Additional Terms and Conditions- AML Projects 6-2023.pdf

ADDITIONAL TERMS & CONDITIONS FOR VIRGINIA ENERGY AML

PROJECTS ONLY (January, 2024)

A. DEFINITIONS: Whenever used in this solicitation or in the Contract Documents, the following terms have the meanings indicated, which are applicable to both the singular and plural and the male and female gender thereof:

1. Agency: The term, “Agency”, unless otherwise indicated, shall mean the Virginia Department of Energy’s Department of Mined Land Repurposing.

2. Change Order: A document issued by the Agency on or after the effective date of the contract between Agency and Contractor which is agreed to by the Contractor and approved by the Agency, and which authorizes an addition, deletion or revision in the Work, including any adjustment in the Contract Price and/or the Contract Completion. A Change Order, once signed by all parties, is incorporated into and becomes a part of the contract.

3. Commonwealth: The term “Commonwealth” shall mean the Agency which is the Commonwealth of Virginia through the governing Body, the Board, the Building

Committee or other agent with authority to execute the contract for the institution or agency involved known as the Virginia Department of Energy’s Department of Mined Land

Repurposing. The Commonwealths agent is the official with the authority to sign the contract on behalf of the Commonwealth.

4. Construction: As used in these documents shall include reconstruction, renovation, restoration, major repair, demolition and all similar work to include draining, dredging, excavation, grading or similar work for property damaged by Abandoned Mine Lands and/or known as Abandoned Mine Lands in the Commonwealth of Virginia.

5. Contractor: The person, firm or corporation with whom the Agency has entered into a contractual agreement and includes the plural number and the feminine gender when such are named in the contract as the Contractor.

6. Defective: An adjective which when modifying the word Work refers to Work that is unsatisfactory, faulty or deficient, or does not conform to the Contract Documents, or does not meet the requirements of any inspections, standard, test or approval referred to in the

Contract Documents, or has been damaged prior to final payment.

7. Emergency: Any unforeseen combination of circumstances or a resulting state that poses imminent danger to health, life or property.

8. Engineer: The term “Engineer” unless otherwise specified in the agreement shall mean the Engineer named in the solicitation as the party who prepared the specification and plans for the work to be performed.

9. Final Acceptance: The Agency’s acceptance of the Project from the Contractor upon confirmation from the Project Inspector and the Contractor that the project is totally complete in accordance with the contract requirements and that all defects have been eliminated. Final acceptance is confirmed by the making of final payment of the contract amount including any change orders or adjustment thereto.

10. Notice: All written notices, demands, instructions, claims, approvals and disapprovals required to obtain compliance with the Contract requirements. Any written notice by either party to the Contract shall be sufficiently given if delivered to or at the last known business address of the person, firm or corporation constituting the party to the Contract, or to his, their or its authorized agent, representative or officer, or when enclosed in a postage prepaid envelope addressed to such last known business address and deposited in a United States mailbox and/ or through electronic communication methods.

11. Notice to Proceed: A written notice given by the Agency to the Contractor fixing the date on which the Contract time will commence for the Contractor to begin the prosecution of the Work in accordance with the requirements of the Contract Documents.

12. Agency: The Commonwealth of Virginia, i.e., an agency, institution, or department, with whom the Contractor has entered into a contract and for whom the Work or services is to be provided.

13. Project Inspector: One or more individuals employed by the Agency to inspect the Work and/or to act as clerk of the works to the extent required by the Agency. The Agency shall notify the

Contractor in writing of the appointment of such Project Inspector(s).

14. Provide: Shall mean furnish and install ready for its intended use.

15. Subcontractor: An individual, partnership or corporation having a direct contract with

Contractor or with any other Subcontractor for the performance of the Work. It includes one who provides on-site labor but does not include one who only furnishes or supplies materials for the project.

16. Submittals: All drawings, diagrams, illustrations, schedules and other data required by the

Contract Documents which are specifically prepared by or for the Contractor to illustrate some portion of the Work and all illustrations, brochures, standard schedules, performance charts, instructions, diagrams and other information prepared by a Supplier and submitted by the

Contractor to illustrate material or equipment for some portion of the Work.

17. Substantial Completion: The work that is sufficiently complete, in accordance with the contract documents.

18. Supplier: A manufacturer, fabricator, distributor, materialman, or vendor who provides material for the project but does not provide on-site labor.

19. Underground Facilities: All pipelines, conduits, ducts, cables, wires, manholes, vaults, tanks, tunnels or other such facilities or attachments, and any encasements containing such facilities which are or have been installed underground to furnish any of the following services or materials: electricity, gases, steam, liquid petroleum products, telephone or other communications, cable television, sewage and drainage removal, traffic or other control systems or water.

20. Work: The entire completed construction or the various separately identifiable parts thereof required to be furnished under the Contract Documents. Work is the result of performing services, furnishing labor, and furnishing and incorporating materials and equipment into the construction, all as required by the Contract Documents.

B. CONTRACT DOCUMENTS

1. The Contract entered into by the parties shall consist of the Invitation for Bids, the bid submitted by the Contractor; General Terms and Conditions, these Additional Terms and Conditions; the

Special Terms and Conditions and the Federal requirements, the drawings, if any; the specifications; and all modifications and addenda to the foregoing documents, all of which shall be referred to collectively as the Contract Documents.

2. All time limits stated in the Contract Documents, including but not limited to the time for completion of the Work, are of the essence of the Contract.

3. Anything called for by one of the Contract Documents and not called for by the others shall be of like effect as if required or called for by all, except that a provision clearly designed to negate or alter a provision contained in one or more of the other Contract Documents shall have the intended effect.

C. LAWS AND REGULATIONS

1. The Contractor shall comply with all laws, ordinances, rules, regulations and lawful orders of any public authority bearing on the performance of the Work and shall give all notices required thereby. The Contractor shall assure that all Subcontractors and tradesmen who perform Work on the project are properly licensed by the Department of Professional and Occupational

Regulation as required by Title 54.1, Chapter 11, Articles 1 and 3 and by applicable regulations.

2. This contract and all other contracts and subcontracts are subject to the provisions of Articles 3 and 5, Chapter 4, Title 40.1, Code of Virginia, relating to labor unions and the “right to work”.

The contractor and its subcontractors, whether residents or nonresidents of the Commonwealth, who perform any work related to the project shall comply with all of the said provisions.

3. The provisions of all rules and regulations governing safety as adopted by the Safety Codes

Commission of the Commonwealth of Virginia and as issued by the Department of Labor and

Industry under Title 40.1 of the Code of Virginia shall apply to all work under this contract.

Inspectors from the Department of Labor and Industry shall be granted access to the work for inspection without first obtaining a search warrant from the court.

D. PREPARATION AND SUBMISSION OF BIDS

Bids must give the full business address of the Bidder and be signed by him/her with his/her usual signature. Bids by partnerships must furnish the full name of all partners and must be signed in the partnership name by one of the members of the partnership or any authorized representative, followed by the designation of the person signing. Bids by corporations must be signed with the legal name of the corporation followed by the name of the State in which it is incorporated and by the signature and designation of the president, secretary or other person authorized to bind it in the matter. The name of each person signing shall also be typed or printed below the signature. A bid by a person who affixes to the signature the word “President”, “Secretary”, “Agent” or other designation without disclosing the principal, may be held to be the bid of the individual signing. When requested by the

Commonwealth, satisfactory evidence of the authority of the officer signing in behalf of the corporation shall be furnished.

E. WITHDRAWAL OR MODIFICATION OF BIDS

Bids may be withdrawn or modified by written notice received from bidders prior to the deadline fixed for bid receipt. The withdrawal or modification may be made by the person signing the bid or by an individual(s) who is authorized by him on the face of the bid. Written modifications may be made on the bid form itself, on the envelope in which the bid is enclosed, or on a separate document.

Written modifications, whether the original is delivered or transmitted by facsimile, must be signed by the person making the modification or withdrawal.

F. RECEIPT AND OPENING OF BIDS

1. It is the responsibility of the bidder to assure that his bid is delivered to the place designated for receipt of bids and prior to the time set for receipt of bids. Bids received after the time designated for receipt of bids will not be considered.

2. Bids will be opened at the time and place stated in the advertisement, and their contents made public for the information of bidders and others interested that may be present either in person or by representative. The officer or agent of the Agency whose duty it is to open them, will decide when the specified time has arrived. No responsibility will be attached to any officer or agent for the premature opening of a bid not properly addressed and identified.

3. The provisions of Section 2.2-4342 of the Code of Virginia, as amended, shall be applicable to the inspections of bids received.

G. ERRORS IN BIDS

1. Errors in bids will be handled in accordance with Section 5.13 of Vendor’s Manual.

H. SUBCONTRACTS

1. The contractor shall as soon as practicable after the signing of the contract, notify the Agency in writing of the names of subcontractors proposed for the principal parts of the work. The contractor shall not employ any subcontractor that the Agency may, within a reasonable time, object to as unsuitable. The Agency will not direct the contractor to contact with any particular subcontractor unless provided in the specifications or bid form.

2. The Agency shall, on request, furnish to any subcontractor, if practicable, the amounts of payments made to the contractor, the Schedule of Values and Requests for Payment submitted by the contractor and any other documentation submitted by the contractor, which would tend to show what amounts are due and payable by the contractor to the subcontractor.

3. The contractor agrees that he is as fully responsible to the Agency for the acts and omissions of his subcontractors, suppliers, and invite upon the site of the project and of persons either directly or indirectly employed by them, as he is for the acts and omissions of persons directly employed by him.

I. SEPARATE CONTRACTS

1. The Agency reserves the right to let other contracts in connection with the project, the work under which may proceed simultaneously with the execution of this contract. The contractor shall afford other separate contractors reasonable opportunity for the introduction and storage of their materials and the execution of their work. The contractor shall cooperate with them and shall take all reasonable action to coordinate his work with theirs. If the Agency has listed other separate contracts in the Solicitations, which it expects to proceed simultaneously with the work of the contractor, and has included the estimated timing of such other contracts in the

Solicitations, the contractor shall integrate the schedule of those separate contracts into his scheduling. The contractor shall make every reasonable effort to assist the Agency in maintaining the schedule for all separate contracts. If the work performed by the separate contractor is defective or performed so as to prevent this contractor from carrying out his work according to the drawings and specifications of this contract, this contractor shall immediately notify the

Agency upon discovering such conditions.

2. If a dispute arises between the contractor and separate contractors as to their responsibility for cleaning up as required by Sections R (1-3) of these additional Terms and Conditions, the Agency may clean up and charge the cost thereof to the respective contractors in proportion to their responsibility. If a contractor disputes the Agency’s apportionment of clean-up costs, it shall be that contractor’s burden to demonstrate and prove the correct apportionment.

J. TAXES

The contractor shall, without additional expense to the Agency, pay all applicable federal, state, and local taxes, fees, and assessments.

K. SAFETY INSPECTIONS OF CONTRACTOR EQUIPMENT ON JOB SITE

The purchasing agency reserves the right to conduct safety inspections of contractor and/or sub-contractor owned or leased equipment delivered to or present at an AML construction site. The purchasing agency shall conduct a safety inspection of all equipment at the site as identified on the equipment list for the project as provided by the contractor in their bid submittal. Any equipment previously unidentified that is delivered to the site for use on the project, it is the responsibility of the contractor to contact the Inspector/Contract Administrator/Team Leader to conduct a safety inspection of that equipment as soon as practicable. The purchasing agency may also conduct equipment safety inspections at any time during the contract period while the equipment is on site.

Inspections shall be in accordance with established Virginia Energy/AML inspection criteria and evidenced by a safety inspection checklist. Virginia Energy/AML requires that the contractor perform a daily pre-shift inspection of all equipment prior to its use each day. Virginia Energy/AML can provide a template of the Surface Equipment Inspection Pre-Operational Exam Checklist upon request.

L. INSPECTION

1. All material and workmanship shall be subject to inspection, examination and test by the Agency and its project inspector at any and all times during construction. The project inspector shall have authority to reject defective material and workmanship and require its correction. Rejected workmanship shall be satisfactorily corrected and rejected material shall be satisfactorily replaced with proper material without charge therefor, and the contractor shall promptly segregate and remove the rejected material from the premises. If the contractor fails to proceed at once with replacement of rejected material and/or the correction of defective workmanship, the Agency may, by contract or otherwise, replace such material and/or correct such workmanship and charge the cost to the contractor, or may terminate the right of the contractor to proceed, the contractor and surety being liable for any damages.

2. Job site inspections, tests conducted on site or tests of materials gathered on site, which the contract requires to be performed by independent testing entities, shall be contracted and paid for by the Agency. Examples of such tests are the testing of cast in-place concrete, foundation materials, soil compaction, pile installations, caisson bearings and steel framing connections.

Although conducted by independent testing entities, the Agency will not contract and pay for tests or certifications of materials, manufactured products or assemblies which the contract, codes, standards, etc. require to be tested and/or certified for compliance with industry standards such as Underwriters Laboratories, Factory Mutual or ASTM. If there are any fees to be paid for such tests and certifications, they will be paid by the contractor. The contractor shall also pay for all inspections, tests, and certifications that the contract specifically requires him to perform or pay, together with any inspections and tests that he chooses to perform for his own quality control purposes. The contractor shall promptly furnish, without additional charge, all reasonable facilities, labor and materials necessary and convenient for making such tests. Except as provided in (3) below, whenever such examination and testing finds defective materials, equipment or workmanship, the contractor shall reimburse the Agency for the cost of reexamination and retesting.

3. Should it be considered necessary or advisable by the Agency at any time before final acceptance of the entire work to make an examination of any part of the work already completed, by removing or tearing out portions of the work, the contractor shall on request promptly furnish all necessary facilities, labor and material to expose the work to be tested to the extent required. If such work is found to be defective in any respect, due to the fault of the contractor or his subcontractors, he shall defray all the expenses of uncovering the work, of examination and testing, and of satisfactory reconstruction. If, however, such work is found to meet the requirements of the contract, the actual cost of the contractor’s labor and material necessarily involved in uncovering the work, the cost of examination and testing and contractor’s cost of material and labor necessary for replacement shall be paid to the contractor and he shall, in addition, if completion of the work has been delayed thereby, be granted a suitable extension of time.

4. The project inspector will recommend to the agency that the work be suspended when in his judgment the drawings and specifications are not being followed. Any such suspension shall be continued only until the matter in question is resolved to the satisfaction of the agency. The cost of any such work stoppage shall be borne by the contractor unless it is later determined by the agency and project engineer that no fault existed in the contractor’s work.

5. The project inspector has no authority to and shall not:

(a) Authorize deviations from the contract documents;

(b) Enter into the area of responsibility of the contractor’s superintendent;

(c) Issue directions relative to any aspect of construction means, methods, techniques, sequences or procedures, or in regard to safety precautions and programs in connection with the Work;

(d) Authorize or suggest that the Agency occupy the project, in whole or in part;

(e) Issue a certificate for payment.

The project inspector shall be notified by the contractor and be present during all critical phases of construction.

M. ENGINEER:

1. The engineer is an agency-employed engineer or an agency-contracted professional engineering firm who prepared the specifications and plans for the work to be performed. During prosecution of the work, the engineer will be consulted for recommendations or questions that may arise as to the quantity, quality and acceptability of materials furnished or work performed and for interpretation of the plans and specifications.

2. The engineer’s recommendations for changes shall be conveyed to the agency in writing for approval.

3. Project site inspections made by the engineer shall be documented as to the progress and quality of the work and the basis for any recommendations or changes to the project.

N. SUPERINTENDENCE BY CONTRACTOR

1. The contractor shall have a competent foreman or superintendent, satisfactory to the Agency, on the job site at all times during the progress of the work. The contractor shall be responsible for al1 construction means, methods, techniques, sequences and procedures, for coordinating all portions of the work under the contract except where otherwise specified in the contract documents, and for all safety and worker health programs and practices. The contractor shall notify the Agency, in writing, of any proposed change in superintendent including the reason therefor prior to making such change.

2. The contractor shall, at all times, enforce strict discipline and good order among the workers on the project, and shall not employ on the work any unfit person, anyone not skilled in the work assigned to him, or anyone who will not work in harmony with those employed by the contractor, the subcontractors, the Agency or the Agency’s separate contractors and their subcontractors.

3. The Agency may, in writing, require the contractor to remove from the work any employee the

Agency deems to be incompetent, careless, not working in harmony with others on the site, or otherwise objectionable.

O. ACCESS TO WORK

The Agency, the Agency’s inspectors and other testing personnel, and inspectors from the Department of Labor and Industry shall have access to the work at all times. The contractor shall provide proper facilities for access and inspection.

P. AVAILABILITY OF MATERIALS

If material specified in the contract documents is not available on the present market, alternate materials may be proposed by the contractor for approval by the Agency.

The contractor may propose to substitute a material, product, equipment, or assembly, which deviates from the requirements of the contract documents but which the contractor deems will perform the same function and have equal capabilities, service life, economy of operations, and suitability for the intended purpose. The proposed change must be in writing and must include any cost differentials proposed and sufficient information about the substitution to allow the Agency to make an evaluation. Any proposed changes to the engineering design must be approved and sealed by a registered professional engineer in the State of Virginia. The design shall be contracted and paid for by the contractor and presented with the request to substitute. The Agency will have the engineer provide an initial evaluation of such proposed substitution and provide a recommendation on acceptability. If the proposed substitute is acceptable to the Agency, a change order will be proposed to the contractor to accept the substitute.

The Agency shall have the right to limit or reject substitutions at its sole discretion.

The contractor shall be responsible for making all changes in the work necessary to adapt and accommodate any equal or substitute product that it uses. The necessary changes shall be made at the contractor’s expense.

Q. CONTRACTOR’S TITLE TO MATERIALS

No materials or supplies for the work shall be purchased by the contractor or by any subcontractor subject to any security interest, installment or sales contract or any other agreement or lien by which an interest is retained by the seller or is given to a secured party. The contractor warrants that he has clear title to all materials and supplies that he uses in the work or for which he accepts payment in whole or in part.

R. WARRANTY OF MATERIALS AND WORKMANSHIP

1. The contractor warrants that, unless otherwise specified, all materials and equipment incorporated in the work under the contract shall be new, in first class condition, and in accordance with the contract documents. The contractor further warrants what all workmanship shall be of the highest quality and in accordance with contract documents and shall be performed by persons qualified at their respective trades.

2. Work not conforming to these warranties shall be considered defective.

3. This warranty of materials and workmanship is separate and independent from and in addition to any of the contractor’s other guarantees or obligations in this contract.

S. USE OF PREMISES AND REMOVAL OF DEBRIS:

1. The contractor shall:

(a) Perform his contract in such a manner as not to interrupt or interfere with the operation of any existing activity on the premises or with the work of any contractor;

(b) Store his apparatus, materials, supplies, and equipment in such orderly fashion at the site of the work as will not unduly interfere with the progress of his work or the work of any other contractor; and

(c) Place upon the work or any part thereof only such loads as are consistent with the safety of that portion of the work.

2. The contractor expressly undertakes, either directly or through his subcontractor(s), to effect all cutting, filling or patching of his work required to make the same conform to the drawings and specifications, and, except with the consent of the Agency, not to cut or otherwise alter the work of any other contractor. The contractor shall not damage or endanger any portion of the work or premises, including existing improvements, unless called for by the contract.

3. The contractor expressly undertakes, either directly or through his subcontractor(s), to clean up frequently all refuse, rubbish, scrap materials and debris caused by his operations, to the end that at all times the site of the work shall present a neat, orderly and workmanlike appearance. No such refuse, rubbish, scrap material and debris shall be left within the completed work nor buried on the building site, but shall be removed from the site and properly disposed of in a licensed landfill or otherwise as required by law.

4. The contractor expressly undertakes, either directly or through his subcontractor(s), before final payment, to remove all surplus material, false work, temporary structures, including foundations thereof, plants of any description and debris of every nature resulting from his operations and to put the site in a neat, orderly condition; to thoroughly clean and leave reasonably dust free all finished surfaces including all equipment, piping, etc. on the interior of all buildings included in the contract; and to thoroughly clean all glass installed under the contract including the removal of all paint and mortar splatters and other defacements. If a contractor fails to clean up at the completion of the work, the Agency may do so and charge for costs thereof to the contractor.

5. During and at completion of the work, the contractor shall prevent site soil erosion, the runoff of silt and/or debris carrying water from the site, and the blowing of debris off the site in accordance with the applicable requirements and standards of the Virginia Erosion and Sediment Control

Handbook, latest edition, and of the contract documents.

6. The contractor shall not operate or disturb the setting of any valves, switches or electrical equipment on the service lines to the project except by proper previous arrangement with the agency. The contractor shall give ample advance notice of the need for cut-offs, which will be scheduled at the convenience of the Agency.

T. PROTECTION OF PERSONS AND PROPERTY

1. The contractor expressly undertakes, both directly and through its subcontractor(s), to take every precaution at all times for the protection of persons and property, which may come on the project or be affected by the contractor’s operation in connection with the work.

2. The contractor shall be solely responsible for initiating, maintaining and supervising all safety precautions and programs in connection with the Work.

3. The provisions of all rules and regulations governing safety as adopted by the Safety Codes

Commission of the Commonwealth of Virginia, issued by the Department of Labor and Industry under Title 40.1 of the Code of Virginia shall apply to all work under this contract.

4. The contractor shall continuously maintain adequate protection of all his work from damage and shall protect the Agency’s property from injury or loss arising in connection with this contract.

He shall make good any such damage, injury, or loss except such as may be directly due to errors in the contract documents or caused by agents or employees of the Agency. He shall adequately protect adjacent property to prevent any damage to it or loss of use. He shall provide and maintain all passageways, guard fences, lights and other facilities for protection required by public authority, local conditions, any of the contract documents or erected for the fulfillment of his obligations for the protection of persons and property.

5. In an emergency affecting safety or life of persons or of the work, or of the adjoining property, the contractor, without special instruction or authorization from the Agency, shall act, at his discretion, to prevent such threatened loss or injury. Also, should he, to prevent threatened loss or injury, be instructed or authorized to act by the Agency, he shall so act immediately, without appeal. Any additional compensation or extension of time claimed by the contractor on account of any emergency work shall be determined as provided by paragraph O. of the General Terms and Conditions.

U. CONTRACTOR’S RIGHT TO STOP WORK OR TERMINATE THE CONTRACT

If the Work should be stopped under any order of any court or other public authority for a period of ninety (90) days through no fault of the contractor or of anyone employed by him, or if the Agency should fail to pay to the contractor within thirty (30) days when no dispute exists as to the sum, then the contractor may, upon ten (10) calendar days written notice to the Agency, stop work or terminate the contract and recover from the Agency payment for the cost of the work actually performed, together with overhead and profit thereon, but profit shall be recovered only to the extent that the contractor can demonstrate that he would have had profit on the entire contract if he had completed the work. The contractor may not receive profit or any other type of compensation for parts of the work not performed. The contractor may recover the cost of physically closing down the job site, but no other costs of termination. The Agency may offset any claims it may have against the

Contractor against the amounts due to the contractor. In no event shall termination of the contract by the contractor terminate the obligations of the contractor’s surety on its payment and performance bonds.

V. AGENCY’S RIGHT TO TERMINATE THE CONTRACT FOR CAUSE

1. If the contractor should be adjudged as bankrupt, or if he should make a general assignment for the benefit of his creditors, or if a receiver should be appointed on account of his insolvency, the

Agency may terminate the contract. If the contractor should persistently or repeatedly refuse or should fail, except in cases for which extension of time is provided, to supply enough properly skilled workmen or proper materials, or if he should fail to make prompt payment to subcontractors or suppliers of material or labor, or persistently disregard laws, ordinances or the written instructions of the Agency, or otherwise be guilty of a substantial violation of any provision of the contract, then the Agency may terminate the contract.

2. Prior to termination of the contract, the Agency shall give the contractor and his surety ten (10) calendar day written notice, during which the contractor and/or his surety may rectify the cause of the termination. If rectified to the satisfaction of the Agency within said ten (10) days, the

Agency may rescind its notice of termination. If it does not, the termination for cause shall become effective at the end of the ten-day (10) notice period. In the alternative, the Agency may postpone the effective date of the termination notice, at its sole discretion, if it should receive reassurances from the contractor and/or its surety that the causes of termination will be remedied in a time and manner, which the Agency finds acceptable. If at any time more than ten (10) days after the notice of termination, the Agency determines that contractor and/or its surety has not or is not likely to rectify the causes of termination in an acceptable manner or within the time allowed, then the Agency may immediately terminate the contract for cause by giving written notice to the contractor and its surety. In no event shall termination for cause terminate the obligations of the contractor’s surety on its payment and performance bonds.

3. Notice of terminations, whether initial or given after a period of postponement, may be served upon the contractor and the surety by mail or any other means at their last known places of business in Virginia or elsewhere, by delivery to any officer or management/supervisory employee of either wherever they may be found, or, if no such officer, employee or place of business is known or can be found by reasonable inquiry within three (3) days, by posting the notice at the job site. Failure to accept or pick up registered or certified mail addressed to the last known address shall be deemed to be delivery.

4. Upon termination of the contract, the Agency shall take possession of the premises and of all materials, tools and appliances thereon and finish the work by whatever method he may deem expedient. In such case the contractor shall not be entitled to receive any further payment. If the expense of finishing the work, including compensation for additional managerial and administrative services shall exceed the unpaid balance of the contract price, the contractor shall pay the difference to the Agency, together with any other expenses of terminating the contract and having it completed by others.

5. If it should be judicially determined that the Agency improperly terminated this contract for cause, then the termination shall be deemed to be a termination for the convenience of the

Agency.

6. Termination of the contract under this section is without prejudice to any other right or remedy of the Agency.

W. TERMINATION BY AGENCY FOR CONVENIENCE

1. Agency may terminate this contract at any time without cause, in whole or in part, upon giving the contractor notice of such termination. Upon such termination, the contractor shall immediately cease work and remove from the project site all of its labor forces and such of its materials as Agency elects not to purchase or to assume in the manner hereinafter provided. Upon such termination, the contractor shall take such steps as Agency may require assigning to the

Agency the contractor’s interest in all subcontracts and purchasing orders designated by Agency.

After all such steps have been taken to Agency’s satisfaction, the contractor shall receive as full compensation for termination and assignment the following:

(a) All amounts then otherwise due under the terms of this contract,

(b) Amounts due for work performed subsequent to the latest Application for Payment through the date of termination,

(c) Reasonable compensation for the actual cost of demobilization incurred by the contractor as a direct result of such termination. The contractor shall not be entitled to any compensation for lost profits or for any other type of contractual compensation or damage other than those provided by the preceding sentence. Upon payment of the forgoing, Agency shall have no further obligations to the contractor of any nature.

2. In no event shall termination for the convenience of the Agency terminate the obligations of the contractor’s surety on its payment and performance bonds.

X. OBLIGATION TO COMPLETE

If the delivery of supplies, services, materials or equipment is not fully performed in accordance with the terms of the contract by the time specified in the contract, the contractor agrees to complete the remaining or incomplete work at its own expense; except that the accomplishment be delayed by any act, negligence, or default on the part of the Commonwealth, public enemy, war, embargo, fire, explosion or Act of God not caused by the negligence or intentional act of the contractor or his supplier(s), or by riot, sabotage, or labor trouble that results from a cause or causes entirely beyond the control or fault of the contractor or his supplier(s), a reasonable extension of time as the procuring public body deems appropriate may be granted. Upon receipt of a written request and justification for an extension from the contractor, the purchasing office, with the approval of the Director of

Mining Programs, may extend the time by issuing a Change Order for performance of the contract or delivery of goods herein specified at the purchasing office’s sole discretion.

It shall also be known and understood by both parties that if the contract expires and the delivery of supplies, services, materials or equipment has not been fully performed in accordance with the terms of the contract and it is determined the Commonwealth is not at fault and grant funding for the contract has expired, the procuring agency shall extend the contract expiration date to allow sufficient time to complete the delivery of supplies, services, materials or equipment under the terms of the contract. The contractor shall, at the contractor’s sole cost and expense, complete its obligations under the terms of the contract during the contract extension period.

Y. GUARANTEE OF WORK

1. Except as otherwise specified, all work shall be guaranteed by the contractor against defects resulting from the use of inferior materials, equipment or workmanship for one (1) year from the date of final acceptance of the entire project by the Agency in writing. Equipment and facilities, which have seasonal limitations on their operation, shall be guaranteed for one (1) full year from the date of seasonally appropriate tests and acceptance, in writing, by the Agency.

2. If, within the guarantee period, defects are noticed by the Agency which require repairs or changes in connection with the guaranteed work, those repairs or changes being in the opinion of the Agency rendered necessary as the result of the use of materials, equipment or workmanship, which are defective, or inferior or not in accordance with the terms of the contract, then the contractor shall, promptly upon receipt of notice from the Agency, such notice being given not more than two weeks after the guarantee period expires, and without expense to the Agency:

(a) Place in satisfactory condition in every particular all of such guaranteed work and correct all defects therein;

(b) Make good all damage to the structure or site or equipment or contents thereof, which is the result of the use of materials, equipment or workmanship which are inferior, defective or not in accordance with the terms of the contracts; and

(c) Make good any work, materials, equipment, contents of structures, and/or disturbance of the site in fulfilling any such guarantee.

3. In any case, where in fulfilling the requirements of the contract or any guarantee embraced in or required thereby, the contractor disturbs any work guaranteed under contract, he shall restore such work to a condition satisfactory to the Agency and guarantee such restored work to the same extent as it was guaranteed under such other contract.

4. If the contractor, after notice, fails to proceed promptly to comply with the terms of the guarantee, the Agency may have the defects corrected and the contractor and his surety shall be liable for all expense incurred.

5. All special guarantees applicable to definite parts of the work that may be stipulated in the specifications or other papers forming a part of the contract shall be subject to the term of this section during the first year of the life of such special guarantee.

6. Nothing contained in this section shall be construed to establish a period of limitation with respect to any other obligation, which the contractor might have under the contract documents, including liability for defective work under Section R of these additional terms and conditions. This paragraph relates only to the specific obligation of the contractor contained in this section to correct the work and does not limit the time within which his obligation to comply with the contract documents may be sought to be enforced, nor of the time within which proceedings may be commenced to establish the contractor’s liability with respect to his other obligations under this contract.

7. In the event the work of the contractor is to be modified by another contractor, either before or after the final inspection, the first contractor shall remain responsible in all respect under the guarantee of work and under any other warranties provided in the contract or by law. However, the contractor shall not be responsible for any defects in material or workmanship introduced by the contractor modifying its work. Both the first contractor and the contractor making the modifications shall each be responsible solely for the work done by each. The contractor modifying the earlier work shall be responsible for any damage to or defect introduced into the work that it is modifying. If any contractor shall claim that another contractor has introduced defects of materials and/or workmanship into the work of the first, it shall be the burden of the contractor making the claim to clearly demonstrate the nature and extend of such introduced defects and the responsibility of the other contractor. Any contractor modifying the work of another shall have the same burden if he asserts defects to have been caused by the contractor whose work he is modifying.

Z. DRUG FREE WORKPLACE:

The contractor acknowledges and certifies that it understands that the following acts by the contractor, its employees, and/or agents performing services on state property are prohibited.

1. The unlawful manufacture, distribution, dispensing, possession or use of alcohol or other drugs;

and

2. Any impairment or incapacitation from the use of alcohol or other drugs (except) the use of drugs for legitimate medical purposes.

The contractor further acknowledges and certifies that it understands that a violation of these prohibitions constitutes a breach of contract and may result in default action being taken by the

Commonwealth in addition to any criminal penalties that may result from such conduct.

AA. SCHEDULE OF THE WORK:

1. The contractor is responsible for sequencing, scheduling, coordinating and monitoring the progress of the work as well as taking appropriate action to keep the work on schedule. The contractor shall prepare and submit to the agency after signing the contract, a contract performance schedule for accomplishing the work based upon the completion time stated in the contract. In most instances no Notice to Proceed will be issued by the agency until the performance schedule is approved.

2. If any items of the work are behind schedule, regardless of whether they may prevent the contract from being completed on time, the contractor must indicate in writing what measures he is taking to bring each such item back on schedule and to insure that the time of completion is not exceeded.

3. A contract performance schedule shall be submitted showing completed work at the end of each month in respect to the entire project. The form, properly completed to indicate percentage of work completed each month, shall be submitted with the monthly Application for Payment

4. The percentage of labor progress shall be calculated based upon the quantities of labor actually performed in relationship to the amount estimated to complete that element of the work. The material progress shall be calculated on the same basis giving credit for installed material as well as that stored on the site and any material stored off site that has been certified by the Agency.

BB. PERMITS:

Permits required by the Army Corps of Engineers, Marine Resources Commission, and the

Department of Environmental Quality will be provided by the agency. Virginia Department of

Transportation permits, such as the Land Use Permit, which are required when construction activities are performed on VDOT right-of-way, shall be the responsibility of the agency. All other VDOT permits, such as transportation of equipment, shall be the responsibility of the contractor. Necessary rights of entry to the project area will be provided by the agency. Any other permits required in association with performance of work specified by the project will be the responsibility of the contractor.

CC. APPLICANT VIOLATOR SYSTEM (AVS) CHECK:

The bidder and any subcontractor are required to meet the requirements of the Code of Federal

Regulations, 30 CFR 874.16 to be eligible to bid or receive an award of a contract under this solicitation. The bidder shall complete and return as part of their bid the Applicant Violation System

(AVS) Checklist (Attachment B). The Agency will use the information on this form to perform an

AVS search to ascertain if any Bidder, Subcontractor or any person, partnership or corporation in

Agencyship and/or control is blocked from obtaining a coal surface mining permit. In the event an

AVS block is determined to exist, the bid will be ineligible for consideration pursuant to Article 3, Section 11-63 of the Virginia Public Procurement Act. The bidder deemed “ineligible” will be notified in writing that a block under the AVS has occurred and, therefore, the bid is ineligible for consideration. The bidder will be informed that an appeal of the “ineligibility” determination may be requested by submitting a written appeal to the Agency within 30 days of receipt of the Agency’s determination.

DD. EXTENSION OF CONTRACT:

This contract may be extended by the Agency upon written agreement of both parties, under the terms of the current Contract for a specified period to be determined. The written agreement shall be approved prior to the completion date.

EE. APPLICATION FOR PAYMENT

1. Unless otherwise provided in the specifications, the agency will make partial payments to the

Contractor on the basis of a duly certified and approved estimate of the work performed during the preceding calendar month as approved by the project inspector. In preparing estimates, the material delivered on the site and preparatory work done shall be taken into consideration. In addition to material delivered on the site, material purchased specifically for the project, but stored off the site, may be specifically for the project, but stored off the site, may be considered for payment, provided all of the following is accomplished prior to any submission of

Applications for Payment for such material through inclusion on the regular monthly payment request:

(a) The contractor must notify the Agency in writing at least ten (10) days prior to the submission of the Application for Payment that specific items will be stored off site.

(b) The Application for Payment shall itemize the quantity of such materials; shall document with invoices the cost of said materials and shall indicate the identification markings used on the materials. Such markings shall clearly reference the materials to the particular reclamation project. The specific location of the materials shall be indicated.

(c) The contractor shall certify in writing to the agency that such materials meet the requirements of the plans and specifications of the contract documents.

(d) The contractor shall indicate in the Application for Payment that he agrees that loss of materials stored off the site shall not relieve him of the obligation to furnish these types and quantities of materials for the project and on a schedule to meet the time completion requirements of the contract.

(e) The contractor agrees and certifies in the notification, and in the Application For Payment, that the storage location is safe and is suitable for the type of material stored.

(f) The materials are stored within reasonable proximity to the job site.

(g) The Agency shall be notified by the contractor when the materials are to be transferred to the site and when the materials are received at the site.

2. In making partial payments, there shall be retained five percent (5%) on the estimated amount until final completion and acceptance of all work covered by the contract. Such retainages shall be held to assure faithful performance of the contract including, but not limited to, payment of any and all claims, uncorrected defective work, establishment of vegetation, and the like. Any reductions in retainage shall be as determined by the agency.

3. The final payment, which shall include the retained percentage, shall not become due until the contractor shall deliver to the Agency an Affidavit of Payment of Claims that all subcontractors and suppliers of either labor or materials have been paid all sums due them for work performed or materials furnished in connection with this contractor, or that satisfactory arrangements have been made by the contractor with such subcontractors and suppliers with respect to payment of such sums as may be due them by the contractor. In addition, the Agency may require the contractor to provide affidavits from subcontractors and suppliers stating the amount of their subcontract, the percentage of completion, the amounts paid to them by the contractor and the dates of payment, the amount of money still due, if any, and whether satisfactory arrangements have been made for the payment of said amounts.

4. Upon successful completion of all work required by the contract, acceptance of same by the agency and the filing of the affidavit required in this section, the contractor…