8-CONSTRUCTION AGR - FINAL 7.7.23 NON AIA PROJECTS.docx

CONSTRUCTION CONTRACT AGREEMENT

BY AND BETWEEN

COUNTY OF BERGEN

AND

PROJECT:

DEPARTMENT OF PUBLIC WORKS

AWARDED ON: ___, 2023 • AUTHORIZED BY BCBCC RESOLUTION NO. ___

PREPARED BY:

BERGEN COUNTY COUNSEL

DEPARTMENT OF LAW

ONE BERGEN COUNTY PLAZA – ROOM 580

HACKENSACK, NJ 07601-7076

(201) 336-6950

Table of Contents

THIS CONSTRUCTION AGREEMENT, made this ___ day of ___, 2023, by and between COUNTY OF BERGEN, a body politic and corporate of the State of New Jersey, located at One Bergen County Plaza, Hackensack, NJ 07601, hereinafter referred to as the “County” or “Owner”; and _____, located at _____, hereinafter referred to as the “Contractor”.

W I T N E S S E T H:

That the County and the Contractor, on recommendation of ____, Director of Department of __________, covenant and agree, for the consideration hereinafter mentioned, as follows:

Section 1. Owner; Definitions.

(a) The Owner hereby designates as its representatives (who shall each individually have express authority to bind the County with respect to all matters requiring the County’s approval or authorization) _______ as the Owner’s Representative.

(b) The term ‘Owner’ means the County of Bergen, a body politic and corporate of the State of New Jersey or the Owner’s authorized representative. References in the contract documents to the “Owner” shall also apply to the Owner’s Representative who shall have the same authority as that conferred to the Owner under the contract documents.

(c)The term ‘Owner’s Representative’ means the Strategic Planning Services, LLC.

(d)The term ‘Board’ means the Board of County Commissioners of the County of Bergen.

(e)The Owner and Board, as defined herein, are referred to throughout the Contract Documents as if each is singular in number and masculine in gender and together mean the ‘Owner or its Authorized Representatives (including the Owner’s Representative).

Section 2. Scope of Work; Documents Forming the Contract.

The Contractor shall furnish, provide and supply all materials, labor, equipment, tools and appliances necessary for and proper for, or incidental to, the completion, relating to the County Project known as the _____ (hereinafter the “Project”).

The aforesaid Project is to be performed in a workmanlike manner in strict accordance with this Agreement, the Notice to Bidders, Instructions to Bidders, specifications, including all special provisions, drawings, and addenda (collectively, the “Specifications”), together with the Contractor’s Bid, and the Board of County Commissioners (“BCBCC”) Resolution of Award, No. ___, all of which are incorporated herein by reference and comprise the Contract, including all modifications and interpretations thereof incorporated therein prior to execution of this Contract.

All the documents listed below form the Contract and are incorporated into the Contract as if set forth at length and attached to this Agreement:

1. This Contract and BCBCC Resolution No. ____,

2. Modifications, Change Orders;

3. Construction Change Directives, and Bulletins issued by the Project design team;

4. Addenda issued prior to execution of this Agreement;Bid Package, including the Notice to Bidders, Instruction to Bidders;

5. Project manual including engineering plans and specifications;

6. Contractor’s Bid received on ____.

In the event of any conflict among the foregoing documents, they shall control in order of priority, from first to last, as listed above. In the case of conflict or discrepancies between the drawings and specifications the Architect and/or Engineer will determine which takes precedence. This Contract and the documents listed above constitute the entire Contract between the County and the Contractor, and cannot be amended, modified or changed except if done so in writing signed by both the County and the Contractor, in accordance with the terms of the Contract.

Section 3. Authorization to Proceed.

The Contractor shall commence work on the date indicated in a notice of Authorization to Proceed to be issued by the County following execution of this Contract.

Section 4. Timely Completion of Work.

The Contractor shall substantially complete said work to the satisfiaction of the County within ____ calendar days from the Authorization to Proceed TIME BEING OF THE ESSENCE with respect to the commencement, execution, and substantial completion of the work. The Contract time shall begin to run as of the date of the Authorization to Proceed, or if none is issued, from the date of this Contract at Page 1.

Pursuant to section 18.2 of the Instruction to Bidders, “Substantial Completion” is such state of completion as exists when complete possession of the work is taken by the County, all final governmental inspections have been completed, all governmental building permits have been closed and the appropriate governmental agency has issued either a Certificate of Occupancy, Continued Certificate of Occupancy or a Certificate of Approval.

“Final Completion” shall occur only when Substantial Completion has been achieved, all punch list items noted at Substantial Completion have been completed and all documents (inspections, permits, etc.) Contractor is required to deliver to the County as a condition to receiving final payment has been delivered.

No extension beyond the date of completion fixed by the terms of this Contract shall be effective unless established in writing and signed by the appropriate representative of the County. Any such extensions shall be for the time fixed, and upon such terms and conditions, as are provided in said writing, which may include a charge for inspection and engineering expenses incurred.

The Contractor further agrees that if the work shall not be completed within the time mentioned in this Contract, the County may forthwith or at any time after said date, at its option, without notice to the Contractor, purchase the materials and furnish the labor necessary to complete said work, charging the cost thereof to the Contractor, and the Contractor expressly agrees to pay the County the entire cost of completing said work; provided, however, that these provisions shall be deemed and taken to be in addition to and not in substitution County’s right to liquidated damages, for such delay or failure to perform the contract by the Contractor. This Contract provides for liquidated damages of Five Hundred Dollars ($500.00) per day.

Section 5. Concealed or Subsurface Conditions.

If the Contractor encounters conditions at the site that are (1) subsurface or otherwise concealed physical conditions that differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, that differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the Contract Documents, the Contractor shall provide notice to the Owner within five (5) days of observing such conditions before the conditions are disturbed. No later than ten (10) days after the Owner receives notice, they shall promptly investigate such conditions and, if they differ materially and cause an increase or decrease in the Contractor's cost of, or time required for, performance of any part of the work, shall provide an adjustment in the Contract Price or Contract Time, or both. If the Owner determines that the conditions at the site are not materially different from those indicated in the Contract Documents and that no change in the terms of the Contract is justified, the Owner shall so notify the Contractor in writing, stating the reasons. If the Contractor fails to promptly notify the Owner of conditions as described herein, he shall assume the responsibility and additional costs, if any, and shall be responsible for completing the work pursuant to the Contract Documents.

The provisions of N.J.S.A. 40A:11-16.7(a) “Differing site conditions” shall be incorporated by reference into this Section 5; and in the event of a conflict between Section 5 or any other provision of the Contract and the statute, the provisions of the statute shall control. Any claim made by the Contractor for concealed, unknown, or differing site conditions must be made pursuant to the claims provisions of the Contract including Article 15 of the General Conditions.

Section 6. Indemnity, Defense and Hold Harmless.

(1) To the fullest extent permitted by law, the Contractor hereby assumes and agrees to indemnify, defend, and hold harmless the Owner, Engineer, Construction Manager, and their partners, consultants and/or subsidiaries, and the respective agents, officers and employees of any of them (hereinafter “Indemnitees”) from and against any and all claims, suits, demands, damages, liabilities, losses, costs and expenses of any kind, and professional fees (including but not limited to attorneys’ fees, costs, court costs, litigation expenses, and disbursements) arising out of or resulting from Contractor’s activities, operations, performance, or work under the Contract, regardless of whether or not such Claims arose out of or were related to the active or passive negligence or other fault of the Indemnitees (hereinafter collectively, “Claims”). The Contractor agrees, acknowledges, and understands that the requirement to indemnify, defend, and hold harmless the Indemnitees from and against any and all Claims extends to and includes the Indemnitees’ own, but not sole, negligence or fault. The indemnity obligation includes and is not limited to Claims made by contractors, subcontractors, suppliers, laborers, unions and union funds, third parties, bystanders, trespassers, and the traveling public against the Indemnitee(s) arising out of, or in any way related to and/or resulting from Contractor’s work and/or performance in connection with this Contract.

(2) Contractor’s indemnity obligation includes, but is not limited to, Claims arising out of or related to: (a) personal or bodily injury; (b) advertising injury; (c) employers’ liability damages; (d) damages to real and personal property of any type or kind, (e) professional errors and omissions liability, (f) nonpayment by Contractor, subcontractors, laborers, vendors and materialmen, (g) construction or mechanics liens, builders trust fund, or similar claims, asserted, brought, or filed by any person or entity, including subcontractors, employees, agents, servant, officers, directors, or representatives, or any other person or entity, (h) violation of laws, codes, regulations, and ordinances, (i) use of copyrighted and/or uncopyrighted materials, secret processes, patented and/or unpatented inventions, (j) Contractor’s breach of contract, (k) Contractor’s breach of warranty.

(3) In the event that any Claims are made, asserted or threatened against Indemnitees, the Owner shall have the right to withhold from any payments due or to become due to Contractor, an amount sufficient in the Owner’s judgment to protect and indemnify the Indemnitees from and against any and all such Claims; or the Owner, in its discretion, may require the Contractor to furnish a Surety Bond satisfactory to the Owner, guaranteeing such protection, which Bond shall be furnished by the Contractor within five (5) business days after written demand has been made therefore.

(4) Contractor agrees that its obligation to defend commences when a Claim is made against an Indemnitee, even if Contractor disputes its obligation to indemnify them and hold them harmless.

(5) The Indemnitees, in each of their sole discretion, may elect to require Contractor to satisfy its defense obligations through separate counsel of each of their own choosing, in which case the Contractor shall either timely pay the costs of defense directly to the selected counsel upon submission of an invoice, or reimburse the Indemnitees for those costs upon demand.

(6) Notwithstanding any other provision in any contract document, wherever indemnification is required in the Contract the indemnity obligations of the Contractor under this Section 6 shall govern and shall apply, as if repeated at length therein.

(7) The indemnity obligations shall survive the termination of the Contract and shall be fulfilled at no cost or expense to the Indemnitees.

(8) To the fullest extent permitted by law, the County shall not be liable to the Contractor for any defects in the Construction plans, including but not limited to specifications, and drawings, unless those defects were raised to the County in writing prior to commencement of the work. Notwithstanding any other provision in the Contract, prior to proceeding with the work, the Contractor shall inform the County in writing of any such defects and seek clarification of ambiguities or deficiencies.

(9) In claims against any Indemnitee the indemnification obligations under this Section shall not be limited by a limitation on amount or type of damages, compensation or benefits payable under workers' or workman's compensation acts, disability benefit acts, or other employee benefit acts.

(10) Contractor’s indemnification obligation is not limited by, but is in addition to, its insurance obligations under the Contract.

(10) The Contractor agrees that any approval by the Owner or its agents of the work performed, and/or reports, plans, or specifications provided by the Contractor shall not operate to limit the indemnification obligations of the Contractor; and that the provisions of this indemnification shall in no way limit the Contractor’s obligations under the contract documents, nor shall they be construed to preclude the Owner from taking any other actions available to it under any other provisions of the contract documents or otherwise at law or equity.

Section 7. Payments.

The County shall, in consideration of the performance of said work, pay the Contractor a total sum not to exceed _____($_____) Dollars (hereinafter the “Contract Price”), which payment is for the value of all labor and materials for work completed pursuant to an inspection certification that the performance of the service is acceptable, subject to the terms of the Specifications and Resolution #____ of the Bergen County Board of Commissioners awarding the Contract, and subject to the following:

(2) On contracts for One Hundred Thousand ($100,000.00) Dollars or less, the County will, after the County has received from the Architect or the Engineer (as the case may be) an executed Certificate of Payment, and within forty-five (45) days following the receipt thereafter by the County of a Direct Voucher executed by the Contractor, pay the Contractor ninety (90%) percent of the value of the work which is the subject of the Certificate of Payment, it being understood and agreed that the payment and retainage amounts set forth in each Certificate of Payment will be based upon unit prices. The retained percentage of ten (10%) percent will be paid to the Contractor within forty-five (45) days following final acceptance on behalf of the County of the completed work. Retainage of 10% for work completed on contracts not controlled by N.J.S.A. 40A:11-16.3. Payment is subject to all rights of the County under the Contract and completion by Contractor of all contractual requirements and conditions precedent to payment.

B. Periodic Invoices and Progress Payments For Work Completed.

(1) Based upon Applications for Payment submitted to the Project Manager, or Engineer/Architect by the Contractor and subject to issuance of Certificates for Payment issued by the Engineer/Architect, the Owner shall make progress payments on account of the Contract Price to the Contractor as provided below and elsewhere in the Contract.

(2) Applications for Payment shall be submitted monthly on the first of the month.

(3) The period covered by each Application for Payment shall be one calendar month ending on the last day of the month.

(4) The “billing date” shall be the date that an invoice is received by the County.

(5) Each Application for Payment shall be based on the most recent schedule of values submitted by the Contractor in accordance with the Contract Documents. The schedule of values shall allocate the entire Lump Sum Price among the various portions of the Work, except that the Contractor’s Fee shall be shown as a single separate item. The schedule of values shall be prepared in such form and supported by such data to substantiate its accuracy as the Engineer/Architect may require. This schedule, unless objected to by the Engineer/Architect, shall be used as a basis for reviewing the Contractor’s Applications for Payment.

(6) Applications for Payment shall show the percentage of completion of each portion of the Work as of the end of the period covered by the Application for Payment. The percentage of completion shall be the lesser of (1) the percentage of that portion of the Work which has actually been completed; or (2) the percentage obtained by dividing (a) the expense that has actually been incurred by the Contractor on account of that portion of the Work for which the Contractor has made or intends to make actual payment prior to the next Application for Payment by (b) the share of the Lump Sum Price allocated to that portion of the Work in the schedule of values.

(7) Applications for Payment submitted with required supporting documentation, as specified in the Contract, will be considered for approval and certification at the next-scheduled public meeting of the County Board of Commissioners; this is an exception to the twenty (20) day period in New Jersey’s Prompt Payment Act, N.J.S.A. 30A-2(a). Amounts due, approved, and certified for payment by the County shall be paid during the County’s subsequent payment cycle.

C. Progress Payments and Requests for Final Payment - Submissions.

In accordance with N.J.S.A. 2A:30A-1 et seq., the Contractor shall furnish the Project Manager and the Project Engineer/Architect periodic Applications for Payment and requests for Final Payment and the release of Retainage with the following:

(1) Submission of a certified payroll record for each payroll period within ten (10) days of the payment of the wages as required by N.J.S.A. 34:11-56.25, et seq. and N.J.A.C. 12:60-2.1 and 6.1.

(2) Evidence of compliance New Jersey’s Affirmative Action requirements as set forth in N.J.S.A. 10:5-31 et seq. and N.J. compliance with A.C. 17:27.

(3) Affidavits from each of the Contractor’s suppliers and Subcontractors to whom the Contractor is responsible for payment, which attests to the fact that they have received the payment due from the Contractor for the work set forth in the previous Application for Payment. If such affidavits have been requested, their submission shall be a condition precedent of the County’s obligation to make further payments. If the Contractor does not pay the Subcontractor within thirty (30) days from the date of application, the County may withhold the disputed amount from the next payment due the Contractor until the dispute is satisfactorily resolved. The County shall make direct payments to those Subcontractors who are to be paid directly by the County pursuant to N.J.S.A. 40A:11-16.

(4) With each Application for Payment, the Contractor shall submit payrolls, petty cash accounts, receipted invoices or invoices with check vouchers attached, and any other evidence required by the Owner or Engineer/Architect to demonstrate that cash disbursements already made by the Contractor on account of the Cost of the Work equal or exceed (1) progress payments already received by the Contractor; less (2) that portion of those payments attributable to the Contractor’s Fee; plus (3) payrolls for the period covered by the present Application for Payment.

D. Final Payments and the Release of Retainage.

(1) Final payment (including all retainage) will be made by the County to the Contractor after the Contractor has (in accordance with Section ______ hereof) complied with the requirement that, before final payment has been made hereunder, the Contractor has submitted to the County a complete and accurate list of the names and addresses and business registration certificates (or other forms or verifications evidencing registration with the Department of the Treasury) of the Contractor’s subcontractors, after final acceptance on behalf of the County of the completed work and after the County has received from the Architect or the Engineer (as the case may be) an executed final Certificate of Payment and within forty-five (45) days following the receipt thereafter by the County of a Direct Voucher (for final payment) executed by the Contractor. Requests for final payment and/or release of retainage invoices shall be accompanied by the following documents. Prior to final payment and as a condition thereof, Contractor will submit, but not limited to, the following.

(i) Certificate of Guaranty that guarantees the material and workmanship of work completed.

(ii) Release and Affidavit of Final Payment for all materials furnished and labor performed and that all outstanding claims for labor, wages, and materials furnished by all workmen, subcontractors or other persons in connection with the work were paid in full, and in accordance with the prevailing wage rate as set forth in the contract.

(iii) Compliance with N.J.S.A. 40A:11-16.3(b) requiring a final acceptance date and the posting of a maintenance guarantee, if applicable.

(iv) Certification of Paid Wages in accordance with New Jersey Prevailing Wage Act.

(v) Two-Year Maintenance Bond in form acceptable to the County.

(vi) Contractor’s “As-Built” drawings in approved digital format.

(vii) Maintenance Manuals and Instructions.

(viii) Special written guarantees and warranties in addition to the two-year guarantee covered by the Maintenance Bond. Guarantee shall be signed and sealed by Officer of the Contracting Firm and shall be notarized.

(ix) Any other documentation deemed reasonably necessary by the County.

(2) The billing date for final payment and/or the release of retainage shall be the date that an invoice and all required documentation are received by the County.

(3) Final payments and the release of retainage (subject to N.J.S.A. 40A:11-16.3(b) requiring a final acceptance date) shall be deemed approved and certified twenty (20) days after the County’s receipt of same unless the County provides, before the end of the twenty (20) day period, a written statement of the amount withheld and the reason for withholding payment.

(4) Amounts due, approved and certified for payment of final payment and/or the release of retainage shall be presented at the next scheduled public meeting of the Bergen County Board of Chosen Commissioners that occurs after the forty-five (45) day review period. Thereafter the amount approved by the Commissioners shall be paid by the County during its subsequent payment cycle.

(2) All payments shall require the certification of the Owner’s Representative and Purchasing Agent or their designee.

Section 8. Damages.

Notwithstanding any payment or payments hereunder, the Contractor shall be liable for all damages sustained by the County, its members, officers, agents, and employees by reason of any defective or improper work or materials or of any wrongful act by the Contractor, its servants, agents or employees committed or suffered to be done in the performance of this contract and shall also be liable for any damage or injury caused to a third party through any such negligent or wrongful act.

The Contractor waives claims against the Owner for all consequential damages arising out of or relating to the Contract, whether or not such damages were foreseeable at the time the Contract was entered into, including and not limited to:

Rental expenses, lost income, lost profit, financing costs, loss of business, loss of reputation, lost or diminished bonding capacity, lost productivity, , all principal office expenses including but not limited to the compensation of personnel stationed there, lost profits except anticipated profit arising directly from the Work, insolvency, all damages due to termination or suspension of the Contract except as expressly set forth in Article 14 of the General Conditions, and, to the fullest extent permitted by law, costs incurred due to delays.

Section 9. Change Orders.

No changes from the plans and specifications, including but not limited to extension of the date of completion, shall be made and no extras shall be performed unless a separate agreement in writing and executed by an authorized representative of the County shall have been made with the County before the commencement of such work or the furnishing of such materials. The County will not recognize orders for changes or extras given by employees or representatives of the County on the job. In the event that any Change Order work will cause the aggregate amount to be paid by the County to the Contractor to exceed the ______________________________________and 00/100 ($__________________) Dollars Contract Price, it will be necessary for the Board of County Commissioners to approve (i) such work, (ii) the issuance of the related Change Order(s), and (iii) an amendment(s) of this Contract.

(1) For Change Order work performed by the Contractor’s own forces: (a) the Contractor shall be entitled to a mark-up for overhead in the amount of 10% of the cost of such Change Order work; and (b) the Contractor shall also be entitled to a mark-up for profit in the amount of 5% of the sum of (i) the cost of such Change Order work and (ii) the 10% overhead figure; making for an aggregate mark-up (on a compounded basis) of 15.5%.

(2) Overhead shall include, but not be limited to, expenses incurred on account of: the wages for job superintendents (but not foremen), timekeepers and clerical employees; trucking; estimating; engineering; small tools; and incidental general office expenses.

(3) For Change Order work performed by the Contractor’s Subcontractor’s own forces: (a) the Subcontractor shall be entitled to the mark-ups which would otherwise have been payable to the Contractor under (1) above; and (b) the Contractor shall itself be entitled to an additional mark-up equal to 5% of the sum of (i) the cost of such Change Order work and (ii) the aggregate mark-ups payable to the Subcontractor hereunder; making for aggregate mark-ups (on a compounded basis) of 21.275% where the Change Order work is performed by the Contractor’s Subcontractor’s own forces.

(4) For Change Order work performed by the forces of a Subcontractor’s Sub-subcontractor: (a) the Subcontractor’s Sub-subcontractor shall be entitled to the mark-ups which would otherwise have been payable to the Contractor under (1) above; (b) the Subcontractor shall be entitled to an additional mark-up equal to 5% of the sum of (i) the cost of such Change Order work and (ii) the aggregate mark-ups payable to the Subcontractor’s Sub-Contractor hereunder; and (c) the Contractor itself shall be entitled to an additional mark-up equal to 5% of the sum of (i) the cost of such Change Order work and (ii) the aggregate mark-ups payable to the Subcontractor’s Subcontractor and the Subcontractor hereunder; making for aggregate mark-ups (on a compounded basis) of 27.34% where the Change Order work is performed by the forces of a Subcontractor’s Sub-contractor.

(5) The Contractor shall also be reimbursed, on account of additional bond costs arising out of the Change Order work, an amount equal to 1% of the cost (including the mark-ups referred to in (1), (3) and (4) above) of the Change Order work.

(6) The costs to which the percentages on account of overhead and profit are (under (1), (3) and (4) above) to be applied shall be determined in accordance with the provisions of sub-paragraph 7.3.6.

(7) All Change Order proposals for extra work to be performed by the Contractor or any Subcontractor or any Sub-subcontractor shall contain a complete breakdown of labor and materials and shall be made on the basis of net differences in quantities.

(8) Unless a Change Order itself expressly authorizes premium time work, premium time work (even if authorized by an on-site representative of the Owner) shall be performed with no mark-up on account of the extra cost for such premium time work.

(9) All Change Order estimates for work to be performed by the Contractor shall be submitted by the Contractor in the following format (non-compliant Change Order estimates will be returned for correction):

“d.” Sub-Total (a + b + c) $_________

“f. Sub-Total (d + e) $_________

“h. Sub-Total (f + g) $_________

“i. 1% of the Subtotal set forth in h above for additional bond cost $_________

TOTAL $_________

(10) Requests by the Contractor for Change Orders are to be submitted to the Owner’s Representative. Following the receipt by the Contractor of a Change Order estimate request from the Owner, the Contractor will have a seven (7) day period within which to submit to the Owner a written response containing a quoted price for the Change Order work. In the event that the Change Order work in question would extend the date for time of completion of the work, the Contractor must set forth in such written response any required extension of the time of completion date. If the Owner does not receive a written response within the seven (7) day period, the Owner may require that the Change Order work be performed at no additional cost or at a cost established by the Owner.”

Section 10. Obligations of the Contractor.

A. Shall pay all Social Security, unemployment compensation sales, or other taxes or charges(including but not limited to income taxes) assessed against the wages or salaries of the Contractor's employees or officers or against any materials used in the performance of this contract. but shall not be required to pay New Jersey State Sales Taxes on materials, used in the performance of this Contract.

B. Shall take out and pay for Employer's Liability and Worker's Compensation Insurance as required by the State of New Jersey.

C. Shall furnish to the County, upon request, the names and addresses of all subcontractors and materialmen, together with amounts due or to become due them, and to furnish and cause subcontractors to furnish, upon request of the contractor such reports concerning wage scales, payrolls, and otherwise as the County may require, and in form requested by the County. The County may require that all subcontractors and workmen be paid before the final payment.

D. Shall protect and save harmless the County against any claim or demand of any persons for personal injuries or property damage caused hereunder, or any claim or demand for patent fees, royalties, or for any invention, machine, article or arrangement that may be used by the Contractor in the construction of the work and agrees to defend any and all actions arising out of any of the foregoing claims; to notify the County of all such claims; to defend it, and pay counsel fees and expenses of all kinds whatsoever in connection therewith; and the Contractor further agrees that in event of any injunction or legal action, serving to stop the work, the County shall have the privilege of substituting such other article of similar kind in order to enable the Contractor to complete the work, and all costs and expense occasioned thereby shall be borne by the Contractor.

E. Shall indemnify the County against the claim of all materialmen and employees of the Contractor including court costs and attorney's fees incurred in the defense of any litigation instituted by any officer, employee, laborer or materialmen of the Contractor to which the County is made a party.

F. Shall obtain all releases, discharges or other instruments that may be required to release the County from any and all claims, demands and suits of whatsoever kind or nature arising out of the performance of this contract.

G. Shall provide public liability insurance, in an amount approved by the County, to protect all persons not employed by the contractor, against claims for damages for personal injury, including death, which may arise out of the performance of this contract or by or on account of any act or omission of the said contractor, his employees or agents in connection thereof. Certificates of the issuance of such insurance shall be furnished to the County.

H. Shall comply with the provisions of N.J.S.A. 40A:11-18 and use only manufactured and farm products of the United States wherever available in such work.

I. Shall provide and pay for all permits, licenses, materials, labor, water, tools, equipment, light, power, transportation, necessary inspections, and other facilities necessary for the execution and completion of the work. When the work is finished, the Contractor shall clean up the premises leaving the same free and clear of all obstructions and hindrances resulting from the performance of this Contract.

J. If the Contractor is desirous of substituting another material for one or more materials specified by name, the Contractor shall submit requests for approval in writing by the Architect or the Engineer or the Owner’s Representative (as the case may be) and in such submissions shall include manufacturers’ names as well as trade or brand names and shall clearly state the part of the Work for which the particular materials are proposed to be used, shall set forth the amounts of the credits or the costs of the extras involved, and shall provide test results or other supporting data samples. The Contractor, except at its own risk, shall not purchase, order or authorize to be manufactured or fabricated any material or equipment submitted for approval until advance written approval has been received from the Architect or the Engineer or the Owner’s Representative (as the case may be).

K. In addition the Contractor’s responsibilities shall include, but not limited to the following:

1. Shall inspect the site and surroundings;

2. Shall supervise and direct the work of subcontractors;

3. Shall maintain progress of the work consistent with a contractor drafted schedule approved by the County;

4. Shall project safety protocols and requirements;

5. Shall produce an approved Schedule of Values on which all project invoicing will be based;

6. Shall provide the County with the opportunity to approve or reject subcontractors;

7. Shall be responsible for accurate and timely submittals;

8. Shall ensure that key prime contract terms are incorporated into subcontracts (for example, dispute resolution, insurance requirements, indemnification, etc.);

9. Shall provide certified payroll and obtain lien waivers from subcontractors and vendors;

10. Shall make timely payments to subcontractors and suppliers;

11. Shall continue to perform work in event of a dispute; and

12. Shall carefully review all Contract Documents and to bring errors and omissions in plans and specifications to County’s attention.

Section 11. Utility Companies.

The County may permit public utility companies and others to do work during the progress and within the limits of the project, and the Contractor shall conduct its work and cooperate with such other parties as to cause as little interference as possible with such other work.

Section 12. Private Property.

The Contractor shall not enter on or make use of private property unless written permission is secured therefore from the owner. The Contractor shall promptly restore or repair without cost to the County in a manner satisfactory to its owner property damaged or destroyed by the Contractor's operations.

Section 13. Traffic and Convenience of Public.

The Contractor shall conduct the work with the least possible obstruction to traffic. The convenience of the public and of the residents adjacent to the project and the protection of the persons or property are of first importance and shall be provided by the Contractor in an adequate and satisfactory manner.

Section 14. Traffic Precautions.

The Contractor shall erect and maintain (until the completion of the project) barricades, temporary signals and warning signs at working sites and other places of danger to traffic or to the completed work.. The Contractor shall specifically indemnify the County against any and all claims for personal injury or property damage arising out of Contractor’s obligation to take all appropriate and necessary traffic precautions.

Section 15. Compliance with Wage and Hour Laws.

The Contractor shall comply with all applicable statutory provisions to which it is subject to respecting minimum wages, maximum hours of employment and limitation as to age of employees and otherwise, and further agrees that if subsequent legislation shall require modification of minimum wages or maximum hours of employment or limitation as to the age of employees, this Contract, shall upon request of the County, be subject to modification to accord with such statutory requirements to the extent authorized or required by law, but without additional cost to the County. In case any dispute arises as to what are the prevailing rates of wages for work of a similar nature applicable to this Contract, which cannot be adjusted by the County, the matter shall be referred to the Commissioner of Labor for determination and his decision shall be conclusive on all parties to the Contract.

Section 16. Compliance with Prevailing Wage rate regulations.

If required by the Specifications, the Contractor shall be required to comply fully with the County’s Project Labor Agreement (“PLA”) previously supplied to the Contractor.

Further, the Contractor shall be required to pay all workmen engaged in the performance by the Contractor of the Agreement at the prevailing rate of wages as ascertained from the Department of Labor & Workforce Development in the locality in which the public work is to be performed for each craft or trade or classification of all workmen needed to perform the Agreement during the anticipated term thereof. The Contractor shall keep an accurate record showing the name, craft or trade and actual hourly rate of wages paid to each workman employed by him in connection with any public work, which records shall be preserved for two (2) years from date of payment; and the Contractor shall post the prevailing wage rates for each craft and classification involved, as determined by the Department of Labor & Workforce Development, including the effective date of any changes thereof in prominent and easily accessible places at the site of the work and at such place or places as used by them to pay workmen their wages. The Contractor shall file written statements upon request, certifying to the amounts then due and owing to any and all workmen for wages due on account of the public work. The statements shall set forth the names of the persons whose wages are unpaid and the amount due to each and shall be verified by the oath of the Contractor. In the event it is found that any workman employed by the Contractor for the performance of the work herein, is paid less than required wage rates, the County may (in accordance with N.J.S.A. 34:11-56.27) terminate theContractor’s or subcontractor’s right to proceed with the work or such part of the work as to which there has been a failure to pay required wages and may (in accordance with N.J.S.A. 34:11-56.27) itself prosecute the work to completion or otherwise.Thereupon, the Contractor and his or her sureties shall (in accordance with N.J.S.A. 34:11-56.27) be liable to the County for any excess costs occasioned thereby. The prevailing wage rate in the locality for the craft or trade or classification of all workmen needed to perform the contract during the anticipated term hereof shall be supplied upon request.

Section 17. Compliance with laws.

The Contractor shall comply with all laws, orders or regulations of the Federal, State or local government or of any of their respective subordinate agencies, departments or commissions applicable to the performance of this contract and specifically that no mechanics, workers or laborers while engaged in the performance of this contract shall work more than eight hours in any one day.

In addition to any federal, state or local laws, rules or regulations, contractor shall comply with and abide by any CDC, DOH, OSHA or other applicable agency or entity rules, guidelines, regulations, procedures or protocols, to prevent or mitigate the spread of infection, including but not limited to COVID-19. Governor Phillip D. Murphy issued Executive Order No. 244 which ended the COVID-19 Public Health Emergency. Notwithstanding, to the extent that any of the requirements of Executive Order No. 142 (“EO 142”) remains in effect, Contractor may be required to comply with the following requirements for construction projects:

A. Prohibit non-essential visitors from entering the worksite;

B. Engage in appropriate social distancing measures when picking up or delivering equipment or materials

C. Limit worksite meetings, inductions, or workgroups to groups of fewer than 10 individuals;

D. Require individuals to maintain six feet or more distance between them wherever possible;

E. Stagger work start and stop times where practicable to limit the number of individuals entering and leaving the worksite concurrently;

F. Identify congested and “high-risk areas”, including but not limited to lunchrooms, breakrooms, portable rest rooms, and elevators, and limit the number of individuals at those sites concurrently where practicable;

G. Stagger lunch breaks and work times where practicable to enable operations to safely continue while utilizing the least number of individuals possible at the site;

H. Require workers and visitors to wear cloth face coverings, in accordance with CDC recommendations, while on the premises, except where doing so would inhibit the individual’s health or the individual is under two years of age, and require workers to wear gloves while on the premises. Contractor must provide, at their expense, such face coverings and gloves for their employees. If a visitor refuses to wear a cloth face covering for non-medical reasons and if such covering cannot be provided to the individual by the Contractor at the point of entry, then the Contractor must decline entry to the individual. Nothing in the stated policy should prevent workers or visitors from wearing a surgical-grade mask or other more protective face covering if the individual is already in possession of such equipment, or if the Contractor is otherwise required to provide such worker with more protective equipment due to the nature of the work involved. Where an individual declines to wear a face covering on the premises due to a medical condition that inhibits such usage, neither the Contractor nor its staff shall require the individual to produce medical documentation verifying the stated condition;

I. Require infection control practices, such as regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal;

J. Limit sharing of tools, equipment, and machinery;

K. Where running water is not available, provide portable washing stations with soap and/or alcohol-based hand sanitizers that have greater than 60% ethanol or 70% isopropanol;

L. Require frequent sanitization of high-tough areas like restrooms, breakrooms, equipment, and machinery;

M. Place conspicuous signage at entrances and throughout the worksite detailing the above mandates.

Section 18. Mandatory Equal Employment Opportunity Language - Construction Contracts.

a. N.J.A.C. 17:27-3.1 expressly provides that “[n]o public agency shall award a contract or pay money to any contractor or subcontractor which has not agreed and guaranteed to afford equal employment opportunity in performance of the contract in accordance with an affirmative action program.”

b. As required by N.J.A.C. 17:27-3.6(a)(2)(i),The Contractor and each of its subcontractor[footnoteRef:1], where applicable[footnoteRef:2], will not discriminate against any employee or applicant for employment because of age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex. Except with respect to affectional or sexual orientation and gender identity or expression, the contractor will take affirmative action to ensure that such applicants are recruited and employed, and that employees are treated during employment, without regard to their age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex. Such action shall include, but not be limited to the following: employment, up‑grading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The Contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by the County's Compliance Officer setting forth provisions of this nondiscrimination requirements. [1: Subcontractor is defined in N.J.A.C. 17:27-2.1 as meaning "a third party that is engaged by a contractor to perform, pursuant to a subcontract, all or part of the work included in a public agency contract." The Contractor assumes responsibility for ensuring that all Subcontractors will comply with the provisions of this Section 16. ] [2: Under N.J.A.C. 17:27-3.6(c), the requirements of Sections 13.3.1, 13.3.2, 13.3.3 and 13.3.4 of the Instructions to Bidders or this Section 19 shall not apply to any subcontractor which "has a total workforce of four or fewer employees or" which "is performing under an existing Federally approved or sanctioned affirmative action program ***." ]

c. As required by N.J.A.C. 17:27-3.6(a)(2)(ii), the Contractor and each of its subcontractor, where applicable will, in all solicitations or advertisements for employees placed by or on behalf of the Contractor, state that all qualified applicants will receive consideration for employment without regard to age, race, creed, color, national origin, ancestry, marital status, affectional or sexual orientation, gender identity or expression, disability, nationality or sex.

d. As required by N.J.A.C. 17:27-3.6(a)(2)(iii), the Contractor and each of its Subcontractors, where applicable[footnoteRef:3], will send to each labor union or representative of workers with which it has a collective bargaining agreement or other contract or understanding, a notice, to be provided by the County's Compliance Officer, advising the labor union or workers’ representative of the Contractor’s commitments under N.J.S.A. 10:5-31, et seq., and shall post copies of the notice in conspicuous places available to employees and applicants for employment. [3: See footnote 2. ]

e. As required by N.J.A.C. 17:27-36.(a)(2)(iv), the Contractor and each of its Subcontractors, where applicable[footnoteRef:4], agrees to comply with…