ESA Small Project Template August 2018.pdf

Project #:

DCAMM Standard Energy Services Agreement – Small Projects Design-Build (August, 2018)

AWARDING AUTHORITY Division of Capital Asset Management and Maintenance

PROJECT NUMBER:

PROJECT TITLE:

FACILITY:

PROJECT ADDRESS:

CONTRACTOR NAME:

CONTRACTOR ADDRESS:

CONTRACTOR TELEPHONE:

CONTRACTOR FEDERAL EMPLOYERS

IDENTIFICATION NUMBER:

Effective Date:

Date of Completion:

Total Contract Value: $

Design Services fee: $__________

COMMONWEALTH OF MASSACHUSETTS

ENERGY SERVICES AGREEMENT

For Small Projects Design-Build

(for projects subject to M.G.L. c. 25A, §11C) ii

TABLE OF CONTENTS

RECITALS

Section 1 Definition of Terms

PART A – GENERAL PROVISIONS

Section 2 The Contract and Contract Documents Section 3 Total Contract Value Section 4 Payment Section 5 Scope of Services Summary Section 6 Energy Savings Section 7 Project Meetings Section 8 Notice of Deficiencies in Existing Equipment/Systems Section 9 Permits and Approvals Section 10 CUSTOMER Authorization/Approval Section 11 CORI Checks for Contractor’s and Subcontractors’ Employees Section 12 Tool Inventory and Other Entry Procedures Section 13 CUSTOMER Access and Document Access Section 14 Utility and Other Third Party Access Section 15 Damages Caused by CONTRACTOR Section 16 Equal Employment Opportunity, Non-Discrimination in Hiring and

Employment and Affirmative Action Program [Executive Order Nos. 526 and 565]

Section 17 Minority/Women Participation Goals and Anti-Discrimination Programs Section 18 Veteran Owned Business Participation [Chapter 108 of the Acts of 2012;

Executive Order 565] Section 19 Prevailing Wages Section 20 Materials Provided to CONTRACTOR

PART B – DESIGN

Section 21 Initial Meeting Section 22 Design Requirements and Approvals Section 23 Transition from Design to Installation Services

PARTC – INSTALLATION SERVICES

Section 24 Installation Commencement and Progress Section 25 CONTRACTOR’s Superintendent and Supervision Section 26 Location and Access Section 27 Salvage Value Section 28 Temporary Utilities Section 29 Delays in the Services Section 30 Modification/Alteration of New Equipment/Systems and Interference with

Existing Equipment/Systems Section 31 Health, Safety and Accident Prevention Section 32 Waste Management Section 33 Materials and Equipment Section 34 Changes in Scope of Services Section 35 As-Built Drawings Section 36 Commissioning Section 37 Training iii

Section 38 Substantial Completion/Final Acceptance Section 39 Ownership of Property Section 40 Warranties Section 41 O&M Manuals Section 42 New Equipment/Systems Inventory Section 43 Replenishable Stock Section 44 CONTRACTOR’s Extended Maintenance Obligations Section 45 Standards of Comfort Section 46 Incentives

PART D – LEGAL/SPECIAL PROVISIONS

Section 47 Indemnification Section 48 Insurance Requirements Section 49 Bonding Requirements/Performance and Payment Bonds Section 50 Default Section 51 Termination Section 52 Dispute Resolution Section 53 Assignment Section 54 Representations and Warranties Section 55 Headings Section 56 No Waiver Section 57 Complete Agreement/Severability Section 58 Amendments Section 59 Further Acts/Documents Section 60 Notice and Consent Section 61 Non-Appropriation Section 62 Legal or Equitable Remedies; Complete Performance Section 63 Application of Massachusetts Law/Compliance with Applicable Laws Section 64 Force Majeure Section 65 Independent Contractor Section 66 CONTRACTOR’s Accounting Method Requirements (M.G.L. c. 30, § 39R) .. 62 Section 67 Massachusetts and United States Manufacturers Section 68 Anti-Boycott Covenant (Executive Order No. 130) Section 69 Workforce Certification: Certification of Compliance with Workforce Related

Legal Requirements [Executive Order 481] Section 70 Hiring of State Employees By State Contractors [Executive Order No. 346]66 Section 71 Certification Regarding Northern Ireland [M.G.L. c. 7, §22C] Section 72 Sales Tax Exemption Section 73 Leading By Example – Clean Energy and Efficient Buildings [Executive

Order 484] Section 74 Confidentiality; Personal Data [M.G.L. c. 66A, Executive Order 504] Section 75 Copyrights, Patents, and Intellectual Property Rights Section 76 Security and Confidentiality; Publication Section 77 Accessibility and Non-Discrimination Laws Section 78 Sexual Harassment and Workplace Violence Prevention Signatures

SCHEDULE A: PROJECT INFORMATION

A-1: Facility Information A-2: Design/Construction Schedule A-3: Payment Terms iv

A-4: Requirements for Resident Engineer and Field Offices A-5: Goals for Participation by M/WBE Enterprises/Equal Employment Opportunity, Anti-

Discrimination, and Affirmative Action Program (Executive Orders No. 526 and No. 565)

A-7: Prevailing Wage Rates A-8: Instructions/Model Forms for Submission of Project Change Requests A-9: Closeout Procedures and Forms

SCHEDULE B: PROJECT SCOPE

B-1: Scope Summary and Level of Design Services B-2: DCAMM Design Procedures B-3: Energy Savings B-4: Commissioning/M&V B-5: Training 100

SCHEDULE C: EXTENDED WARRANTY; REPLACEMENT PARTS

C-1: Extended Warranty C-2: Replenishable Stock and Replacement Parts

EXHIBIT I: COMPLIANCE AND CERTIFICATION FORMS FOR CERTIFIED PAYROLL,

M/WBE AND WORKFORCE REQUIREMENTS

EXHIBIT II: PERFORMANCE BOND

EXHIBIT III: LABOR AND MATERIAL PAYMENT BOND

EXHIBIT IV: INSURANCE CERTIFICATES

EXHIBIT V: TRENCH APPLICATION AND PERMIT DOCUMENTS

EXHIBIT VI: CERTIFICATE OF COMPLIANCE WITH STATE TAX LAWS AND WITH

UNEMPLOYMENT COMPENSATION CONTRIBUTION REQUIREMENTS

EXHIBIT VII: EVIDENCE OF AUTHORITY

EXHIBIT VIII: GOOD STANDING CERTIFICATE

EXHIBIT IX: EXECUTIVE ORDER 504 CONTRACTOR CERTIFICATION FORM

APPENDIX A: REFERENCE DOCUMENTS

DCAMM Energy Services Agreement – Small Projects Design-Build (August, 2018)

ENERGY SERVICES AGREEMENT

This Energy Services Agreement (ESA or the Contract) is entered into as of the date of last execution hereof (Effective Date) by and between:

______________, a licensed to conduct business in the Commonwealth of Massachusetts whose principal place of business is located at (CONTRACTOR) and the Commonwealth of Massachusetts through its Division of Capital Asset Management and Maintenance (DCAMM) located in , Massachusetts (DCAMM at times called CUSTOMER)(CONTRACTOR and DCAMM are each a Party and collectively the Parties). The purpose of the Contract is to provide for the design, and, if subsequently authorized, construction, installation, and commissioning by CONTRACTOR of New Equipment/Systems (as hereinafter defined) and the rendering of other services by CONTRACTOR designed to reduce utility consumption and cost at CUSTOMER’s facility located at (Premises) which is more precisely described in Schedule B-1: Scope of Services Summary attached hereto and incorporated herein by reference.

RECITALS

WHEREAS, CUSTOMER owns and operates the Premises and desires to install energy saving New Equipment/Systems and Services, each as hereafter defined, to save energy and water and associated costs at said Premises;

WHEREAS, CONTRACTOR provides a service for reducing energy and water consumption and costs through the Installation Services, as hereinafter defined, on the Premises;

WHEREAS, in accordance with the provisions of M.G.L. c. 25A, §11C, CUSTOMER solicited proposals from qualified firms through the issuance of a request for proposals (RFP) dated ;

WHEREAS, CONTRACTOR submitted a proposal dated (the Proposal) in response to the RFP;

WHEREAS, CUSTOMER is authorized pursuant to M.G.L. c. 25A, §11C, to retain CONTRACTOR to design, acquire, install, and commission the New Equipment/Systems as set forth in this Contract, all as more fully set forth herein, subject to all the terms and conditions of this Contract (the Project); and

WHEREAS, CUSTOMER shall compensate CONTRACTOR for all Services pursuant to Section 4 and Schedule B-3: Payment Terms of this Contract.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is mutually acknowledged, it is agreed as follows:

Section 1 Definition of Terms

Capitalized terms as used in this Contract shall have the meanings set forth below:

As-Built Drawings All drawings, specifications, approved shop drawings, catalogue cuts and other items bearing markings or containing information to indicate construction details and changes made during the construction.

Builder’s Warranty Shall have the meaning set forth in Section 40 of the Contract.

Certificate of Final Acceptance

Written notice from CUSTOMER to CONTRACTOR indicating that CUSTOMER accepts the Installation Services as 100% complete in accordance with Section 38 of the Contract.

Certificate of Substantial Completion

A certificate signed by the DCAMM pursuant to the requirements of Section 38 of the Contract, indicating that DCAMM has determined that (1) the Installation Services have been completed in accordance with the Contract requirements, except for Punch List items, (2) certificates of inspection, testing and/or approval (including a certificate of occupancy under the building code), operating permits for any mechanical apparatus which may be required to permit full use and occupancy of the Installation Services by its intended users have been delivered to CUSTOMER, (3) any applicable written warranties, operating instructions and related materials have been delivered to CUSTOMER, and (4) the Installation Services may be used for its intended purpose without substantial inconvenience or interference.

Change Order Shall have the meaning set forth in Section 34 of the Contract.

Confidential Information Shall have the meaning set forth in Section 74 of the Contract.

Contract Documents Shall have the meaning set forth in Section 2 of the Contract.

Contract Term Shall have the meaning set forth in Section 2 of the Contract.

Design Date of Completion

The date upon which the CONTRACTOR shall have completed the Services for Design and the Contract Term shall end. The Design Date of Completion is identified on the cover page of the Contract and occurs on the date that is 45 days after the completion of the Design Services (as set forth in Schedule B-1:

Scope Summary and Level of Design Services) to allow for payment of the final Request for Payment for the Installation Services in accordance with Section 4.

Design The 100% design documents for the Project provided by CONTRACTOR and accepted by CUSTOMER in accordance with Part B - DESIGN.

Design Deliverable(s) Work product of the Contractor (or, if applicable, CONTRACTOR’s

Designer) related to the completion of the Project Design that is required to be delivered or submitted to CUSTOMER in accordance with this Contract.

Design Services All Services required to be performed by CONTRACTOR and, if applicable, its Designer related to the completion of the Design in accordance with this Contract.

Design/Construction Schedule

A critical path devised schedule of Services provided by CONTRACTOR and accepted by CUSTOMER in accordance with Section 5.2.

Designer The architect(s) or professional engineers (licensed and registered in the Commonwealth of Massachusetts) employed by or retained by CONTRACTOR for the Project.

Effective Date Shall have the meaning set forth in the introductory paragraph to this Contract.

Energy Savings The estimated energy and water savings (both cost and unit) to be achieved by the installation of New Equipment/Systems, as outlined in Schedule B-3: ENERGY SAVINGS. These savings are not guaranteed savings.

Existing Equipment/Systems

All equipment and related systems existing at the Premises at the time of the Effective Date, and prior to the commencement of the Installation Services set forth in SCHEDULE B: Project Scope.

Installation Costs

All costs associated with the Installation Services.

Installation Services The delivery, installation, and operation of the New Equipment/Systems to be performed by CONTRACTOR, as required hereunder, including, without limitation, those set forth in SCHEDULE B: Project Scope.

Laws All applicable laws, including but not limited to applicable statutes, regulations, ordinances, codes, laws, orders, decrees, approvals, certificates and requirements of governmental and quasi-governmental authorities.

M/WBE Minority and/or Women Business Enterprises as defined by Executive Orders 526 and 565.

New Equipment/Systems

The New Equipment/Systems and related systems to be furnished and installed by CONTRACTOR as set forth in Schedule B-1:

Scope Summary and Level of Design Services.

Notice to Proceed A written communication from DCAMM directing CONTRACTOR to perform services for a particular phase of the Project as set forth in such communication. The CONTRACTOR may not proceed with any Services pursuant to this Contract absent receipt of a Notice to Proceed.

Premises The land and, if any, building(s) or space within any such building(s) on which or in which CONTRACTOR is to perform the Services, as more specifically provided in the introductory paragraph and Schedule B-1: Scope Summary and Level of Design Services.

Product Data Illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by CONTRACTOR or its Subcontractors and suppliers to illustrate materials or equipment for some portion of the New Equipment/Systems. Product data also include any such information or instructions produced by the manufacture or distributer of such materials or equipment and made readily available by said manufacturer or distributor.

Project Change Request

CONTRACTOR’s written request for a change order submitted in accordance with the requirements of Section 34 and Schedule A-8: Instructions/Model Forms for Submission of Project Change Requests.

Project Engineer DCAMM’s representative reporting to the Project Manager.

Project Manager DCAMM’s representative responsible for overseeing the planning, design and construction of the Project.

Punch List A list of items determined by DCAMM to be minor incomplete or unsatisfactory work items that do not materially impair the usefulness of the Installation Services for its intended purpose.

Resident Engineer DCAMM’s on-site representative.

Schedule of Values Shall have the meaning set forth in Section 4 of the Contract.

Services All work to be performed by CONTRACTOR on the Project, including but not limited to completion of Design and Installation Services.

Shop Drawings Drawings, diagrams, details, schedules and other data specially prepared for the Services to illustrate a portion of the Services

Subcontractor(s) Any person or entity retained by CONTRACTOR to provide any Services required by CONTRACTOR under this Contract including but not limited to the provision of professional services (such as engineering or design services), labor and materials or labor only.

Substantial Completion Date

The date upon which a Certificate of Substantial Completion is issued, in accordance with Section 38.

Termination Payment The payment to be made by CUSTOMER to CONTRACTOR in the event of a termination of the Contract pursuant to Section 51 and calculated in accordance with Schedule A-3: Payment Terms.

Total Contract Value The total cost of the contract for completion of Design and delivery and installation of all New Equipment/Systems and provision of all Services as set forth in Section 3 and Schedule A-3: Payment

PART A – GENERAL PROVISIONS

Section 2 The Contract and Contract Documents

Sections 1 through 68 of this document, together with the Schedules and Exhibits attached hereto, constitute the entire Contract. Other documents, when accepted by the Parties, shall be incorporated by reference and shall constitute “Contract Documents”. Such documents shall include:

• The Schedule of Values (incorporated at Schedule A-3: Payment Terms)

• The Design/Construction Schedule (incorporated at Schedule A-2:

Design/Construction Schedule)

• Approved and Completed M/WBE Schedules of Participation and Letters of Intent (Schedule A-5: Goals for Participation by M/WBE Enterprises/Equal Employment Opportunity, Anti-Discrimination, and Affirmative Action Program) (Executive Orders No. 526 and No. 565)

• Change Order Forms (referenced at Schedule A-8: Instructions/Model Forms for Submission of Project Change Requests, included on CD)

• Prevailing Wage Rate Forms (referenced at Schedule A-7: Prevailing Wage Rates, included on CD)

• Reference Documents (set forth at APPENDIX A: REFERENCE DOCUMENTS)

Failure to set forth a Schedule, Exhibit, or Appendix in the Table of Contents shall not exclude said Schedule, Exhibit, or Appendix from the Contract. The document shall speak for itself.

2.1 Entire Agreement. The provisions of this Contract and any documents incorporated by reference herein, along with any agreed upon amendments hereto, shall constitute the entire agreement between the Parties.

2.2 Priority. To the extent that there is a conflict or ambiguity and any documents attached hereto and/or incorporated by reference herein, the following order of precedence shall control: this Contract, the Design, the Proposal, the reference documents contained in Appendix A: REFERENCE DOCUMENTS.

2.3 Days. Unless otherwise indicated herein, all references to “days” shall mean calendar days.

2.4 Contract Term. The Contract Term shall be broken into the following phases:

a. Contract Term for Design Phase: Unless otherwise directed in a Notice to Proceed, the Contract Term for Design shall commence on the Effective Date and run continuously through the Design Date of Completion; and

b. Contract Term for Installation Services: Unless otherwise directed in a Notice to

Proceed for Installation Services, the Contract Term for Installation Services shall commence upon the date of the Notice to Proceed with Installation Services and run continuously through the issuance of a Certificate of Final Acceptance. If DCAMM does not issue a Notice to Proceed with Installation Services, the Contract shall terminate upon the Design Date of Completion.

Section 3 Total Contract Value

The Total Contract Value is the total amount paid to CONTRACTOR by the CUSTOMER over the Contract Term, as determined by Schedule A-3: Payment Terms.

Section 4 Payment

4.1 CONTRACTOR Compensation and Fees. Provided CONTRACTOR is not in default of its obligations hereunder, CUSTOMER shall pay CONTRACTOR the Total Contract Value in accordance with the payment schedule set forth in Schedule A-3:

Payment Terms, as the same may be amended in accordance with the terms hereof.

4.2 Schedule of Values. Within thirty (30) days of the Effective Date, CONTRACTOR shall submit to DCAMM a Schedule of Values setting forth the costs for the various portions of the Design Services or Installation Services, aggregating the Installation Costs and divided so as to facilitate progress of work and evaluation of Project changes. The Schedule of Values shall detail the Services performed by either Minority-Owned Business Enterprises (MBE), Women-Owned Business Enterprises (WBE), or Service-Disabled Veteran-Owned Business Enterprises (SDVOBE’s), as set forth in SCHEDULE B: SERVICES INFORMATION. The Schedule of Values shall be prepared using the form included in Appendix A or in such format as DCAMM may approve, and shall include data to substantiate its accuracy. When approved by DCAMM, it shall constitute the Schedule of Values and be included in Schedule A-3:

Payment Terms to this Contract.

4.3 Request for Payment. CONTRACTOR shall submit monthly to DCAMM Requests for Payment in accordance with the terms provided for in Schedule A-3: Payment

4.4 Late Payments. Payment due either party hereunder shall be due and payable within forty-five (45) days of the invoice date. Interest shall accrue on any past due balance owed to either party hereunder at the rate established by the Comptroller in accordance with M.G.L., c. 29, § 29C. This remedy shall be in addition to, and not exclusive of, any other remedy available under this Contract or applicable law.

4.5 Certification by CONTRACTOR. If CUSTOMER so requests in writing, CONTRACTOR shall certify to DCAMM on a monthly basis, that payments owed by CONTRACTOR to Subcontractors and not under dispute have been paid in a timely fashion and that CONTRACTOR has satisfied its current payment obligations regarding the New Equipment/Systems.

Section 5 Scope of Services Summary

5.1 Standards of Service.

a. CONTRACTOR shall perform all Services in such a manner that is in accordance with sound engineering and safety practices, achieves the Energy Savings, and is in compliance with this Contract and any amendments hereto. Without limiting the foregoing, CONTRACTOR shall perform all Services in such a manner so as not to harm the structural integrity of the buildings or their operating systems and so as to conform to the standards set forth in this Contract and standards in the industry.

b. CONTRACTOR shall be responsible to pay for all labor, materials, equipment, tools, construction equipment and machinery, transportation and other facilities and work necessary for the proper execution and completion of the Services.

c. All Services called for by this Contract shall be performed by properly qualified and licensed professionals employed by CONTRACTOR and shall be performed in accordance with all Laws.

5.2 Phases of Services. The Services for the Project shall consist of the following and shall be performed within the Contract Term:

a. Design Services. CONTRACTOR agrees to perform the design of the New

Equipment/Systems, as set forth in the Contract at PART B – DESIGN and SCHEDULE B: PROJECT SCOPE. The Design Services shall proceed in accordance with the Design/Construction Schedule, which shall be submitted by CONTRACTOR no more than 5 days following the Effective Date. Upon approval by CUSTOMER, the Design/Construction Schedule shall be incorporated by reference into this CONTRACT at Schedule A-2: Design/Construction Schedule.

b. Installation Services. Following receipt of a Notice to Proceed with Installation

Services, CONTRACTOR shall construct and install the New Equipment/Systems into the Premises pursuant to the specifications in the Contract Documents and the Design. The Installation Services shall proceed in accordance with the Design/Construction Schedule. The Construction Schedule shall be submitted by the CONTRACTOR no more than five (5) days following the date of a Notice to Proceed with Installation Services. Upon approval by CUSTOMER, the Design/Construction Schedule shall be incorporated by reference into this CONTRACT.

5.3 CONTRACTOR’s Use of Subcontractors.

a. CONTRACTOR may use Subcontractors in meeting its obligations hereunder provided that in each case CONTRACTOR shall remain fully liable for all work under the Contract. CONTRACTOR shall supervise and direct the Services and shall be solely responsible for all design, construction means, methods, techniques, sequences, and procedures and for coordinating all portions of the Services under this Contract.

b. CONTRACTOR shall coordinate the activities of CONTRACTOR’s employees, Subcontractors, agents or suppliers with those of the CUSTOMER, its employees, and agents. CONTRACTOR shall not commit or permit any act which will interfere with the performance of the normal activities conducted by CUSTOMER or its employees, agents, visitors, licensees, and/or invitees on the Premises without prior written approval of CUSTOMER.

c. CONTRACTOR shall pay or cause payments to be made for all labor performed or furnished and for all materials used or employed in carrying out this Contract.

d. CUSTOMER reserves the right to reject any Subcontractors, such right not to be unreasonably exercised. In the event that CONTRACTOR retains Subcontractors to perform any design, engineering, installation or other Services required under the Contract, CONTRACTOR shall provide CUSTOMER with a written description of the qualifications of each Subcontractor for CUSTOMER’s approval prior to proceeding with any Services, such approval not to be unreasonably withheld.

e. CUSTOMER has the right to demand in writing that CONTRACTOR remove an employee or Subcontractor from the Project for reasons stated in writing.

5.4 Coordination During Project. Where there is a potential for conflict between the demands or requirements of the ongoing Commonwealth operations at the Premises, including but not limited to other capital projects, and the performance of the Installation Services in accordance with the Design/Construction Schedule, CONTRACTOR shall notify the Project Manager as soon as possible to determine the proper course of action. In the absence of specific direction by the Project Manager, CONTRACTOR shall adjust Design/Construction Schedule as necessary to accommodate the demands or requirements of the ongoing Commonwealth operations at the Premises, and shall notify the Project Manager as soon as possible detailing the implications of such adjustments on the overall Design/Construction Schedule. CONTRACTOR shall further endeavor to perform work simultaneously with other contractors performing work on other capital projects at the FACILITY to minimize disruptions to the FACILITY’s operations.

Coordination with the FACILITY shall be required throughout the Project.

CONTRACTOR shall be required to participate in ongoing communications with FACILITY personnel, including the facility manager, building occupant liaisons and security staff, at the direction of the Project Manager. Notwithstanding the foregoing, CONTRACTOR may not communicate with building occupants unless specifically requested by the Project Manager.

Section 6 Energy Savings.

a. CONTRACTOR shall calculate the Energy Savings during the performance of Design in accordance with Schedule B-3: ENERGY SAVINGS and shall update the Energy Savings throughout the Project no less than quarterly.

b. The Energy Savings are a performance specification for this Contract. As such, CONTRACTOR represents to CUSTOMER the following:

(i) New Equipment/Systems provided in the Design meet or exceed the published catalog ratings.

(ii) The Design allows each New Equipment/System to meet or exceed the associated Energy Savings shown in Schedule B-3: ENERGY SAVINGS.

c. If Installation Services are authorized in accordance with the Contract, all Installation

Services shall be conducted to ensure that the Energy Savings are achieved.

CONTRACTOR, at no cost to CUSTOMER, shall be responsible for investigating and recommending any necessary updates and/or modifications to the Design and/or Installation Services to compensate for any reduction in the Energy Savings shown in updated calculations.

Section 7 Project Meetings

CONTRACTOR shall schedule weekly project meetings of CONTRACTOR and CUSTOMER to review progress on the Installation Services, agree on any redirection, ensure that good workmanship is maintained, coordinate any CUSTOMER activity with the Design/Construction Schedule, and otherwise maintain quality control. Project meetings may be scheduled less frequently if approved by DCAMM. CONTRACTOR shall take minutes of each meeting in a manner acceptable to CUSTOMER and shall distribute such minutes to CUSTOMER and all attendees and any other persons agreed upon by the parties no later than five (5) calendar days prior to the next scheduled meeting. CUSTOMER shall have at least five (5) calendar days to make corrections to minutes. Such corrections shall be deemed accepted by CONTRACTOR unless objections are provided to CUSTOMER in writing within three (3) calendar days of CUSTOMER’s distribution of corrections.

Section 8 Notice of Deficiencies in Existing Equipment/Systems.

If prior to or during the performance of the Design Services or Installation Services, either party is aware or becomes aware of any deficiencies in the Existing Equipment/Systems that were not previously noted in APPENDIX A: REFERENCE DOCUMENTS or SCHEDULE B:

Project Scope, that will cause a material change in the Design and/or Installation Services, that may: (1) prevent CONTRACTOR from completing the Installation Services as set forth in the Contract Documents or Design; (2) prevent the New Equipment/Systems from meeting the Standards of Comfort specified in Section 45; (3) prevent the New Equipment/Systems from meeting the estimated Energy Savings; and/or (4) may prevent CONTRACTOR from meeting any other requirements under this Contract, then the party that became aware of such deficiencies shall provide immediate written notice to the other of such deficiencies.

The notice of such deficiencies in the Existing Equipment/Systems shall include specific detail regarding the nature of the deficiencies and recommendations for the correction thereof in order to meet the contractual requirements. Upon receipt of notice of deficiencies, CONTRACTOR and CUSTOMER shall determine what, if any, deficiencies to the Existing Equipment/Systems are caused by the New Equipment/Systems installed by CONTRACTOR. To the extent that it is determined and agreed by the Parties that such deficiencies in the Existing Equipment/Systems are caused by New Equipment/Systems installed by CONTRACTOR under the Contract, then CONTRACTOR shall replace, modify, alter or repair such New Equipment/Systems to CUSTOMER's satisfaction at no additional cost to CUSTOMER, subject to Section 34. To the extent that the Parties cannot reach an agreement on the impact of any such deficiencies in accordance with Section 34, then the dispute shall be resolved in accordance with Section 34 and Section 52.

Section 9 Permits and Approvals.

All required permits, approvals and licenses required by Laws for the Services, including without limitation, all federal, state and local building, plumbing and electrical permits and utility interconnection agreements, shall be secured and paid for by CONTRACTOR prior to commencement of Installation Services (for the particular portion of Installation Services for which the permit, approval or license is required) or, issuance of the Certificate of Final Acceptance, as appropriate for the respective permits, approvals and licenses. CUSTOMER shall use reasonable efforts to assist CONTRACTOR in obtaining such necessary permits and approvals for installation of the New Equipment/Systems. In no event shall CUSTOMER, however, be responsible for payment of any permit or license fees. Before commencing any Services requiring a permit or license, CONTRACTOR shall furnish copies of each such required permit or license to CUSTOMER. CUSTOMER shall be responsible for obtaining any permits for operation of the New Equipment/Systems after the issuance of Certificate of Final Acceptance.

Section 10 CUSTOMER Authorization/Approval.

DCAMM shall retain ultimate approvals over the scope of Services, the qualifications of CONTRACTOR's consultants and Subcontractors, New Equipment/Systems installed, and end use conditions. No Services shall proceed without written consent of DCAMM; however, such consent shall not be unreasonably withheld or delayed. For purposes of this Contract, the Commissioner of DCAMM or his/her designee, in consultation with the CUSTOMER, shall be authorized to provide approvals, consent, acceptance, or any other procedural authorization related to the installation of the New Equipment/Systems required to be provided to CONTRACTOR hereunder.

Section 11 CORI Checks for Contractor’s and Subcontractors’ Employees.

If requested by DCAMM, CONTRACTOR shall submit information proving acceptable criminal background for all employees, agents and Subcontractors’ employees and agents

Section 12 Tool Inventory and Other Entry Procedures.

If set forth in SCHEDULE A: PROJECT INFORMATION, CONTRACTOR shall follow all tool inventory and other procedures for entry and/or exit of the Premises. Any delays due to application of such procedures shall not entitle the CONTRACTOR to an equitable adjustment of the Total Contract Value and/or extension of time in accordance with the Contract.

Section 13 CUSTOMER Access and Document Access.

a. CUSTOMER shall have access to inspect the work conducted on the Premises at all times during the Contract Term.

b. CUSTOMER shall have reasonable access to the books, records, and other compilations of data which pertain to the performance of the Services. Records shall be kept in accordance with generally accepted accounting principles, and calculations kept on file in legible form. CUSTOMER shall provide CONTRACTOR with reasonable notice prior to exercising its rights under this subparagraph and CONTRACTOR shall be afforded a reasonable opportunity to make books, records and data available.

c. Pursuant to Executive Order 195, the Governor or his designee, the Secretary of Administration and Finance, and the State Auditor or his designee shall have the right at reasonable times and upon reasonable notice to examine the books, records, and other compilations of data of CONTRACTOR and all Subcontractors which pertain to the performance and requirements of this Contract.

Section 14 Utility and Other Third Party Access.

Upon request by any utility company providing FACILITY with services and/or providing incentives, interconnection of renewable energy generators, or other funding or work for the Project, FACILITY shall agree to allow such utility company (or other approved agent or third parties) to interview DCAMM and to enter the Premises at reasonable times throughout the life of the installed New Equipment/Systems to install metering equipment, perform energy and water audits or inspect the Premises and any New Equipment/Systems installed.

CONTRACTOR also agrees to cooperate with such utility company (or its agent or third party) upon request and with prior consent of DCAMM (such consent not to be unreasonably withheld), in conducting such activities and/or in analyzing energy and water savings. At all times, a representative of DCAMM (or its agent) shall be present during such inspections

Section 15 Damages Caused by CONTRACTOR.

CONTRACTOR shall repair and restore to its original condition any area of damage caused by CONTRACTOR’s performance under this Contract. CUSTOMER reserves the right to review the work performed by CONTRACTOR and to direct CONTRACTOR to take certain corrective action if, in the opinion of CUSTOMER, the structural integrity of the Premises or its operating system is or will be harmed. All costs associated with such corrective action caused by CONTRACTOR’s breach of its obligations under this Contract shall be borne by CONTRACTOR. All construction and installation by CONTRACTOR shall be in compliance with applicable building, fire and other codes in existence as of the date of this Contract.

Section 16 Equal Employment Opportunity, Non-Discrimination in Hiring and

Employment and Affirmative Action Program [Executive Order Nos. 526 and 565]

CONTRACTOR and its Subcontractors may not engage in discriminatory employment practices; and CONTRACTOR certifies that they are in compliance with all applicable federal and state Laws, rules, and regulations governing fair labor and employment practices.

These provisions shall be enforced by CUSTOMER and/or the Massachusetts Commission Against Discrimination. Any breach shall be regarded as a material breach of this Contract and may subject CONTRACTOR to appropriate sanctions.

During the performance of this Contract, CONTRACTOR and all of its Subcontractor shall comply with all applicable equal employment opportunity, non-discrimination and affirmative action requirements, including but not limited to the requirements set forth in Schedule A-5:

Goals for Participation by M/WBE Enterprises/Equal Employment Opportunity, Anti- Discrimination, and Affirmative Action Program (Executive Orders No. 526 and No.

565). In addition, CONTRACTOR shall commit to purchasing supplies and services from certified minority or women-owned businesses, small businesses or businesses owned by socially or economically disadvantaged persons or persons with disabilities, including but not limited to the requirements set forth in Schedule A-5: Goals for Participation by M/WBE Enterprises/Equal Employment Opportunity, Anti-Discrimination, and Affirmative Action Program (Executive Orders No. 526 and No. 565).

For purpose of the Contract, "minority" refers to Asians, Blacks, Western Hemisphere Hispanics, Native Americans, and Cape Verdeans; "Commission" refers to the Massachusetts Commission Against Discrimination.

Section 17 Minority/Women Participation Goals and Anti-Discrimination Programs

CONTRACTOR shall comply with the goals as set forth in Schedule A-5: Goals for Participation by M/WBE Enterprises/Equal Employment Opportunity, Anti- Discrimination, and Affirmative Action Program (Executive Orders No. 526 and No.

565). The MBE/WBE participation goals shall be applied to the Total Contract Value.

Section 18 Veteran Owned Business Participation [Chapter 108 of the Acts of 2012;

Executive Order 565]

DCAMM encourages the participation of Service-Disabled Veteran-Owned Business Enterprises (“SDVOBE”) and Veteran-Owned Business (“VBE”) in its construction and design projects pursuant to Chapter 108 of the Acts of 2012 and Executive Order 565. The benchmark for SDVOBE and VBE participation on the Project is 3% of the Contract Price.

CONTRACTOR shall report on the amount of SDVOBE and VBE participation on the Project on a regular basis, in the form, format, and frequency requested by DCAMM, including, but not limited to, by electronic reporting.

Section 19 Prevailing Wages.

All workers employed under this Contract shall not be paid less than the minimum wage rate for the area as attached in Schedule A-7: Prevailing Wage Rates. Each CONTRACTOR must issue a statement of compliance to be incorporated into this CONTRACT. This statement, as attached in Schedule A-7: Prevailing Wage Rates, must be submitted within fifteen (15) days after completion of the Installation Services, and shall be executed by CONTRACTOR, Subcontractor, or public body or by any authorized officer or employee of CONTRACTOR, Subcontractor or public body who supervises the payment of wages.

CUSTOMER is not responsible for any errors, omissions, or misprints in the said Schedule A-7: Prevailing Wage Rates. Schedule A-7: Prevailing Wage Rates shall continue to be the minimum rate wages payable to workers employed in the Services throughout Contract Term, subject to the exceptions provided in M.G.L c.149, §§ 26-27H. CONTRACTOR shall not have any claim for extra compensation from CUSTOMER if the actual wages paid to workers employed in the Installation Services exceeds the rates listed on ScheduleA-7:

Prevailing Wage Rates or as otherwise provided by Laws. CONTRACTOR shall cause a copy of said Schedule A-7: Prevailing Wage Rates to be kept in a conspicuous place at the Premises during the Contract Term. If reserve police officers are employed by CONTRACTOR, they shall be paid the prevailing wage of regular police officers. (See M.G.L c.149, s.34B). M.G.L. c. 149, § 27 as amended on August 8, 2008 requires annual updates to prevailing wage schedules for all public construction projects lasting longer than one year.

CONTRACTOR is required to obtain the wage schedules from awarding authorities, and to pay no less than these rates to covered workers. CONTRACTOR and all Subcontractors are required to anticipate such annual updated prevailing wage schedules and neither CONTRACTOR nor any Subcontractors shall be entitled to claim additional compensation for Installation Services due to any increased rates shown on updated prevailing wage schedules.

Section 20 Materials Provided to CONTRACTOR.

All items made available to the CONTRACTOR in the RFP, including, without limitation the documents referenced in Appendix A, and otherwise provided by CUSTOMER to CONTRACTOR may be used for the purpose of this Contract and shall be handled in accordance with Sections 74 and 75. CUSTOMER does not guarantee, nor does it make any expressed or implied warranties concerning the accuracy of any such information. All such information is provided solely for the purpose of a setting forth the Project’s design intent, performance specifications, and in certain cases a preliminary design of the Project and shall not serve as a substitute for CONTRACTOR’s Design Services obligations hereunder.

PART B – DESIGN

Section 21 Initial Meeting

Upon execution of this Contract and receipt of a Notice to Proceed with Design Services, CONTRACTOR, its key personnel, (if applicable) Designer, and key Subcontractors as may be designated by CUSTOMER shall attend an administrative conference with CUSTOMER at the FACILITY for the purpose of making introductions, exchanging contact information, clarifying relationships, reviewing billing procedures, and any other preliminary Project information.

Section 22 Design Requirements and Approvals

22.1 CONTRACTOR’s Duty of Proper Design. CONTRACTOR is solely responsible for the design of Project. All Design Services called for by this Contract shall be performed by properly qualified and licensed professionals employed by CONTRACTOR and shall be performed in accordance with all Laws. CONTRACTOR shall perform all Design Services in accordance with the standards set forth herein, including with limitation, those set forth in Section 5.1, Section 45, and Schedule B:

PROJECT SCOPE.

22.2 Design Deliverables and Submittals.

a. General Requirements.

(i) Prior to the installation of any New Equipment/Systems, CONTRACTOR shall submit all required Design Deliverables as outlined in Schedule B: Project Scope, the Contract Documents, and submittals.

(ii) Design Deliverables shall follow guidelines established in Schedule B:

PROJECT SCOPE.

(iii) CONTRACTOR must have all drawings, submittals and design documents stamped by a Massachusetts registered professional engineer for each corresponding discipline, if applicable.

(iv) CONTRACTOR shall prepare drawings based upon and in accordance with DCAMM’s CAD Standards Manual revised February 2013 and DCAMM’s Building Information Modeling (BIM) List of Design and Preconstruction Services, dated April 13, 2015 which are available on the DCAMM website (www.mass.gov/dcamm), and any reasonable and necessary updates incorporated therein after the Effective Date.

DCAMM and the CONTRACTOR shall cooperate in the coordination of BIM/Revit standards with DCAMM CAD standards and make reasonable efforts to avoid incompatibilities and conflicts where possible between the two documentation systems.

(v) If applicable, CONTRACTOR shall include with any Design Deliverable a clear explanation of any material deviations from the Energy Savings. CONTRACTOR shall provide any back-up documentation, including, without limitation, Energy Savings calculations, requested by CUSTOMER to facilitate review of Design Deliverable.

b. Design Deliverables. CONTRACTOR shall provide the following documentation as part of the submission of Design Deliverables:

(i) one electronic copy readily downloadable of the drawings and at least two (2) paper copies of the same; or, where applicable, two (2) CDs (in electronic spreadsheet format) containing a detailed inventory of repairs of, for example, lighting, steam traps, and/or water fixtures and a minimum of two (2) paper copies of the same;

(ii) one electronic copy readily downloadable of the required specifications and two (2) paper copies of the same; and

(iii) if applicable, documentation of utility rebate and/or incentive application submittal and pre-approval, either as a PDF or at least two

(2) paper copies, as requested by CUSTOMER.

c. Submittal Requirements.

(i) In addition to Design Deliverables, CONTRACTOR shall provide the following submittals prior to the start of any Installation Services:

coordinated Shop Drawings, Product Data, shop details, setting diagrams, samples, and similar submittals required by the Design and/or Contract. CONTRACTOR shall provide a minimum of one electronic copy readily downloadable and two (2) paper copies of all such submittals.

(ii) For the final submittal for any piece of New Equipment/System, CONTRACTOR shall provide one electronic copy readily downloadable and two (2) paper copies of the following relating to the http://www.mass.gov/dcamm

New Equipment/Systems, all in documentation and format as may be determined by DCAMM: descriptive literature, specifications, location key, manufacturer cut sheets, Shop Drawings, reflective ceiling plans, emergency lighting, lighting line-by-line, and, if requested, sample products, related warranties and maintenance agreements.

(iii) CONTRACTOR shall prepare and keep current a schedule of submittals which is coordinated with the progress schedule required under Section 24 and allows CUSTOMER reasonable time to review submittals.

(iv) By submitting Shop Drawings, Product Data, samples and similar submittals, CONTRACTOR represents that CONTRACTOR has determined and verified materials, field measurements, and field construction criteria related thereto and has checked and coordinated the information contained within such submittals with the requirements of the Design and Contract.

(v) CONTRACTOR shall perform the Installation Services in accordance with all Shop Drawings, Product Data, samples and similar submittals.

Materials furnished, used, or employed under the Contract must be equal in quality to the samples furnished.

d. Commissioning and M&V Plan.

(i) DCAMM’s third party commissioning agent will create a commissioning plan to be provided to CONTRACTOR by DCAMM prior to the acceptance of the final design. CONTRACTOR shall provide to DCAMM any comments on the commissioning plan within thirty (30) days of receipt of the plan or as part of final Design Deliverable, whichever is earlier. The commissioning plan shall: describe how performance testing is to be conducted for each element and total system of the installed New Equipment/Systems; be created in accordance with the procedures outlined in Schedule B-4:

Commissioning/M&V; designate the commissioning team and their roles and responsibilities, the pre-functional and functional performance test forms, and commissioning schedule, as it relates to the overall Design/Construction Schedule; and provide a description of how system deficiencies will be recorded and corrected before project closeout.

(ii) The CONTRACTOR shall create a separate Measurement and

Verification (M&V) plan describing how CONTRACTOR will verify the Energy Savings for the Project. This M&V plan shall: be created in accordance with the procedures outlined in Schedule B-4:

Commissioning/M&V; describe the pre-installation measurement or data logging of energy consumption for each piece of equipment being installed, the recommended permanent metering equipment to be installed, and the approach for post-installation measurement of energy consumption of new systems; and include the calculation methodology for Energy Savings based on measured and stipulated variables. The draft M&V Plan shall be submitted with 50% design submittals. CONTRACTOR must have CUSTOMER acceptance of the M&V plan prior to submission of any 90% design submission. Design Deliverables shall not be considered completed and CONTRACTOR may not commence Installation Services for any New Equipment/Systems without an M&V plan accepted by CUSTOMER, unless otherwise specifically authorized by DCAMM. This M&V plan accepted by CUSTOMER will be used by the CONTRACTOR and the Project Manager to ensure verification of Energy Savings in a transparent manner.

e. CUSTOMER Review. DCAMM shall review all Design Deliverables for compliance with SCHEDULE B: PROJECT SCOPE and CONTRACTOR submittals and notify CONTRACTOR within a maximum of thirty (30) days if the Design Deliverable is acceptable or respond with objections, changes, or requests for clarification.

22.3 Value Engineering. During the performance of Design Services, if CONTRACTOR or

CUSTOMER proposes a design change to the New Equipment/Systems resulting in a substantial increase to the Total Contract Value, CONTRACTOR shall value engineer as appropriate to maintain the Total Contract Value and savings requirements as of the Effective Date, unless otherwise instructed by DCAMM. If, despite good faith value engineering efforts by CONTRACTOR, an increase to the Total Contract Value is necessary, in DCAMM’s reasonable discretion, the Total Contract Value will be increased in accordance with Section 23. If such a change is proposed that would result in a substantial decrease to the Total Contract Value, the Total Contract Value will be adjusted downwards in accordance with Section 23.

22.4 No Installation Service prior to CUSTOMER Review. CONTRACTOR shall not commence Installation Services for any New Equipment/Systems until all required Design Deliverables and the final required submittal for such New Equipment/System have been reviewed by CUSTOMER in accordance with this Contract and this Contract has been amended to incorporate the Installation Services in the authorized scope of work. CUSTOMER’s acceptance of the Design and/or amendment of the Contract to authorize Installation Services shall in no way relieve CONTRACTOR from its professional responsibility for all Services and documents furnished by CONTRACTOR and its Subcontractors (including, if applicable, CONTRACTOR’s Designer), including, without, limitation all Design Deliverables and submittals.

22.5 Compliance with Life-Cycle Cost Estimate [M.G.L. c. 7C § 29 and M.G.L. c. 149 §

44M]. CONTRACTOR shall comply with all of the life-cycle cost estimate and analysis requirements set forth in M.G.L. c. 7C § 29 and c. 149 § 44M and this Contract. The CONTRACTOR acknowledges that failure to obtain life-cycle cost estimates as required hereunder may result in the Director of the Office of Consumer Affairs and Business Regulation prohibiting the CONTRACTOR from contracting, directly or indirectly, with the Commonwealth or any political subdivision thereof for similar Services for a period of one year, pursuant to M.G.L. c. 149 § 44M.

22.6 Test Installations. If requested by CUSTOMER, CONTRACTOR and CUSTOMER shall cooperatively identify areas suitable for test installation.