response to questions arising at the conference. Oral statements may not be relied upon and will not be binding or legally effective. ARTICLE 6- SITE AND OTHER AREAS 6.01 The Site is identified in the Bidding Documents. Easements for permanent structures or permanent changes in existing facilities are to be obtained and paid for by Owner unless otherwise provided in the Bidding Documents. All additional lands and access thereto required for temporary construction facilities, construction equipment, or storage of materials and equipment to be incorporated in the Work are to be obtained and paid for by Contractor. ARTICLE 7- INTERPRETATIONS AND ADDENDA 7.01 All questions about the meaning or intent of the Bidding Documents are to be submitted to Engineer in writing. Interpretations or clarifications considered necessary by Engineer in response to such questions will be issued by Addenda mailed or delivered to all parties recorded by Engineer as having received the Bidding Documents. Questions received less than five days prior to the date for opening of Bids may not be answered. Only questions answered by Addenda will be binding. Oral and other interpretations or clarifications will be without legal effect. 00200-5 EXHIBIT B RUS Bulletin 1780-26 Attachment F Page 6 7.02 Addenda may be issued to clarify, correct, or change the Bidding Documents as deemed advisable by Owner or Engineer. ARTICLE 8 -BID SECURITY 8.01 A Bid must be accompanied by Bid security made payable to Owner in an amount of 5 % of Bidder's maximum Bid price and in the form of a certified check or a Bid bond (EJCDC No. C-430, 2007 Edition) issued by a surety meeting the requirements of paragraphs 5.01 and 5.02 of the General Conditions. 8.02 The Bid security of the Successful Bidder will be retained until such Bidder has executed the Contract Documents, furnished the required contract security and met the other conditions of the Notice of Award, whereupon the Bid security will be returned. If the Successful Bidder fails to execute and deliver the Contract Documents and furnish the required contract security within 15 days after the Notice of Award, Owner may annul the Notice of Award and the Bid security of that Bidder will be forfeited. The Bid security of other Bidders whom Owner believes to have a reasonable chance of receiving the award may be retained by Owner until the earlier of seven days after the Effective Date of the Agreement or 61 days after the Bid opening, whereupon Bid security furnished by such Bidders will be returned. 8.03 Bid security of other Bidders whom OWNER believes do not have a reasonable chance of receiving the award will be returned within seven days after the Bid opening. ARTICLE 9 - CONTRACT TIMES 9.01 The number of days within which, or the dates by which, the Work is to be substantially completed and ready for final payment are set forth in the Agreement. ARTICLE 10 -LIQUIDATED DAMAGES 10.01 Provisions for liquidated damages are set forth in the Agreement. ARTICLE 11 - SUBSTITUTE AND "OR-EQUAL" ITEMS 11.01 The Contract, if awarded, will be on the basis of materials and equipment specified or described in the Bidding Documents, or"or-equal" materials and equipment as defined in paragraph 6.05 of the General Conditions, or those substitute materials and equipment approved by the Engineer and identified by Addendum. The materials and equipment described in the Bidding Documents establish a standard of required type, function and quality to be met by any proposed substitute or"or-equal" item. Request for Engineer's clarification of materials and equipment considered"or-equal"prior to the Effective Date of the Agreement must be received by the Engineer at least 5 days prior to the date for receipt of Bids. No item of material or equipment will be oozoo-6 EXHIBIT B RUS Bulletin 1780-26 Attachment F Page 7 considered by Engineer as a substitute unless written request for approval has been submitted by Bidder and has been received by Engineer at least 15 days prior to the date for receipt of Bids. Each request shall conform to the requirements of paragraph 6.05 of the General Conditions. The burden of proof of the merit of the proposed item is upon the Bidder. Engineer's decision of approval or disapproval of a proposed item will be final. If Engineer approves any proposed substitute item, such approval will be set forth in an Addendum issued to all prospective Bidders. Bidders shall not rely upon approvals made in any other manner. ARTICLE 12 - SUBCONTRACTORS, SUPPLIERS, AND OTHERS 12.01 If the Supplementary Conditions require the identity of certain Subcontractors, Suppliers, individuals, or entities to be submitted to Owner in advance of a specified date prior to the Effective Date of the Agreement, the apparent Successful Bidder, and any other Bidder so requested, shall within five days after Bid opening, submit to Owner a list of all such Subcontractors, Suppliers, individuals, or entities proposed for those portions of the Work for which such identification is required. Such list shall be accompanied by an experience statement with pertinent information regarding similar projects and other evidence of qualification for each such Subcontractor, Supplier, individual, or entity if requested by Owner. If Owner or Engineer, after due investigation, has reasonable objection to any proposed Subcontractor, Supplier, individual, or entity, Owner may, before the Notice of Award is given, request apparent Successful Bidder to submit a substitute, without an increase in the Bid. 12.02 If apparent Successful Bidder declines to make any such substitution, Owner may award the Contract to the next lowest responsible Bidder that proposes to use acceptable Subcontractors, Suppliers, individuals, or entities. Declining to make requested substitutions will not constitute grounds for forfeiture of the Bid security of any Bidder. Any Subcontractor, Supplier, individual, or entity so listed and against which Owner and Engineer makes no written objection prior to the giving of the Notice of Award will be deemed acceptable to Owner and Engineer subject to revocation of such acceptance after the Effective Date of the Agreement as provided in paragraph 6.06 of the General Conditions. 12.03 Contractor shall not be required to employ any Subcontractor, Supplier, individual, or entity against whom Contractor has reasonable objection. 12.04 The Contractor shall not award work to Subcontractor(s) in excess of the limits stated in SC 6.06. ARTICLE 13 - PREPARATION OF BID 13.01 The Bid form is included with the Bidding Documents. Additional copies may be obtained from Engineer. 13.02 All blanks on the Bid form shall be completed in ink and the Bid signed in ink. 00200-7 EXHIBIT B RUS Bulletin 1780-26 Attachment F Page 8 Erasures or alterations shall be initialed in ink by the person signing the Bid Form. A Bid price shall be indicated for each Bid item listed therein, or the words "No Bid," "No Change," or"Not Applicable" entered. 13.03 A Bid by a corporation shall be executed in the corporate name by the president or a vice-president or other corporate officer accompanied by evidence of authority to sign. The corporate seal shall be affixed and attested by the secretary or an assistant secretary. The corporate address and state of incorporation shall be provided on the Bid Form. 13.04 A Bid by a partnership shall be executed in the partnership name and signed by a partner (whose title must appear under the signature), accompanied by evidence of authority to sign. The official address of the partnership shall be provided on the Bid Form. 13.05 A Bid by a limited liability company shall be executed in the name of the firm by a member and accompanied by evidence of authority to sign. The state of formation of the firm and the official address of the firm shall be shown. 13.06 A Bid by an individual shall show the Bidder's name and business address. 13.07 A Bid by a joint venture shall be executed by each joint venturer in the manner indicated on the Bid form. The official address of the joint venture must be provided on the Bid Form. 13.08 All names shall be printed in ink below the signatures. 13.09 The Bid shall contain an acknowledgment of receipt of all Addenda, the numbers and dates of which shall be filled in on the Bid form. 13.10 The postal and email addresses and telephone number for communication regarding the Bid shall be shown. 13.11 The Bid shall contain evidence of Bidder's authority and qualification to do business in the state or locality where the Project is located or Bidder shall covenant in writing to obtain such qualification prior to award of the Contract and attach such covenant to the Bid. Bidder's state contractor license number, if any, shall also be shown on the Bid Form. ARTICLE 14 -BASIS OF BID; COMPARSION OF BIDS 14.01 Unit Price A. Bidders shall submit a Bid on a unit price basis for each item of Work listed in the Bid schedule. 00200-8 EXHIBIT B RUS Bulletin 1780-26 Attachment F Page 9 B. The total of all bid prices will be the sum of the products of the estimated quantity of each item and the corresponding unit price. The final quantities and Contract Price will be determined in accordance with paragraph 11.03 of the General Conditions. A. Discrepancies between the multiplication of units of Work and unit prices will be resolved in favor of the unit prices. Discrepancies between the indicated sum of any column of figures and the correct sum thereof will be resolved in favor of the correct sum. Discrepancies between words and figures will be resolved in favor of the words. ARTICLE 15 - SUBMITTAL OF BID 15.01 With each copy of the Bidding Documents, a Bidder is furnished one separate unbound copy of the Bid Form, and the Bid bond form. The unbound copy of the Bid Form is to be completed and submitted with all the attachments outlined in Article 7 of the Bid Form. 15.02 A Bid shall be submitted no later than the date and time prescribed and at the place indicated in the Advertisement for Bids and shall be enclosed in an opaque sealed envelope plainly marked with the Project title (and, if applicable, the designated portion of the Project for which the Bid is submitted), the name and address of Bidder, and shall be accompanied by the Bid security and other required documents. If a Bid is sent by mail or other delivery system, the sealed envelope containing the Bid shall be enclosed in a separate envelope plainly marked on the outside with the notation "BID ENCLOSED." When using the mail or other delivery system, the Bidder is totally responsible for the mail or other delivery system delivering the Bid at the place and prior to the time indicated in the Advertisement for Bid. A mailed Bid shall be addressed to Owner at address in Article 1.01 of Bid Form. ARTICLE 16- MODIFICATION AND WITHDRAWAL OF BID 16.01 A Bid may be modified or withdrawn by an appropriate document duly executed in the manner that a Bid must be executed and delivered to the place where Bids are to be submitted prior to the date and time for the opening of Bids. 00200-9 EXHIBIT B RUS Bulletin 1780-26 Attachment F Page 10 16.02 If within 24 hours after Bids are opened any Bidder files a duly signed written notice with Owner and promptly thereafter demonstrates to the reasonable satisfaction of Owner that there was a material and substantial mistake in the preparation of its Bid, that Bidder may withdraw its Bid, and the Bid security will be returned. Thereafter, if the Work is rebid or negotiated, that Bidder will be disqualified from further bidding on the Work. This provision to withdraw a Bid without forfeiting the Bid security does not apply to Bidder's errors in judgment in preparing the Bid. ARTICLE 17- OPENING OF BIDS 17.01 Bids will be opened at the time and place indicated in the Advertisement for Bids and, unless obviously non-responsive, read aloud publicly. An abstract of the amounts of the Bids and major alternates, if any, will be made available to Bidders after the opening of Bids. ARTICLE 18 - BIDS TO REMAIN SUBJECT TO ACCEPTANCE 18.01 All Bids will remain subject to acceptance for the period of time stated in the Bid Form, but Owner may, at its sole discretion, release any Bid and return the Bid security prior to the end of this period. ARTICLE 19 -EVALUATION OF BIDS AND AWARD OF CONTRACT 19.01 Owner reserves the right to reject any or all Bids, including without limitation, nonconforming, nonresponsive, unbalanced, or conditional Bids. Owner further reserves the right to reject the Bid of any Bidder whom it finds, after reasonable inquiry and evaluation, to be non-responsible. Owner also reserves the right to waive all informalities not involving price, time, or changes in the Work and to negotiate contract terms with the Successful Bidder. 19.02 More than one Bid for the same Work from an individual or entity under the same or different names will not be considered. Reasonable grounds for believing that any Bidder has an interest in more than one Bid for the Work may be cause for disqualification of that Bidder and the rejection of all Bids in which that Bidder has an interest. 19.03 In evaluating Bids, Owner will consider whether or not the Bids comply with the prescribed requirements, and such alternates, unit prices and other data, as may be requested in the Bid Form or prior to the Notice of Award. 19.04 In evaluating Bidders, Owner will consider the qualifications of Bidders and may consider the qualifications and experience of Subcontractors, Suppliers, and other individuals or entities proposed for those portions of the Work for which the identity of Subcontractors, Suppliers, and other individuals or entities must be submitted as 00200-10 EXHIBIT B RUS Bulletin 1780-26 Attachment F Page I I provided in the Supplementary Conditions. 19.05 Owner may conduct such investigations as Owner deems necessary to establish the responsibility, qualifications, and financial ability of Bidders, proposed Subcontractors, Suppliers, individuals, or entities to perform the Work in accordance with the contract Documents. 19.06 If the Contract is to be awarded, Owner will award the Contract to the responsible Bidder whose Bid, conforming with all the material terms and conditions of the Instructions to Bidders, is lowest, price and other factors considered. If detailed in the bid form, factors such as discounts, transportation costs, and life cycle costs may be used to determine which bidder, if any, is to offered the award. ARTICLE 20 - CONTRACT SECURITY AND INSURANCE 20.01 Article 5 of the General Conditions, as may be modified by the Supplementary Conditions, sets forth Owner's requirements as to performance and payment bonds and insurance. When the Successful Bidder delivers the executed Agreement to Owner, it shall be accompanied by such bonds. ARTICLE 21 - SIGNING OF AGREEMENT 21.01 When Owner gives a Notice of Award to the Successful Bidder, it shall be accompanied by the required number of unsigned counterparts of the Agreement with the other Contract Documents which are identified in the Agreement as attached thereto. Within 15 days thereafter, Successful Bidder shall sign and deliver the required number of counterparts of the Agreement and attached documents to Owner. Within ten days thereafter, Owner shall deliver one fully signed counterpart to Successful Bidder with a complete set of the Drawings with appropriate identification. 21.02 This Contract is expected to be funded in part with funds provided by the United States Department of Agriculture, Rural Utilities Service (RUS). Refer to Supplementary General Conditions for Federal requirements. 21.03 Concurrence by RUS in the award of the Contract is required before the Contract is effective. 00200-II EXHIBIT B RUS Bulletin 1780-26 Attachment F Page 12 This page intentionally left blank. 00200-12 EXHIBIT B RUS Bulletin 1780-26 Attachment G Page 1 Bid Form Project Identification: Kona Ocean View Properties Water System Improvements Contract Identification and Number: DWS Job No. 2008-934 TABLE OF ARTICLES Page Article 1 - Bid Recipient 1 Article 2 - Bidder's Acknowledgments 2 Article 3 - Bidder's Representations 2 Article 4—Bidder's Certification 3 Article 5 - Basis of Bid 4 Article 6 - Time of Completion 8 Article 7 - Attachments to Bid 8 Article 8 - Defined Terms 9 Article 9 - Bid Submittal 9 ARTICLE 1 - BID RECIPIENT 1.01 This Bid Is Submitted To: Department of Water Supply County of Hawaii 345 KekuanaO`a Street, Suite 20 Hilo, Hawaii 96720 1.02 The undersigned Bidder proposes and agrees, if this Bid is accepted, to enter into an Agreement with Owner in the form included in the Bidding Documents to perform all Work as specified or indicated in the Bidding Documents for the prices and within the times indicated in the Bid and in accordance with the other terms and conditions of the Bidding Documents. 1.03 A prospective bidder must file a written notice of his intention to bid in the Office of the Manager-Chief Engineer, 345 Kekuanao`a Street, Suite 20, Hilo, Hawai`i, at least ten (10) calendar days prior to the date designated for opening of bids as required by Section 103D- 310 of the Hawai`i Revised Statutes and Hawai`i Administrative Rules Section 3-122-111. 1.04 All bids for this project shall be enclosed in a sealed envelope and marked: JOB NO.2008-934 KONA OCEAN VIEW PROPERTIES WATER SYSTEM IMPROVEMENTS District of North Kona County of Hawaii State of Hawai`i The bidder shall use ink to fill all blank spaces provided for in the bid. 00410-1 EXHIBIT B RUS Bulletin 1780-26 Attachment G Page 2 1.05 If any person contemplating submitting a bid for the proposed contract is in doubt as to the true meaning of any part of the plans, specifications or other proposed contract documents, he may submit to the Manager-Chief Engineer a written request for an interpretation thereof. Any interpretation of the proposed contract documents will be made only by addendum, duly issued and a copy of such addendum will be mailed or delivered to each person receiving a set of such documents. The Department of Water Supply of the County of Hawai`i will not be responsible for any other explanations or interpretations of the proposed documents. ARTICLE 2 -BIDDER'S ACKNOWLEDGMENTS 2.01 Bidder accepts all of the terms and conditions of the Advertisement and Instructions to Bidders, including without limitations those dealing with the dispositions of Bid security. The Bid will remain subject to acceptance for 60 days after the Bid opening, or for such longer period of time that Bidder may agree to in writing upon request of Owner. ARTICLE 3 - BIDDER'S REPRESENTATIONS 3.01 In submitting this Bid, Bidder represents that: A. Bidder has examined and carefully studied the Bidding Documents, the other related data identified in the Bidding Documents, and the following Addenda, receipt of which is hereby acknowledged: Addendum No. Addendum Date B. Bidder has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost, progress, and performance of the Work. C. Bidder is familiar with and is satisfied as to all Federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. Bidder has carefully studied all: (1) reports of explorations and tests of subsurface conditions at or contiguous to the Site and all drawings of physical conditions in or relating to existing surface or subsurface structures at or contiguous to the Site (except Underground Facilities) which have been identified in SC-4.02, and (2) reports and drawings of Hazard Environmental Conditions, if any, at the Site that have been identified in SC-4.06 as containing reliable "technical data." E. Bidder has considered the information known to Bidder; information commonly known to contractors doing business in the locality of the Site; information and observations 00410-2 EXHIBIT B RUS Bulletin 1780-26 Attachment G Page 3 obtained from visits to the Site;the Bidding Documents; and the Site-related reports and drawings identified in the Bidding Documents, with respect to the effect of such information, observations, and documents on(1) the cost, progress, and performance of the Work; (2)the means, methods, techniques, sequences, and procedures of construction to be employed by Bidder, including applying the specific means,methods, techniques, sequences, and procedures of construction expressly required by the Bidding Documents; and (3) Bidder's safety precautions and programs. F. Based on the information and observations referred to in Paragraph 3.01.E above, Bidder does not consider that any further examinations, investigations, explorations, tests, studies, or data are necessary for the determination of this Bid for performance of the Work at the price(s) bid and within the times and in accordance with the other terms and conditions of the Bidding Documents. G. Bidder is aware of the general nature of the Work to be performed by Owner and others at the Site that relates to the Work as indicated in the Bidding Documents. H. Bidder has given Engineer written notice of all conflicts, errors, ambiguities, or discrepancies that Bidder has discovered in the Bidding Documents, and the written resolution thereof by Engineer is acceptable to Bidder. I. The Bidding Documents are generally sufficient to indicate and convey understanding of all terms and conditions for the performance of the Work for which this Bid is submitted. J. Bidder will submit written evidence of its authority to do business in the State or other jurisdiction where the Project is located not later than the date of its execution of the Agreement. ARTICLE 4 -BIDDER'S CERTIFICATION 4.01 Bidder further represents that: A. This Bid is genuine and not made in the interest of or on the behalf of any undisclosed individual or entity and is not submitted in conformity with any agreement or rules of any group, association, organization, or corporation; B. Bidder has not directly or indirectly induced or solicited any other Bidder to submit a false or sham Bid; C. Bidder has not solicited or induced any individual or entity to refrain from bidding; and D. Bidder has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for the Contract. For the purposes of this Paragraph 4.01.D: 1. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the bidding process; 00410-3 EXHIBIT B RUS Bulletin 1780-26 Attachment G Page 4 2. "fraudulent practice" means an intentional misrepresentation of facts made (a)to influence the bidding process to the detriment of Owner, (b)to establish bid prices at artificial non-competitive levels, or(c)to deprive Owner of the benefits of free and open competition; 3. "collusive practice"means a scheme or arrangement between two or more Bidders, with or without the knowledge of Owner, a purpose of which is to establish bid prices at artificial, non-competitive levels; and 4. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract. ARTICLE 5 -BASIS OF BID 5.01 Bidder will complete the Work in accordance with the Contract Documents for the following price(s): Furnish and install the following items in place, including all trench excavation, pipe cushion materials, backfill, concrete blocks, pipe nipples, fittings, valves, concrete jacket, chlorination, pavement repair, chip seal repair, driveway repair, asphalt berm replacement, traffic control and all incidentals necessary to complete the work per plans and specifications. All pipes shall be ductile iron pipe, Class 52, slip joint unless otherwise specified. All fittings shall be ductile iron, mechanical joint, Class 250 unless otherwise specified. Item Estimated Bid Unit No. Description Unit Quantity Price Bid Price Lump Sum for mobilization; demobilization; field investigations; traffic control; Best Management Practices; measurements and testing; delivery hauling and removal of heavy equipment; and 1 cleanup and finishing LS LS $ $ 2 8" Ductile Iron Pipe in place complete LF 1,028 $ $ 3 6" Ductile Iron Pipe in place complete LF 3,620 $ $ 4 8"x8"x6" DI Tee, MJ in place complete EA 3 $ $ 5 8"x6" DI Reducer, MJ in place complete EA 1 $ $ 6" 45 Deg DI Horiz. Bend, MJ in place 6 complete EA 3 $ $ 00410-4 EXHIBIT B RUS Bulletin 1780-26 Attachment G Page 5 6" 22.5 Deg DI Horiz. Bend, MJ in place 7 complete EA 3 $ $ 6" 11.25 Deg DI Horiz. Bend, MJ in place 8 complete EA 5 $ $ 6" DI Cap, MJ, Tapped 2" IPT in place 9 complete EA 3 $ $ 8" Gate Valve, MJ, w/Box& Cover in 10 place complete EA 6 $ $ 6" Gate Valve, MJ, w/Box& Cover in 11 place complete EA 5 $ $ 1" Air Relief Valve Unit w/Box & Cover 12 in place complete EA 5 $ $ 2" Clean Out Unit w/Box & Cover in place 13 complete EA 3 $ $ Fire Hydrant Unit Layout "A", including all tees, valves,joint restraints, blocks, blue pavement marker and appurtenances 14 in place complete EA 1 $ $ Fire Hydrant Unit Layout "B", including all tees, valves,joint restraints, blocks, blue pavement marker and appurtenances 15 in place complete EA 7 $ $ 16 Fire Hydrant Concrete Slab, 4'x4' with Flexible Markers in place complete EA 8 $ $ 17 4" & 2" Pressure Reducing Valve Unit w/Box and Cover including all tees, valves and appurtenances in place complete EA 1 $ $ 18 1" Type A Service Lateral with Type "B" Meter Box in place complete EA 20 $ $ 19 I 1/2" Type B Service Lateral with Type "B" Meter Box in place complete EA 2 $ $ 20 1 1/2" Type C Service Lateral with Type "B" Meter Box in place complete EA 29 $ $ 00410-5 EXHIBIT B RUS Bulletin 1780-26 Attachment G Page 6 21 Cut and Plug Existing Service Lateral at main. EA 6 $ $ 22 Connect to existing 8" waterline at Mamalahoa Highway and Puukala Road Station 0+06+/- including but not limited to 1-8" Solid Body Sleeve, all appurtenances and DWS charges LS 1 $ $ 23 Connect to existing 6" waterline at Mamalahoa Highway Station 224 +49.32+/- including but not limited to 1-6" Solid Body Sleeve, all appurtenances and DWS charges LS 1 $ $ 24 Warning Tape LF 4,649 $ $ 25 Chlorination and Testing of Water System LS 1 $ $ 26 Provide a construction log listing dates and changes to plans. Submit "As Built" plan drawings on reproducible mylar showing all changes, revisions, corrections and the entire project as actually constructed. Deliver to the Department of Water Supply. LS 1 $ $ 27 Provide Site Specific Best Management Practices for Soil Erosion and Sediment Control and comply with the Erosion and Sedimentation Control Standards and Guidelines of the Department of Public Works, County of Hawaii. LS 1 $ $ 28 12-Inch Minimum Compacted Thickness Subbase Course (State ROW), including; laying, spreading, rolling, compacting and all work preparatory to Laying the base course. SY 127 $ $ 29 6-Inch Minimum Compacted Thickness Subbase Course Site), including; laying, spreading, rolling, compacting and all work preparatory to Laying the base course. SY 1,547 $ $ 00410-6 EXHIBIT B RUS Bulletin 1780-26 Attachment G Page 7 30 8-Inch Minimum Compacted Thickness Aggregate Base Course (State ROW), including laying, spreading, rolling, compacting and all work preparatory to laying the asphalt concrete. (In Site) SY 111 $ $ 31 4-Inch Minimum Compacted Thickness Aggregate Base Course (Site), including laying, spreading, rolling, compacting and all work preparatory to laying the asphalt concrete. (In Site) SY 1,547 $ $ 32 2-1/2-Inch Minimum Compacted Thickness AC Mix III, including; spreading, laying, rolling, compacting and all incidental work. (In Site and State ROW) SY 111 $ $ 33 2-Inch Minimum Compacted Thickness AC Mix 3, including; spreading, laying, rolling, compacting and all incidental work. (In Site and State ROW) SY 1,436 $ $ 34 Patching Driveway Pavement within State ROW SY 20 $ $ 35 If discharging hydrotest water to State Waters submit a CWB NOI Form F including Hydrotesting Best Management Practices (BMP's) to the Department of Health for coverage under the National Pollutant Discharge Elimination System (NPDES) General Permit and comply with all permit conditions. LS 1 $ $ TOTAL OF ALL BID PRICES $ A. Unit Prices have been computed in accordance with Paragraph 11.03 of the General Conditions. B. Bidder acknowledges that estimated quantities are not guaranteed, and are coley for the purpose of comparison of Bids, and final payment for all unit price Bid items will be based on actual quantities, determined as provided in the Contract Documents. 00410-7 EXHIBIT B RUS Bulletin 1780-26 Attachment G Page 8 ARTICLE 6 -TIME OF COMPLETION 6.01 Bidder agrees that the Work will be substantially complete and will be completed and ready for final payment in accordance with paragraph 14.07 of the General Conditions on or before the dates or within the number of calendar days indicated in the Agreement. 6.02 Bidder accepts the provisions of the Agreement as to liquidated damage. ARTICLE 7 -ATTACHEMENTS TO THIS BID 7.01 The following documents are attached to and made a condition of the Bid: A. Required Bid security in the form of a Bid Bond (EJCDC No. C-430) or Certified Check(circle type of security provided); B. List of Proposed Subcontractors; C. List of Proposed Suppliers; D. Evidence of authority to do business in the state or jurisdiction of the Project; or a written covenant to obtain such license within the time frame for acceptance of Bids; E. Contractor's License No.: G. Required Bidder Qualification Statement with Supporting Data; and F. If Bid amount exceeds $10,000, signed Compliance Statement(RD 400-6). Refer to specific equal opportunity requirements set forth in paragraph 18.10 of the General Conditions; G. If Bid amount exceeds $25,000, signed Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion- Lower Tier Covered Transactions (AD-1048); H. If Bid amount exceeds $100,000, signed RD Instruction 1940-Q, Exhibit A-1, Certification for Contracts, Grants, and Loans. 1. Certification for Hawai`i Product Preference (Section103D-1002 of the Hawaii Revised Statues) J. Certification Form 1 —Apprentice Program (Section 103-55.6 of the Hawai`i Revised Statutes, as enacted by S.B. 19, Act 17, SLH 2009) 00410-8 EXHIBIT B RUS Bulletin 1780-26 Attachment G Page 9 ARTICLE 8 -DEFINED TERMS 8.01 The terms used in this Bid with the initial capitol letters have the meanings indicated in the Instructions to Bidders, the General Conditions, and the Supplementary Conditions. ARTICLE 9 - BID SUBMITTAL 9.01 This Bid is submitted by: If Bidder is: An Individual Name (typed or printed): SEAL, if required by State By: (Individual's signature) Doing business as: A Partnership Partnership Name: SEAL, if required by State By: (Signature of general partner--attach evidence of authority to sign) Name (typed or printed): A Corporation Corporation Name: State or Jurisdiction of Incorporation: Type (General Business, Profession, Service, Limited Liability): By: (Signature-- attach evidence of authority to sign) Name (typed or printed): 00410-9 EXHIBIT B RUS Bulletin 1780-26 Attachment G Page 10 Title: CORPORATE SEAL, if required by State Attest (Signature of Corporate Secretary) Date of Qualification to do business in [State or other jurisdiction where Project is located] is / / A Joint Venture Name of Joint Venture: First Joint Venture Name: SEAL, if required by State By: (Signature of joint venture partner-- attach evidence of authority to sign) Name (typed or printed): Title: Second Joint Venture Name: SEAL, if required by State By: (Signature of joint venture partner--attach evidence of authority to sign) Name (typed or printed): Title: (Each joint venturer must sign. The manner of signing for each individual, partnership, and corporation that is party to the venture should be in the manner indicated above.) Bidder's Business address: Business Phone No. ( ) Business FAX No. ( ) 00410-10 EXHIBIT B RUS Bulletin 1780-26 Attachment G Page 11 Business E-Mail Address State Contractor License No. . (If applicable) Employer's Tax ID No. Phone and FAX Numbers, and Address for receipt of official communications, if different from Business contact information: 9.02 Bid submitted on , 20 . 00410-11 EXHIBIT B PENAL SUM FORM BID BOND Any singular reference to Bidder, Surety, Owner or other party shall be considered plural where applicable. BIDDER(Name and Address): SURETY(Name and Address of Principal Place of Business): OWNER: Department of Water Supply,County of Hawaii BID Bid Due Date: Description: Kona Ocean View Properties Water System Improvements DWS Job No.2008-934 Puukala Road and Mamalahoa Highway,Puukala,North Kona,Hawaii BOND Bond Number: Date(Not later than Bid due date): Penal sum $ (Words) (Figures) Surety and Bidder, intending to be legally bound hereby, subject to the terms set forth below, do each cause this Bid Bond to be duly executed by an authorized officer, agent, or representative. BIDDER SURETY (Seal) (Seal) Bidder's Name and Corporate Seal Surety's Name and Corporate Seal By: By: Signature Signature (Attach Power of Attorney) Print Name Print Name Title Title Attest: Attest: Signature Signature Title Title Note:Above addresses are to be used for giving any required notice. Provide execution by any additional parties, such as joint venturers, if necessary. EJCDC C-430 Bid Bond(Penal Sum Form),2007-2012. Prepared by the Engineers Joint Contract Documents Committee. Page 1 of 2 EXHIBIT B PENAL SUM FORM 1. Bidder and Surety, jointly and severally, bind themselves, their heirs, executors, administrators, successors, and assigns to pay to Owner upon default of Bidder the penal sum set forth on the face of this Bond. Payment of the penal sum is the extent of Bidder's and Surety's liability. Recovery of such penal sum under the terms of this Bond shall be Owner's sole and exclusive remedy upon default of Bidder. 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. 3. This obligation shall be null and void if: 3.1 Owner accepts Bidder's Bid and Bidder delivers 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, 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 of 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 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 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 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. EJCDC C-430 Bid Bond(Penal Sum Form),2007-2012. Prepared by the Engineers Joint Contract Documents Committee. Page 2 of 2 EXHIBIT B Notice of Award Date: Project: Kona Ocean View Properties Water System Improvements Owner: Department of Water Supply, County of Hawaii Owner's Contract No.: 2008-934 Contract: Engineer's Project No.: Bidder: Bidder's Address: [send Notice of Award Certified Mail, Return Receipt Requested] You are notified that your Bid dated for the above Contract has been considered. You are the Successful Bidder and are awarded a Contract for Kona Ocean View Properties Water System Improvements [Indicate total Work, alternates, or sections of Work awarded.] The Contract Price of your Contract is Dollars ($ ). [Insert appropriate data if unit prices are used. Change language for cost-plus contracts.] 3 copies of the proposed Contract Documents(except Drawings) accompany this Notice of Award. 12 sets of the Drawings will be delivered separately or otherwise made available to you immediately. You must comply with the following conditions precedent within 15 days of the date you receive this Notice of Award. 1. Deliver to the Owner 3 fully executed counterparts of the Contract Documents. 2. Deliver with the executed Contract Documents the Contract security [Bonds] as specified in the Instructions to Bidders (Article 20), General Conditions (Paragraph 5.01), and Supplementary Conditions (Paragraph SC-5.01). 3. Other conditions precedent: N/A Failure to comply with these conditions within the time specified will entitle Owner to consider you in default, annul this Notice of Award, and declare your Bid security forfeited. Within ten days after you comply with the above conditions, Owner will return to you one fully executed counterpart of the Contract Documents. Owner By: Authorized Signature Manager—Chief Engineer Title Copy to Engineer EJCDC C-510 Notice of Award Prepared by the Engineers Joint Contract Documents Committee and endorsed by the Construction Specifications Institute. Page Iof1 EXHIBIT B 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 Laws and Regulations. SUGGESTED FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR FOR CONSTRUCTION CONTRACT (STIPULATED PRICE) Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly by ACEC el ANEW MOW d a,1110333111 Fraows�a NationalSocieZerS of ASCE American Society of Civil Engineers Professional Engineers in Private Practice AMERICAN COUNCIL OF ENGINEERING COMPANIES ASSOCIATED GENERAL CONTRACTORS OF AMERICA AMERICAN SOCIETY OF CIVIL ENGINEERS PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A Practice Division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS Endorsed by CONSTRUCTION SPECIFICATIONS INSTITUTE I JCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract(Stipulated Price) Copyright©2007 National Society of Professional Engineers for EJCDC.All rights reserved. EXHIBIT B This Suggested Form of Agreement has been prepared for use with the Standard General Conditions of the Construction Contract (EJCDC C-700, 2007 Edition). Their provisions are interrelated, and a change in one may necessitate a change in the other. The language contained in the Suggested Instructions to Bidders (EJCDC C-200, 2007 Edition) is also carefully interrelated with the language of this Agreement. Their usage is discussed in the Narrative Guide to the 2007 EJCDC Construction Documents (EJCDC C-001, 2007 Edition). Copyright©2007 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 (703) 684-2882 �vw71,-w.nspe.org American Council of Engineering Companies 1015 15th Street N.W., Washington, DC 20005 (202) 347-7474 ww.acec.org American Society of Civil Engineers 1801 Alexander Bell Drive, Reston, VA 20191-4400 (800) 548-2723 www.asce.org Associated General Contractors of America 2300 Wilson Boulevard, Suite 400, Arlington, VA 22201-3308 (703) 548-3118 www.agc.org The copyright for this EJCDC document is owned jointly by the four EJCDC sponsoring organizations and held in trust for their benefit by NSPE. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract(Stipulated Price) Copyright©2007 National Society of Professional Engineers for EJCDC.AU rights reserved. EXHIBIT B INTRODUCTION This Suggested Form of Agreement between Owner and Contractor for Construction Contract (Stipulated Price) ("Agreement") has been prepared for use with the Suggested Instructions to Bidders for Construction Contracts ("Instructions to Bidders") (EJCDC C-200, 2007 Edition); the Suggested Bid Form for Construction Contracts ("Bid Form") (EJCDC C-410, 2007 Edition); and the Standard General Conditions of the Construction Contract("General Conditions") (EJCDC C-700, 2007 Edition). Their provisions are interrelated, and a change in one may necessitate a change in the others. See also the Guide to the Preparation of Supplementary Conditions (EJCDC C-800, 2007 Edition), and the Narrative Guide to the 2007 EJCDC Construction Documents(EJCDC C-001, 2007 Edition). This Agreement form assumes use of a Project Manual that contains the following documentary information for a construction project: • Bidding Requirements, which include the advertisement or invitation to bid, the Instructions to Bidders, and the Bid Form that is suggested or prescribed, all of which provide information and guidance for all Bidders; and • Contract Documents, which include the Agreement, performance and payment bonds, the General Conditions,the Supplementary Conditions,the Drawings, and the Specifications. The Bidding Requirements are not Contract Documents because much of their substance pertains to the relationships prior to the award of the Contract and has little effect or impact thereafter, and because many contracts are awarded without going through the bidding process. In some cases, however, the actual Bid may be attached as an exhibit to the Agreement to avoid extensive rekeying. (The definitions of terms used in this Agreement, including "Bidding Documents," "Bidding Requirements," and "Contract Documents," are set forth Article 1 of the General Conditions.) Suggested provisions are accompanied by "Notes to User" to assist in preparing the Agreement. The provisions have been coordinated with the other forms produced by EJCDC. Much of the language should be usable on most projects, but modifications and additional provisions will often be necessary. When modifying the suggested language or writing additional provisions, the user must check the other documents thoroughly for conflicts and coordination of terms and make appropriate revisions in all affected documents. All parties involved in construction projects benefit significantly from a standardized approach in the location of subject matter throughout the documents. Experience confirms the danger of addressing the same subject matter in more than one location: doing so frequently leads to confusion and unanticipated legal consequences. When preparing documents for a construction project, careful attention should be given to the guidance provided in the Uniform Location of Subject Matter(EJCDC N-122). EJCDC has designated Section 00520 for this Agreement. If this convention is used, the first page of the Agreement would be numbered 00520-1. If CSI's MasterFormat O4TM is being used for the Project Manual, consult MasterFormat 04 for the appropriate section number and number the pages accordingly. For brevity, paragraphs of the Instructions to Bidders are referenced with the prefix "I," those of the Bid Form are referenced with the prefix`BF,"and those of this Agreement are referenced with the prefix"A." NOTE: EJCDC publications may be purchased from any of the organizations listed on the page immediately following the cover page of this document. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract(Stipulated Price) Copyright©2007 National Society of Professional Engineers for EJCDC.All rights reserved. Page i EXHIBIT B SUGGESTED FORM OF AGREEMENT BETWEEN OWNER AND CONTRACTOR FOR CONSTRUCTION CONTRACT (STIPULATED PRICE) THIS AGREEMENT is by and between Department of Water Supply,County of Hawaii ("Owner") and ("Contractor"). Owner and Contractor hereby agree as follows: ARTICLE 1 —WORK 1.01 Contractor shall complete all Work as specified or indicated in the Contract Documents. The Work is generally described as follows: The Kona Ocean View Properties Water System Improvements project consists of water mains, fire hydrants, service laterals, valves, valve boxes, meter boxes, fittings, all water system appurtenances, paving, traffic control, best management practices and all other items necessary to complete the water system in accordance with the plans and the Water System Standards, State of Hawaii, dated 2002, as amended. ARTICLE 2—THE PROJECT 2.01 The Project for which the Work under the Contract Documents may be the whole or only a part is generally described as follows: Construction of the Kona Ocean View Properties Water System Improvements, Department of Water Supply Job No. 2008-934, District of North Kona, County-State of Hawaii ARTICLE 3—ENGINEER 3.01 The Project has been designed by Nancy E. Burns, P.E., LLC (Engineer), which 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 the completion of the Work in accordance with the Contract Documents. ARTICLE 4—CONTRACT TIMES 4.01 Time of the Essence A. All time limits for Milestones, if any, Substantial Completion, and completion and readiness for final payment as stated in the Contract Documents are of the essence of the Contract. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract(Stipulated Price) Copyright©2007 National Society of Professional Engineers for EJCDC.All rights reserved. Page 1 of 8 EXHIBIT B 4.02 Days to Achieve Substantial Completion and Final Payment A. The Work will be substantially completed within 180 days after the date when the Contract Times commence to run as provided in Paragraph 2.03 of the General Conditions, and completed and ready for final payment in accordance with Paragraph 14.07 of the General Conditions within 210 days after the date when the Contract Times commence to run. 4.03 Liquidated Damages A. Contractor and Owner recognize that time is of the essence as stated in Paragraph 4.01 above and that Owner will suffer financial loss if the Work is not completed within the times specified in Paragraph 4.02 above, plus any extensions thereof allowed in accordance with Article 12 of the General Conditions. The parties also recognize the delays, expense, and difficulties involved in proving in a legal or arbitration proceeding the actual loss suffered by Owner if the Work is not completed on time. Accordingly, instead of requiring any such proof, Owner and Contractor agree that as liquidated damages for delay (but not as a penalty), Contractor shall pay Owner $300.00 for each day that expires after the time specified in Paragraph 4.02 above for Substantial Completion until the Work is substantially complete. After Substantial Completion, if Contractor shall neglect, refuse, or fail to complete the remaining Work within the Contract Time or any proper extension thereof granted by Owner, Contractor shall pay Owner $300.00 for each day that expires after the time specified in Paragraph 4.02 above for completion and readiness for final payment until the Work is completed and ready for final payment. ARTICLE 5—CONTRACT PRICE 5.01 Owner shall pay Contractor for completion of the Work in accordance with the Contract Documents an amount in current funds equal to the sum of the amounts determined pursuant to Paragraphs 5.01.A, 5.01.B, and 5.01.0 below: A. For all Work other than Unit Price Work, a lump sum of: $ All specific cash allowances are included in the above price in accordance with Paragraph 11.02 of the General Conditions. B. For all Unit Price Work, an amount equal to the sum of the established unit price for each separately identified item of Unit Price Work times the actual quantity of that item, as stated in Contractor's Bid: Total of all Bid Prices (Unit Price Work) $ The Bid prices for Unit Price Work set forth as of the Effective Date of the Agreement are based on estimated quantities. As provided in Paragraph 11.03 of the General Conditions, estimated quantities are not guaranteed, and determinations of actual quantities and classifications are to be made by Engineer as provided in Paragraph 9.07 of the General Conditions. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract(Stipulated Price) Copyright©2007 National Society of Professional Engineers for EJCDC.All rights reserved. Page 2 of 8 EXHIBIT B ARTICLE 6—PAYMENT PROCEDURES 6.01 Submittal and Processing of Payments A. Contractor shall submit Applications for Payment in accordance with Article 14 of the General Conditions. Applications for Payment will be processed by Engineer as provided in the General Conditions. 6.02 Progress Payments; Retainage A. Owner shall make progress payments on account of the Contract Price on the basis of Contractor's Applications for Payment on or about the 1st day of each month during performance of the Work as provided in Paragraph 6.02.A.1 below. All such payments will be measured by the schedule of values established as provided in Paragraph 2.07.A 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. 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 may determine or Owner may withhold, including but not limited to liquidated damages, in accordance with Paragraph 14.02 of the General Conditions. a. 95 percent of Work completed (with the balance being retainage). If the Work has been 50 percent completed as determined by Engineer, and if the character and progress of the Work have been satisfactory to Owner and Engineer, then as long as the character and progress of the Work remain satisfactory to Owner and Engineer, there will be no additional retainage; and b. 95 percent of cost of materials and equipment not incorporated in the Work (with the balance being retainage). B. Upon Substantial Completion, Owner shall pay an amount sufficient to increase total payments to Contractor to 95 percent of the Work completed, less such amounts as Engineer shall determine in accordance with Paragraph 14.02.B.5 of the General Conditions and less 95 percent of Engineer's estimate of the value of Work to be completed or corrected as shown on the tentative list of items to be completed or corrected attached to the certificate of Substantial Completion. 6.03 Final Payment A. Upon final completion and acceptance of the Work in accordance with Paragraph 14.07 of the General Conditions, Owner shall pay the remainder of the Contract Price as recommended by Engineer as provided in said Paragraph 14.07. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract(Stipulated Price) Copyright©2007 National Society of Professional Engineers for EJCDC.All rights reserved. Page 3 of 8 EXHIBIT B ARTICLE 7—INTEREST 7.01 All moneys not paid when due as provided in Article 14 of the General Conditions shall bear interest at the maximum legal rate. ARTICLE 8—CONTRACTOR'S REPRESENTATIONS 8.01 In order to induce Owner to enter into this Agreement, Contractor makes the following representations: A. Contractor has examined and carefully studied the Contract Documents and the other related data identified in the Bidding Documents. B. Contractor has visited the Site and become familiar with and is satisfied as to the general, local, and Site conditions that may affect cost,progress, and performance of the Work. C. Contractor is familiar with and is satisfied as to all federal, state, and local Laws and Regulations that may affect cost, progress, and performance of the Work. D. Contractor understands that there are no reports or explorations or tests of subsurface conditions at or contiguous to the Site known to the Owner or Engineer. E. Contractor has considered the information known to Contractor; information commonly known to contractors doing business in the locality of the Site; information and observations obtained from visits to the Site; and the Contract Documents with respect to the effect of such information, observations, and documents on (1) the cost, progress, and performance of the Work; (2)the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, including any specific means, methods, techniques, sequences, and procedures of construction expressly required by the Contract Documents; and (3) Contractor's safety precautions and programs. F. Based on the information and observations referred to in Paragraph 8.01.E above, Contractor does not consider that further examinations, investigations, explorations, tests, studies, or data are necessary for the performance of the Work at the Contract Price, within the Contract Times, and in accordance with the other terms and conditions of the Contract Documents. G. Contractor is aware of the general nature of work to be performed by Owner and others at the Site that relates to the Work as indicated in the Contract Documents. H. Contractor has 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. I. The Contract Documents are generally sufficient to indicate and convey understanding of all terms and conditions for performance and furnishing of the Work. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract(Stipulated Price) Copyright©2007 National Society of Professional Engineers for EJCDC.All rights reserved. Page 4 of 8 EXHIBIT B ARTICLE 9—CONTRACT DOCUMENTS 9.01 Contents A. The Contract Documents consist of the following: 1. This Agreement(pages 1 to 8 , inclusive). 2. Performance bond(pages 1 to 4, inclusive). 3. Payment bond(pages 1 to 3, inclusive). 4. Other bonds (pages to , inclusive). a. Deleted b. Deleted c. Deleted 5. General Conditions (pages 1 to 62, inclusive). 6. Supplementary Conditions (pages 1 to 12, inclusive). 7. Specifications as listed in the table of contents of the Project Manual. 8. Drawings consisting of 16 sheets with each sheet bearing the following general title: Kona Ocean View Properties Water System Improvements. 9. Addenda(numbers to , inclusive). 10. Exhibits to this Agreement(enumerated as follows): a. Contractor's Bid (pages to , inclusive). b. Documentation submitted by Contractor prior to Notice of Award (pages to , inclusive). Ii. The following which may be delivered or issued on or after the Effective Date of the Agreement and are not attached hereto: a. Notice to Proceed (pages 1 to 1 , inclusive). b. Work Change Directives. c. Change Orders. B. The documents listed in Paragraph 9.01.A are attached to this Agreement (except as expressly noted otherwise above). EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract(Stipulated Price) Copyright©2007 National Society of Professional Engineers for EJCDC.All rights reserved. Page 5 of 8 EXHIBIT B C. There are no Contract Documents other than those listed above in this Article 9. D. The Contract Documents may only be amended, modified, or supplemented as provided in Paragraph 3.04 of the General Conditions. ARTICLE 10—MISCELLANEOUS 10.01 Terms A. Terms used in this Agreement will have the meanings stated in the General Conditions and the Supplementary Conditions. 10.02 Assignment of Contract A. No assignment by a party hereto of any rights under or interests in the Contract will be binding on another party hereto without the written consent of the party sought to be bound; and, specifically but without limitation, moneys that may become due and moneys that are due may not be assigned without such consent (except to the extent that the effect of this restriction may be limited by law), and unless specifically stated to the contrary in any written consent to an assignment, no assignment will release or discharge the assignor from any duty or responsibility under the Contract Documents. 10.03 Successors and Assigns A. Owner and Contractor each binds itself, its partners, successors, assigns, and legal representatives to the other party hereto, its partners, successors, assigns, and legal representatives in respect to all covenants, agreements, and obligations contained in the Contract Documents. 10.04 Severability A. Any provision or part of the Contract Documents held to be void or unenforceable under any Law or Regulation shall be deemed stricken, and all remaining provisions shall continue to be valid and binding upon Owner and Contractor, who agree that the Contract Documents shall be reformed to replace such stricken provision or part thereof with a valid and enforceable provision that comes as close as possible to expressing the intention of the stricken provision. 10.05 Contractor's Certifications A. Contractor certifies that it has not engaged in corrupt, fraudulent, collusive, or coercive practices in competing for or in executing the Contract. For the purposes of this Paragraph 10.05: 1. "corrupt practice" means the offering, giving, receiving, or soliciting of any thing of value likely to influence the action of a public official in the bidding process or in the Contract execution; EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract(Stipulated Price) Copyright©2007 National Society of Professional Engineers for EJCDC.All rights reserved. Page 6 of 8 EXHIBIT B 2. "fraudulent practice" means an intentional misrepresentation of facts made (a) to influence the bidding process or the execution of the Contract to the detriment of Owner, (b) to establish Bid or Contract prices at artificial non-competitive levels, or (c) to deprive Owner of the benefits of free and open competition; 3. "collusive practice" means a scheme or arrangement between two or more Bidders, with or without the knowledge of Owner, a purpose of which is to establish Bid prices at artificial, non-competitive levels; and 4. "coercive practice" means harming or threatening to harm, directly or indirectly, persons or their property to influence their participation in the bidding process or affect the execution of the Contract. EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract(Stipulated Price) Copyright©2007 National Society of Professional Engineers for EJCDC.All rights reserved. Page 7 of 8 EXHIBIT B IN WITNESS WHEREOF, Owner and Contractor have signed this Agreement. Counterparts have been delivered to Owner and Contractor. All portions of the Contract Documents have been signed or have been identified by Owner and Contractor or on their behalf. This Agreement will be effective on (which is the Effective Date of the Agreement). O WNER:County of Hawaii,Department of Water Supply CONTRACTOR By: By: Title: Title: (If Contractor is a corporation, a partnership, or a joint venture, attach evidence of authority to sign.) Attest: Attest: Title: Title: Address for giving notices: Address for giving notices: 345 Kekuanao`a Street, Suite 20 Hilo, I-II 96720 Phone: (808) 961-8050 Fax: (808) 961-8657 License No.: Water Board of the County of Hawai`i BY ITS Chairperson (If Owner is a corporation,attach evidence of authority to sign. If Owner is a public body,attach evidence of authority to sign and resolution or other Agent for service of process: documents authorizing execution of this Agreement.) RECOMMEND APPROVAL Department of Water Supply,County of Hawai`i APPROVED AS TO FORM AND LEGALITY Assistant Corporation Counsel,County of Hawaii EJCDC C-520 Suggested Form of Agreement Between Owner and Contractor for Construction Contract(Stipulated Price) Copyright©2007 National Society of Professional Engineers for EJCDC.All rights reserved. Page 8 of 8 EXHIBIT B 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 Laws and Regulations. STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT Prepared by ENGINEERS JOINT CONTRACT DOCUMENTS COMMITTEE and Issued and Published Jointly by ACE C A Se' AMF Op o, 4FiPOHS■ ,t 3 100 ASE American Society Society of of Civil Engineers Professional Engineers Professional Engineers in Private Practice AMERICAN COUNCIL OF ENGINEERING COMPANIES ASSOCIATED GENERAL CONTRACTORS OF AMERICA AMERICAN SOCIETY OF CIVIL ENGINEERS PROFESSIONAL ENGINEERS IN PRIVATE PRACTICE A Practice Division of the NATIONAL SOCIETY OF PROFESSIONAL ENGINEERS Endorsed by 11°V CONSTRUCTION SPECIFICATIONS INSTITUTE EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. EXHIBIT B These General Conditions have been prepared for use with the Suggested Forms of Agreement Between Owner and Contractor (EJCDC C-520 or C-525, 2007 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 Narrative Guide to the EJCDC Construction Documents (EJCDC C-001, 2007 Edition). For guidance in the preparation of Supplementary Conditions, see Guide to the Preparation of Supplementary Conditions (EJCDC C-800, 2007 Edition). Copyright© 2007 National Society of Professional Engineers 1420 King Street, Alexandria, VA 22314-2794 (703) 684-2882 www.nspe.org American Council of Engineering Companies 1015 15th Street N.W.,Washington, DC 20005 (202)347-7474 www.acec.org American Society of Civil Engineers 1801 Alexander Bell Drive, Reston,VA 20191-4400 (800) 548-2723 www.asce.org Associated General Contractors of America 2300 Wilson Boulevard, Suite 400,Arlington, VA 22201-3308 (703) 548-3118 www.agc.org The copyright for this EJCDC document is owned jointly by the four EJCDC sponsoring organizations and held in trust for their benefit by NSPE. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. EXHIBIT B STANDARD GENERAL CONDITIONS OF THE CONSTRUCTION CONTRACT TABLE OF CONTENTS Page Article 1 —Definitions and Terminology 1 1.01 Defined Terms 1 1.02 Terminology 5 Article 2—Preliminary Matters 6 2.01 Delivery of Bonds and Evidence of Insurance 6 2.02 Copies of Documents 6 2.03 Commencement of Contract Times;Notice to Proceed 6 2.04 Starting the Work 7 2.05 Before Starting Construction 7 2.06 Preconstruction Conference; Designation of Authorized Representatives 7 2.07 Initial Acceptance of Schedules 7 Article 3—Contract Documents: Intent,Amending, Reuse 8 3.01 Intent 8 3.02 Reference Standards 8 3.03 Reporting and Resolving Discrepancies 8 3.04 Amending and Supplementing Contract Documents 9 3.05 Reuse of Documents 10 3.06 Electronic Data 10 Article 4—Availability of Lands; Subsurface and Physical Conditions; Hazardous Environmental Conditions; Reference Points 10 4.01 Availability of Lands 10 4.02 Subsurface and Physical Conditions 11 4.03 Differing Subsurface or Physical Conditions 11 4.04 Underground Facilities 13 4.05 Reference Points 14 4.06 Hazardous Environmental Condition at Site 14 Article 5—Bonds and Insurance 16 5.01 Performance, Payment, and Other Bonds 16 5.02 Licensed Sureties and Insurers 16 5.03 Certificates of Insurance 16 5.04 Contractor's Insurance 17 5.05 Owner's Liability Insurance 18 5.06 Property Insurance 18 5.07 Waiver of Rights 20 5.08 Receipt and Application of Insurance Proceeds 21 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page i EXHIBIT B 5.09 Acceptance of Bonds and Insurance; Option to Replace 21 5.10 Partial Utilization,Acknowledgment of Property Insurer 21 Article 6-Contractor's Responsibilities 22 6.01 Supervision and Superintendence 22 6.02 Labor; Working Hours 22 6.03 Services, Materials, and Equipment 22 6.04 Progress Schedule 23 6.05 Substitutes and"Or-Equals" 23 6.06 Concerning Subcontractors, Suppliers, and Others 25 6.07 Patent Fees and Royalties 27 6.08 Permits 27 6.09 Laws and Regulations 27 6.10 Taxes 28 6.11 Use of Site and Other Areas 28 6.12 Record Documents 29 6.13 Safety and Protection 29 6.14 Safety Representative 30 6.15 Hazard Communication Programs 30 6.16 Emergencies 30 6.17 Shop Drawings and Samples 30 6.18 Continuing the Work 32 6.19 Contractor's General Warranty and Guarantee 32 6.20 Indemnification 33 6.21 Delegation of Professional Design Services 34 Article 7-Other Work at the Site 35 7.01 Related Work at Site 35 7.02 Coordination 35 7.03 Legal Relationships 36 Article 8-Owner's Responsibilities 36 8.01 Communications to Contractor 36 8.02 Replacement of Engineer 36 8.03 Furnish Data 36 8.04 Pay When Due 36 8.05 Lands and Easements; Reports and Tests 36 8.06 Insurance 36 8.07 Change Orders 36 8.08 Inspections,Tests, and Approvals 37 8.09 Limitations on Owner's Responsibilities 37 8.10 Undisclosed Hazardous Environmental Condition 37 8.11 Evidence of Financial Arrangements 37 8.12 Compliance with Safety Program 37 Article 9-Engineer's Status During Construction 37 9.01 Owner's Representative 37 9.02 Visits to Site 37 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page ii EXHIBIT B 9.03 Project Representative 38 9.04 Authorized Variations in Work 38 9.05 Rejecting Defective Work 38 9.06 Shop Drawings, Change Orders and Payments 38 9.07 Determinations for Unit Price Work 39 9.08 Decisions on Requirements of Contract Documents and Acceptability of Work 39 9.09 Limitations on Engineer's Authority and Responsibilities 39 9.10 Compliance with Safety Program 40 Article 10-Changes in the Work; Claims 40 10.01 Authorized Changes in the Work 40 10.02 Unauthorized Changes in the Work 40 10.03 Execution of Change Orders 41 10.04 Notification to Surety 41 10.05 Claims 41 Article 11-Cost of the Work; Allowances; Unit Price Work 42 11.01 Cost of the Work 42 11.02 Allowances 45 11.03 Unit Price Work 45 Article 12-Change of Contract Price; Change of Contract Times 46 12.01 Change of Contract Price 46 12.02 Change of Contract Times 47 12.03 Delays 47 Article 13 -Tests and Inspections; Correction,Removal or Acceptance of Defective Work 48 13.01 Notice of Defects 48 13.02 Access to Work 48 13.03 Tests and Inspections 48 13.04 Uncovering Work 49 13.05 Owner May Stop the Work 50 13.06 Correction or Removal of Defective Work 50 13.07 Correction Period 50 13.08 Acceptance of Defective Work 51 13.09 Owner May Correct Defective Work 51 Article 14-Payments to Contractor and Completion 52 14.01 Schedule of Values 52 14.02 Progress Payments 52 14.03 Contractor's Warranty of Title 55 14.04 Substantial Completion 55 14.05 Partial Utilization 56 14.06 Final Inspection 56 14.07 Final Payment 57 14.08 Final Completion Delayed 58 14.09 Waiver of Claims 58 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page iii EXHIBIT B Article 15 - Suspension of Work and Termination 58 15.01 Owner May Suspend Work 58 15.02 Owner May Terminate for Cause 58 15.03 Owner May Tenninate For Convenience 60 15.04 Contractor May Stop Work or Terminate 60 Article 16—Dispute Resolution 61 16.01 Methods and Procedures 61 Article 17—Miscellaneous 61 17.01 Giving Notice 61 17.02 Computation of Times 61 17.03 Cumulative Remedies 62 17.04 Survival of Obligations 62 17.05 Controlling Law 62 17.06 Headings 62 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page iv EXHIBIT B 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 defined, terms with initial capital letters in the Contract Documents include references to identified articles and paragraphs, and the titles of other documents or forms. 1. Addenda Written or graphic instruments issued prior to the opening of Bids which clarify, correct, or change the Bidding Requirements or the proposed Contract Documents. 2. Agreement—The written instrument which is evidence of the agreement between Owner and Contractor covering the Work. 3. Application for Payment—The form acceptable to Engineer which is to be used by Contractor during the course of the Work in requesting progress or final payments and which is to be accompanied by such supporting documentation as is required by the Contract Documents. 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. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 1 of 62 EXHIBIT B 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 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) complete 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 for definition. 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 defined. 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. 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. 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. 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, ordinances, 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 completion date or time prior to Substantial Completion of all the Work. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 2 of 62 EXHIBIT B 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 Contract 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 nuclear, or byproduct material as defined by the Atomic Energy Act of 1954(42 USC Section 2011 et seq.) as amended from time to time. 36. Resident Project Representative The authorized representative of Engineer who may be assigned to the Site or any part thereof. 37. 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. 38. Schedule of Submittals—A schedule, prepared and maintained by Contractor, of required submittals and the time requirements to support scheduled performance of related construction activities. 39. 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. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 3 of 62 EXHIBIT B 40. Shop Drawings -All drawings, diagrams, illustrations, schedules, and other data or information which are specifically prepared or assembled by or for Contractor and submitted by Contractor to illustrate some portion of the Work. 41. 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. 42. Specifications—That part of the Contract Documents consisting of written requirements for materials, equipment, systems, standards and workmanship as applied to the Work, and certain administrative requirements and procedural matters applicable thereto. Specifications include those indicated under the Technical Specifications of the Project Manual. 43. 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. 44. Substantial Completion—The time at which the Work (or a specified part thereof) has progressed to the point where, in the opinion of Engineer, the Work (or a specified part thereof) is sufficiently complete, in accordance with the Contract Documents, so that the Work (or a specified part thereof) can be utilized for the purposes for which it is intended. The terms "substantially complete" and "substantially completed" as applied to all or part of the Work refer to Substantial Completion thereof. 45. Successful Bidder—The Bidder submitting a responsive Bid to whom Owner makes an award. 46. Supplementary Conditions—That part of the Contract Documents which amends or supplements these General Conditions. 47. Supplier—A manufacturer, fabricator, supplier, distributor, materialman, or vendor having a direct contract with Contractor or with any Subcontractor to furnish materials or equipment to be incorporated in the Work by Contractor or Subcontractor. 48. Underground Facilities All underground pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels, or other such facilities or attachments, and any encasements containing such facilities, including those that convey electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, water, wastewater, storm water, other liquids or chemicals, or traffic or other control systems. 49. Unit Price Work—Work to be paid for on the basis of unit prices. 50. Work 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. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 4 of 62 EXHIBIT B 51. 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 the Work, or responding to differing or unforeseen subsurface or physical conditions under which the Work is to be performed or to emergencies. A Work Change Directive will not change the Contract Price or the Contract Times but is evidence that the parties expect that the change ordered or documented by a Work Change Directive will be incorporated in a subsequently issued Change Order following negotiations by the parties as to its effect, if any, on the Contract Price or Contract Times. 1.02 Terminology A. The words and terms discussed in Paragraph 1.02.B through F are not defined but, when used in the Bidding Requirements or Contract Documents,have the indicated meaning. B. Intent of Certain Terms or Adjectives: 1. 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 information in the Contract Documents and with the design concept of the 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: 1. The word "day" means a calendar day of 24 hours measured from midnight to the next midnight. D. Defective: 1. The word "defective," when modifying the word "Work," refers to Work that is unsatisfactory, faulty, or deficient in that it: a. does not conform to the Contract Documents; or b. does not meet the requirements of any applicable inspection, reference standard, test, or approval referred to in the Contract Documents; or c. has been damaged prior to Engineer's recommendation of final payment (unless responsibility for the protection thereof has been assumed by Owner at Substantial Completion in accordance with Paragraph 14.04 or 14.05). EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 5 of 62 EXHIBIT B 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 "perform" or "provide," when used in connection with services, materials, or equipment, shall mean to furnish and install said services, materials, or equipment complete and ready for intended use. 4. When "furnish," "install," "perform," or "provide" is not used in connection with services, materials, or equipment in a context clearly requiring an obligation of Contractor, "provide" is implied. F. Unless stated otherwise in the Contract Documents, words or phrases that have a well-known technical or construction industry or trade meaning are used in the Contract Documents in accordance with such recognized meaning. ARTICLE 2—PRELIMINARY MATTERS 2.01 Delivery of Bonds and Evidence of Insurance A. When Contractor delivers the executed counterparts of the Agreement to Owner, Contractor shall also deliver to Owner such bonds as Contractor may be required to furnish. B. Evidence 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 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 A. The Contract Times will commence to run on the thirtieth day after the Effective Date of the Agreement or, if a Notice to Proceed is given, on the day indicated in the Notice to Proceed. A Notice to Proceed may be given at any time within 30 days after the Effective Date of the Agreement. In no event will the Contract Times commence 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. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 6 of 62 EXHIBIT B 2.04 Starting the Work A. Contractor shall start to perform the Work on the date when the Contract Times commence to run. No Work shall be done at the Site prior to the date on which the Contract Times commence to run. 2.05 Before Starting Construction A. Preliminary Schedules: Within 10 days after the Effective Date of the Agreement (unless otherwise specified in the General Requirements), Contractor shall submit to Engineer for timely review: 1. a preliminary Progress Schedule 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 subdivides the Work into component parts in sufficient detail to serve as the basis for progress payments during performance of the Work. Such prices will include an appropriate amount of overhead and profit applicable to each item of Work. 2.06 Preconstruction Conference;Designation of Authorized Representatives 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. B. At this conference Owner and Contractor each shall designate, in writing, a specific individual to act as its authorized representative with respect to the services and responsibilities under the Contract. Such individuals shall have the authority to transmit instructions, receive information, render decisions relative to the Contract, and otherwise act on behalf of each respective party. 2.07 Initial Acceptance of Schedules A. At least 10 days before submission of the first Application for Payment a conference attended by Contractor, Engineer, and others as appropriate will be held to review for acceptability to Engineer as provided below the schedules submitted in accordance with Paragraph 2.05.A. Contractor shall have an additional 10 days to make corrections and adjustments and to complete and resubmit the schedules. No progress payment shall be made to Contractor until acceptable schedules are submitted to Engineer. 1. The Progress Schedule will be acceptable to Engineer if it provides an orderly progression of the Work to completion within the Contract Times. Such acceptance will not impose on Engineer responsibility for the Progress Schedule, for sequencing, scheduling, or progress of EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 7 of 62 EXHIBIT B 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 Documents. Any labor, documentation, services, materials, or equipment that reasonably may be inferred from the Contract Documents or from prevailing custom or trade usage as being required to produce the indicated result will be provided whether or not specifically called for, at no additional cost to Owner. C. Clarifications and interpretations of the Contract Documents shall be issued by Engineer as provided in Article 9. 3.02 Reference Standards A. Standards, Specifications, Codes, Laws, and Regulations 1. Reference to standards, specifications, manuals, or codes of any technical society, organization, or association, or to Laws or Regulations, whether such reference be specific or by implication, shall mean the standard, specification, manual, code, or Laws or Regulations in effect at the time of opening of Bids (or on the Effective Date of the Agreement if there were no Bids), except as may be otherwise specifically stated in the Contract Documents. 2. No provision of any such standard, specification, manual, or code, or any instruction of a Supplier, shall be effective to change the duties or responsibilities of Owner, Contractor, or Engineer, or any of their subcontractors, consultants, agents, or employees, from those set forth in the Contract Documents. No such provision or instruction shall be effective to assign to Owner, Engineer, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors, any duty or authority to supervise or direct the performance of the Work or any duty or authority to undertake responsibility inconsistent with the provisions of the Contract Documents. 3.03 Reporting and Resolving Discrepancies A. Reporting Discrepancies: EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 8 of 62 EXHIBIT B 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 discovers, or has actual knowledge of, 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 (a) any applicable Law or Regulation , (b) any standard, specification, manual, or code, or(c) any instruction of any Supplier, then Contractor shall promptly report it to Engineer in writing. Contractor shall not proceed with the Work affected thereby (except in an emergency as required by Paragraph 6.16.A) until an amendment or supplement to the Contract Documents has been issued by one of the methods indicated in Paragraph 3.04. 3. Contractor shall not be liable to Owner or Engineer for failure to report any conflict, error, ambiguity, or discrepancy in the Contract Documents unless Contractor had actual knowledge 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, or code, or the instruction of any Supplier (whether or not specifically incorporated by reference in the Contract Documents); or b. the provisions of any Laws or Regulations applicable to the performance of the Work (unless such an interpretation of the provisions of the Contract Documents would result in violation of such Law or Regulation). 3.04 Amending and Supplementing Contract Documents A. The Contract Documents may be amended to provide for additions, deletions, and revisions in the Work or to modify the terms and conditions thereof by either a Change Order or a Work Change Directive. B. The requirements of the Contract Documents may be supplemented, and minor variations and deviations in the Work may be authorized,by one or more of the following ways: 1. A Field Order; 2. Engineer's approval of a Shop Drawing or Sample (subject to the provisions of Paragraph 6.17.D.3); or EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 9 of 62 EXHIBIT B 3. Engineer's written interpretation or clarification. 3.05 Reuse of Documents A. Contractor and any Subcontractor or Supplier shall not: 1. have or acquire any title to or ownership rights in any of the Drawings, Specifications, or other documents (or copies of any thereof) prepared by or bearing the seal of Engineer or its consultants, including electronic media editions; or 2. reuse any 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 adaptation by Engineer. B. The prohibitions of this Paragraph 3.05 will survive final payment, or termination of the Contract. Nothing herein shall preclude Contractor from retaining copies of the Contract Documents for record purposes. 3.06 Electronic Data A. Unless otherwise stated in the Supplementary Conditions, the data furnished by Owner or Engineer to Contractor, or by Contractor to Owner or Engineer, that may be relied upon are limited to the printed copies (also known as hard copies). Files in electronic media format of text, data, graphics, or other types are furnished only for the convenience of the receiving party. Any conclusion or information obtained or derived from such electronic files will be at the user's sole risk. If there is a discrepancy between the electronic files and the hard copies, the hard copies govern. B. Because data stored in electronic media format can deteriorate or be modified inadvertently or otherwise without authorization of the data's creator, the party receiving electronic files agrees that it will perform acceptance tests or procedures within 60 days, after which the receiving party shall be deemed to have accepted the data thus transferred. Any errors detected within the 60-day acceptance period will be corrected by the transferring party. C. When transferring documents in electronic media format, the transferring party makes no representations as to long term compatibility, usability, or readability of documents resulting from the use of software application packages, operating systems, or computer hardware differing from those used by the data's creator. ARTICLE 4—AVAILABILITY OF LANDS; SUBSURFACE AND PHYSICAL CONDITIONS; HAZARDOUS ENVIRONMENTAL CONDITIONS; REFERENCE POINTS 4.01 Availability of Lands A. Owner shall furnish the Site. Owner shall notify Contractor of any encumbrances or restrictions not of general application but specifically related to use of the Site with which Contractor must comply in performing the Work. Owner will obtain in a timely manner and pay for easements for permanent structures or permanent changes in existing facilities. If Contractor and Owner are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for N:JCDC. All rights reserved. Page 10 of 62 EXHIBIT B Contract Price or Contract Times, or both, as a result of any delay in Owner's furnishing the Site or a part thereof, Contractor may make a Claim therefor as provided in Paragraph 10.05. B. Upon reasonable written request, Owner shall furnish Contractor with a current statement of record legal title and legal description of the lands upon which the Work is to be performed and Owner's interest therein as necessary for giving notice of or filing a mechanic's or construction lien against such lands in accordance with applicable Laws and Regulations. C. Contractor shall provide for all additional lands and access thereto that may be required for temporary construction facilities or storage of materials and equipment. 4.02 Subsurface and Physical Conditions A. Reports and Drawings: The Supplementary Conditions identify: 1. those reports known to Owner of explorations and tests of subsurface conditions at or contiguous to the Site; and 2. those drawings known to Owner of physical conditions relating to existing surface or subsurface structures at the Site(except Underground Facilities). B. Limited Reliance by Contractor on Technical Data Authorized: Contractor may rely upon the 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 officers, directors, members, partners, employees, agents, consultants, or subcontractors with respect to: 1. the completeness of such reports and drawings for Contractor's purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences, and procedures of construction to be employed by Contractor, and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions, and information contained in such reports or shown or indicated in such drawings; or 3. any Contractor interpretation of or conclusion drawn from any "technical data" or any such other data, interpretations, opinions, or information. 4.03 Differing Subsurface or Physical Conditions A. Notice: If Contractor believes that any subsurface or physical condition 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 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 11 of 62 EXHIBIT B 3. differs materially from that shown or indicated in the Contract Documents; or 4. is of an unusual nature, and differs materially from conditions ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract Documents; then Contractor shall, promptly after becoming aware thereof and before further disturbing the subsurface or physical conditions or performing any Work in connection therewith (except in an emergency as required by Paragraph 6.16.A), notify Owner and Engineer in writing about such condition. Contractor shall not further disturb such condition or perform any Work in connection therewith(except as aforesaid)until receipt of written order to do so. B. Engineer's Review: After receipt of written notice as required by Paragraph 4.03.A, Engineer will promptly review the pertinent condition, determine the necessity of Owner's obtaining additional exploration or tests with respect thereto, and advise Owner in writing (with a copy to Contractor) of Engineer's findings and conclusions. C. Possible Price and Times Adjustments: 1. The Contract Price or the Contract Times, or both, will be equitably adjusted to the extent that the existence of such differing subsurface or physical condition causes an increase or decrease in Contractor's cost of, or time required for, performance of the Work; subject, however, to the following: a. such condition must meet any one or more of the categories described in Paragraph 4.03.A; and b. with respect to Work that is paid for on a unit price basis, any adjustment in Contract Price will be subject to the provisions of Paragraphs 9.07 and 11.03. 2. Contractor shall not be entitled to any adjustment in the Contract Price or Contract Times if: a. Contractor knew of the existence of such conditions at the time Contractor made a final commitment to Owner with respect to Contract Price and Contract Times by the submission of a Bid or becoming bound under a negotiated contract; or b. the existence of such condition could reasonably have been discovered or revealed as a result of any examination, investigation, exploration, test, or study of the Site and contiguous areas required by the Bidding Requirements or Contract Documents to be conducted by or for Contractor prior to Contractor's making such final commitment; or c. Contractor failed to give the written notice as required by Paragraph 4.03.A. 3. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times, or both, a Claim may be made therefor as provided in Paragraph 10.05. However, neither Owner or Engineer, or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors shall 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 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 12 of 62 EXHIBIT B 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 Supplementary Conditions: 1. Owner and Engineer shall not be responsible for the accuracy or completeness of any such information or data provided by others; 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 Underground Facilities and repairing any damage thereto resulting from the Work. B. Not Shown or Indicated: 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 promptly review the Underground Facility and determine the extent, if any, to which a change is required in the Contract Documents to reflect and document the consequences of the existence or location of the Underground Facility. During such time, Contractor shall be responsible for the safety and protection of such Underground Facility. 2. If Engineer concludes that a change in the Contract Documents is required, a Work Change Directive or a Change Order will be issued to reflect and document such consequences. An equitable adjustment shall be made in the Contract Price or Contract Times, or both, to the extent that they are attributable to the existence or location of any Underground Facility that was not shown or indicated or not shown or indicated with reasonable accuracy in the Contract Documents and that Contractor did not know of and could not reasonably have been expected to be aware of or to have anticipated. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment in Contract Price EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 13 of 62 EXHIBIT B 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: The Supplementary Conditions identify those reports and drawings known to Owner relating to Hazardous Environmental Conditions that have been identified at the Site. B. Limited Reliance by Contractor on Technical Data Authorized: Contractor may rely upon the 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 officers, directors, members,partners, employees, agents, consultants, or subcontractors with respect to: 1. the completeness of such reports and drawings for Contractor's purposes, including, but not limited to, any aspects of the means, methods, techniques, sequences and procedures of construction to be employed by Contractor and safety precautions and programs incident thereto; or 2. other data, interpretations, opinions and information contained in such reports or shown or indicated in such drawings; or 3. any Contractor interpretation of or conclusion drawn from any "technical data" or any such other data, interpretations, opinions or information. C. Contractor shall not be responsible for any Hazardous Environmental Condition uncovered or revealed at the Site which was not shown or indicated in Drawings or Specifications or identified in the Contract Documents to be within the scope of the Work. Contractor shall be responsible for a Hazardous Environmental Condition created with any materials brought to the Site by Contractor, Subcontractors, Suppliers, or anyone else for whom Contractor is responsible. D. If Contractor encounters a Hazardous Environmental Condition or if Contractor or anyone for whom Contractor is responsible creates a Hazardous Environmental Condition, Contractor shall immediately: (i) secure or otherwise isolate such condition; (ii) stop all Work in connection with such condition and in any area affected thereby (except in an emergency as required by EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 14 of 62 EXHIBIT B Paragraph 6.16.A); and (iii) notify Owner and Engineer (and promptly thereafter confirm such notice in writing). Owner shall promptly consult with Engineer concerning the necessity for Owner to retain a qualified expert to evaluate such condition or take corrective action, if any. Promptly after consulting with Engineer, Owner shall take such actions as are necessary to permit Owner to timely obtain required permits and provide Contractor the written notice required by Paragraph 4.06.E. 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 written notice to Contractor: (i) specifying that such condition and any affected area is or has been rendered safe for the resumption of Work; or (ii) specifying any special conditions under which such Work may be resumed safely. If Owner and Contractor cannot agree as to entitlement to or on the amount or extent, if any, of any adjustment in Contract Price or Contract Times, or both, as a result of such Work stoppage or such special conditions under which Work is agreed to be resumed by Contractor, either party may make a Claim therefor as provided in Paragraph 10.05. F. If after receipt of such written notice Contractor does not agree to resume such Work based on a reasonable belief it is unsafe, or does not agree to resume such Work under such special conditions, then Owner may order the portion of the Work that is in the area affected by such condition to be deleted from the Work. If Owner and Contractor cannot agree as to entitlement to or on the amount or extent, if any, of an adjustment in Contract Price or Contract Times as a result of deleting such portion of the Work, then either party may make a Claim therefor as provided in Paragraph 10.05. Owner may have such deleted portion of the Work performed by Owner's own forces or others in accordance with Article 7. G. To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold harmless Contractor, Subcontractors, and Engineer, and the officers, directors, members, 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 consequences of that individual's or entity's own negligence. H. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members,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. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 15 of 62 EXHIBIT B I. The provisions of Paragraphs 4.02, 4.03, and 4.04 do not apply to a Hazardous Environmental Condition uncovered or revealed at the Site. ARTICLE 5—BONDS AND INSURANCE 5.01 Performance, Payment, and Other Bonds A. Contractor shall furnish performance and payment bonds, each in an amount at least equal to the Contract Price as security for the faithful performance and payment of all of Contractor's obligations under the Contract Documents. These bonds shall remain in effect until one year after the date when final payment becomes due or until completion of the correction period specified in Paragraph 13.07, whichever is later, except as provided otherwise by Laws or Regulations or by the Contract Documents. Contractor shall also furnish such other bonds as are required by the Contract Documents. B. All bonds shall be in the form prescribed by the Contract Documents except as provided otherwise by Laws or Regulations, and shall be executed by such sureties as are named in the list of"Companies Holding Certificates of Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsuring Companies" as published in Circular 570 (amended) by the Financial Management Service, Surety Bond Branch, U.S. Department of the Treasury. All bonds signed by an agent or attorney-in-fact must be accompanied by a certified copy of that individual's authority to bind the surety. The evidence of authority shall show that it is effective on the date the agent or attorney-in-fact signed each bond. 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 and loss payee 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. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 16 of 62 EXHIBIT B B. Owner shall deliver to Contractor, with copies to each additional insured and loss payee 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. C. Failure of Owner to demand such certificates or other evidence of Contractor's full compliance with these insurance requirements or failure of Owner to identify a deficiency in compliance from the evidence provided shall not be construed as a waiver of Contractor's obligation to maintain such insurance. D. Owner does not represent that insurance coverage and limits established in this Contract necessarily will be adequate to protect Contractor. E. The insurance and insurance limits required herein shall not be deemed as a limitation on Contractor's liability under the indemnities granted to Owner in the Contract Documents. 5.04 Contractor's Insurance A. Contractor shall purchase and maintain such insurance as is appropriate for the Work being performed and as will provide protection from claims set forth below which may arise out of or result from Contractor's performance of the Work and Contractor's other obligations under the Contract Documents, whether it is to be performed by Contractor, any Subcontractor or Supplier, or by anyone directly or indirectly employed by any of them to perform any of the Work, or by anyone for whose acts any of them may be liable: 1. claims under workers' compensation, disability benefits, and other similar employee benefit acts; 2. claims for damages because of bodily injury, occupational sickness or disease, or death of Contractor's employees; 3. claims for damages because of bodily injury, sickness or disease, or death of any person other than Contractor's employees; 4. claims for damages insured by reasonably available personal injury liability coverage which are sustained: a. by any person as a result of an offense directly or indirectly related to the employment of such person by Contractor, or b. by any other person for any other reason; 5. claims for damages, other than to the Work itself, because of injury to or destruction of tangible property wherever located, including loss of use resulting therefrom; and 6. claims for damages because of bodily injury or death of any person or property damage arising out of the ownership,maintenance or use of any motor vehicle. B. The policies of insurance required by this Paragraph 5.04 shall: EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 17 of 62 EXHIBIT B 1. with respect to insurance required by Paragraphs 5.04.A.3 through 5.04.A.6 inclusive, be written on an occurrence basis, include as additional insureds (subject to any customary exclusion regarding professional liability) Owner and Engineer, and any other individuals or entities identified in the Supplementary Conditions, all of whom shall be listed as additional insureds, and include coverage for the respective officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of all such additional insureds, and the insurance afforded to these additional insureds shall provide primary coverage for all claims covered thereby; 2. include at least the specific coverages and be written for not less than the limits of liability provided in the Supplementary Conditions or required by Laws or Regulations, whichever is greater; 3. include contractual liability insurance covering Contractor's indemnity obligations under Paragraphs 6.11 and 6.20; 4. 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); 5. 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 6. include completed operations coverage: a. Such insurance shall remain in effect for two years after final payment. b. Contractor shall furnish Owner and each other additional insured identified in the Supplementary Conditions, to whom a certificate of insurance has been issued, evidence satisfactory to Owner and any such additional insured of continuation of such insurance at final payment and one year thereafter. 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 Supplementary 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: EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 18 of 62 EXHIBIT B 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, members, 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 a loss payee; 2. be written on a Builder's Risk "all-risk" policy form that shall at least include insurance for physical loss or damage to the Work, temporary buildings, falsework, and materials and equipment in transit, and shall insure against at least the following perils or causes of loss: fire, lightning, extended coverage, theft, vandalism and malicious mischief, earthquake, collapse, debris removal, demolition occasioned by enforcement of Laws and Regulations, water damage (other than that caused by flood), and such other perils or causes of loss as may be specifically required by the Supplementary Conditions. 3. include expenses incurred in the repair or replacement of any insured property(including but not limited to fees and charges of engineers and architects); 4. cover materials and equipment stored at the Site or at another location that was agreed to in writing by Owner prior to being incorporated in the Work, provided that such materials and equipment have been included in an Application for Payment recommended by Engineer; 5. allow for partial utilization of the Work by Owner; 6. include testing and startup; and 7. be maintained in effect until final payment is made unless otherwise agreed to in writing by Owner, Contractor, and Engineer with 30 days written notice to each other loss payee to whom a certificate of insurance has been issued. B. Contractor shall purchase and maintain such equipment breakdown 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, members, 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 a loss payee. C. All the policies of insurance (and the certificates or other evidence thereof) required to be purchased and maintained in accordance with this 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 loss payee to whom a certificate of insurance has been issued and will contain waiver provisions in accordance with Paragraph 5.07. D. Owner shall not be responsible for purchasing and maintaining any property insurance specified in this Paragraph 5.06 to protect the interests of Contractor, Subcontractors, or others in the Work to the extent of any deductible amounts that are identified in the Supplementary Conditions. The risk of loss within such identified deductible amount will be borne by EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 19 of 62 EXHIBIT B 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 this 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 Supplementary Conditions as loss payees (and the officers, directors, members, 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 loss payees thereunder. Owner and Contractor waive all rights against each other and their respective officers, directors, members, 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 as loss payees (and the officers, directors, members, 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, members, 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 final 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 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 20 of 62 EXHIBIT B against Contractor, Subcontractors, or Engineer, and the officers, directors, members, 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 loss payees, 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 Documents, the objecting party shall so notify the other party in writing within 10 days after receipt of the certificates (or other evidence requested) required by Paragraph 2.01.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. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 21 of 62 EXHIBIT B 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 superintendent who shall not be replaced without written notice to Owner and Engineer except under extraordinary circumstances. 6.02 Labor; Working Hours A. Contractor shall provide competent, suitably qualified personnel to survey and lay out the Work and perform construction as required by the Contract Documents. Contractor shall at all times maintain good discipline and order at the Site. B. Except as otherwise required for the safety or protection of persons or the Work or property at the Site or adjacent thereto, and except as otherwise stated in the Contract Documents, all Work at the Site shall be performed during regular working hours. Contractor will not permit the performance of Work on a Saturday, Sunday, or any legal holiday without Owner's written consent(which will not be unreasonably withheld) given after prior written notice to Engineer. 6.03 Services, Materials, and Equipment A. Unless otherwise specified in the Contract Documents, Contractor shall provide and assume full responsibility for all services, materials, equipment, labor, transportation, construction equipment and machinery, tools, appliances, fuel, power, light, heat, telephone, water, sanitary facilities, temporary facilities, and all other facilities and incidentals necessary for the performance,testing, start-up, and completion of the Work. B. All materials and equipment incorporated into the Work shall be as specified or, if not specified, shall be of good quality and new, except as otherwise provided in the Contract Documents. All special warranties and guarantees required by the Specifications shall expressly run to the benefit of Owner. If required by Engineer, Contractor shall furnish satisfactory evidence (including reports of required tests) as to the source,kind, and quality of materials and equipment. C. All materials and equipment shall be stored, applied, installed, connected, erected, protected, used, cleaned, and conditioned in accordance with instructions of the applicable Supplier, except as otherwise may be provided in the Contract Documents. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 22 of 62 EXHIBIT B 6.04 Progress Schedule A. Contractor shall adhere to the Progress Schedule established in accordance with Paragraph 2.07 as it may be adjusted from time to time as provided below. 1. Contractor shall submit to Engineer for acceptance(to the extent indicated in Paragraph 2.07) proposed adjustments in the Progress Schedule that will not result in changing the Contract Times. Such adjustments will comply with any provisions of the General Requirements applicable thereto. 2. Proposed adjustments in the Progress Schedule that will change the Contract Times shall be submitted in accordance with the requirements of Article 12. Adjustments in Contract Times may only be made by a Change Order. 6.05 Substitutes and "Or-Equals" A. Whenever an item of material or equipment is specified or described in the Contract Documents by using the name of a proprietary item or the name of a particular Supplier, the specification or description is intended to 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. 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.1, a proposed item of material or equipment will be considered functionally equal to an item so named if: a. in the exercise of reasonable judgment Engineer determines that: 1) it is at least equal in materials of construction, quality, durability, appearance, strength, and design characteristics; 2) it will reliably perform at least equally well the function and achieve the results imposed by the design concept of the completed Project as a functioning whole; and 3) it has a proven record of performance and availability of responsive service. b. Contractor certifies that, if approved and incorporated into the Work: 1) there will be no increase in cost to the Owner or increase in Contract Times; and 2) it will conform substantially to the detailed requirements of the item named in the Contract Documents. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 23 of 62 EXHIBIT B 2. Substitute Items: a. If in Engineer's sole discretion an item of material or equipment proposed by Contractor does not qualify as an "or-equal" item under Paragraph 6.05.A.1, it will be considered a proposed substitute item. b. Contractor shall submit sufficient information as provided below to allow Engineer to determine if 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 by the General Requirements, and as Engineer may decide is appropriate under the circumstances. d. Contractor shall make written application to Engineer for review of a proposed substitute item of material or equipment that Contractor seeks to furnish or use. The application: 1) shall certify that the proposed substitute item will: a) perform adequately the functions and achieve the results called for by the general design, b) be similar in substance to that specified, and c) be suited to the same use as that specified; 2) will state: a) the extent, if any, to which the use of the proposed substitute item will prejudice Contractor's achievement of Substantial Completion on time, b) whether use of the proposed substitute item in the Work will require a change in any of the Contract Documents (or in the provisions of any other direct contract with Owner for other work on the Project) to adapt the design to the proposed substitute item, and c) whether incorporation or use of the proposed substitute item in connection with the Work is subject to payment of any license fee or royalty; 3) will identify: a) all variations of the proposed substitute item from that specified, and b) available engineering, sales,maintenance,repair, and replacement services; and EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 24 of 62 EXHIBIT B 4) shall contain an itemized estimate of all costs or credits that will result directly or indirectly from use of such substitute item, including costs of redesign and claims of other contractors affected by any resulting change. B. Substitute Construction Methods or Procedures: If a specific means, method, technique, sequence, or procedure of construction is expressly required by the Contract Documents, Contractor may furnish or utilize a substitute means, method, technique, sequence, or procedure of construction approved by Engineer. Contractor shall submit sufficient information to allow Engineer, in Engineer's sole discretion, to determine that the substitute proposed is equivalent to that expressly called for by the Contract Documents. The requirements for 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 a Change Order in the case of a substitute and an approved Shop Drawing for an "or equal." Engineer will advise Contractor in writing of any negative determination. D. Special Guarantee: Owner may require Contractor to furnish at Contractor's expense a special performance guarantee or other surety with respect to any substitute. E. Engineer's Cost Reimbursement: Engineer will record Engineer's costs in evaluating a substitute proposed or submitted by Contractor pursuant to Paragraphs 6.05.A.2 and 6.05.B. Whether or not Engineer approves a substitute so proposed or submitted by Contractor, Contractor shall reimburse Owner for the reasonable charges of Engineer for evaluating each such proposed substitute. Contractor shall also reimburse Owner for the reasonable charges of Engineer for making changes in the Contract Documents (or in the provisions of any other direct contract with Owner)resulting from the acceptance of each proposed substitute. F. Contractor's Expense: Contractor shall provide all data in support of any proposed substitute or "or-equal" at Contractor's expense. 6.06 Concerning Subcontractors, Suppliers, and Others A. Contractor shall not employ any Subcontractor, Supplier, or other individual or entity (including those acceptable to Owner as indicated in Paragraph 6.06.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 perform any of the Work against whom Contractor has reasonable objection. B. If the Supplementary Conditions require the identity of certain Subcontractors, Suppliers, or other individuals or entities to be submitted to Owner in advance for acceptance by Owner by a specified date prior to the Effective Date of the Agreement, and if Contractor has submitted a list thereof in accordance with the Supplementary Conditions, Owner's acceptance (either in writing or by failing to make written objection thereto by the date indicated for acceptance or objection in the Bidding Documents or the Contract Documents) of any such Subcontractor, Supplier, or EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 25 of 62 EXHIBIT B other individual or entity so identified may be revoked on the basis of reasonable objection after due investigation. Contractor shall submit an acceptable replacement for the rejected Subcontractor, Supplier, or other individual or entity, and the Contract Price will be adjusted by the difference in the cost occasioned by such replacement, and an appropriate Change Order will be issued. No acceptance by Owner of any such Subcontractor, Supplier, or other individual or entity, whether initially or as a replacement, shall constitute a waiver of any right of Owner or Engineer to reject defective Work. C. Contractor shall be fully responsible to Owner and Engineer for all acts and omissions of the Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work just as Contractor is responsible for Contractor's own acts and omissions. Nothing in the Contract Documents: 1. shall create for the benefit of any such Subcontractor, Supplier, or other individual or entity any contractual relationship between Owner or Engineer and any such Subcontractor, Supplier or other individual or entity; nor 2. shall create any obligation on the part of Owner or Engineer to pay or to see to the payment of any moneys due any such Subcontractor, Supplier, or other individual or entity except as may otherwise be required by Laws and Regulations. D. Contractor shall be solely responsible for scheduling and coordinating the Work of Subcontractors, Suppliers, and other individuals or entities performing or furnishing any of the Work under a direct or indirect contract with Contractor. E. Contractor shall require all Subcontractors, Suppliers, and such other individuals or entities performing or furnishing any of the Work to communicate with Engineer through Contractor. F. The divisions and sections of the Specifications and the identifications of any Drawings shall not control Contractor in dividing the Work among Subcontractors or Suppliers or delineating the Work to be performed by any specific trade. G. All Work performed for Contractor by a Subcontractor or Supplier will be pursuant to an appropriate agreement between Contractor and the Subcontractor or Supplier which specifically binds the Subcontractor or Supplier to the applicable terms and conditions of the Contract Documents for the benefit of Owner and Engineer. Whenever any such agreement is with a Subcontractor or Supplier who is listed as a loss payee 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, Engineer, and all other individuals or entities identified in the Supplementary Conditions to be listed as insureds or loss payees (and the officers, directors, members, partners, employees, agents, consultants, and subcontractors of each and any of them) for all losses and damages caused by, arising out of, relating to, or resulting from any of the perils or causes of loss covered by such policies and any other property insurance applicable to the Work. If the insurers on any such policies require separate waiver forms to be signed by any Subcontractor or Supplier, Contractor will obtain the same. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 26 of 62 EXHIBIT B 6.07 Patent Fees and Royalties A. Contractor shall pay all license fees and royalties and assume all costs incident to the use in the performance of the Work or the incorporation in the Work of any invention, design, process, product, or device which is the subject of patent rights or copyrights held by others. If a particular invention, design, process, product, or device is specified in the Contract Documents for use in the performance of the Work and if, to the actual knowledge of Owner or Engineer, its use is subject to patent rights or copyrights calling for the payment of any license fee or royalty to others,the existence of such rights shall be disclosed by Owner in the Contract Documents. B. To the fullest extent permitted by Laws and Regulations, Owner shall indemnify and hold harmless Contractor, and its officers, directors, members, partners, employees, agents, consultants, and subcontractors 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 specified in the Contract Documents, but not identified as being subject to payment of any license fee or royalty to others required by patent rights or copyrights. C. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any infringement of patent rights or copyrights incident to the use in the performance of the Work or resulting from the incorporation in the Work of any invention, design,process, product, or device not specified in the Contract Documents. 6.08 Permits A. Unless otherwise provided in the Supplementary Conditions, Contractor shall obtain and pay for all construction permits and licenses. Owner shall assist Contractor,when necessary, in obtaining such permits and licenses. Contractor shall pay all governmental charges and inspection fees necessary for the prosecution of the Work which are applicable at the time of opening of Bids, or, if there are no Bids, on the Effective Date of the Agreement. Owner shall pay all charges of utility owners for connections for providing permanent service to the Work. 6.09 Laws and Regulations A. Contractor shall give all notices required by and shall comply with all Laws and Regulations applicable to the performance of the Work. Except where otherwise expressly required by applicable Laws and Regulations, neither Owner nor Engineer shall be responsible for monitoring Contractor's compliance with any Laws or Regulations. B. If Contractor performs any Work knowing or having reason to know that it is contrary to Laws or Regulations, Contractor shall bear all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 27 of 62 EXHIBIT B court or arbitration or other dispute resolution costs) arising out of or relating to such Work. However, it shall not be Contractor's responsibility to make certain that the Specifications and Drawings are in accordance with Laws and Regulations, but this shall not relieve Contractor of Contractor's obligations under Paragraph 3.03. C. Changes in Laws or Regulations not known at the time of opening of Bids (or, on the Effective Date of the Agreement if there were no Bids) having an effect on the cost or time of performance of the Work shall be the subject of an adjustment in Contract Price or Contract Times. If Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefor as provided in Paragraph 10.05. 6.10 Taxes A. Contractor shall pay all sales, consumer, use, and other similar taxes required to be paid by Contractor in accordance with the Laws and Regulations of the place of the Project which are applicable during the performance of the Work. 6.11 Use of Site and Other Areas A. Limitation on Use of Site and Other Areas: 1. Contractor shall confine construction equipment, the storage of materials and equipment, and the operations of workers to the Site and other areas permitted by Laws and Regulations, and shall not unreasonably encumber the Site and other areas with construction equipment or other materials or equipment. Contractor shall assume full responsibility for any damage to any such land or area, or to the owner or occupant thereof, or of any adjacent land or areas resulting from the performance of the Work. 2. Should any claim be made by any such owner or occupant because of the performance of the Work, Contractor shall promptly settle with such other party by negotiation or otherwise resolve the claim by arbitration or other dispute resolution proceeding or at law. 3. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to any claim or action, legal or equitable, brought by any such owner or occupant against Owner, Engineer, or any other party indemnified hereunder to the extent caused by or based upon Contractor's performance of the Work. B. Removal of Debris During Performance of the Work: During the progress of the Work Contractor shall keep the Site and other areas free from accumulations of waste materials, rubbish, and other debris. Removal and disposal of such waste materials, rubbish, and other debris shall conform to applicable Laws and Regulations. C. Cleaning: Prior to Substantial Completion of the Work Contractor shall clean the Site and the Work and make it ready for utilization by Owner. At the completion of the Work Contractor EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 28 of 62 EXHIBIT B shall remove from the Site all tools, appliances, construction equipment and machinery, and surplus materials and shall restore to original condition all property not designated for alteration by the Contract Documents. D. Loading Structures: Contractor shall not load nor permit any part of any structure to be loaded in any manner that will endanger the structure, nor shall Contractor subject any part of the Work or adjacent property to stresses or pressures that will endanger it. 6.12 Record Documents A. Contractor shall maintain in a safe place at the Site one record copy of all Drawings, Specifications, Addenda, Change Orders, Work Change Directives, Field Orders, and written interpretations and clarifications in good order and annotated to show changes made during construction. These record documents together with all approved Samples and a counterpart of all approved Shop Drawings will be available to Engineer for reference. Upon completion of the Work, these record documents, Samples, and Shop Drawings will be delivered to Engineer for Owner. 6.13 Safety and Protection A. Contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work. Such responsibility does not relieve Subcontractors of their responsibility for the safety of persons or property in the performance of their work, nor for compliance with applicable safety Laws and Regulations. Contractor shall take all necessary precautions for the safety of, and shall provide the necessary protection to prevent damage, injury or loss to: 1. all persons on the Site or who 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. Contractor shall comply with the applicable requirements of Owner's safety programs, if any. The Supplementary Conditions identify any Owner's safety programs that are applicable to the Work. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 29 of 62 EXHIBIT B D. Contractor shall inform Owner and Engineer of the specific requirements of Contractor's safety program with which Owner's and Engineer's employees and representatives must comply while at the Site. E. All damage, injury, or loss to any property referred to in Paragraph 6.13.A.2 or 6.13.A.3 caused, directly or indirectly, in whole or in part, by Contractor, any Subcontractor, Supplier, or any other individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, shall be remedied by Contractor (except damage or loss attributable to the fault of Drawings or Specifications or to the acts or omissions of Owner or Engineer or 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). F. 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 responsible for coordinating any exchange of material safety data sheets or other hazard communication information required to be made available to or exchanged between or among employers at the Site in accordance with Laws or Regulations. 6.16 Emergencies A. In emergencies affecting the safety or protection of persons or the Work or property at the Site or adjacent thereto, Contractor is obligated to act to prevent threatened damage, injury, or loss. Contractor shall give Engineer prompt written notice if Contractor believes that any significant changes in the Work or variations from the Contract Documents have been caused thereby or are required as a result thereof. If Engineer determines that a change in the Contract Documents is required because of the action taken by Contractor in response to such an emergency, a Work Change Directive or Change Order will be issued. 6.17 Shop Drawings and Samples A. Contractor shall submit Shop Drawings and Samples to Engineer for review and approval in accordance with the accepted Schedule of Submittals (as required by Paragraph 2.07). Each submittal will be identified as Engineer may require. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 30 of 62 EXHIBIT B 1. Shop Drawings: a. Submit number of copies specified in the General Requirements. b. Data shown on the Shop Drawings will be complete with respect to quantities, dimensions, specified performance and design criteria, materials, and similar data to show Engineer the services, materials, and equipment Contractor proposes to provide and to enable Engineer to review the information for the limited purposes required by Paragraph 6.17.D. 2. Samples: a. Submit number of Samples specified in the Specifications. b. Clearly identify each Sample as to material, Supplier, pertinent data such as catalog numbers, the use for which intended and other data as Engineer may require to enable Engineer to review the submittal for the limited purposes required by Paragraph 6.17.D. B. Where a Shop Drawing or Sample is required by the Contract Documents or the Schedule of Submittals, any related Work performed prior to Engineer's review and approval of the pertinent submittal will be at the sole expense and responsibility of Contractor. C. Submittal Procedures: 1. Before submitting each Shop Drawing or Sample, Contractor shall have: a. 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; b. determined and verified all field measurements, quantities, dimensions, specified performance and design criteria, installation requirements, materials, catalog numbers, and similar information with respect thereto; c. determined and verified the suitability of all materials offered with respect to the indicated application, fabrication, shipping, handling, storage, assembly, and installation pertaining to the performance of the Work; and d. determined and verified all information relative to Contractor's responsibilities for means, methods, techniques, sequences, and procedures of construction, and safety precautions and programs incident thereto. 2. Each submittal shall bear a stamp or specific written certification that Contractor has satisfied Contractor's obligations under the Contract Documents with respect to Contractor's review and approval of that submittal. 3. With each submittal, Contractor shall give Engineer specific written notice of any variations that the Shop Drawing or Sample may have from the requirements of the Contract Documents. This notice shall be both a written communication separate from the Shop EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 31 of 62 EXHIBIT B Drawings or Sample submittal; and, in addition, by a specific notation made on each Shop Drawing or Sample submitted to Engineer for review and approval of each such variation. D. Engineer's Review: 1. Engineer will provide timely review of Shop Drawings and Samples in accordance with the Schedule of Submittals acceptable to Engineer. Engineer's review and approval will be only to determine if the items covered by the submittals will, after installation or incorporation in the Work, conform to the information given in the Contract Documents and be compatible with the design concept of the completed Project as a functioning whole as indicated by the Contract Documents. 2. Engineer's review and approval will not extend to means, methods, techniques, sequences, or procedures of construction (except where a particular means, method, technique, sequence, or procedure of construction is specifically and expressly called for by the Contract Documents) or to safety precautions or programs incident thereto. The review and approval of a separate item as such will not indicate approval of the assembly in which the item functions. 3. Engineer's review and approval shall not relieve Contractor from responsibility for any variation from the requirements of the Contract Documents unless Contractor has complied with the requirements of Paragraph 6.17.C.3 and Engineer has given written approval of each such variation by specific written notation thereof incorporated in or accompanying the Shop Drawing or Sample. Engineer's review and approval shall not relieve Contractor from responsibility for complying with the requirements of Paragraph 6.17.C.1. E. Resubmittal Procedures: 1. Contractor shall make corrections required by Engineer and shall return the required number of corrected copies of Shop Drawings and submit, as required, new Samples for review and approval. Contractor shall direct specific attention in writing to revisions other than the corrections called for by Engineer on previous submittals. 6.18 Continuing the Work A. Contractor shall carry on the Work and adhere to the Progress Schedule during all disputes or disagreements with Owner. No Work shall be delayed or postponed pending resolution of any disputes or disagreements, except as permitted by Paragraph 15.04 or as Owner and Contractor may otherwise agree in writing. 6.19 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 officers, directors, members, partners, employees, agents, consultants, and subcontractors 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: EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 32 of 62 EXHIBIT B 1. abuse, modification, or improper maintenance or operation by persons other than Contractor, Subcontractors, Suppliers, or any other individual or entity for whom Contractor is responsible; or 2. normal wear and tear under normal usage. C. Contractor's obligation to perform and complete the Work in accordance with the Contract Documents shall be absolute. None of the following will constitute an acceptance of Work that is not in accordance with the Contract Documents or a release of Contractor's obligation to perform the Work in accordance with the Contract Documents: 1. observations by Engineer; 2. recommendation by Engineer or payment by Owner of any progress or final payment; 3. the issuance of a certificate of Substantial Completion by Engineer or any payment related thereto by Owner; 4. use or occupancy of the Work or any part thereof by Owner; 5. any review and approval of a Shop Drawing or Sample submittal or the issuance of a notice of acceptability by Engineer; 6. any inspection,test, or approval by others; or 7. any correction of defective Work by Owner. 6.20 Indemnification A. To the fullest extent permitted by Laws and Regulations, Contractor shall indemnify and hold harmless Owner and Engineer, and the officers, directors, members, partners, employees, agents, consultants and subcontractors of each and any of them from and against all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to the performance of the Work,provided that any such claim, cost, loss, or damage is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than the Work itself), including the loss of use resulting therefrom but only to the extent caused by any negligent act or omission of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work or anyone for whose acts any of them may be liable . B. In any and all claims against Owner or Engineer or any of their officers, directors, members, partners, employees, agents, consultants, or subcontractors by any employee (or the survivor or personal representative of such employee) of Contractor, any Subcontractor, any Supplier, or any individual or entity directly or indirectly employed by any of them to perform any of the Work, or anyone for whose acts any of them may be liable, the indemnification obligation under Paragraph 6.20.A shall not be limited in any way by any limitation on the amount or type of damages, compensation, or benefits payable by or for Contractor or any such Subcontractor, EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 33 of 62 EXHIBIT B 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, members, partners, employees, agents, consultants and subcontractors arising out of: 1. the preparation or approval of, or the failure to prepare or approve maps, Drawings, opinions, reports, surveys, Change Orders, designs, or Specifications; or 2. giving directions or instructions, or failing to give them, if that is the primary cause of the injury or damage. 6.21 Delegation of Professional Design Services A. Contractor will not be required to provide professional design services unless such services are specifically required by the Contract Documents for a portion of the Work or unless such services are required to carry out Contractor's responsibilities for construction means, methods, techniques, sequences and procedures. Contractor shall not be required to provide professional services in violation of applicable law. B. If professional design services or certifications by a design professional related to systems, materials or equipment are specifically required of Contractor by the Contract Documents, Owner and Engineer will specify all performance and design criteria that such services must satisfy. Contractor shall cause such services or certifications to be provided by a properly licensed professional, whose signature and seal shall appear on all drawings, calculations, specifications, certifications, Shop Drawings and other submittals prepared by such professional. Shop Drawings and other submittals related to the Work designed or certified by such professional, if prepared by others, shall bear such professional's written approval when submitted to Engineer. C. Owner and Engineer shall be entitled to rely upon the adequacy, accuracy and completeness of the services, certifications or approvals performed by such design professionals, provided Owner and Engineer have specified to Contractor all performance and design criteria that such services must satisfy. D. Pursuant to this Paragraph 6.21, Engineer's review and approval of design calculations and design drawings will be only for the limited purpose of checking for conformance with performance and design criteria given and the design concept expressed in the Contract Documents. Engineer's review and approval of Shop Drawings and other submittals (except design calculations and design drawings) will be only for the purpose stated in Paragraph 6.17.D.1. E. Contractor shall not be responsible for the adequacy of the performance or design criteria required by the Contract Documents. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 34 of 62 EXHIBIT B 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 through other direct contracts therefor, or have other work performed by utility owners. If such other work is not noted in the Contract Documents, then: 1. written notice thereof will be given to Contractor prior to starting any such other work; and 2. if Owner and Contractor are unable to agree on entitlement to or on the amount or extent, if any, of any adjustment in the Contract Price or Contract Times that should be allowed as a result of such other work, a Claim may be made therefor as provided in Paragraph 10.05. B. Contractor shall afford each other contractor who is a party to such a direct contract, each utility owner, and Owner, if Owner is performing other work with Owner's employees, proper and safe access to the Site, provide a reasonable opportunity for the introduction and storage of materials and equipment and the execution of such other work, and properly coordinate the Work with theirs. Contractor shall do all cutting, fitting, and patching of the Work that may be required to properly connect or otherwise make its several parts come together and properly integrate with such other work. Contractor shall not endanger any work of others by cutting, excavating, or otherwise altering such work; provided, however, that Contractor may cut or alter others' work with the written consent of Engineer and the others whose work will be affected. The duties and responsibilities of Contractor under this Paragraph are for the benefit of such utility owners and other contractors to the extent that there are comparable provisions for the benefit of Contractor in said direct contracts between Owner and such utility owners and other contractors. C. If the proper execution or results of any part of Contractor's Work depends upon work performed by others under this Article 7, Contractor shall inspect such other work and promptly report to Engineer in writing any delays, defects, or deficiencies in such other work that render it unavailable or unsuitable for the proper execution and results of Contractor's Work. Contractor's failure to so report will constitute an acceptance of such other work as fit and proper for integration with Contractor's Work except for latent defects and deficiencies in such other work. 7.02 Coordination A. If Owner intends to contract with others for the performance of other work on the Project at the Site,the following will be set forth in Supplementary Conditions: 1. the individual or entity who will have authority and responsibility for coordination of the activities among the various contractors will be identified; 2. the specific matters to be covered by such authority and responsibility will be itemized; and 3. the extent of such authority and responsibilities will be provided. B. Unless otherwise provided in the Supplementary Conditions, Owner shall have sole authority and responsibility for such coordination. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 35 of 62 EXHIBIT B 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 wrongful actions or inactions. C. Contractor shall be liable to Owner and any other contractor under direct contract to Owner for the reasonable direct delay and disruption costs incurred by such other contractor as a result of Contractor's wrongful 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 14.02.0 and 14.07.C. 8.05 Lands and Easements;Reports and Tests A. Owner's duties with respect to 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 relating to existing surface or subsurface structures at the Site. 8.06 Insurance A. Owner's responsibilities, if any,with respect to purchasing and maintaining liability and property insurance are set forth in Article 5. 8.07 Change Orders A. Owner is obligated to execute Change Orders as indicated in Paragraph 10.03. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 36 of 62 EXHIBIT B 8.08 Inspections, Tests, and Approvals A. Owner's responsibility with respect to certain inspections, tests, and approvals is set forth in Paragraph 13.03.B. 8.09 Limitations on Owner's Responsibilities A. The Owner shall not supervise, direct, or have control or authority over, nor be responsible for, Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Owner will not be responsible for Contractor's failure to perform the Work in accordance with the Contract Documents. 8.10 Undisclosed Hazardous Environmental Condition A. Owner's responsibility in respect to an undisclosed Hazardous Environmental Condition is set forth in Paragraph 4.06. 8.11 Evidence of Financial Arrangements A. Upon request of Contractor, Owner shall furnish Contractor reasonable evidence that financial arrangements have been made to satisfy Owner's obligations under the Contract Documents. 8.12 Compliance with Safety Program A. While at the Site, Owner's employees and representatives shall comply with the specific applicable requirements of Contractor's safety programs of which Owner has been informed pursuant to Paragraph 6.13.D. 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 responsibilities and the limitations of authority of Engineer as Owner's representative during construction are set forth in the Contract Documents. 9.02 Visits to Site A. Engineer will make visits to the Site at intervals appropriate to the various stages of construction as Engineer deems necessary in order to observe as an experienced and qualified design professional the progress that has been made and the quality of the various aspects of Contractor's executed Work. Based on information obtained during such visits and observations, Engineer, for the benefit of Owner, will determine, in general, if the Work is proceeding in accordance with the Contract Documents. Engineer will not be required to make exhaustive or continuous inspections on the Site to check the quality or quantity of the Work. Engineer's efforts will be directed toward providing for Owner a greater degree of confidence that the completed Work will conform generally to the Contract Documents. On the basis of such visits EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 37 of 62 EXHIBIT B and observations, Engineer will keep Owner informed of the progress of the Work and will endeavor to guard Owner against defective Work. B. Engineer's visits and observations are subject to all the limitations on Engineer's authority and responsibility set forth in Paragraph 9.09. Particularly, but without limitation, during or as a result of Engineer's visits or observations of Contractor's Work, Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. 9.03 Project Representative A. If Owner and Engineer agree, Engineer will furnish a Resident Project Representative to assist Engineer in providing more extensive observation of the Work. The authority and responsibilities of any such Resident Project Representative and assistants will be as provided in the Supplementary Conditions, and limitations on the responsibilities thereof will be as provided in Paragraph 9.09. If Owner designates another representative or agent to represent Owner at the Site who is not Engineer's consultant, agent or employee, the responsibilities 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 Documents. These may be accomplished by a Field Order and will be binding on Owner and also on Contractor, who shall perform the Work involved promptly. If Owner or Contractor believes that a Field Order justifies an adjustment in the Contract Price or Contract Times, or both, and the parties are unable to agree on entitlement to or on the amount or extent, if any, of any such adjustment, a Claim may be made therefor as provided in Paragraph 10.05. 9.05 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 Documents. Engineer will also have authority to require special inspection or testing of the Work as provided in Paragraph 13.04, whether or not the Work is fabricated, installed, or completed. 9.06 Shop Drawings, Change Orders and Payments A. In connection with Engineer's authority, and limitations thereof, as to Shop Drawings and Samples, see Paragraph 6.17. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 38 of 62 EXHIBIT B 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 Determinations for Unit Price Work A. Engineer will determine the actual quantities and classifications of Unit Price Work performed by Contractor. Engineer will review with Contractor the Engineer's preliminary determinations on such matters before rendering a written decision thereon (by recommendation of an Application for Payment or otherwise). Engineer's written decision thereon will be final and binding (except as modified by Engineer to reflect changed factual conditions or more accurate data)upon Owner and Contractor, subject to the provisions of Paragraph 10.05. 9.08 Decisions on Requirements of Contract Documents and 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 final payment is due relating to the acceptability of the Work, and the interpretation of the requirements of the Contract Documents pertaining to the performance of the Work, will be referred initially to Engineer in writing within 30 days of the event giving rise to the question. B. Engineer will, with reasonable promptness, render a written decision on the issue referred. If Owner or Contractor believes that any such decision entitles them to an adjustment in the Contract Price or Contract Times or both, a Claim may be made under Paragraph 10.05. The date of Engineer's decision shall be the date of the event giving rise to the issues referenced for the purposes of Paragraph 10.05.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. D. When functioning as interpreter and judge under this Paragraph 9.08, Engineer will not show partiality to Owner or Contractor and will not be liable in connection with any interpretation or decision rendered in good faith in such capacity. 9.09 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 of them. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. MI rights reserved. Page 39 of 62 EXHIBIT B B. Engineer will not supervise, direct, control, or have authority over or be responsible for Contractor's means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or for any failure of Contractor to comply with Laws and Regulations applicable to the performance of the Work. Engineer will not be responsible for Contractor's failure to perform the Work in accordance with the Contract Documents. C. Engineer will not be responsible for the acts or omissions of Contractor or of any Subcontractor, any Supplier, or of any other individual or entity performing any of the Work. D. Engineer's review of the final Application for Payment and accompanying documentation and all maintenance and operating instructions, schedules, guarantees, bonds, certificates of inspection, tests and approvals, and other documentation required to be delivered by Paragraph 14.07.A will only be to determine generally that their content complies with the requirements of, and in the case of certificates of inspections, tests, and approvals that the results certified indicate compliance with,the Contract Documents. E. The limitations upon authority and responsibility set forth in this Paragraph 9.09 shall also apply to the Resident Project Representative, if any, and assistants, if any. 9.10 Compliance with Safety Program A. While at the Site, Engineer's employees and representatives shall comply with the specific applicable requirements of Contractor's safety programs of which Engineer has been informed pursuant to Paragraph 6.13.D. 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 Work by a Change Order, or a Work Change Directive. Upon receipt of any such document, Contractor shall promptly proceed with the Work involved which will be performed under the applicable conditions of the Contract Documents (except as otherwise specifically provided). B. If Owner and Contractor are unable to agree on entitlement to, or on the amount or extent, if any, of an adjustment in the Contract Price or Contract Times, or both, that should be allowed as a result of a Work Change Directive, a Claim may be made therefor as provided in Paragraph 10.05. 10.02 Unauthorized Changes in the Work A. Contractor shall not be entitled to an increase in the Contract Price or an extension of the Contract Times with respect to any work performed that is not required by the Contract Documents as amended, modified, or supplemented as provided in Paragraph 3.04, except in the case of an emergency as provided in Paragraph 6.16 or in the case of uncovering Work as provided in Paragraph 13.04.D. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 40 of 62 EXHIBIT B 10.03 Execution of Change Orders A. Owner and Contractor shall execute appropriate Change Orders recommended by Engineer covering: 1. changes in the Work which are: (i) ordered by Owner pursuant to Paragraph 10.01.A, (ii) required because of acceptance of defective Work under Paragraph 13.08.A or Owner's correction of defective Work under Paragraph 13.09, or(iii) agreed to by the parties; 2. changes in the Contract Price or Contract Times which are agreed to by the parties, including any undisputed sum or amount of time for Work actually performed in accordance with a Work Change Directive; and 3. changes in the Contract Price or Contract Times which embody the substance of any written decision rendered by Engineer pursuant to Paragraph 10.05; provided that, in lieu of executing any such Change Order, an appeal may be taken from any such decision in accordance with the provisions of the Contract Documents and applicable Laws and Regulations, but during any such appeal, Contractor shall carry on the Work and adhere to the Progress Schedule as provided in Paragraph 6.18.A. 10.04 Notification to Surety A. If the provisions of any bond require notice to be given to a surety 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), 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 Times shall be prepared in accordance with the provisions of Paragraph 12.02.B. Each Claim shall be accompanied by claimant's written statement that the adjustment claimed is the entire adjustment to which the claimant believes it is entitled as a result of said event. The EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 41 of 62 EXHIBIT B 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 10.05.0 or denial pursuant to Paragraphs 10.05.C.3 or 10.05.D will be final and binding upon Owner and Contractor, unless Owner or Contractor invoke the dispute resolution procedure set forth in Article 16 within 30 days of such action or denial. F. No Claim for an adjustment in Contract Price or Contract Times will be valid if not submitted in accordance with this Paragraph 10.05. ARTICLE 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 not include any of the costs itemized in Paragraph 11.01.B, and shall include only the following items: 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 on the Work. 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 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 42 of 62 EXHIBIT B Saturday, Sunday, or legal holidays, shall be included in the above to the extent authorized by Owner. 2. Cost of all materials and equipment furnished and incorporated in the Work, including costs of transportation and storage thereof, and Suppliers' field services required in connection therewith. All cash discounts shall accrue to Contractor unless Owner deposits funds with Contractor with which to make payments, in which case the cash discounts shall accrue to Owner. All trade discounts, rebates and refunds and returns from sale of surplus materials and equipment shall accrue to Owner, and Contractor shall make provisions so that they may be obtained. 3. Payments made by Contractor to Subcontractors for Work performed by Subcontractors. If required by Owner, Contractor shall obtain competitive bids from subcontractors acceptable to Owner and Contractor and shall deliver such bids to Owner,who will then determine, with the advice of Engineer, which bids, if any, will be acceptable. If any subcontract provides that the Subcontractor is to be paid on the basis of Cost of the Work plus a fee, the Subcontractor's Cost of the Work and fee shall be determined in the same manner as Contractor's Cost of the Work and fee as provided in this Paragraph 11.01. 4. Costs of special consultants (including but not limited to engineers, architects, testing laboratories, surveyors, attorneys, and accountants) employed for services specifically related to the Work. 5. Supplemental costs including the following: a. The proportion of necessary transportation, travel, and subsistence expenses of Contractor's employees incurred in discharge of duties connected with the Work. b. Cost, including transportation and maintenance, of all materials, supplies, equipment, machinery, appliances, office, and temporary facilities at the Site, and hand tools not owned by the workers, which are consumed in the performance of the Work, and cost, less market value, of such items used but not consumed which remain the property of Contractor. c. Rentals of all construction equipment and machinery, and the parts thereof whether rented from Contractor or others in accordance with rental agreements approved by Owner with the advice of Engineer, and the costs of transportation, loading, unloading, assembly, dismantling, and removal thereof. All such costs shall be in accordance with the terms of said rental agreements. The rental of any such equipment, machinery, or parts shall cease when the use thereof is no longer necessary for the Work. d. Sales, consumer, use, and other similar taxes related to the Work, and for which Contractor is liable, as 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. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 43 of 62 EXHIBIT B f. Losses and damages (and related expenses) caused by damage to the Work, not compensated by insurance or otherwise, sustained by Contractor in connection with the performance of the Work (except losses and damages within the deductible amounts of property insurance established in accordance with Paragraph 5.06.D), provided such 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, express and courier services, and similar petty cash items in connection with the Work. i. The costs of premiums for all bonds and insurance Contractor is required by the Contract Documents to purchase and maintain. B. Costs Excluded: The term Cost of the Work shall not include any of the following items: 1. Payroll costs and other compensation of Contractor's officers, executives, principals (of partnerships and sole proprietorships), general managers, safety managers, engineers, architects, estimators, attorneys, auditors, accountants, purchasing and contracting agents, expediters, timekeepers, clerks, and other personnel employed by Contractor, whether at the Site or in Contractor's principal or branch office for general administration of the Work and not specifically included in the agreed upon schedule of job classifications referred to in Paragraph 11.01.A.1 or specifically covered by Paragraph 11.01.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. 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. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 44 of 62 EXHIBIT B D. Documentation: Whenever the Cost of the Work for any purpose is to be determined pursuant to Paragraphs 11.01.A and 11.01.B, Contractor will establish and maintain records thereof in accordance with generally accepted accounting practices and submit in a form acceptable to Engineer an itemized cost breakdown together with supporting data. 11.02 Allowances A. It is understood that Contractor has included in the Contract Price all allowances so named in the Contract Documents and shall cause the Work so covered to be performed for such sums and by such persons or entities as may be acceptable to Owner and Engineer. B. Cash Allowances: 1. Contractor agrees that: a. the cash allowances include the cost to Contractor(less any applicable trade discounts) of materials and equipment required by the allowances to be delivered at the Site, and all applicable taxes; and b. Contractor's costs for unloading and handling on the Site, labor, installation, overhead, profit, and other expenses contemplated for the cash allowances have been included in the Contract Price and not in the allowances, and no demand for additional payment on account of any of the foregoing will be valid. C. Contingency Allowance: 1. Contractor agrees that a contingency allowance, if any, is for the sole use of Owner to cover unanticipated costs. D. Prior to final payment, an appropriate Change Order will be issued as recommended by Engineer to reflect actual amounts due Contractor on account of Work covered by allowances, and the Contract Price shall be correspondingly adjusted. 11.03 Unit Price Work A. Where the Contract Documents provide that all or part of the Work is to be Unit Price Work, initially the Contract Price will be deemed to include for all Unit Price Work an amount equal to the sum of the unit price for each separately identified item of Unit Price Work times the estimated quantity of each item as indicated in the Agreement. B. The estimated quantities of items of Unit Price Work are not guaranteed and are solely for the purpose of comparison of Bids and determining an initial Contract Price. Determinations of the actual quantities and classifications of Unit Price Work performed by Contractor will be made by Engineer subject to the provisions of Paragraph 9.07. 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. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 45 of 62 EXHIBIT B D. Owner or Contractor may make a Claim for an adjustment in the Contract Price in accordance with Paragraph 10.05 i£ 1. the quantity of any item of Unit Price Work performed by Contractor differs materially and significantly from the estimated quantity of such item indicated in the Agreement; and 2. there is no corresponding adjustment with respect to any other item of Work; and 3. Contractor believes that Contractor is entitled to an increase in Contract Price as a result of having incurred additional expense or Owner believes that Owner is entitled to a decrease in Contract Price and the parties are unable to agree as to the amount of any such increase or decrease. ARTICLE 12—CHANGE OF CONTRACT PRICE; CHANGE OF CONTRACT TIMES 12.01 Change of Contract Price A. The Contract Price may only be changed by a Change Order. Any Claim for an adjustment in the Contract Price shall be based on written notice submitted by the party making the Claim to the Engineer and the other party to the Contract in accordance with the provisions of Paragraph 10.05. B. The value of any Work covered by a Change Order or of any Claim for an adjustment in the Contract Price will be determined as follows: 1. where the Work involved is covered by unit prices contained in the Contract Documents, by application of such unit prices to the quantities of the items involved (subject to the provisions of Paragraph 11.03); or 2. where the Work involved is not covered by unit prices contained in the Contract Documents, by a mutually agreed lump sum(which may include an allowance for overhead and profit not necessarily in accordance with Paragraph 12.01.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.1 and 11.01.A.2, the Contractor's fee shall be 15 percent; b. for costs incurred under Paragraph 11.01.A.3,the Contractor's fee shall be five percent; EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 46 of 62 EXHIBIT B 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 Paragraphs 12.01.C.2.a and 12.01.C.2.b 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 11.01.A.1 and 11.01.A.2 and that any higher tier Subcontractor and Contractor will each be paid a fee of five percent of the amount paid to the next lower tier Subcontractor; d. no fee shall be payable on the basis of costs itemized under Paragraphs 11.01.A.4, 11.01.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 any one change, the adjustment in Contractor's fee shall be computed on the basis of the net change in accordance with Paragraphs 12.01.C.2.a through 12.01.C.2.e,inclusive. 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 contemplated by Article 7, fires, floods, epidemics, abnormal weather conditions, or acts of God. B. If Owner, Engineer, or other contractors or utility owners performing other work for Owner as contemplated by Article 7, or anyone for whom Owner is responsible, delays, disrupts, or interferes with the performance or progress of the Work, then Contractor shall be entitled to an equitable adjustment in the Contract Price or the Contract Times, or both. Contractor's entitlement to an adjustment of the Contract Times is conditioned on such adjustment being essential to Contractor's ability to complete the Work within the Contract Times. C. 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 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 47 of 62 EXHIBIT B 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 their officers, directors, members, partners, employees, agents, consultants, or subcontractors 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. 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. Defective Work may be rejected, corrected, or accepted as provided in this Article 13. 13.02 Access to Work A. Owner, Engineer, their consultants and other representatives and personnel of Owner, independent testing laboratories, and governmental agencies with jurisdictional interests will have access to the Site and the Work at reasonable times for their observation, inspection, and testing. Contractor shall provide them proper and safe conditions for such access and advise them of Contractor's safety procedures and programs so that they may comply therewith as applicable. 13.03 Tests and Inspections A. Contractor shall give Engineer timely notice of readiness of the Work for all required inspections, tests, or approvals and shall cooperate with inspection and testing personnel to facilitate required inspections or tests. B. Owner shall employ and pay for the services of an independent testing laboratory to perform all inspections,tests, or approvals required by the Contract Documents except: 1. for inspections, tests, or approvals covered by Paragraphs 13.03.0 and 13.03.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 Paragraph 13.04.C; and 3. as otherwise specifically provided in the Contract Documents. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 48 of 62 EXHIBIT B C. If Laws or Regulations of any public body having jurisdiction require any Work(or part thereof) specifically to be inspected, tested, or approved by an employee or other representative of such public body, Contractor shall assume full responsibility for arranging and obtaining such inspections, tests, or approvals, pay all costs in connection therewith, and furnish Engineer the required certificates of inspection or approval. D. Contractor shall be responsible for arranging and obtaining and shall pay all costs in connection with any inspections, tests, or approvals required for Owner's and Engineer's acceptance of materials or equipment to be incorporated in the Work; or acceptance of materials, mix designs, or equipment submitted for approval prior to Contractor's purchase thereof for incorporation in the Work. Such inspections, tests, or approvals shall be performed by organizations acceptable to Owner and Engineer. 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, Contractor shall, if requested by Engineer, uncover such Work 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. D. If the uncovered Work is not found to be defective,Contractor shall be allowed an increase in the Contract Price or an extension of the Contract Times, or both, directly attributable to such uncovering, exposure, observation, inspection, testing, replacement, and reconstruction. If the parties are unable to agree as to the amount or extent thereof, Contractor may make a Claim therefor as provided in Paragraph 10.05. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 49 of 62 EXHIBIT B 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 written notice, Contractor shall correct all defective Work, whether or not fabricated, installed, or completed, or, if the Work has been rejected by Engineer, remove it from the Project and replace it with Work that is not defective. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) arising out of or relating to such correction or removal (including but not limited to all costs of repair or replacement of work of others). B. When correcting defective Work under the terms of this Paragraph 13.06 or Paragraph 13.07, Contractor shall take no action that would void or otherwise impair Owner's special warranty and guarantee, if any, on said Work. 13.07 Correction Period A. If within one year after the date of Substantial Completion(or such longer period of time as may be prescribed by the terms of any applicable special guarantee required by the Contract Documents) or by any specific provision of the Contract Documents, any Work is found to be defective, or if the repair of any damages to the land or areas made available for Contractor's use by Owner or permitted by Laws and Regulations as contemplated in Paragraph 6.11.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 2. correct such defective Work; or 3. if the defective Work has been rejected by Owner, remove it from the Project and replace it with Work that is not defective, and 4. satisfactorily correct or repair or remove and replace any damage to other Work, to the work of others or other land or areas resulting therefrom. B. If Contractor does not promptly comply with the terms of Owner's written instructions, or in an emergency where delay would cause serious risk of loss or damage, Owner may have the defective Work corrected or repaired or may have the rejected Work removed and replaced. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 50 of 62 EXHIBIT B resolution costs) arising out of or relating to such correction or repair or such removal and replacement (including but not limited to all costs of repair or replacement of work of others) will be paid by Contractor. C. In special circumstances where a particular item of equipment is placed in continuous service before Substantial Completion of all the Work, the correction period for that item may start to run from an earlier date if so provided in the Specifications. D. Where defective Work (and damage to other Work resulting therefrom) has been corrected or removed and replaced under this Paragraph 13.07, the correction period hereunder with respect to such Work will be extended for an additional period of one year after such correction or removal and replacement has been satisfactorily completed. E. Contractor's obligations under this Paragraph 13.07 are in addition to any other obligation or warranty. The provisions of this Paragraph 13.07 shall not be construed as a substitute for, or a waiver of,the provisions of any applicable statute of limitation or repose. 13.08 Acceptance of Defective Work A. If, instead of requiring correction or removal and replacement of defective Work, Owner (and, prior to Engineer's recommendation of final payment, Engineer)prefers to accept it, Owner may do so. Contractor shall pay all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) attributable to Owner's evaluation of and determination to accept such defective Work (such costs to be approved by Engineer as to reasonableness) and for the diminished value of the Work to the extent not otherwise paid by Contractor pursuant to this sentence. If any such acceptance occurs prior to Engineer's recommendation of final payment, a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work, and Owner shall be entitled to an appropriate decrease in the Contract Price, reflecting the diminished value of Work so accepted. If the parties are unable to agree as to the amount thereof, Owner may make a Claim therefor as provided in Paragraph 10.05. If the acceptance occurs after such recommendation, an appropriate amount will be paid by Contractor to Owner. 13.09 Owner May Correct Defective Work A. If Contractor fails within a reasonable time after written notice from Engineer to correct defective Work, or to remove and replace rejected Work as required by Engineer in accordance with Paragraph 13.06.A, or if Contractor fails to perform the Work in accordance with the Contract Documents, or if Contractor fails to comply with any other provision of the Contract Documents, Owner may, after seven days written notice to Contractor, correct, or remedy any such deficiency. B. In exercising the rights and remedies under this Paragraph 13.09, Owner shall proceed expeditiously. In connection with such corrective or remedial action, Owner may exclude Contractor from all or part of the Site, take possession of all or part of the Work and suspend Contractor's services related thereto, take possession of Contractor's tools, appliances, construction equipment and machinery at the Site, and incorporate in the Work all materials and EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 51 of 62 EXHIBIT B equipment stored at the Site or for which Owner has paid Contractor but which are stored elsewhere. Contractor shall allow Owner, Owner's representatives, agents and employees, Owner's other contractors, and Engineer and Engineer's consultants access to the Site to enable Owner to exercise the rights and remedies under this Paragraph. C. All claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred or sustained by Owner in exercising the rights and remedies under this Paragraph 13.09 will be charged against Contractor, and a Change Order will be issued incorporating the necessary revisions in the Contract Documents with respect to the Work; and Owner shall be entitled to an appropriate decrease in the Contract Price. If the parties are unable to agree as to the amount of the adjustment, Owner may make a Claim therefor as provided in Paragraph 10.05. Such claims, costs, losses and damages will include but not be limited to all costs of repair, or replacement of work of others destroyed or damaged by correction,removal, or replacement of Contractor's defective Work. D. Contractor shall not be allowed an extension of the Contract Times because of any delay in the performance of the Work attributable to the exercise by Owner of Owner's rights and remedies under this Paragraph 13.09. ARTICLE 14—PAYMENTS TO CONTRACTOR AND COMPLETION 14.01 Schedule of Values A. The Schedule of Values established as provided in Paragraph 2.07.A will serve as the basis for progress payments and will be incorporated into a form of Application for Payment acceptable to Engineer. Progress payments on account of Unit Price Work will be based on the number of units completed. 14.02 Progress Payments A. Applications for Payments: 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 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 52 of 62 EXHIBIT B 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 of the executed Work as an experienced and qualified design professional, and on Engineer's review of the Application for Payment and the accompanying data and schedules, that to the best of Engineer's knowledge, information and belief: a. the Work has progressed to the point indicated; b. the quality of the Work is generally in accordance with the Contract Documents (subject to an evaluation of the Work as a functioning whole prior to or upon Substantial Completion, the results of any subsequent tests called for in the Contract Documents, a final determination of quantities and classifications for Unit Price Work under Paragraph 9.07, and any other qualifications stated in the recommendation); and c. the conditions precedent to Contractor's being entitled to such payment appear to have been fulfilled in so far as it is Engineer's responsibility to observe the Work. 3. By recommending any such payment Engineer will not thereby be deemed to have represented that: a. inspections made to check the quality or the quantity of the Work as it has been performed have been exhaustive, extended to every aspect of the Work in progress, or involved detailed inspections of the Work beyond the responsibilities specifically assigned to Engineer in the Contract Documents; or b. 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 EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 53 of 62 EXHIBIT B b. for the means, methods, techniques, sequences, or procedures of construction, or the safety precautions and programs incident thereto, or c. for Contractor's failure to comply with Laws and Regulations applicable to Contractor's performance of the Work, or d. to make any examination to ascertain how or for what purposes Contractor has used the moneys paid on account of the Contract Price, or e. to determine that title to any of the Work, materials, or equipment has passed to Owner free and clear of any Liens. 5. Engineer may refuse to recommend the whole or any part of any payment if, in Engineer's opinion, it would be incorrect to make the representations to Owner stated in Paragraph 14.02.B.2. Engineer may also refuse to recommend any such payment or, because of subsequently discovered evidence or the results of subsequent inspections or tests, revise or revoke any such payment recommendation previously made, to such extent as may be necessary in Engineer's opinion to protect Owner from loss because: a. the Work is defective, or completed Work has been damaged, requiring correction or replacement; b. the Contract Price has been reduced by Change Orders; 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: 1. Owner may refuse to make payment of the full amount recommended by Engineer because: a. claims have been made against Owner on account of Contractor's performance or furnishing of the Work; b. Liens have been filed in connection with the Work, except where Contractor has delivered a specific bond satisfactory to Owner to secure the satisfaction and discharge of such Liens; c. there are other items entitling Owner to a set-off against the amount recommended; or EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 54 of 62 EXHIBIT B 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 15.02.A. 2. If Owner refuses to make payment of the full amount recommended by Engineer, Owner will give Contractor immediate written notice (with a copy to Engineer) stating the reasons for such action and promptly pay Contractor any amount remaining after deduction of the amount so withheld. Owner shall promptly pay Contractor the amount so withheld, or any adjustment thereto agreed to by Owner and Contractor, when Contractor remedies the reasons for such action. 3. Upon a subsequent determination that Owner's refusal of payment was not justified, the amount wrongfully withheld shall be treated as an amount due as determined by Paragraph 14.02.C.1 and subject to interest as provided in the Agreement. 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. C. If Engineer considers the Work substantially complete, Engineer will deliver to Owner a tentative certificate of Substantial Completion which shall fix the date of Substantial Completion. There shall be attached to the certificate a tentative list of items to be completed or corrected before final payment. Owner shall have seven days after receipt of the tentative certificate during which to make written objection to Engineer as to any provisions of the certificate or attached list. If, after considering such objections, Engineer concludes that the Work is not substantially complete, Engineer will, within 14 days after submission of the tentative certificate to Owner, notify Contractor in writing, stating the reasons therefor. If, after consideration of Owner's objections, Engineer considers the Work substantially complete, Engineer will, within said 14 days, execute and deliver to Owner and Contractor a definitive certificate of Substantial Completion (with a revised tentative list of items to be completed or corrected) reflecting such changes from the tentative certificate as Engineer believes justified after consideration of any objections from Owner. D. At the time of delivery of the tentative certificate of Substantial Completion, Engineer will deliver to Owner and Contractor a written recommendation as to division of responsibilities EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 55 of 62 EXHIBIT B pending final payment between Owner and Contractor with respect to security, operation, safety, and protection of the Work, maintenance, heat, utilities, insurance, and warranties and guarantees. Unless Owner and Contractor agree otherwise in writing and so inform Engineer in writing prior to Engineer's issuing the definitive certificate of Substantial Completion, Engineer's aforesaid recommendation will be binding on Owner and Contractor until final payment. E. Owner shall have the right to exclude Contractor from the Site after the date of Substantial Completion subject to allowing Contractor reasonable access to remove its property and complete or correct items on the tentative list. 14.05 Partial Utilization A. Prior to Substantial Completion of all the Work, Owner may use or occupy any substantially completed part of the Work which has specifically been identified in the Contract Documents, or which Owner, Engineer, and Contractor agree constitutes a separately functioning and usable part of the Work that can be used by Owner for its intended purpose without significant interference with Contractor's performance of the remainder of the Work, subject to the following conditions: 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, Owner, and Engineer will follow the procedures of Paragraph 14.04.A through D for that part of the Work. 2. Contractor at any time may notify Owner and Engineer in writing that Contractor considers any such part of the Work ready for its intended use and substantially complete and request Engineer to issue a certificate of Substantial Completion for that part of the Work. 3. Within a reasonable time after either such request, Owner, Contractor, and Engineer shall make an inspection of that part of the Work to determine its status of completion. If Engineer does not consider that part of the Work to be substantially complete, Engineer will notify Owner and Contractor in writing giving the reasons therefor. If Engineer considers that part of the Work to be substantially complete, the provisions of Paragraph 14.04 will apply with respect to certification of Substantial Completion of that part of the Work and the division of responsibility in respect thereof and access thereto. 4. No use or occupancy or separate operation of part of the Work may occur prior to compliance with the requirements of Paragraph 5.10 regarding property insurance. 14.06 Final Inspection A. Upon written notice from Contractor that the entire Work or an agreed portion thereof is complete, Engineer will promptly make a final inspection with Owner 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. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 56 of 62 EXHIBIT B 14.07 Final Payment A. Application for Payment: 1. After Contractor has, in the opinion of Engineer, satisfactorily completed all corrections identified during the final inspection and has delivered, in accordance with the Contract Documents, all maintenance and operating instructions, schedules, guarantees, bonds, certificates or other evidence of insurance, certificates of inspection, marked-up record documents (as provided in Paragraph 6.12), and other documents, Contractor may make application for final payment following the procedure for progress payments. 2. The final Application for Payment shall be accompanied(except as previously delivered)by: a. all documentation called for in the Contract Documents, including but not limited to the evidence of insurance required by Paragraph 5.04.B.6; b. consent of the surety, if any,to final payment; c. a list of all Claims against Owner that Contractor believes are unsettled; and d. complete and legally effective releases or waivers (satisfactory to Owner) of all Lien rights arising out of or Liens filed in connection with the Work. 3. In lieu of the releases or waivers of Liens specified in Paragraph 14.07.A.2 and as approved by Owner, Contractor may furnish receipts or releases in full and an affidavit of Contractor that: (i) the releases and receipts include all labor, services, material, and equipment for which a Lien could be filed; and (ii) all payrolls, material and equipment bills, and other indebtedness connected with the Work for which Owner might in any way be responsible, or which might in any way result in liens or other burdens on Owner's property, have been paid or otherwise satisfied. If any Subcontractor or Supplier fails to furnish such a release or receipt in full, Contractor may furnish a bond or other collateral satisfactory to Owner to indemnify Owner against any Lien. B. Engineer's Review of Application and Acceptance: 1. If, on the basis of Engineer's observation of the Work during construction and final inspection, and Engineer's review of the final Application for Payment and accompanying documentation as required by the Contract Documents, Engineer is satisfied that the Work has been completed and Contractor's other obligations under the Contract Documents have been fulfilled, Engineer will, within ten days after receipt of the final Application for Payment, indicate in writing Engineer's recommendation of payment and present the Application for Payment to Owner for payment. At the same time Engineer will also give written notice to Owner and Contractor that the Work is acceptable subject to the provisions of Paragraph 14.09. Otherwise, Engineer will return the Application for Payment to Contractor, indicating in writing the reasons for refusing to recommend final payment, in which case Contractor shall make the necessary corrections and resubmit the Application for Payment. C. Payment Becomes Due: EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rig hts reserved. Page 57 of 62 EXHIBIT B 1. Thirty days after the presentation to Owner of the Application for Payment and accompanying documentation, the amount recommended by Engineer, less any sum Owner is entitled to set off against Engineer's recommendation, including but not limited to liquidated damages, will become due and will be paid by Owner to Contractor. 14.08 Final Completion Delayed A. If, through no fault of Contractor, final completion of the Work is significantly delayed, and if Engineer so confirms, Owner shall, upon receipt of Contractor's final Application for Payment (for Work fully completed and accepted) and recommendation of Engineer, and without terminating the Contract, make payment of the balance due for that portion of the Work fully completed and accepted. If the remaining balance to be held by Owner for Work not fully completed or corrected is less than the retainage stipulated in the Agreement, and if bonds have been furnished as required in Paragraph 5.01, the written consent of the surety to the payment of the balance due for that portion of the Work fully completed and accepted shall be submitted by Contractor to Engineer with the Application for such payment. Such payment shall be made under the terms and conditions governing final payment, except that it shall not constitute a waiver of Claims. 14.09 Waiver of Claims A. The making and acceptance of final payment will constitute: 1. a waiver of all Claims by Owner against Contractor, except Claims arising from unsettled Liens, from defective Work appearing after final inspection pursuant to Paragraph 14.06, from failure to comply with the Contract Documents or the terms of any special guarantees specified therein, or from Contractor's continuing obligations under the Contract Documents; and 2. a waiver of all Claims by Contractor against Owner other than those previously made in accordance with the requirements herein and expressly acknowledged by Owner in writing as still unsettled. ARTICLE 15—SUSPENSION OF WORK AND TERMINATION 15.01 Owner May Suspend Work A. At any time and without cause, Owner may suspend the Work or any portion thereof for a period of not more than 90 consecutive days by notice in writing to Contractor and Engineer which will fix the date on which Work will be resumed. Contractor shall resume the Work on the date so fixed. Contractor shall be granted an adjustment in the Contract Price or an extension of the Contract Times, or both, directly attributable to any such suspension if Contractor makes a Claim therefor as provided in Paragraph 10.05. 15.02 Owner May Terminate for Cause A. The occurrence of any one or more of the following events will justify termination for cause: EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 58 of 62 EXHIBIT B 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 repeated 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: 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 15.02.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 terminated by Owner, the termination will not affect any rights or remedies of Owner against Contractor then existing or which may thereafter accrue. Any retention or payment of moneys due Contractor by Owner will not release Contractor from liability. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 59 of 62 EXHIBIT B F. If and to the extent that Contractor has provided a performance bond under the provisions of Paragraph 5.01.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, terminate the Contract. In such case, Contractor shall be paid for(without duplication of any items): 1. completed and acceptable Work executed in accordance with the Contract Documents prior to the effective date of termination, including fair and reasonable sums for overhead and profit on such Work; 2. expenses sustained prior to the effective date of termination in performing services and furnishing labor, materials, or equipment as required by the Contract Documents in connection with uncompleted Work,plus fair and reasonable sums for overhead and profit on such expenses; 3. all claims, costs, losses, and damages (including but not limited to all fees and charges of engineers, architects, attorneys, and other professionals and all court or arbitration or other dispute resolution costs) incurred in settlement of terminated contracts with Subcontractors, Suppliers, and others; and 4. reasonable expenses directly attributable to termination. B. Contractor shall not be paid on account of loss of anticipated profits or revenue or other economic loss arising out of or resulting from such termination. 15.04 Contractor May Stop Work or Terminate A. If, through no act or fault of Contractor, (i) the Work is suspended for more than 90 consecutive days by Owner or under an order of court or other public authority, or(ii)Engineer fails to act on any Application for Payment within 30 days after it is submitted, or(iii) Owner fails for 30 days to pay Contractor any sum finally determined to be due, then Contractor may, upon seven days written notice to Owner and Engineer, and provided Owner or Engineer do not remedy such suspension or failure within that time, terminate the Contract and recover from Owner payment on the same terms as provided in Paragraph 15.03. B. In lieu of terminating the Contract and without prejudice to any other right or remedy, if Engineer has failed to act on an Application for Payment within 30 days after it is submitted, or Owner has failed for 30 days to pay Contractor any sum finally determined to be due, Contractor may, seven days after written notice to Owner and Engineer, stop the Work until payment is made of all such amounts due Contractor, including interest thereon. The provisions of this Paragraph 15.04 are not intended to preclude Contractor from making a Claim under Paragraph 10.05 for an adjustment in Contract Price or Contract Times or otherwise for expenses or damage directly attributable to Contractor's stopping the Work as permitted by this Paragraph. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 60 of 62 EXHIBIT B 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 10.05.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 10.05.0 or a denial pursuant to Paragraphs 10.05.C.3 or 10.05.D shall become final and binding 30 days after termination of the mediation unless, within that time period, Owner or Contractor: 1. elects in writing to invoke any dispute resolution process provided for in the Supplementary Conditions; or 2. agrees with the other party to submit the Claim to another dispute resolution process; or 3. gives written notice to the other party of the 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. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 61 of 62 EXHIBIT B 17.03 Cumulative Remedies A. The duties and obligations imposed by these General Conditions and the rights and remedies available hereunder to the parties hereto are in addition to, and are not to be construed in any way as a limitation of any rights and remedies available to any or all of them which are otherwise imposed or available by Laws or Regulations, by special warranty or guarantee, or by other provisions of the Contract Documents. The provisions of this Paragraph will be as effective as if repeated specifically in the Contract Documents in connection with each particular duty, obligation,right, and remedy to which they apply. 17.04 Survival of Obligations A. All representations, indemnifications, warranties, and guarantees made in, required by, or given in accordance with the Contract Documents, as well as all continuing obligations indicated in the Contract Documents, will survive final payment, completion, and acceptance of the Work or termination or completion of the Contract or termination of the services of Contractor. 17.05 Controlling Law A. This Contract is to be governed by the law of the state in which the Project is located. 17.06 Headings A. Article and paragraph headings are inserted for convenience only and do not constitute parts of these General Conditions. EJCDC C-700 Standard General Conditions of the Construction Contract Copyright©2007 National Society of Professional Engineers for EJCDC. All rights reserved. Page 62 of 62 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 1 Supplementary Conditions These Supplementary Conditions amend or supplement the Standard General Conditions of the Construction Contract (No. C-700, 2007 Edition) and other provisions of the Contract Documents as indicated below. All provisions that are not so amended or supplemented remain in full force and effect. The terms used in these Supplementary Conditions will have the meanings indicated in the General Conditions. Additional terms used in these Supplementary Conditions have the meanings stated below, which are applicable to both the singular and plural thereof. TABLE OF CONTENTS Page SC 1.01.A.2 Agency 1 SC-1.01.A.3 Application for Payment 1 SC-1.01.A.9 Change Order 2 SC-1.01.A.19 Engineer's Consultants 2 SC-4.02 Subsurface and Physical Conditions 2 SC-4.06 Hazardous Environmental Condition at Site 3 SC-5.04 Contractor's Liability Insurance 3 SC-6.05.0 Substitutes and "Or-Equals", Engineer's Evaluation 5 SC-6.06 Concerning Subcontractors, Suppliers, and Others 5 SC-9.03.A Project Representative 6 SC-14.02.A.3 Retainage 6 SC-14.02.A.4 Applications for Payment 6 SC-14.02.C.1 Payment Becomes Due 6 SC-18 Federal Requirements 7 SC-19 Department of Water Supply Requirements 9 SC-1.01.A.2. Add the following new Paragraph after Paragraph 1.01.A.1: The Project is financed in whole or in part by USDA Rural Utilities Service pursuant to the Consolidated Farm and Rural Development Act(7 USC Section 1921 et seq.). The Rural Utilities Service programs are administered through the USDA Rural Development offices; therefore, the Agency for these documents is USDA Rural Development. SC-1.01.A.3. Add the following language to the end of Paragraph 1.01.A.3: The Application for Payment form to be used on this Project is EJCDC No. C-620. The Agency must approve all Applications for Payment before payment is made. SC-1.01.A.9. Add the following language to the end of Paragraph 1.01.A.9: The Change Order form to be used on this Project is EJCDC No. C-941. Agency approval is required before Change Orders are effective. 00800-1 EXHIBIT B RUS Bulletin 1780-26 Attachment 11 Page 2 SC-1.01.A.19. Add the following language to the end of Paragraph 1.01.A.19: The Engineer's Consultants on this project are: Geometrician Associates, Environmental Consultant and KKM Surveys, Surveyor SC-4.02. Delete Paragraphs 4.02.A and 4.02.B in their entirety and insert the following: A. No reports or explorations or tests of subsurface conditions at or contiguous to the Site are known to the Owner or Engineer. SC-4.06. Delete Paragraphs 4.06.A and 4.06.B in their entirety and insert the following: A. No reports or drawings of Hazardous Environmental Conditions at or contiguous to the Site are known to the Owner or Engineer. B. Not used. SC-5.04. Add the following new paragraph immediately after Paragraph 5.04.B: C. The limits of liability for insurance required by Paragraph 5.04 of the General Conditions shall provide coverage for not less than the following amounts or greater where required by Laws and Regulations: 1. Workers' Compensation, and related coverages under Paragraphs 5.04.A.1 and A.2 of the General Conditions: a. State: Statutory b. Applicable Federal (e.g., Longshoremen's) Statutory c. Employer's Liability {$ 500,000} 2. Contractor's General Liability under Paragraphs 5.04.A.3 through A.6 of the General Conditions which shall include completed operations and product liability coverages and eliminate the exclusion with respect to property under the care, custody, and control of the Contractor: a. General Aggregate {$2,000,000) b. Products - Completed Operations Aggregate {$ 1,000,000} c. Personal and Advertising Injury {$ 1,000,000} d. Each Occurrence (Bodily Injury and Property Damage) {$ 1,000,000) e. Property Damage liability insurance will provide 00800-2 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 3 Explosion, Collapse, and Underground coverages where applicable. f. Excess or Umbrella Liability 1) General Aggregate {$ 5,000,000} 2) Each Occurrence {$ 5,000,000} 3. Automobile Liability under Paragraph 5.04.A.6 of the General Conditions: a. Bodily Injury: Each Person {$ 1, Each Accident {$ 1, b. Property Damage: Each Accident {$ 1,000,000} c. Combined Single Limit of {$ 1,000,000} 4. The Contractual Liability coverage required by paragraph 5.04.B.4 of the General Conditions shall provide coverage for not less than the following amounts: a. Bodily Injury: Each Person {$2,000,000} Each Accident {$2,000,000} b. Property Damage: Each Accident {$2,000,000} Annual Aggregate {$2,000,000} SC-6.05.C. Amend the paragraph by making two subparagraphs under the title C. Engineer's Evaluation. The paragraph text is retitled, 6.05.C.2 After Effective Date of Agreement. A new paragraph is added before this paragraph to read as follows: 1. During Bidding. The Contract, if awarded, will be on the basis of materials equipment specified or described in the Bidding Documents, or"or-equal" materials and equipment as defined in paragraph 6.05 of the General Conditions, or those substitute materials and equipment approved by the Engineer and identified by Addendum. The materials and equipment described in the Bidding Documents establish a standard of required type, function, and quality to be met by any proposed substitute or"or-equal" item. Request for Engineer's clarification of materials and equipment considered "or- equal" prior to the Effective Date of the Agreement must be received by the Engineer at least 5 days prior to the date for receipt of Bids. No item of material or equipment will be considered by Engineer as a substitute unless written request for approval has been submitted by Bidder and has been received by Engineer at least 15 days prior to the date for receipt of Bids. Each request shall conform to the requirements of Paragraph 6.05 of the General Conditions. The burden of proof of the merit of the proposed item is upon the Bidder. Engineer's decision of approval or disapproval of a proposed item will be final. If Engineer approves any proposed substitute item, such 00800-3 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 4 approval will be set forth in an Addendum issued to all prospective Bidders. Bidders shall not rely upon approvals made in any other manner. SC-6.06 Add a new paragraph immediately after Paragraph 6.06.G: The Contractor shall not award work valued at more than fifty (50%) percent of the Contract Price to Subcontractor(s), without prior written approval of the Owner. SC-9.03.A. Add the following language at the end of paragraph 9.03.A: The Engineer will provide Resident Project Representative services for this project. The Duties, Responsibilities, and Limitations of Authority of the Resident Project Representative will be as stated in Exhibit D of the Agreement Between Owner and Engineer, E-500, 2008 Edition, as amended and executed for this specific Project. SC-14.02.A.3. Add the following language at the end of paragraph 14.02.A.3: No payments will be made that would deplete the retainage, place in escrow any funds that are required for retainage, or invest the retainage for the benefit of the Contractor. SC-14.02.A.4. Add the following new Paragraph after Paragraph 14.02.A.3: The Application for Payment form to be used on this Project is EJCDC No. C-620. The Agency must approve all Applications for Payment before payment is made. SC-14.02.C.1. Delete Paragraph 14.02.C.1 in its entirety and insert the following in its place: 1. The Application for Payment with Engineer's recommendations will be presented to the Owner and Agency for consideration. If both the Owner and Agency find the Application for Payment acceptable, the recommended amount less any reduction under the provisions of Paragraph 14.02.D will become due ten days after the Application for Payment is presented to the Owner, and the Owner will make payment to the Contractor. SC-18 Add a new Article 18, "Federal Requirements," after Article 17. SC-18.01 Add the following language at the beginning of Article 18 with the title "Agency Not a Party." A. This Contract is expected to be funded in part with funds provided by Agency. Neither Agency, nor any of its departments, entities, or employees is a party to this Contract. SC-18.02 Add the following language after Article 18.O1.A with the title "Contract Approval." A. Owner and Contractor will furnish Owner's attorney such evidence as required so that Owner's attorney can complete and execute the following "Certificate of Owner's 00800-4 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 5 Attorney" (Exhibit GC-A) before Owner submits the executed Contract Documents to Agency for approval. B. Concurrence by Agency in the award of the Contract is required before the Contract is effective. SC 18.03 Add the following language after Article 18.02.B with the title"Conflict of Interest." A. Contractor may not knowingly contract with a supplier or manufacturer if the individual or entity who prepared the plans and specifications has a corporate or financial affiliation with the supplier or manufacturer. Owner's officers, employees, or agents shall not engage in the award or administration of this Contract if a conflict of interest, real or apparent, would be involved. Such a conflict would arise when: (i)the employee, officer or agent; (ii) any member of their immediate family; (iii) their partner or (iv) an organization that employs, or is about to employ, any of the above, has a financial interest in Contractor. Owner's officers, employees, or agents shall neither solicit nor accept gratuities, favors or anything of monetary value from Contractor or subcontractors. SC-18.04 Add the following language after Article 18.03.A with the title "Gratuities." A. If Owner finds after a notice and hearing that Contractor, or any of Contractor's agents or representatives, offered or gave gratuities (in the form of entertainment, gifts, or otherwise) to any official, employee, or agent of Owner or Agency in an attempt to secure this Contract or favorable treatment in awarding, amending, or making any determinations related to the performance of this Contract, Owner may, by written notice to Contractor,terminate this Contract. Owner may also pursue other rights and remedies that the law or this Contract provides. However, the existence of the facts on which Owner bases such findings shall be an issue and may be reviewed in proceedings under the dispute resolution provisions of this Contract. B. In the event this Contract is terminated as provided in paragraph 18.04.A, Owner may pursue the same remedies against Contractor as it could pursue in the event of a breach of this Contract by Contractor. As a penalty, in addition to any other damages to which it may be entitled by law, Owner may pursue exemplary damages in an amount(as determined by Owner) which shall not be less than three nor more than ten times the costs Contractor incurs in providing any such gratuities to any such officer or employee. SC-18.05 Add the following language after Article 18.04.B with the title "Audit and Access to Records." A. Owner, Agency, the Comptroller General of the United States, or any of their duly authorized representatives, shall have access to any books, documents, papers, and records of the Engineer which are pertinent to the Agreement, for the purpose of making audits, examinations, excerpts, and transcriptions. Engineer shall maintain all required records for three years after final payment is made and all other pending matters are closed. 00800-5 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 6 SC-18,06 Add the following language after Article 18.05.A with the title"Small, Minority and Women's Businesses." A. If Contractor intends to let any subcontracts for a portion of the work, Contractor shall take affirmative steps to assure that small, minority and women's businesses are used when possible as sources of supplies, equipment, construction, and services. Affirmative steps shall consist of: (1) including qualified small, minority and women's businesses on solicitation lists; (2) assuring that small, minority and women's businesses are solicited whenever they are potential sources; (3) dividing total requirements when economically feasible, into small tasks or quantities to permit maximum participation of small, minority, and women's businesses; (4) establishing delivery schedules, where the requirements of the work permit, which will encourage participation by small, minority and women's businesses; (5) using the services and assistance of the Small Business Administration and the Minority Business Development Agency of the U.S. Department of Commerce; (6) requiring each party to a subcontract to take the affirmative steps of this section; and(7) Contractor is encouraged to procure goods and services from labor surplus area firms. SC-18.07 Add the following after Article 18.06.A with the title"Anti-Kickback." A. Contractor shall comply with the Copeland Anti-Kickback Act(18 USC 874 and 40 USC 276c)as supplemented by Department of Labor regulations (29 CFR Part 3, "Contractors and Subcontractors on Public Buildings or Public Works Financed in Whole or in Part by Loans or Grants of the United States"). The Act provides that Contractor or subcontractor shall be prohibited from inducing, by any means, any person employed in the construction, completion, or repair of public facilities, to give up any part of the compensation to which they are otherwise entitled. Owner shall report all suspected or reported violations to Agency. SC-18.08 Add the following after Article 18.07.A with the title"Clean Air and Pollution Control Acts." A. If this Contract exceeds $100,000, Compliance with all applicable standards, orders, or requirements issued under section 306 of the Clean Air Act(42 U.S.C. 1857(h) and 42 USC 7401et. seq.), section 508 of the Clean Water Act(33 U.S.C. 1368) and Federal Water Pollution Control Act (33 USC 1251 et seq.), Executive Order 11738, and Environmental Protection Agency regulations (40 CFR part 15) is required. Contractor will report violations to the Agency and the Regional Office of the EPA. SC-18.09 Add the following after Article 18.08 with the title "State Energy Policy." A. Contractor shall comply with the Energy Policy and Conservation Act(P.L. 94-163). Mandatory standards and policies relating to energy efficiency, contained in any applicable State Energy Conservation Plan, shall be utilized. SC-18.10 Add the following after Article 18.09 with the title "Equal Opportunity Requirements." 00800-6 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 7 A. If this Contract exceeds $10,000, Contractor shall comply with Executive Order 11246, "Equal Employment Opportunity," as amended by Executive Order 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity,"and as supplemented by regulations at 41 CFR part 60, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor." B. Contractor's compliance with Executive Order 11246 shall be based on its implementation of the Equal Opportunity Clause, specific affirmative active obligations required by the Standard Federal Equal Employment Opportunity Construction Contract Specifications, as set forth in 41 CFR Part 60-4 and its efforts to meet the goals established for the geographical area where the Contract is to be performed. The hours of minority and female employment and training must be substantially uniform throughout the length of the Contract, and in each trade, and Contractor shall make a good faith effort to employ minorities and women evenly on each of its projects. The transfer of minority or female employees or trainees from Contractor to Contractor or from project to project for the sole purpose of meeting Contractor's goals shall be a violation of the Contract, the Executive Order, and the regulations in 41 CFR Part 60-4. Compliance with the goals will be measured against the total work hours performed. C. Contractor shall provide written notification to the Director of the Office of Federal Contract Compliance Programs within 10 working days of award of any construction subcontract in excess of$10,000 at any tier for construction work under the Contract resulting from this solicitation. The notification shall list the name, address, and telephone number of the subcontractor; employer identification number; estimated dollar amount of subcontract; estimated starting and completion dates of the subcontract; and the geographical area in which the Contract is to be performed. SC-18.11 Add the following after Article 18.10.0 with the title "Restrictions on Lobbying." A. Contractor and each subcontractor shall comply with Restrictions on Lobbying (Public Law 101-121, Section 319)as supplemented by applicable Agency regulations. This Law applies to the recipients of contracts and subcontracts that exceed $100,000 at any tier under a Federal loan that exceeds $150,000 or a Federal grant that exceeds $100,000. If applicable, Contractor must complete a certification form on lobbying activities related to a specific Federal loan or grant that is a funding source for this Contract. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, or an employee of a member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 USC 1352. Each tier shall disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Certifications and disclosures are forwarded from tier to tier up to the Owner. Necessary certification and disclosure forms shall be provided by Owner. SC-18.12 Add the following after Article 18.11.A with the title"Environmental Requirements." 00800-7 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 8 When constructing a project involving trenching and/or other related earth excavations, Contractor shall comply with the following environmental constraints: A. Wetlands—When disposing of excess, spoil, or other construction materials on public or private property, Contractor shall not fill in or otherwise convert wetlands. B. Floodplains—When disposing of excess, spoil, or other construction materials on public or private property, Contractor shall not fill in or otherwise convert 100 year floodplain areas delineated on the latest Federal Emergency Management Agency Floodplain Maps, or other appropriate maps, i.e., alluvial soils on NRCS Soil Survey Maps. C. Historic Preservation—Any excavation by Contractor that uncovers an historical or archaeological artifact shall be immediately reported to Owner and a representative of Agency. Construction shall be temporarily halted pending the notification process and further directions issued by Agency after consultation with the State Historic Preservation Officer(SHPO). D. Endangered Species—Contractor shall comply with the Endangered Species Act, which provides for the protection of endangered and/or threatened species and critical habitat. Should any evidence of the presence of endangered and/or threatened species or their critical habitat be brought to the attention of Contractor, Contractor will immediately report this evidence to Owner and a representative of Agency. Construction shall be temporarily halted pending the notification process and further directions issued by Agency after consultation with the U.S. Fish and Wildlife Service. E. Mitigation Measures—If the project had an Environmental Report, Environmental Assessment, or Environmental Impact Statement to meet the requirements of the National Environmental Policy Act, compliance with the mitigation measures, if any, in that document are hereby included as a condition of this contract. 00800-8 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 9 SC-19 Add a new Article 19, "Department of Water Supply Requirements," after new Article 18. 1. WATER SYSTEM STANDARDS: "Water System Standards, State of Hawai`i" dated 2002, as amended is hereby made a part of this contract and may be purchased as the Office of the Manager-Chief Engineer, 345 Kekuanao`a Street, Suite 20, Hilo, Hawai`i, at a cost of $20.00 (hard copy) or $6.00 (CD Rom). 2. AWARD AND EXECUTION OF CONTRACT: A. AWARD OF CONTRACT: In accordance with Section 103-53, Hawaii Revised Statutes, as amended, an original tax clearance certificate from both the State Department of Taxation and the Internal Revenue Service (IRS) must be certified and submitted to the Department of Water Supply before the contract is entered into. If the bidder is unable to secure these tax clearance certificates, then in lieu of these certificates, the bidder shall submit the required certification letters from these taxing agencies in conformance with Section 103-53, Hawaii Revised Statutes. The timeline for the award and execution of the contract to the lowest responsible bidder is important to the Department. Although Section 103-53, Hawaii Revised Statutes does not require submission of the tax clearance certificates at the time of bidding, the Department requests all bidders to submit these tax clearances or certification letters prior to bid opening if practicable, to expedite entering into the contract. Failure to provide tax clearances prior to bid opening will not, however, disqualify the bidder. Inability to provide tax clearances or certification letters at the time of award will disqualify the bidder. The Department of Water Supply reserves the right to accept or reject any and all bids and to waive any and all defects in the best interest of the Department of Water Supply. B. COMPLIANCE WITH LAWS: 1) All bidders are advised that if awarded a contract under this solicitation, Bidder shall, prior to award of the contract, furnish proof of compliance with the requirements of§3-122-112, HAR: a. Chapter 237, tax clearance; b. Chapter 383, unemployment insurance; c. Chapter 386, workers' compensation; 00800-9 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 10 d. Chapter 392, temporary disability insurance; e. Chapter 393, prepaid health care; and f. One of the following: (1) Be incorporated or organized under the laws of the State (hereinafter referred to as a "Hawai`i business"); or (2) Be registered to do business in the State (hereinafter referred to as a "compliant non-Hawai`i business"). 2) TO BE ELIGIBLE FOR AWARD THE BIDDER MUST COMPLY AS FOLLOWS: a. Hawaii Business: A business entity referred to as a "Hawaii business", is registered and incorporated or organized under the laws of the State of Hawaii. A Hawaii business that is a sole proprietorship, however, is not required to register with the Department of Commerce and Consumer Affairs Business Registration Division (BREG). A Bidder's status as sole proprietor or other business entity and its business street address indicated on the Bid Form will be used to confirm that the Bidder is a Hawai`i business. b. Compliant Non-Hawaii Business: A business entity referred to as a "compliant non-Hawai`i business," is not incorporated or organized under the laws of the State of Hawaii but is registered to do business in the State. c. The above certificates should be applied for and submitted to the Department as soon as possible. If a valid certificate is not submitted on a timely basis for award of a contract, an offer otherwise responsive and responsible may not receive the award. d. All contractors must remain in compliance with all laws throughout the contract period. Proof of such compliance, will be required for final payment. A contractor making a false affirmation shall be suspended and may be debarred pursuant to section 103D-702, HRS. e. Acceptable verification is through Hawaii Compliance Express (HCE). Vendors wishing to do business with the DWS must register in HCE and be in compliance. HCE is a one-stop online program where vendors verify and 00800-10 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 11 manage their compliance. Once a vendor is registered, HCE provides proof of compliance/compliance documentation. There is a nominal fee to subscribe to HCE. Please note that it may take two of more weeks to establish a vendor account in HCE. For more information and tor register, see http://vendors.ehawaii.gov. 3) Pursuant to HAR 3-122-192 (Anti-Collusion Certification) and by accepting the award of this contract, the bidder certifies that the construction price was independently arrived at without any collusion. 4) Pursuant to HRS 396-18 and by accepting the award of this contract, the bidder certifies that they have and maintain a Company Safety and Health Program. 5) Pursuant to HRS 11-355 (formerly under HRS 11-205.5) and by accepting the award of this contract, the bidder acknowledges that campaign contributions are prohibited from specified State or County government contractors during the term of the contract if the contractors are paid with funds appropriated by a legislative body. By accepting the award of this contract, the contractor confirms that they have abided by this law. 3. LEGAL RELATION AND RESPONSIBILITIES: A. LICENSED BIDDERS: All prospective bidders shall be Contractors licensed in the State of Hawai`i for the appropriate work proposed, at the time of bidding and throughout the contract period and the burden of proof shall rest with the bidder. No bid will be received from any unlicensed bidder. B. PERMITS AND LICENSES: The Contractor shall procure all other required permits and licenses, pay all charges and fees, and give all notices necessary and incidental for the due and lawful prosecution of the work. 4. PROSECUTION AND PROGRESS: A. LOCAL LABOR: The Contractor shall meet the requirements of HRS Chapter 103B— Employment of State Residents on Construction contracts. 00800-11 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 12 1) DEFINITIONS FOR TERMS USED IN ACT 192, SLH 2011: a. "Contract" means contracts for construction under 103D, HRS. b. "Contractor" has the same meaning as in section 103D-104, HRS, provided that "contractor" includes a Subcontractor where applicable. c. "Construction" has the same meaning as in section 103D-104, HRS. d. "Procurement Officer: has the same meaning as in section 103D- 104, HRS. e. "Resident" means a person who is physically present in the State of Hawai`i at the time the person claims to have established the person's domicile in the State of Hawai`i and shows the person's intent is to make Hawai`i the person's primary residence. f. "Shortage trade" means a construction trade in which there is a shortage of Hawai`i residents qualified to work in the trade as determined by the Department of Labor and Industrial Relations. 2) HRS CHAPTER 103B as amended by ACT 192, SLH 2011 - EMPLOYMENT OF STATE RESIDENTS REQUIREMENT: a. A Contractor awarded a contract shall ensure that Hawai`i residents compose not less than eighty percent (80%) of the workforce employed to perform the contract work on the project. The eighty percent (80%) requirement shall be determined by dividing the total number of hours worked on the contract by Hawai`i residents, by the total number of hours worked on the contract by all employees of the contractor in the performance of the contract. The hours worked by any Subcontractor of the Contractor shall count towards the calculation of this section. The hours worked by employees within shortage trades as determined by the Department of Labor and Industrial Relations, shall not be included in the calculations for the purpose of this action. b. Prior to award of a contract, an Offeror/Bidder may withdraw an offer/bid without penalty if the Offeror/Bidder finds that it is unable to comply with HRS Chapter 103B as amended by Act 192, SLH 2011. 00800-12 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 13 c. Prior to starting any construction work, the Contractor shall submit the subcontract dollar amount for each of its Subcontractors. d. The requirements of this section shall apply to any subcontract of $50,000 or more in connection with the Contractor, that is, such Subcontractors must also ensure that Hawai`i residents compose not less that eighty (80%) percent of the Subcontractor's workforce used to perform the subcontract. e. The Contractor and any Subcontractor whose subcontract is $50,000 or more shall comply with the requirements of HRS Chapter 103B as amended by Act 192, SLH 2011. (1) Certification of compliance shall be made in writing under oath by an officer of the General Contractor and applicable Subcontractors and submitted with the final payment request. (2) The certification of compliance shall be made under oath by an officer of the company by completing a "Certification of Compliance for Employment of State Residents" form and executing the Certificate before a licensed notary public. (3) In addition to the monthly certification as indicated above, the Contractor and Subcontractors shall maintain records such as certified payroll for laborers and mechanics who performed work at the site and time sheets for all other employees who performed work on the project. These records shall include the names, addresses and number of hours worked on the project by all employees of the Contractor and Subcontractor who performed work on the project to validate compliance with HRS Chapter 103B as amended by Act 192, SLH 2011. The Contractor and Subcontractors shall retain these records and provide access to the State for a minimum period of four (4) years after the final payment, except that if any litigation, claim, negotiation, investigation, audit or other action involving the records has been started before the expiration of the four (4) year period, the Contractor and Subcontractors shall retain the records until completion of the action and resolution of all issues that arise from it, or until the end of the four (4) year period, whichever occurs later. Furthermore, it shall be the Contractor's responsibility 00800-13 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 14 to enforce compliance with this provision by any Subcontractor. f. A General Contractor or applicable Subcontractor who fails to comply with this section shall be subject to any of the following sanctions: (1) With respect to the General Contractor, withholding of payment on the contract until the Contractor or its Subcontractor complies with HRS Chapter 103B as amended by Act 192, SL112011. (2) Proceedings for debarment or suspension of the Contractor or Subcontractor under Hawai`i Revised Statutes section 103D-702. 3) Conflict with Federal Law: This section shall not apply if the application of this section is in conflict with any federal law, or if the application of this section will disqualify the Department of Water Supply from receiving Federal funds or aid. 00800-14 EXHIBIT B RUS Bulletin 1780-26 Attachment I I Page 15 5. WAGES: 1) The attention of all bidders is called to Section 7 of the "General Requirements and Covenants", regarding hours of labor, wages and overtime pay, etc. The current minimum wage rates as promulgated by the Department of Labor and Industrial Relations, State of Hawaii and the U.S. Department of Labor (Davis-Bacon) shall be paid to the various classes of laborers and mechanics engaged in the performance of this contract on the job site. If there are any discrepancies, the Contractor shall pay the higher wage rate. 2) The prevailing wage rates (Sections 104-2, 103-54, 103-55, Hawaii Revised Statutes; Code of Federal Regulations, Title 29, Part 5.5 (a)(1) through (10), also written as, 29 CFR Part 5.5) applicable to the job will be attached to the executed contract documents. The Contractor is hereafter responsible to procure the current wage rate bulletins throughout the contract period, including any contract time extensions granted by the Board. In accordance with any applicable provisions of Sections 103-54 and 103-55, Hawaii Revised Statutes, the bidder shall submit the requisite certification relative to conditions of employment and shall comply with said conditions during the period of the contract. 3) Davis-Bacon Act, Title 29, Part 5, Code of Federal Regulations The consultant or construction contractor shall comply with the labor standards provided under this Act, including but not limited to: (a) Payment of prevailing wage rate; (b) Posting of prevailing wage rates and Davis-Bacon poster at the work site where it can be easily seen by the workers; (c) The following Wage Determination General Decision and Modification numbers apply to this contract: Wage Determination General Decision No.: HI100001 Prevailing Modification Number 6. STANDARDS FOR PUBLIC WORKS CONSTRUCTION: The "Standard Specifications for Public Works Construction", dated September 1986 and "Standard Details for Public Works Construction", dated September 1984, shall be made a part of this contract where applicable. The Contractor shall be responsible to obtain a copy from the Department of Public Works, County of Hawaii. 7. FORUM SELECTION CLAUSE: No action or proceeding involving this contract shall be commenced by either party except in the Circuit or District Courts of the Third Circuit, County of Hawaii, State 00800-15 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 16 of Hawai`i; nor shall any action commenced in such court be removed or transferred to any other State or Federal court. 8. TAX CLEARANCE: Tax Clearance (Section 103-53, Hawai`i Revised Statutes) -Tax clearances from the State Director of Taxation and the Internal Revenue Service to the effect that due tax returns have been filed and all taxes, penalties and interest have been paid are prerequisites to entering into the contract and to receipt of final payment, except as otherwise provided by statute. Progress payments are also subject to statutory assignment to satisfy delinquent taxes, interest and penalties. 9. TERMINATION OF SERVICES: It is understood and agreed that any services to be provided in accordance with the terms of this contract may be terminated immediately, in whole or in part, upon a finding by the County that the services must be provided by public employees pursuant to Civil Service Laws or that such services will be discontinued. It is further understood, that should such a finding be made, the County will not be liable under this contract for any resulting damages, and such a termination will not be considered a breach of this agreement. 10. TERMINATION FOR CONVENIENCE OF CONSTRUCTION CONTRACTS: The Manager-Chief Engineer may, when the interests of the Department so require, terminate this contract in whole or in part for the convenience of the Department. The Manager-Chief Engineer shall give written notice of the termination to the contractor, specifying the part of the contract terminated and when termination becomes effective. Except as may be otherwise provided in this contract, said termination for convenience shall be subject to the contract provisions set forth in HAR Section 3-125-22, "Termination for Convenience of Construction Contracts" which are hereby incorporated by reference. 11. NONDISCRIMINATION IN WATER BOARD CONTRACTS: Pursuant to Executive Order No. 142, County of Hawai`i, dated February 11, 2005, during the performance of this contract, the contractor agrees as follows: 1) The contractor shall comply with all requirements set forth in Federal and State laws and regulations relative to Title VI of the Civil Rights Act of 1964, as amended, which provide for non-discrimination in federally assisted programs. 2) The contractor shall not discriminate against any employee or applicant for employment because of race, ancestry/national origin, religion, color, disability, age, marital status, military status, veteran's status, 00800-16 EXHIBIT B RUS Bulletin 1780-26 Attachment H Page 17 sexual orientation, lactation, arrest and court record, citizenship, or any other classification protected by state or federal law. The contractor shall assure that applicants are employed and that employees are treated during employment without regard to race, ancestry/national origin, religion, color, disability, age, marital status, military status, veteran's status, sexual orientation, lactation, arrest and court record, citizenship, or any other classification protected by state or federal law. 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 pay or other forms of compensation; and selection for training. The contractor agrees to post in conspicuous places notices to be provided by the contracting officer setting forth the provisions of the nondiscrimination clause. 3) The contractor shall in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants shall receive consideration for employment without regard to race, ancestry/national origin, religion, color, disability, age, marital status, military status, veteran's status, sexual orientation, lactation, arrest and court record, citizenship, or any other classification protected by state or federal law. 4) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract, this contract may be canceled or suspended in whole or in part and the contractor may be declared ineligible for further Water Board contracts until such time that the contractor by satisfactory evidence, in good faith, ceases such discriminatory practices or procedures. 5) The contractor who subcontracts any portion of the contract shall assure the Water Board that such subcontractor shall abide by the nondiscrimination provisions stated herein and agrees that any subcontractor who is found in violation of such provisions shall subject the principal contractor's contract with the Water Board to be terminated or suspended pursuant to Section (4) above. 6) The Water Board may direct any bidder, prospective contractor, or subcontractor to submit a statement in writing signed by an authorized officer, agent, or employee of the contracting party that the signer's practices and policies do not discriminate on the grounds of race, ancestry/national origin, religion, color, disability, age, marital status, military status, veteran's status, sexual orientation, lactation, arrest and court record, citizenship, or any other classification protected by state or federal law, and that the terms and conditions of employment under the proposed contract shall be in accordance with the purposes and provisions stated herein. 00800-17 EXHIBIT B RUS Bulletin 1780-26 Attachment II Page 18 EXHIBIT GC-A Certificate of Owner's Attorney I, the undersigned, , the duly authorized and acting legal representativ do hereby certify as follows: I have examined the attached Contract(s) and performance and payment bond(s) and the manner of execution thereof, and I am of the opinion that each of the aforesaid agreements is adequate and has been duly executed by the proper parties thereto acting through their duly authorized representatives;that said representatives have full power and authority to execute said agreements on behalf of the respective parties named thereon; and that the foregoing agreements constitute valid and legally binding obligations upon the parties executing the same in accordance with the terms, conditions, and provisions thereof. Date: AGENCY CONCURRENCE As lender or insurer of funds to defray the costs of this Contract, and without liability for any payments thereunder, the Agency hereby concurs in the form, content, and execution of this Agreement. By: Date Type Name: 00800-18 EXHIBIT B Ea€ N;Er -i :,'FI PERFORMANCE BOND CONTRACTOR(name and address): SURETY(name and address of principal place of business): OWNER Department of Water Supply,County of Hawaii 345 Kekuanao`a Street, Suite 20 Hilo, HI 96720 CONSTRUCTION CONTRACT Effective Date of the Agreement: Amount: Description(name and location): BOND Bond Number: Date(not earlier than the Effective Date of the Agreement of the Construction Contract): Amount: Modifications to this Bond Form: None I See Paragraph 16 Surety and Contractor,intending to be legally bound hereby,subject to the terms set forth below, do each cause this Performance Bond to be duly executed by an authorized officer, agent,or representative. CONTRACTOR AS PRINCIPAL SURETY (seal) (seal) Contractor's Name and Corporate Seal Surety's Name and Corporate Seal By: By: Signature Signature(attach power of attorney) Print Name Print Name Title Title Attest: Attest: Signature Signature Title Title Notes: (1)Provide supplemental execution by any additional parties,such as joint venturers. (2)Any singular reference to Contractor,Surety, Owner,or other party shall be considered plural where applicable. EJCDC G610—Performance Bond Published December 2010 by the Engineers Joint Contract Documents Committee. Page 1 of 3 EXHIBIT B I. The Contractor and Surety, jointly and severally, bind the Contract Price incurred by the Owner as a result of the themselves, their heirs, executors, administrators, successors, and Contractor Default;or assigns to the Owner for the performance of the Construction Contract, which is incorporated herein by reference. 5.4 Waive its right to perform and complete, arrange for completion, or obtain a new contractor, and with reasonable 2. If the Contractor performs the Construction Contract, the Surety promptness under the circumstances: and the Contractor shall have no obligation under this Bond, except when applicable to participate in a conference as provided in 5.4.1 After investigation, determine the amount for Paragraph 3. which it may be liable to the Owner and, as soon as practicable after the amount is determined,make payment to 3. If there is no Owner Default under the Construction Contract,the the Owner;or Surety's obligation under this Bond shall arise after: 5.4.2 Deny liability in whole or in part and notify the 3.1 The Owner first provides notice to the Contractor and Owner,citing the reasons for denial. the Surety that the Owner is considering declaring a Contractor Default. Such notice shall indicate whether the Owner is 6. If the Surety does not proceed as provided in Paragraph 5 with requesting a conference among the Owner,Contractor,and Surety reasonable promptness,the Surety shall be deemed to be in default on to discuss the Contractor's performance. If the Owner does not this Bond seven days after receipt of an additional written notice from request a conference, the Surety may, within five (5) business the Owner to the Surety demanding that the Surety perform its days after receipt of the Owner's notice, request such a obligations under this Bond,and the Owner shall be entitled to enforce conference. If the Surety timely requests a conference,the Owner any remedy available to the Owner. If the Surety proceeds as provided shall attend. Unless the Owner agrees otherwise,any conference in Paragraph 5.4,and the Owner refuses the payment or the Surety has requested under this Paragraph 3.1 shall be held within ten (10) denied liability, in whole or in part, without further notice the Owner business days of the Surety's receipt of the Owner's notice. If the shall be entitled to enforce any remedy available to the Owner. Owner,the Contractor,and the Surety agree,the Contractor shall be allowed a reasonable time to perform the Construction 7. If the Surety elects to act under Paragraph 5.1, 5.2, or 5.3, then Contract, but such an agreement shall not waive the Owner's the responsibilities of the Surety to the Owner shall not be greater than right,if any,subsequently to declare a Contractor Default; those of the Contractor under the Construction Contract, and the responsibilities of the.Owner to the Surety shall not be greater than 3.2 The Owner declares a Contractor Default, terminates those of the Owner under the Construction Contract. Subject to the the Construction Contract and notifies the Surety;and commitment by the Owner to pay the Balance of the Contract Price, the Surety is obligated,without duplication for: 3.3 The Owner has agreed to pay the Balance of the Contract Price in accordance with the terms of the Construction 7.1 the responsibilities of the Contractor for correction of Contract to the Surety or to a contractor selected to perform the defective work and completion of the Construction Contract; Construction Contract. 7.2 additional legal, design professional, and delay costs 4. Failure on the part of the Owner to comply with the notice resulting from the Contractor's Default, and resulting from the requirement in Paragraph 3.1 shall not constitute a failure to comply actions or failure to act of the Surety under Paragraph 5;and with a condition precedent to the Surety's obligations, or release the Surety from its obligations, except to the extent the Surety 7.3 liquidated damages, or if no liquidated damages are demonstrates actual prejudice. specified in the Construction Contract,actual damages caused by delayed performance or non-performance of the Contractor. 5. When the Owner has satisfied the conditions of Paragraph 3,the Surety shall promptly and at the Surety's expense take one of the 8. If the Surety elects to act under Paragraph 5.1, 5.3, or 5.4, the following actions: Surety's liability is limited to the amount of this Bond. 5.1 Arrange for the Contractor, with the consent of the 9. The Surety shall not be liable to the Owner or others for Owner,to perform and complete the Construction Contract; obligations of the Contractor that are unrelated to the Construction Contract,and the Balance of the Contract Price shall not be reduced or 5.2 Undertake to perform and complete the Construction set off on account of any such unrelated obligations. No right of Contract itself,through its agents or independent contractors; action shall accrue on this Bond to any person or entity other than the Owner or its heirs,executors,administrators,successors,and assigns. 5.3 Obtain bids or negotiated proposals from qualified contractors acceptable to the Owner for a contract for 10. The Surety hereby waives notice of any change, including performance and completion of the Construction Contract, changes of time, to the Construction Contract or to related arrange for a contract to be prepared for execution by the Owner subcontracts,purchase orders,and other obligations. and a contractor selected with the Owners concurrence, to be secured with performance and payment bonds executed by a 11. Any proceeding, legal or equitable, under this Bond may be qualified surety equivalent to the bonds issued on the instituted in any court of competent jurisdiction in the location in Construction Contract, and pay to the Owner the amount of which the work or part of the work is located and shall be instituted damages as described in Paragraph 7 in excess of the Balance of within two years after a declaration of Contractor Default or within EJCDC C-610—Performance Bond Published December 2010 by the Engineers Joint Contract Documents Committee. Page 2 of 3 EXHIBIT B two years after the Contractor ceased working or within two years after the Surety refuses or fails to perform its obligations under this Bond, whichever occurs first. If the provisions of this paragraph are void or prohibited by law, the minimum periods of limitations available to sureties as a defense in the jurisdiction of the suit shall be applicable. 12. Notice to the Surety,the Owner,or the Contractor shall be mailed or delivered to the address shown on the page on which their signature appears. 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 herefrom and provisions conforming to such statutory or other legal requirement shall be deemed incorporated herein. When so furnished,the intent is that this Bond shall be construed as a statutory bond and not as a common law bond. 14. Definitions 14.1 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 for the Contractor for 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. 14.2 Construction Contract: The agreement between the Owner and Contractor identified on the cover page, including all Contract Documents and changes made to the agreement and the Contract Documents. 14.3 Contractor Default:Failure of the Contractor,which has not been remedied or waived,to perform or otherwise to comply with a material term of the Construction Contract. 14.4 Owner Default: Failure of the Owner, which has not been remedied or waived,to pay the Contractor as required under the Construction Contract or to perform and complete or comply with the other material terms of the Construction Contract. 14.5 Contract Documents: All the documents that comprise the agreement between the Owner and Contractor. 15. If this Bond is issued for an agreement between a contractor and subcontractor,the term Contractor in this Bond shall be deemed to be Subcontractor and the term Owner shall be deemed to be Contractor. 16. Modifications to this Bond are as follows: EJCDC C-610—Performance Bond Published December 2010 by the Engineers Joint Contract Documents Committee. Page 3 of 3 EXHIBIT B 143.' ..1 PAYMENT BOND CONTRACTOR(name and address): SURETY(name and address of principal place of business): OWNER Department of Water Supply,County of Hawaii 345 Keknanao`a Street, Suite 20 Hilo, HI 96720 CONSTRUCTION CONTRACT Effective Date of the Agreement: Amount: Description(name and location): BOND Bond Number: Date(not earlier than the Effective Date of the Agreement of the Construction Contract): Amount: Modifications to this Bond Form: None See Paragraph 18 Surety and Contractor, intending to be legally bound hereby, subject to the terms set forth below,do each cause this Payment Bond to be duly executed by an authorized officer, agent, or representative. CONTRACTOR AS PRINCIPAL SURETY (seal) (seal) Contractor's Name and Corporate Seal Surety's Name and Corporate Seal By: By: Signature Signature(attach power of attorney) Print Name Print Name Title Title Attest: Attest: Signature Signature Title Title Notes: (1)Provide supplemental execution by any additional parties,such as joint venturers. (2)Any singular reference to Contractor,Surety, Owner,or other party shall be considered plural where applicable. EJCDC C-615,Payment Bond Published December 2010 by the Engineers Joint Contract Documents Committee. Page 1 of 3 EXHIBIT B 7. When a Claimant has satisfied the conditions of Paragraph 1. The Contractor and Surety, jointly and severally, bind 5.1 or 5.2, whichever is applicable, the Surety shall themselves, their heirs, executors, administrators, promptly and at the Surety's expense take the following successors, and assigns to the Owner to pay for labor, actions: materials, and equipment furnished for use in the performance of the Construction Contract, which is 7.1 Send an answer to the Claimant,with a copy to the incorporated herein by reference, subject to the following Owner, within sixty (60) days after receipt of the terns. Claim, stating the amounts that are undisputed and the basis for challenging any amounts that are 2. If the Contractor promptly makes payment of all sums due disputed;and to Claimants,and defends,indemnifies,and holds harmless the Owner from claims, demands, liens, or suits by any 7.2 Pay or arrange for payment of any undisputed person or entity seeking payment for labor, materials, or amounts. equipment furnished for use in the performance of the Construction Contract, then the Surety and the Contractor 7.3 The Surety's failure to discharge its obligations shall have no obligation under this Bond. under Paragraph 7.1 or 7.2 shall not be deemed to constitute a waiver of defenses the Surety or 3. If there is no Owner Default under the Construction Contractor may have or acquire as to a Claim, Contract, the Surety's obligation to the Owner under this except as to undisputed amounts for which the Bond shall arise after the Owner has promptly notified the Surety and Claimant have reached agreement. If, Contractor and the Surety (at the address described in however, the Surety fails to discharge its Paragraph 13)of claims,demands,liens,or suits against the obligations under Paragraph 7.1 or 7.2, the Surety Owner or the Owner's property by any person or entity shall indemnify the Claimant for the reasonable seeking payment for labor, materials, or equipment attorney's fees the Claimant incurs thereafter to furnished for use in the performance of the Construction recover any sums found to be due and owing to the Contract, and tendered defense of such claims, demands, Claimant. liens,or suits to the Contractor and the Surety. 8. The Surety's total obligation shall not exceed the amount of 4. When the Owner has satisfied the conditions in Paragraph this Bond, plus the amount of reasonable attorney's fees 3, the Surety shall promptly and at the Surety's expense provided under Paragraph 7.3,and the amount of this Bond defend, indemnify, and hold harmless the Owner against a shall be credited for any payments made in good faith by duly tendered claim,demand,lien,or suit. the Surety. 5. The Surety's obligations to a Claimant under this Bond 9. Amounts owed by the Owner to the Contractor under the shall arise after the following: Construction Contract shall be used for the performance of the Construction Contract and to satisfy claims, if any, 5.1 Claimants who do not have a direct contract with under any construction performance bond. By the the Contractor, Contractor furnishing and the Owner accepting this Bond, they agree that all funds earned by the Contractor in the 5.1.1 have furnished a written notice of non- performance of the Construction Contract are dedicated to payment to the Contractor, stating with satisfy obligations of the Contractor and Surety under this substantial accuracy the amount claimed Bond, subject to the Owner's priority to use the funds for and the name of the party to whom the the completion of the work. materials were, or equipment was, furnished or supplied or for whom the 10. The Surety shall not be liable to the Owner, Claimants, or labor was done or performed,within ninety others for obligations of the Contractor that are unrelated to (90)days after having last performed labor the Construction Contract. The Owner shall not be liable or last furnished materials or equipment for the payment of any costs or expenses of any Claimant included in the Claim;and under this Bond, and shall have under this Bond no obligation to make payments to or give notice on behalf of 5.1.2 have sent a Claim to the Surety (at the Claimants, or otherwise have any obligations to Claimants address described in Paragraph 13). under this Bond. 5.2 Claimants who are employed by or have a direct 11. The Surety hereby waives notice of any change, including contract with the Contractor have sent a Claim to changes of time, to the Construction Contract or to related the Surety (at the address described in Paragraph subcontracts,purchase orders,and other obligations. 13). 12. No suit or action shall be commenced by a Claimant under 6. If a notice of non-payment required by Paragraph 5.1.1 is this Bond other than in a court of competent jurisdiction in given by the Owner to the Contractor, that is sufficient to the state in which the project that is the subject of the satisfy a Claimant's obligation to furnish a written notice of Construction Contract is located or after the expiration of non-payment under Paragraph 5.1.1. one year from the date (1) on which the Claimant sent a Claim to the Surety pursuant to Paragraph 5.1.2 or 5.2, or EJCDC C-615,Payment Bond Published December 2010 by the Engineers Joint Contract Documents Committee. Page 2 of 3 EXHIBIT B (2) on which the last labor or service was performed by shall be to include without limitation in the terms of anyone or the last materials or equipment were furnished "labor, materials, or equipment" that part of the by anyone under the Construction Contract, whichever of water, gas, power, light, heat, oil, gasoline, (1) or(2) first occurs. If the provisions of this paragraph telephone service, or rental equipment used in the are void or prohibited by law, the minimum period of Construction Contract, architectural and limitation available to sureties as a defense in the engineering services required for performance of jurisdiction of the suit shall be applicable. the work of the Contractor and the Contractor's subcontractors, and all other items for which a 13. Notice and Claims to the Surety, the Owner, or the mechanic's lien may be asserted in the jurisdiction Contractor shall be mailed or delivered to the address where the labor, materials, or equipment were shown on the page on which their signature appears. furnished. Actual receipt of notice or Claims,however accomplished, shall be sufficient compliance as of the date received. 16.3 Construction Contract: The agreement between the Owner and Contractor identified on the cover 14. When this Bond has been furnished to comply with a page, including all Contract Documents and all statutory or other legal requirement in the location where changes made to the agreement and the Contract the construction was to be performed,any provision in this Documents. Bond conflicting with said statutory or legal requirement shall be deemed deleted herefrom and provisions 16.4 Owner Default: Failure of the Owner, which has conforming to such statutory or other legal requirement not been remedied or waived,to pay the Contractor shall be deemed incorporated herein. When so furnished, as required under the Construction Contract or to the intent is that this Bond shall be construed as a statutory perform and complete or comply with the other bond and not as a common law bond. material terms of the Construction Contract. 15. Upon requests by any person or entity appearing to be a 16.5 Contract Documents: All the documents that potential beneficiary of this Bond, the Contractor and comprise the agreement between the Owner and Owner shall promptly furnish a copy of this Bond or shall Contractor. permit a copy to be made. 17. If this Bond is issued for an agreement between a 16. Definitions contractor and subcontractor, the term Contractor in this Bond shall be deemed to be Subcontractor and the term 16.1 Claim: A written statement by the Claimant Owner shall be deemed to be Contractor. including at a minimum: 18.Modifications to this Bond are as follows: 1. The name of the Claimant; 2. The name of the person for whom the labor was done,or materials or equipment furnished; 3. A copy of the agreement or purchase order pursuant to which labor, materials, or equipment was furnished for use in the performance of the Construction Contract; 4. A brief description of the labor, materials, or equipment furnished; 5. The date on which the Claimant last performed labor or last furnished materials or equipment for use in the performance of the Construction Contract; 6. The total amount earned by the Claimant for labor, materials, or equipment furnished as of the date of the Claim; 7. The total amount of previous payments received by the Claimant;and 8. The total amount due and unpaid to the Claimant for labor, materials, or equipment furnished as of the date of the Claim. 16.2 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 Construction Contract. The term Claimant also includes any individual or entity that has rightfully asserted a claim under an applicable mechanic's lien or similar statute against the real property upon which the Project is located.The intent of this Bond E.ICDC C-615,Payment Bond Published December 2010 by the Engineers Joint Contract Documents Committee. Page 3 of 3 EXHIBIT B g a, o 0 0 c c A s .0 N 6.9 N9 64 VI 65 N Yi FA H 65 0 0 .5 .5 0 0 0 0 0 0 v 0 .75 174 a u A E y s o. a A Ua v ak a w 'Y 1 V 1' iVqp i. R A i. O ,s • Vl O m O �' a ^5 W :. 3 c, • 6 O ; . 0 C7 0 5 w .5 0 E Zz F + a w Q v) O 0 Q CI c, o z z v o 0 ~ O N 0.. w N p C w + C C c c °c' F3 u 0 E F O a Q = • G F z . afi CI 0. m to a W •C O w a o• L c u U O W X X >■ ¢ x w s c4-1 o U T ° V .c u W p G 0 - 0 co a n o O o > T c. C o o O '° il y a Z cG Z U a c i v M ° 0. •nr C3 u ` O w " o E 0. ° E O z U F V cc d a Q U Q 1 5 y a a c v w N M 4 Vi V l-4 OC 04 m Q '0 O CI N b N ~O ',-„z t=d r0 4 .% z 1 0 Y v I �. 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E d F O u III o 6 a c N o N Ca w' ..� o w 0 � m i-i V Cl 9 w � q O W V o + oQ Ea. b _ U 7 tl C z C QC W R c o _ •n 0 Q Q Q o Q ob A 7 u Y U m A U c R Q w w U o W M _ A y � � C CO O 2 � o a cy X u U d O W u ] U Q U o W E T C •- O m a o 0 CJ Q o 9' R a U O � F •nl CCS W � o 0 N C y a o U O o 3.4 /� U-' W Q _ ƒ j/f CI ° § ®? . // n . ` �z / .5< § ) 2 2 o U ` / ` ) ii \ ))] 2 * ; 2w+ ) \ I f` R ƒ \ ' / { ° ) -' F. m \\ c, ; _ ; / CO \ \• \ i ) kH /) /.§® -r.. - e. 1 )\ X p, 4:: W \ ) \ { \ § f j / / C) / § J ` \\j} \\ {% P.CTI ) f: CD / u / } �\ ` / . ƒ a § , CA 0 = = z Change Order No. Date of Issuance: Effective Date: Project:Kona Ocean View Properties Owner: Department of Water Owner's Contract No.: 2008-934 Water System Improvements Supply,County of Hawaii Contract: Date of Contract: Contractor: Engineer's Project No.: The Contract Documents are modified as follows upon execution of this Change Order: Description: Attachments (list documents supporting change): CHANGE IN CONTRACT PRICE: CHANGE IN CONTRACT TIMES: Original Contract Price: Original Contract Times: l ) Working Calendar days Substantial completion(days or date): $ Ready for final payment(days or date): [Increase] [Decrease] from previously approved [Increase] [Decrease] from previously approved Change Orders Change Orders No. to No. : No. to No. Substantial completion(days): $ Ready for final payment(days): Contract Price prior to this Change Order: Contract Times prior to this Change Order: Substantial completion(days or date): $ Ready for final payment(days or date): [Increase] [Decrease] of this Change Order: [Increase] [Decrease] of this Change Order: Substantial completion(days or date): $ Ready for final payment(days or date): Contract Price incorporating this Change Contract Times with all approved Change Orders: Substantial completion(days or date): $ Ready for final payment(days or date): RECOMMENDED: ACCEPTED: ACCEPTED: By: By: By: Engineer(Authorized Signature) Owner(Authorized Signature) Contractor(Authorized Signature) Date: Date: Date: Approved by Funding Agency(if applicable): Date: EJCDC C-941 Change Order Prepared by the Engineers Joint Contract Documents Committee and endorsed by the Construction Specifications Institute. Page 1 of 2 EXHIBIT B Change Order Instructions A. GENERAL INFORMATION This document was developed to provide a uniform format for handling contract changes that affect Contract Price or Contract Times. Changes that have been initiated by a Work Change Directive must be incorporated into a subsequent Change Order if they affect Price or Times. Changes that affect Contract Price or Contract Times should be promptly covered by a Change Order. The practice of accumulating Change Orders to reduce the administrative burden may lead to unnecessary disputes. If Milestones have been listed in the Agreement, any effect of a Change Order thereon should be addressed. For supplemental instructions and minor changes not involving a change in the Contract Price or Contract Times, a Field Order should be used. B. COMPLETING THE CHANGE ORDER FORM Engineer normally initiates the form, including a description of the changes involved and attachments based upon documents and proposals submitted by Contractor, or requests from Owner, or both. Once Engineer has completed and signed the form, all copies should be sent to Owner or Contractor for approval, depending on whether the Change Order is a true order to the Contractor or the formalization of a negotiated agreement for a previously performed change. After approval by one contracting party, all copies should be sent to the other party for approval. Engineer should make distribution of executed copies after approval by both parties. If a change only applies to price or to times, cross out the part of the tabulation that does not apply. EJCDC C-941 Change Order Prepared by the Engineers Joint Contract Documents Committee and endorsed by the Construction Specifications Institute. Page 2 of 2 EXHIBIT B Notice to Proceed Date: Project: Kona Ocean View Properties Water System Improvements Owner: Department of Water Supply,County of Hawaii Owner's Contract No.: 2008-934 Contract: Engineer's Project No.: Contractor: Contractor's Address: [send Certified Mail, Return Receipt Requested] You are notified that the Contract Times under the above Contract will commence to run on . On or before that date, you are to start performing your obligations under the Contract Documents. In accordance with Article 4 of the Agreement, the date of Substantial Completion is , and the date of readiness for final payment is [(or) the number of days to achieve Substantial Completion is , and the number of days to achieve readiness for final payment is Before you may start any Work at the Site, Paragraph 2.01.B of the General Conditions provides that you and Owner must each deliver to the other (with copies to Engineer and other identified additional insureds and loss payees) certificates of insurance which each is required to purchase and maintain in accordance with the Contract Documents. Also, before you may start any Work at the Site,you must: [add other requirements]. Owner Given by: Authorized Signature Title Date Copy to Engineer EJCDC C-550 Notice to Proceed Prepared by the Engineers Joint Contract Documents Committee and endorsed by the Construction Specifications Institute. Page 1of1 EXHIBIT B Certificate of Substantial Completion Project: Kona Ocean View Properties Water System Improvements Owner: Department of Water Supply, County of Hawaii Owner's Contract No.: 2008-934 Contract: Engineer's Project No.: This [tentative] [definitive] Certificate of Substantial Completion applies to: All Work under the Contract Documents: The following specified portions of the Work: Date of Substantial Completion The Work to which this Certificate applies has been inspected by authorized representatives of Owner, Contractor, and Engineer, and found to be substantially complete. The Date of Substantial Completion of the Project or portion thereof designated above is hereby declared and is also the date of commencement of applicable warranties required by the Contract Documents, except as stated below. A [tentative] [definitive] list of items to be completed or corrected is attached hereto. This list may not be all-inclusive, and the failure to include any items on such list does not alter the responsibility of the Contractor to complete all Work in accordance with the Contract Documents. The responsibilities between Owner and Contractor for security, operation, safety, maintenance, heat, utilities, insurance and warranties shall be as provided in the Contract Documents except as amended as follows: Amended Responsibilities Not Amended Owner's Amended Responsibilities: Contractor's Amended Responsibilities: EJCDC C-625 Certificate of Substantial Completion Prepared by the Engineers Joint Contract Documents Committee and endorsed by the Construction Specifications Institute. Page 1 of 2 EXHIBIT B The following documents are attached to and made part of this Certificate: This Certificate does not constitute an acceptance of Work not in accordance with the Contract Documents nor is it a release of Contractor's obligation to complete the Work in accordance with the Contract Documents. Executed by Engineer Date Accepted by Contractor Date Accepted by Owner Date EJCDC C-625 Certificate of Substantial Completion Prepared by the Engineers Joint Contract Documents Committee and endorsed by the Construction Specifications Institute. Page 2 of 2 EXHIBIT B