Final_Model_Contract_-_Vertical_Conveyance_Phases_2-4.pdf

MODEL CONTRACT

County of Orange RFP # 280-3132302-RB

Design Build for Vertical Conveyance Project Phases 2-4

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SECTION III: MODEL CONTRACT

FOR

VERTICAL CONVEYANCE PROJECT PHASES 2 - 4

MA-280-XXXXXX

This Contract is made and entered into the _____ day of _______________, 20____, by and between the

County of Orange (“County”), and_______________________________________, (D-BE) with County and D-BE sometimes individually referred to as (“Party”), or collectively referred to as (“Parties”).

County and D-BE agree as follows:

1. CONTRACT DOCUMENTS

Contract Documents, which together comprise the complete Contract between County and DB-E, consist of the following: County approved Guaranteed Maximum Price (GMP) package(s), as approved by the Director or designee; this Contract; the General Conditions; Supplementary General

Conditions; Addenda and Bulletins; Attachments; Appendices; Plans; and Specifications mentioned in any Contract Documents; and all modifications and amendments to the foregoing issued after the date of execution of the Contract, including Amendments and Change Orders. The Contract

Documents also include a Faithful Performance Bond and the Labor and Material Payment Bond corresponding with each GMP. The Contract Documents are complementary, and what is called for by anyone shall be as binding as if called for by all.

2. SCOPE OF WORK

DB-E shall perform all work as required by, and in strict accordance with, the Contract Documents which consists of design and construction services for the Vertical Conveyance Project Phases 2 –

4 (the “Project”).

3. CONTRACT PRICE, CONTINGENCY AND CONTRACT TIME

3.1 CONTRACT PRICE

County shall pay D-BE for all work required by the Contract Documents the total Contract Price of

_______________________________________ Dollars ($____________) including

_______________________________________ Dollars ($____________) for Guaranteed

Maximum Prices (GMP) 1 – Design Services, Pre-Construction Phase, (GMP) 2 – Construction

Services. (as defined below), all add alternates and County Contingency as it may be adjusted pursuant to the “Changes” Section of the General Conditions, and in accordance with the

“Payments” Section of the General Conditions. The sum of all Guaranteed Maximum Prices (GMP) submittals (as defined below) shall not exceed the total Contract Price.

3.2 CONTINGENCY

“D-BE’s Contingency” means a fund to cover the cost growth during the Project used at the discretion of the D-BE usually for costs that result from Project circumstances. The amount of the D-BE’s Contingency will be a separate line item in the GMP package. Use and management of the D-BE’s Contingency during the design and construction phase as is described here-in.

“County’s Contingency” means funds to cover cost growth during the Project used at the discretion of the County usually for costs that result from County directed changes or

3132302 Page 14 of 107 unforeseen site conditions. The amount of the County’s Contingency will be $TBD and is included in the Total Contract Price.

D-BE’s Contingency is an amount the D-BE shall use under the following conditions:

(1) At its discretion for increases in the Contract price which are not the

County’s responsibility, or

(2) With written approval of the County for increases in General

Condition Costs. D-BE’s Contingency is assumed to be a direct project cost so will receive all markups at the time of GMP submission.

County’s Contingency funds are to be used at the discretion of the County to cover any increases in Project costs that result from County directed changes or unforeseen site conditions. The County’s Contingency will be added to the GMP amount provided by the

D-BE, the sum of which will be the full contract price for construction. Markups for

Construction Fee and taxes will be applied by the D-BE at the time that County’s

Contingency is used. Any County Contingency not utilized shall revert to the County after

Project completion.

3.3 CONTRACT TIME

Within 10 calendar days of the Board of Supervisors’ award of the Contract, D-BE shall submit to

County for its review of bonds (as detailed below); proof of insurance; and Preliminary Design &

Construction Schedule. If County rejects the submitted documents, D-BE will have five (5) additional calendar days to resubmit. If D-BE fails to submit documents within the required time(s), the Contract Time (as defined below) will be reduced by the number of days which exceed the time for submittal. If D-BE fails to submit acceptable documents by the second submission, County may, at its sole discretion, reduce the Contract Time by the number of days between County’s rejection of the second submission and County’s approval of the documents.

Upon County’s approval of the bonds, insurance, and Preliminary Design & Construction Schedule, County will deliver to D-BE a signed copy of the Contract and a Notice to Proceed for GMP 1 –

Design Services and Preconstruction Phase. D-BE shall not design or commence construction until

County issues a Notice to Proceed. Following County’s issuance of Notice to Proceed, D-BE shall achieve Substantial Completion of the Work within 1,000 calendar days. Following issuance of

Notice of Substantial Completion, DB-E shall achieve Final Completion in 95 calendar days. The total Contract Time is 1,095 calendar days. The Contract Time includes 93 calendar days of anticipated weather calendar days necessitating stoppage of work, and a time extension due to rain or other adverse weather conditions will only be granted in accordance with the “Delays Due to

Weather and Force Majeure” Section of the General Conditions.

The County will not be responsible for the failure of the D-BE to plan, schedule, and execute the work in accordance with the approved schedule or the failure of the D-BE to meet the Contract completion dates or the failure of the D-BE to schedule and coordinate the work of his Architect and

Engineers, own trades and sub-contractors or to coordinate with others separate D-BEs.

Design and Construction Critical Path Schedule:

After receipt of the Contract Notice to Proceed (NTP) for GMP 1 the D-BE shall initiate design, comply with all design submission requirements as covered under General Conditions, and obtain

County review of each submission. The Design and Construction Critical Path schedule shall contain separate GMPs. GMP 1 for Phase 1 shall include Design and Pre-Construction Services. Remaining

GMPs shall include Construction Phase Services, construction work and any other additional work.

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D-BE may propose additional GMPs to County if determined necessary. The D-BE may begin construction on portions of the work for which the County has reviewed the GMP submission and has issued the related NTP.

Design and Construction Critical Path schedule shall include submission dates for all GMPs. The

GMP submission dates cannot be changed without County concurrence. County agrees to review all GMP submittals within 14 calendar days of receipt. If County rejects any submitted GMP, D-BE will have 7 additional calendar days to resubmit to County then County will have 7 additional calendar days to review.

4. BONDS

Within 14 calendar days after award of the Contract, the successful D-BE shall furnish a Faithful

Performance Bond and a Labor and Material Payment Bond, each in an amount equal to 100% of the Contract Price, issued by a surety in accordance with the requirements of the General Conditions of the Contract. The bonds shall be in the form of the models included in the Request for Proposal must be approved by County’s Risk Manager and County Counsel. The successful D-BE shall submit the bonds, all of which shall bear original signatures. The signature of the surety representative must be notarized.

5. LIQUIDATED DAMAGES

In accordance with Government Code Section 53069.85, D-BE agrees to forfeit and pay to County the sum of fifteen thousand dollars ($15,000) per day (“Liquidated Damages”) for each calendar day that either Substantial Completion or Final Completion is delayed, as may be adjusted by

Change Order. County may deduct such sum from any payments due to or to become due to D-BE.

If the Liquidated Damages exceed the unpaid balance of the Contract Price otherwise owed to D-

BE, then D-BE shall immediately pay County the difference.

6. EMPLOYEE ELIGIBILITY VERIFICATION

D-BE hereby certifies that it complies with all applicable laws and regulations regarding the eligibility of its employees to work in the United States, and that all of its employees performing work under this Contract meet all citizenship or immigration status requirements to do so. D-BE shall obtain all documentation necessary to verify the employment eligibility status of covered employees as described by U.S. Citizenship and Immigration Services Form I-9. D-BE shall retain such documentation for the period prescribed by law. D-BE shall indemnify, defend with counsel approved in writing by County, and hold harmless the County, its agents, officers, and employees from any sanctions or liability that may be assessed in connection with any alleged violation of federal or State laws or regulations pertaining to the eligibility for employment of any persons performing work under this Contract.

7. SECURING WORKERS’ COMPENSATION INSURANCE CERTIFICATION

D-BE, by executing this Contract, hereby certifies:

“I am aware of the provisions of Section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of this contract.”

8. PARTIES’ REPRESENTATIVES

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For Contractor:

DB-E’s Name.

DB-E’s Address

City, State Zip Code

Attn: DB-E Point of Contact

Phone: Enter phone number

E-mail: Enter email address

For County:

Agency/Department

Agency Address

City, State Zip Code

Attn: <Insert PM>, Project Manager

Phone: Phone Number

E-mail: Email address cc: John Wayne Airport Administration

3160 Airway Ave.

Costa Mesa, CA 92626

Attn: <Insert Buyer Name>

Phone: Phone Number

E-mail: Enter email address

8.1 COUNTY’S REPRESENTATIVES

8.1.1 John Wayne Airport: The Project is under the general direction of County’s Board of Supervisors.

The Board of Supervisors authorizes John Wayne Airport to be County’s representative in connection with the Project.

8.1.2 Design and Construction Representative: The Design and Construction Representative shall be the

County’s Project Manager (“PM), unless designates in writing an alternate person who will act as

County's representative during design and construction of the Project. Unless otherwise expressly stated in the Contract Documents, County's designated representative will issue and receive all written communications on behalf of County for the Project. The designated representative shall also coordinate any communications to or from County’s PM in connection with the Project.

8.1.3 County’s Project Manager: County’s Project Manager is the County’s exclusive contact agent to the

D-BE with respect to this Project during design and construction and until the completion of the

Project. The County’s communications with the D-BE shall be exclusively through the County’s

Project Manager.

8.2 COUNTY

County has the final authority in all matters affecting the work. County has the authority to enforce

D-BE’s compliance with the Contract Documents. County’s decision is final and binding on all questions relating to design documents and requirements; quantities; acceptability of material, equipment, or work; execution, progress, or sequence of work; and interpretation of the Contract

Documents. All labor, materials, tools, equipment furnished by D-BE and all work performed by D-

BE shall be subject to the approval of County.

8.2.1 The County shall not be responsible for or have control or charge of the construction means, methods, techniques, sequences or procedures, or for safety precautions and programs in connection

3132302 Page 17 of 107 with the work, and will not be responsible for the D-BE's failure to carry out the work in accordance with the Contract Documents.

8.2.2. The County will not be responsible for the acts or omissions of the D-BE, or any subcontractor, or any D-BE's or subcontractor's agents or employees, or any other persons performing any of the work.

8.3 D-BE’S REPRESENTATIVES

8.3.1 Representative and Alternate: Before starting work, D-BE shall designate in writing a representative who shall have complete authority to act for it. The representative shall be the same as proposed during original Request for Proposal selection process. D-BE may also designate an alternate representative (also as identified during original Request for Proposal selection process) with complete authority to act for it. County may rely on such representative or alternate as having the authority to execute Change Orders in any amount unless D-BE identifies to County in writing the officer(s) or employee(s) with such authority. Any order or communication given to this representative shall be deemed delivered to D-BE. In the absence of D-BE’s representative, instructions or directions may be given by County to the project manager or superintendent. Such order shall be complied with promptly and referred to D-BE or its representative. D-BE’s representative and alternate must be able to read, write, and speak English fluently.

8.3.2 D-BE’s Project Manager: D-BE shall provide the services of a Project Manager, as proposed during original Request for Proposal selection process. D-BE’s Project Manager, if different than designated representative, shall represent D-BE in the absence of D-BE’s designated representative or alternate, and all directions given to this Project Manager shall be binding as if given to D-BE.

County may require D-BE to replace its Project Manager whose conduct or performance is unsatisfactory. D-BE shall not change its Project Manager without County’s consent unless the

Project Manager is unsatisfactory to D-BE or ceases to be in D-BE's employ. If D-BE’s Project

Manager leaves the Project, D-BE shall replace him or her within 24 hours (unless additional time is agreed upon by County) with a new, well-qualified Project Manager acceptable to County.

8.3.3 Architect/Engineer: D-BE shall designate in writing a representative who shall be responsible for all Architect-Engineer (A-E) services, as required by law, and is registered by the State of California for the practice of specialized A-E services per the attached Program Requirements.

8.3.4 Superintendent(s): D-BE shall provide the services of the superintendent(s) as proposed during original Request for Proposal selection process. A superintendent shall be present at the work site whenever work is in progress including whenever weather conditions necessitate its presence to take measures necessary to protect the work, persons, or property. D-BE’s superintendent shall represent

D-BE in the absence of D-BE’s designated representative, alternate or project manager, and all directions given to the superintendent(s) shall be binding as if given to D-BE. The superintendent must read, write, and speak English fluently. County may require D-BE to replace a superintendent whose conduct or performance is unsatisfactory. D-BE shall not change its superintendent without

County’s consent unless the superintendent is unsatisfactory to D-BE or ceases to be in D-BE's employ. If D-BE’s superintendent leaves the Project, D-BE shall replace him or her within 24 hours

(unless additional time is agreed upon by County) with a new, well-qualified superintendent acceptable to County.

8.3.5 Emergency Contacts: D-BE shall provide County with a list of names and telephone numbers at which D-BE’s representative, alternate, superintendent, and other key personnel can be reached during non-working hours in the case of an emergency.

9. GOVERNING LAW AND VENUE – CODE OF CIVIL PROCEDURE SECTION 394

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This Contract has been negotiated and executed in the State of California and shall be governed by and construed under the laws of the State of California. In the event of any legal action to enforce or interpret this Contract, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the parties hereto agree to and hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure Section 394.

The parties specifically agree that by soliciting and entering into and performing services under this

Contract, the D-BE shall be deemed to constitute doing business within Orange County from the time of solicitation of work, through the period when all work under this Contract is completed, and continuing until the expiration of any applicable limitations period. Furthermore, the parties have specifically agreed, as part of the consideration given and received for entering this Contract, to waive any and all rights to request that an action be transferred for trial to another county under

Code of Civil Procedure Section 394.

10. SIGNATURE REQUIREMENTS

The Contract must be signed by officer(s) authorized to bind D-BE. If documentation demonstrating express authority is not provided, then the Contract must be signed by those officers with apparent authority to bind D-BE. If D-BE is a corporation, such signatures must comply with Corporations

Code Section 313, as follows:

1) The document must be signed by two (2) people. One of them must be the Chairman of the

Board, the President, or any Vice-President. The other must be the Secretary, any Assistant

Secretary, the Chief Financial Officer or any Assistant Treasurer.

One (1) corporate officer may sign the document, providing that written evidence of the officer’s authority to bind the corporation with only his or her signature must be provided.

This evidence would ideally be a Corporate Resolution.

11. ENTIRE CONTRACT

The Contract Documents represent the entire and integrated agreement between County and D-BE and supersede all prior representations, statements, or agreements concerning the subject matter of this Contract, whether verbal or written.

12. CONFIDENTIALITY

All ideas, memoranda, specifications, plans, procedures, drawings, descriptions, and all written or other information submitted to A-E in connection with the performance of this Contract shall be held confidential by A-E and/or anyone acting under the supervision of A-E and shall not, without the prior written consent of County, be used for any purposes other than the performance of the

Projects/Services described in Attachment A, nor be disclosed to any person, partnership, company, corporation or agency, not connected with the performance of the Projects/Services. Nothing furnished to A-E which is generally known among counties in Southern California shall be deemed confidential. A-E and/or anyone acting under the supervision of A-E shall not use County name or insignia, photographs of the work, or any other publicity pertaining to the work in any magazine, trade paper, newspaper, or other medium without the express written consent of County.

13. PUBLICATIONS

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No copies of sketches, schedules, written documents, computer based data, photographs, maps or graphs, including graphic art work, resulting from performance or prepared in connection with this

Contract, are to be released by A-E and/or anyone acting under the supervision of A-E to any person, partnership, company, corporation, or agency, without prior written approval by the County, except as necessary for the performance of the services of this Contract. All press contacts, including graphic display information to be published in newspapers, magazines, etc., are to be administered only after County approval. The A-E agrees that it will not issue any news releases or make any contact with the media in connection with either the award of this Contract or any subsequent amendment of, or effort under, this Contract. A-E must first obtain review and approval of said media contact from County’s Project manager. Any requests for interviews or information received by the media should be referred directly to the County. A-Es are not authorized to serve as media spokespersons for County’s projects without first obtaining written permission from the County’s

Project Manager.

14. OWNERSHIP OF DOCUMENTS

All documents, including but not limited to drawings, designs, plans, specifications, models, schedules, estimates, and other D-BE work or materials in all forms and media pertaining to DBE’s

Scope of Services furnished hereunder shall be and remain the property of County, and may be used by County as it may require without limitation, without any additional cost to County. However, D-

BE does not accept responsibility for County’s use of D-BE’s work under this Agreement for other projects and A-E shall be held harmless for release of such data as may be prepared or created under this Contract to any third party. D-BE will provide all such work and materials County upon request, including copies of all work or materials prepared in electronic or digital format on computer disk or other applicable media. The rights and obligations of this paragraph shall survive the termination or completion of this Agreement. County shall not be limited in any way to its use thereof at any time, including the release of this data to third parties. If A-E and/or anyone acting under the supervision of A-E should later desire to use any of the data prepared in connection with this

Contract, A-E shall first obtain the written approval of County.

15. CAMPAIGN CONTRIBUTION REQUIREMENT

D-BE agrees to comply with Government Code Section 84308. D-BE further agrees to disclose to

County any contribution made to any members of the Board of Supervisors or County Agency

Officers by D-BE, D-BE’s agent or lobbyist, or, if applicable, any subcontractor(s) for the twelve

(12) months prior to and twelve (12) months following the approval, renewal, or extension of this

Contract.

16. CIVIL RIGHTS AND NONDISCRIMINATION

A. General Civil Rights Provisions: In all its activities within the scope of its airport program, the

Contractor agrees to comply with pertinent statutes, Executive Orders, and such rules as identified in Title VI List of Pertinent Nondiscrimination Acts and Authorities to ensure that no person shall, on the grounds of race, color, national origin, creed, sex, age, or disability be excluded from participating in any activity conducted with or benefiting from Federal assistance.

This provision is in addition to that required by Title VI of the Civil Rights Act of 1964.

The above provision binds the Contractor and subcontractors from the bid solicitation period through the completion of the contract.

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B. Nondiscrimination: In the performance of this Contract, Contractor agrees that it will comply with the requirements of Section 1735 of the California Labor Code and not engage nor permit any subcontractors to engage in discrimination in employment of persons because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, marital status, or sex of such persons. Contractor acknowledges that a violation of this provision shall subject Contractor to penalties pursuant to Section 1741 of the California Labor Code.

C. Compliance with Nondiscrimination Requirements: During the performance of this Contract, the

Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the

“Contractor”), agrees as follows:

1. Compliance with Regulations: The Contractor (hereinafter includes consultants) will comply with the Title VI List of Pertinent Nondiscrimination Acts and Authorities, as they may be amended from time to time, which are herein incorporated by reference and made a part of this

2. Nondiscrimination: The Contractor, with regard to the work performed by it during the contract, will not discriminate on the grounds of race, color, national origin, creed, sex, age, or disability in the selection and retention of subcontractors, including procurements of materials and leases of equipment. The Contractor will not participate directly or indirectly in the discrimination prohibited by the Nondiscrimination Acts and Authorities, including employment practices when the Contract covers any activity, project, or program set forth in

Appendix B of 49 CFR part 21 including amendments thereto.

3. Solicitations for Subcontracts, including Procurements of Materials and Equipment: In all solicitations, either by competitive bidding or negotiation made by the Contractor for work to be performed under a subcontract, including procurements of materials, or leases of equipment, each potential subcontractor or supplier will be notified by the Contractor of the Contractor’s obligations under this Contract and the Nondiscrimination Acts and Authorities on the grounds of race, color, or national origin.

4. Information and Reports: The Contractor will provide all information and reports required by the Acts, the Regulations, and directives issued pursuant thereto and will permit access to its books, records, accounts, other sources of information, and its facilities as may be determined by the Sponsor or the Federal Aviation Administration to be pertinent to ascertain compliance with such Nondiscrimination Acts and Authorities and instructions. Where any information required of a contractor is in the exclusive possession of another who fails or refuses to furnish the information, the Contractor will so certify to the Sponsor or the Federal Aviation

Administration, as appropriate, and will set forth what efforts it has made to obtain the information.

5. Sanctions for Noncompliance: In the event of a Contractor’s noncompliance with the nondiscrimination provisions of this Contract, the Sponsor will impose such contract sanctions as it or the Federal Aviation Administration may determine to be appropriate, including, but not limited to:

i. Withholding payments to the Contractor under the contract until the Contractor complies;

and/or

ii. Cancelling, terminating, or suspending a contract, in whole or in part.

6. Incorporation of Provisions: The Contractor will include the provisions of paragraphs (1) through (6) in every subcontract, including procurements of materials and leases of equipment, 3132302 Page 21 of 107 unless exempt by the Acts, the Regulations, and directives issued pursuant thereto. The

Contractor will take action with respect to any subcontract or procurement as the Sponsor or the

Federal Aviation Administration may direct as a means of enforcing such provisions including sanctions for noncompliance. Provided that if the Contractor becomes involved in, or is threatened with litigation by a subcontractor, or supplier because of such direction, the

Contractor may request the Sponsor to enter into any litigation to protect the interests of the

Sponsor. In addition, the Contractor may request the United States to enter into the litigation to protect the interests of the United States.

Upon request by the County, Contractor will provide a copy of each subcontract to demonstrate the above language has been inserted.

D. Title VI List of Pertinent Nondiscrimination Acts and Authorities: During the performance of this Contract, the Contractor, for itself, its assignees, and successors in interest (hereinafter referred to as the “Contractor”) agrees to comply with the following nondiscrimination statutes and authorities; including but not limited to:

• Title VI of the Civil Rights Act of 1964 (42 USC § 2000d et seq., 78 stat. 252) (prohibits discrimination on the basis of race, color, national origin);

• 49 CFR part 21 (Nondiscrimination in Federally-Assisted Programs of the Department of

Transportation—Effectuation of Title VI of the Civil Rights Act of 1964) including amendments thereto;

• The Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, (42

U.S.C § 4601) (prohibits unfair treatment of persons displaced or whose property has been acquired because of Federal or Federal-aid programs and projects);

• Section 504 of the Rehabilitation Act of 1973 (29 USC § 794 et seq.), as amended (prohibits discrimination on the basis of disability); and 49 CFR part 27 (Nondiscrimination on the Basis of Disability in Programs or Activities Receiving Federal Financial Assistance);

• The Age Discrimination Act of 1975, as amended (42 USC § 6101 et seq.) (prohibits discrimination on the basis of age);

• Airport and Airway Improvement Act of 1982 (49 USC § 47123), as amended (prohibits discrimination based on race, creed, color, national origin, or sex);

• The Civil Rights Restoration Act of 1987 (PL 100-259) (broadened the scope, coverage and applicability of Title VI of the Civil Rights Act of 1964, the Age Discrimination Act of 1975 and Section 504 of the Rehabilitation Act of 1973, by expanding the definition of the terms

“programs or activities” to include all of the programs or activities of the Federal-aid recipients, sub-recipients and contractors, whether such programs or activities are Federally funded or not);

• Titles II and III of the Americans with Disabilities Act of 1990 (42 USC § 12101, et seq), (prohibit discrimination on the basis of disability in the operation of public entities, public and private transportation systems, places of public accommodation, and certain testing entities) as implemented by U.S. Department of Transportation regulations at 49 CFR parts 37 and 38;

• Title IX of the Education Amendments of 1972, as amended, which prohibits you from discriminating because of sex in education programs or activities (20 U.S.C. § 1681, et seq).

Contractor is required to insert the above Title VI List of Pertinent Nondiscrimination Acts and

Authorities into every subcontract at any tier. Upon request by the County, Contractor will provide a copy of each subcontract to demonstrate that the above language has been inserted.

E. Civil Rights Training: Upon request by the County, Contractor is required to disseminate and provide training materials and other information related to Title VI Civil Rights to its staff as specified by the County.

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17. FEDERAL AVIATION ADMINISTRATION AIRPORT IMPROVEMENT

PROGRAM REQUIREMENTS

This Contract may be funded in whole or in part by financial assistance from the Federal Aviation

Administration (“FAA”), including Airport Improvement Program (“AIP”) funds and/or other

Federal financial assistance programs administered by the FAA. Accordingly, Contractor shall comply with all applicable Federal laws, regulations, grant requirements, FAA policies, and Federal contract provisions applicable to the Work.

For purposes of this Section, the term “Contractor” includes Contractor, its subcontractors, sub-subcontractors, suppliers, consultants, and subconsultants, as applicable, at every tier. Contractor shall be responsible for ensuring compliance by all lower-tier entities performing Work under this

The Federal requirements applicable to this Contract shall be determined based upon the nature of the Work, the source of Federal funding, the applicable Federal grant requirements, and the dollar thresholds established by the FAA. Nothing in this Section shall be construed to impose a Federal requirement that is not applicable to the Work or to alter a mandatory Federal provision.

The following provisions apply to this Contract to the extent applicable:

I. ACCESS TO RECORDS AND REPORTS

The Contractor must maintain an acceptable cost accounting system. The Contractor agrees to provide the Owner, the Federal Aviation Administration, the Comptroller General of the United

States, and any of their duly authorized representatives access to any books, documents, papers, and records of the Contractor that are directly pertinent to the specific Contract for the purpose of making audit, examination, excerpts, and transcriptions.

The Contractor agrees to maintain all books, records, and reports required under this Contract for a period of not less than three (3) years after final payment is made and all pending matters are closed.

II. BREACH OF CONTRACT TERMS

Any violation or breach of terms of this contract on the part of the Contractor or its subcontractors may result in the suspension or termination of this Contract or such other action that may be necessary to enforce the rights of the parties of this agreement.

Owner will provide Contractor written notice that describes the nature of the breach and corrective actions the Contractor must undertake in order to avoid termination of the Contract. Owner reserves the right to withhold payments to Contractor until such time the Contractor corrects the breach or the Owner elects to terminate the Contract. The Owner’s notice will identify a specific date by which the Contractor must correct the breach. Owner may proceed with termination of the Contract if the

Contractor fails to correct the breach by the deadline indicated in the Owner’s notice.

The duties and obligations imposed by the Contract Documents and the rights and remedies available thereunder are in addition to, and not a limitation of, any duties, obligations, rights and remedies otherwise imposed or available by law.

III. BUY AMERICAN PREFERENCE

Contractor shall comply with the FAA Buy American Preference requirements applicable to the

Project, including the requirements set forth in Exhibit A3.3.3, Certification of Compliance with

FAA Buy American Preference – Equipment/Building Projects, which is incorporated into and made a part of this Contract. Contractor shall comply with the certification selected and executed pursuant to Exhibit A3.3.3 and shall provide documentation required by the FAA or Owner to demonstrate such compliance.

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IV. CLEAN AIR AND WATER POLLUTION CONTROL

Contractor agrees to comply with all applicable standards, orders, and regulations issued pursuant to the Clean Air Act (42 U.S.C. §§ 7401-7671q) and the Federal Water Pollution Control Act as amended (33 U.S.C. §§ 1251-1387). The Contractor agrees to report any violation to the Owner immediately upon discovery. The Owner assumes responsibility for notifying the Environmental

Protection Agency (EPA) and the Federal Aviation Administration.

Contractor must include this requirement in all subcontracts that exceed $150,000.

V. CONTRACT WORK HOURS AND SAFETY STANDARDS ACT

1. Overtime Requirements.

No contractor or subcontractor contracting for any part of the contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic, including watchmen and guards, in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one-half times the basic rate of pay for all hours worked in excess of forty hours in such workweek.

2. Violation; Liability for Unpaid Wages; Liquidated Damages.

In the event of any violation of the clause set forth in paragraph (1) of this clause, the Contractor and any subcontractor responsible therefore shall be liable for the unpaid wages. In addition, such contractor and subcontractor shall be liable to the United States (in the case of work done under contract for the District of Columbia or a territory, to such District or to such territory), for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph

(1) of this clause, in the sum of $33 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this clause.

3. Withholding for Unpaid Wages and Liquidated Damages.

The Federal Aviation Administration (FAA) or the Owner shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the contractor or subcontractor under any such contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime contractor, such sums as may be determined to be necessary to satisfy any liabilities of such contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this clause.

4. Subcontractors.

The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs

(1) through (4) and also a clause requiring the subcontractor to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this clause.

VI. COPELAND “ANTI-KICKBACK” ACT

Contractor must comply with the requirements of the Copeland “Anti-Kickback” Act (18 USC 874 and 40 USC 3145), as supplemented by Department of Labor regulation 29 CFR part 3. Contractor and subcontractors are prohibited from inducing, by any means, any person employed on the project to give up any part of the compensation to which the employee is entitled. The Contractor and each

Subcontractor must submit to the Owner, a weekly statement on the wages paid to each employee

3132302 Page 24 of 107 performing on covered work during the prior week. Owner must report any violations of the Act to the Federal Aviation Administration.

VII. DAVIS-BACON REQUIREMENTS

1. Minimum Wages.

(i) All laborers and mechanics employed or working upon the site of the work will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by the Secretary of Labor under regulations implementing the Copeland Act (29 CFR Part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalent thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics.

Contributions made or costs reasonably anticipated for bona fide fringe benefits under section

1(b)(2) of the Davis-Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR § 5.5(a)(4).

Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each classification for the time actually worked therein: Provided, that the employer’s payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classification and wage rates conformed under (1)(ii) of this section) and the Davis-Bacon poster (WH-1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can easily be seen by the workers.

(ii)(A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefore only when the following criteria have been met:

(1) The work to be performed by the classification requested is not performed by a classification in the wage determination;

(2) The classification is utilized in the area by the construction industry; and

(3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination.

(B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate

(including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, U.S.

Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.

(C) In the event the Contractor, the laborers, or mechanics to be employed in the classification, or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting

3132302 Page 25 of 107 officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30-day period that additional time is necessary.

(D) The wage rate (including fringe benefits where appropriate) determined pursuant to subparagraphs (1)(ii) (B) or (C) of this paragraph, shall be paid to all workers performing work in the classification under this contract from the first day on which work is performed in the classification.

(iii) Whenever the minimum wage rate prescribed in the contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof.

(iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the

Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis-Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program.

2. Withholding.

The Federal Aviation Administration or the Sponsor shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this contract or any other Federal contract with the same prime contractor, or any other federally-assisted contract subject to Davis-Bacon prevailing wage requirements, which is held by the same prime contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the contract.

In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work, all or part of the wages required by the contract, the

Federal Aviation Administration may, after written notice to the Contractor, Sponsor, Applicant, or

Owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased.

3. Payrolls and Basic Records.

(i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work. Such records shall contain the name, address, and social security number of each such worker; his or her correct classification; hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in 1(b)(2)(B) of the Davis-Bacon Act); daily and weekly number of hours worked; deductions made; and actual wages paid. Whenever the Secretary of Labor has found under

29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis-Bacon Act, the Contractor shall maintain records that show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual costs incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs.

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(ii)(A) The Contractor shall submit weekly for each week in which any contract work is performed a copy of all payrolls to the Federal Aviation Administration if the agency is a party to the contract, but if the agency is not such a party, the Contractor will submit the payrolls to the applicant, Sponsor, or Owner, as the case may be, for transmission to the Federal Aviation Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under 29 CFR § 5.5(a)(3)(i), except that full social security numbers and home addresses shall not be included on weekly transmittals. Instead the payrolls shall only need to include an individually identifying number for each employee (e.g., the last four digits of the employee’s social security number). The required weekly payroll information may be submitted in any form desired. Optional

Form WH–347 is available for this purpose from the Wage and Hour Division Web site at https://www.dol.gov/agencies/whd/government-contracts/construction/payroll-certification or its successor site. The prime contractor is responsible for the submission of copies of payrolls by all subcontractors. Contractors and subcontractors shall maintain the full social security number and current address of each covered worker and shall provide them upon request to the Federal Aviation

Administration if the agency is a party to the contract, but if the agency is not such a party, the

Contractor will submit them to the applicant, Sponsor, or Owner, as the case may be, for transmission to the Federal Aviation Administration, the Contractor, or the Wage and Hour Division of the Department of Labor for purposes of an investigation or audit of compliance with prevailing wage requirements. It is not a violation of this section for a prime contractor to require a subcontractor to provide addresses and social security numbers to the prime contractor for its own records, without weekly submission to the sponsoring government agency (or the applicant, Sponsor, or Owner).

(B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the

Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the contract and shall certify the following:

(1) That the payroll for the payroll period contains the information required to be provided under 29

CFR § 5.5(a)(3)(ii), the appropriate information is being maintained under 29 CFR § 5.5 (a)(3)(i), and that such information is correct and complete;

(2) That each laborer and mechanic (including each helper, apprentice, and trainee) employed on the contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR Part 3;

(3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the contract.

(C) The weekly submission of a properly executed certification set forth on the reverse side of

Optional Form WH-347 shall satisfy the requirement for submission of the “Statement of

Compliance” required by paragraph (3)(ii)(B) of this section.

(D) The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal prosecution under Section 1001 of Title 18 and Section 231 of Title 31 of the

United States Code.

(iii) The Contractor or…