General Terms 30 39~2.pdf

DHCD 11/13/2018 GENERAL CONDITIONS of the CONTRACT – SITE WORK 00.72.39 c.30 §39M $50k or more 1 of 21

GENERAL CONDITIONS OF THE CONTRACT – SITE WORK

FOR MGL c.30 §39M PROJECTS $50,000 OR MORE

TABLE OF CONTENTS

ARTICLE 1: GENERAL PROVISIONS 2

ARTICLE 2: OWNER 3

ARTICLE 3: DEPARTMENT 3

ARTICLE 4: CONTRACTOR 4

ARTICLE 5: ADMINISTRATION OF THE CONTRACT 8

ARTICLE 6: NOT USED 9

ARTICLE 7: CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS 9

ARTICLE 8: CHANGES IN THE WORK 10

ARTICLE 9: TIME, SCHEDULES, AND COMPLETION 12

ARTICLE 10: PAYMENTS 14

ARTICLE 11: GUARANTEES AND WARRANTIES 16

ARTICLE 12: MISCELLANEOUS LEGAL REQUIREMENTS 16

ARTICLE 13: CONTRACTOR'S ACCOUNTING REQUIREMENTS 17

ARTICLE 14: EQUAL EMPLOYMENT OPPORTUNITY REQUIREMENTS 18

ARTICLE 15: NOT USED 18

ARTICLE 16: INSURANCE 18

ARTICLE 17: INDEMNIFICATION 20

ARTICLE 18: PERFORMANCE AND PAYMENT BONDS 20

ARTICLE 19: TERMINATION 20

c.30 §39M $50k or more 2 of 21

ARTICLE 1: GENERAL PROVISIONS

1.1 BASIC DEFINITIONS

1.1.1 THE CONTRACT DOCUMENTS

The Contract Documents consist of the Owner-Contractor Agreement, Advertisement, Instructions to Bidders, Bidding Documents, Contract Forms, Conditions of the Contract, Specifications, Drawings, DHCD publication known as the Construction Handbook, all addenda issued prior to execution of the Contract, and other documents listed in the Agreement and Modifications issued after execution of the Contract. A Modification is (1) a written amendment to the Contract signed by both parties, (2) a Change Order, (3) a Construction Change Directive or (4) a written order for a minor change in the Work issued by the Architect/Engineer.

1.1.2 THE CONTRACT

The Contract Documents form the Contract for Construction. The Contract represents the entire and integrated agreement between the parties hereto and supersedes prior negotiations, representations or agreements, either written or oral. The Contract may be amended or modified only by a Modification.

1.1.3 THE WORK

The term "Work" means the construction and services required by the Contract Documents, whether completed or partially completed, and includes all labor, materials, equipment, and services provided or to be provided by the Contractor to fulfill the Contractor's obligations. The Work may constitute the whole or a part of the Project.

1.1.4 THE PROJECT

The Project is the total construction of which the Work performed under the Contract Documents may be the whole or a part and which may include construction by the Owner or by separate contractors.

1.1.5 THE DRAWINGS

The Drawings are the graphic and pictorial portions of the Contract Documents, wherever located and whenever issued, showing the design, location and dimensions of the Work, generally including plans, elevations, sections, details, schedules, and diagrams.

1.1.6 THE SPECIFICATIONS

The Specifications are that portion of the Contract Documents consisting of the written requirements for materials, equipment, construction systems, standards, and workmanship for the Work, and performance of related services.

1.1.7 THE CONSTRUCTION HANDBOOK

The Construction Handbook is published by and available, free of charge, from the Department. It outlines the procedures that the Contractor, Owner, Architect/Engineer, and Department shall follow during the construction of the Work. The most recent version, at the time of bid opening, of the Construction Handbook is incorporated by reference into the Contract Documents.

1.2 EXECUTION, CORRELATION, AND INTENT

1.2.1 Execution of the Contract by the Contractor is a representation that the Contractor has visited the site, become familiar with local conditions under which the Work is to be performed and correlated personal observations with requirements of the Contract Documents.

1.2.2 The intent of the Contract Documents is to include all items necessary for the proper execution and completion of the Work by the Contractor. The Contract Documents are complementary, and what is required by one shall be as binding as if required by all. Performance by the Contractor shall be required only to the extent consistent with the Contract Documents and reasonably inferable from them as being necessary to produce the intended results. In case of inconsistent requirements in the Contract Documents, the requirement for the greater quantity or higher quality shall take precedence and shall be the Contract requirement.

1.2.3. Unless otherwise stated in the Contract Documents, words which have well known technical or construction industry meanings are used in the Contract Documents in accordance with such recognized meanings.

1.2.4. Where reference is made to standards or trade association publications, it shall be considered to refer to the latest edition and revision thereof, if any, in effect on the date the Contract Documents were advertised for bid.

1.3 USE OF DRAWINGS, SPECIFICATIONS, AND OTHER DOCUMENTS

The Drawings, Specifications and other documents prepared by the Architect/Engineer, and copies thereof furnished to the Contractor, are for use solely with respect to this Project. They are not to be used by the Contractor or any Subcontractor, Sub-subcontractor, or material or equipment supplier on other projects or for additions to this Project outside the scope of the Work without the specific written consent of the Owner, the Architect/Engineer, and the Department.

http://www.mass.gov/hed/housing/ph-mod/construction-handbook-with-forms.html http://www.mass.gov/hed/housing/ph-mod/construction-handbook-with-forms.html c.30 §39M $50k or more 3 of 21

ARTICLE 2: OWNER

2.1 DEFINITION

The term "Owner" sometimes also referred to as the "Awarding Authority" or "Authority" means the Housing Authority identified in the Owner-Contractor Agreement, organized and existing under the provisions of M.G.L. c.121B.

2.2 INFORMATION AND SERVICES TO BE PROVIDED BY THE OWNER

2.2.1 The Owner will furnish to the Contractor, free of charge, a reasonable number of copies of the Contract Documents for the execution of the Work, including a set for record purposes. In addition, the Owner, through the Architect/Engineer, will furnish to the Contractor a reproducible Construction Drawing Set including details and clarification drawings issued after the Contract has been awarded. The Contractor shall provide and distribute such number of prints of these documents as required for the Contractor's and Subcontractors' use.

2.2.2 The Owner shall furnish available surveys describing physical characteristics, legal limitations and utility locations for the site of the Project, and a legal description of the site.

2.3 OWNER'S RIGHT TO STOP THE WORK

2.3.1 If the Contractor fails to correct Work which is not in accordance with the requirements of the Contract Documents or persistently fails to carry out the Work in accordance with the Contract Documents, the Owner by written order signed personally or by its authorized agent, may order the Contractor to stop the Work, or any portion thereof, until the cause for such order has been eliminated.

2.3.2 Stop work orders require the Administrator's prior approval. (See Subparagraph 3.1.2)

2.4 OWNER'S RIGHT TO CARRY OUT THE WORK

2.4.1 If the Contractor defaults or neglects to carry out the Work in accordance with the Contract Documents and fails within a seven-day period after receipt of written notice from the Architect/Engineer at the Owner's direction to commence and continue correction of such default or neglect with diligence and promptness, the Owner may, without prejudice to other remedies, hire one or more contractors to correct such deficiencies.

2.4.2 In such case an appropriate Change Order shall be issued deducting from payments then or thereafter due the Contractor the cost of correcting such deficiencies, including compensation for the Architect/Engineer's additional services and expenses made necessary by such default, neglect, or failure. If payments then or thereafter due the Contractor are not sufficient to cover such amounts, the Contractor shall pay the difference to the Owner.

ARTICLE 3: DEPARTMENT

3.1 DEFINITIONS

3.1.1 The term "Department" means the Massachusetts Department of Housing and Community Development, 100 Cambridge Street Suite 300, Boston, MA 02114.

3.1.2 The term "Administrator" means the person appointed by the Department to administer the terms of the Contract for Financial Assistance between the Owner and the Department, who is also empowered to take certain actions under this Agreement. Contractor should address mail to the Administrator c/o the Construction Management Unit.

3.1.3 The term "Construction Advisor" means the person designated by the Administrator to assist the Administrator. The duties, responsibilities and limitations of the Construction Advisor's authority are described in the Construction Handbook.

3.2 PROJECT FUNDING

The Work under this Contract is funded by the Commonwealth of Massachusetts through the Department pursuant to a contract for financial assistance between the Department and the Owner.

3.3 DEPARTMENT'S RESPONSIBILITIES

3.3.1 The Contractor is advised that various actions taken or decisions made by the Owner and/or the Architect/Engineer under this Contract require the prior approval and counter-signature of the Administrator. Those actions or decisions include, but are not limited to, the following:

.1 Change Orders and Construction Change Directives, whether or not they affect a change in the Contract Sum or in the Contract Time.

.2 Written orders, notices, and approvals given by the Owner pursuant to the Contract Documents or pursuant to any Laws applicable to this Contract, including approval of the Contractor's applications for payment.

.3 Approval of "or equal" submissions and substitutions pursuant to Subparagraph 4.6.3.

.4 Stop Work order.

.5 Certificate of Substantial Completion.

.6 Final payment.

.7 Termination of Contract.

3.3.2 In any instance where the Contractor requires clarification as to whose approval is required, the Architect/Engineer shall provide such clarification.

c.30 §39M $50k or more 4 of 21

3.3.3 Work undertaken by the Contractor or a Subcontractor at the Owner's or other person's order without the Administrator's countersignature prior to the start of such work shall be considered unauthorized work and shall not be considered cause for extra payment. The Contractor or Subcontractor shall be responsible for performing, at their own expense, corrective measures required by the Architect/Engineer due to any failure to obtain the prior approval of the Administrator pursuant to Subparagraph 3.3.1.

3.3.4 The Department and its authorized representatives and agents shall at all times have access to, and be permitted to observe and review all Work, materials, payrolls, records of personnel, conditions of employment, invoices of materials, and other relevant data and records maintained by the Contractor on the Project.

ARTICLE 4: CONTRACTOR

4.1 DEFINITION

The Contractor, sometimes referred to as the General Contractor, is the person or entity identified as such throughout the Contract Documents as if singular in number. The term Contractor means the Contractor or its authorized representative.

4.2 REVIEW OF CONTRACT DOCUMENTS AND FIELD CONDITIONS BY CONTRACTOR

4.2.1 The Contractor shall carefully study and compare the Contract Documents with each other and with information furnished by the Owner pursuant to Subparagraph 2.2.2 and shall at once report to the Architect/Engineer errors, inconsistencies, or omissions discovered. The Contractor shall not be liable to the Owner or Architect/Engineer for damage resulting from errors, inconsistencies, or omissions in the Contract Documents unless the Contractor recognized such error, inconsistency, or omission and knowingly failed to notify the Architect/Engineer. If the Contractor performs any construction activity knowing it involves a recognized error, inconsistency or omission in the Contract Documents without such notice to the Architect/Engineer, the Contractor shall assume responsibility for such performance and shall bear the costs attributable for correction.

4.2.2 The Contractor shall take field measurements and verify field conditions and shall carefully compare such field measurements and conditions and other information known to the Contractor with the Contract Documents before commencing activities. Errors, inconsistencies, or omissions discovered shall be reported to the Architect/Engineer at once.

4.2.3 The Contractor shall perform the Work in accordance with the Contract Documents and submittals approved pursuant to Paragraph 4.7.

4.3 SUPERVISION AND CONSTRUCTION PROCEDURES, COORDINATION, AND CUTTING AND PATCHING

4.3.1 The Contractor shall supervise and direct the Work, using the Contractor's best skill and attention. The Contractor shall be solely responsible for and have control over construction means, methods, techniques, sequences and procedures, and for coordinating all portions of the Work under the Contract.

4.3.2 The Contractor shall be responsible for the proper fitting of all Work and the coordination of the operations of all trades, Subcontractors, or materialmen engaged upon the Work.

4.3.3 All necessary cutting, coring, drilling, grouting, and patching required to fit together the several parts of the Work shall be done by the Contractor, except as may be specifically noted otherwise under any particular filed sub-bid section of the Specifications.

4.3.4 The Contractor shall be responsible to the Owner for acts and omissions of the Contractor's employees, Subcontractors, and their agents and employees, and other persons performing portions of the Work.

4.3.5 The Contractor shall be responsible for inspection of portions of Work already performed under this Contract to determine that such portions are in proper condition to receive subsequent Work.

4.3.6 The Contractor shall do engineering required for establishing grades, lines, levels, dimensions, layouts, and reference points for the trades; shall be responsible for maintaining bench marks and other survey marks; and shall replace any bench marks or survey marks which have been disturbed or destroyed.

4.3.7 Unless otherwise required by the Contract Documents, or directed in writing by the Architect/Engineer, Work shall be done during regular working hours. However, if the Contractor desires to carry on the Work outside of regular working hours or on Saturdays, Sundays, or Massachusetts holidays it shall allow ample time to enable satisfactory arrangements to be made for inspecting Work in progress and shall bear the costs of such inspection. The Owner shall bill the Contractor directly for such costs.

4.3.8 Work done outside of regular working hours without the consent or knowledge of the Architect/Engineer shall be subject to additional inspection and testing as directed by the Architect/Engineer. The cost of this inspection and testing shall be paid by the Contractor whether the Work is found to be acceptable or not.

4.4 SUPERINTENDENT

4.4.1 The Contractor shall employ a Superintendent and necessary assistants who shall be in attendance at the Project site during performance of the Work. The Superintendent shall represent the Contractor, and communications given to the Superintendent shall be as binding as if given to the Contractor. Important communications shall be confirmed in writing. Other communications shall be similarly confirmed on written request in each case. The Superintendent shall attend each job meeting.

4.4.2 The Superintendent shall be a competent and responsible employee, satisfactory to the Owner, who is regularly employed by the Contractor and is designated by the Contractor as its representative to be in full time attendance at the Project site throughout the construction of the Work. The Superintendent shall be responsible for coordinating all the Work of the c.30 §39M $50k or more 5 of 21

Contractor and the Subcontractors. The Superintendent shall be licensed consistent with the Massachusetts Building Code. The Superintendent's resume shall be submitted to the Owner prior to commencement of construction and must demonstrate to the Owner's reasonable satisfaction that the Superintendent has performed similar duties on previous construction projects similar to the Project.

4.5 LABOR

The Contractor shall enforce strict discipline and good order among the Contractor's employees and other persons carrying out the Work. The Contractor shall not permit employment of unfit persons or persons not skilled in tasks assigned to them, and whenever the Owner shall notify the Contractor, in writing, that any worker is, in its opinion, incompetent, unfaithful, disorderly, or otherwise unsatisfactory, such employee shall be discharged from the Work and shall not again be employed on the Project except with the consent of the Owner.

4.6 MATERIALS AND EQUIPMENT

4.6.1 Unless otherwise provided in the Contract Documents, the Contractor shall provide and pay for materials, equipment, tools, construction equipment and machinery, water, heat, utilities, transportation, and other facilities and services necessary for proper execution and completion of the Work, whether temporary or permanent and whether or not incorporated or to be incorporated in the Work.

4.6.2 Materials and Equipment to be installed as part of the Contract (both or either of which are hereinafter referred to as "Materials") shall be new, unused, of recent manufacture, assembled, and used in accordance with the best construction practices.

4.6.3 "OR EQUAL" SUBMISSIONS/SUBSTITUTIONS

4.6.3.1 Except where a product has been specified as a proprietary material, the words "or equal" are understood to follow the name of any maker, vendor, or product specified to be used in the Contract Documents. To determine if the materials or articles proposed by the Contractor are equal to those specified, the Architect/Engineer shall determine whether the materials or articles proposed are at least equal in quality, durability, appearance, strength and design to the material or articles named or described, and will perform at least equally the functions imposed by the design. See M.G.L. c.30 §39M.

4.6.3.2 The Contractor shall be responsible for providing the Architect/Engineer with any information and test results the Architect/Engineer reasonably requires to determine if a material is equal to a material named or described in the Contract Documents.

4.6.3.3 Whenever the Contractor submits a material for approval as a substitute for a material named or described in the Contract Documents, such submission shall be made at least one hundred and twenty (120) days prior to the date the materials will be used on the Project. In no event shall the Contractor maintain a claim for delays based upon the Architect/Engineer's review of such substituted materials if the Contractor has failed to comply with the one hundred and twenty (120) days submission requirement.

4.7 SHOP DRAWINGS, PRODUCT DATA, AND SAMPLES

4.7.1 Shop Drawings are drawings, diagrams, schedules, and other data specially prepared for the Work by the Contractor or a Subcontractor, Sub-subcontractor, manufacturer, supplier, or distributor to illustrate a portion of the Work.

4.7.2 Product Data are illustrations, standard schedules, performance charts, instructions, brochures, diagrams and other information furnished by the Contractor or its Subcontractors and suppliers to illustrate materials or equipment for some portion of the Work.

4.7.3 Samples are physical examples which illustrate materials, equipment, or workmanship and establish standards by which the Work will be judged.

4.7.4 Shop Drawings, Product Data, Samples, and similar submittals are not Contract Documents. The purpose of their submission is to demonstrate for those portions of the Work for which submittals are required the way the Contractor proposes to conform to the information given and the design concept expressed in the Contract Documents. Review by the Architect/Engineer is subject to the limitations of Subparagraph 4.7.9.

4.7.5 The Contractor shall review, approve, and submit to the Architect/Engineer Shop Drawings, Product Data, Samples and similar submittals required by the Contract Documents with reasonable promptness and in such sequence as to cause no delay in the Work or in the activities of the Owner or of separate contractors. Submittals made by the Contractor which are not required by the Contract Documents may be returned without action. The Contractor's attention is directed to the provisions of Subparagraph

4.6.3 entitled "Or Equals – Product Substitutions” section 01.25.00 of the Specifications.

4.7.6 The Contractor shall prepare and keep current, for the Architect/Engineer's approval, a schedule of submittals which is coordinated with the Contractor's construction schedule submitted pursuant to Paragraph 9.4, and allows the Architect/Engineer reasonable time to review submittals.

4.7.7 The Contractor shall perform no portion of the Work requiring submittal and review of Shop Drawings, Product Data, Samples or similar submittals until the respective submittal has been approved by the Architect/Engineer. Such Work shall be in accordance with approved submittals.

4.7.8 By approving and submitting Shop Drawings, Product Data, Samples and similar submittals, the Contractor represents that the Contractor has determined and verified materials, field measurements, and field construction criteria related thereto, or c.30 §39M $50k or more 6 of 21 will do so, and has checked and coordinated the information contained within such submittals with the requirements of the Work and of the Contract Documents.

4.7.9 The Contractor shall not be relieved of responsibility for deviations from requirements of the Contract Documents by the Architect/Engineer's approval of Shop Drawings, Product Data, Samples or similar submittals unless the Contractor has specifically informed the Architect/Engineer in writing of such deviation at the time of submittal and the Department has given explicit written approval to the specific deviation. The Contractor shall not be relieved of responsibility for errors or omissions in Shop Drawings, Product Data, Samples, or similar submittals by the Architect/Engineer's actions.

4.7.10 The Contractor shall direct specific attention, in writing or on resubmitted Shop Drawings, Product Data, Samples or similar submittals, to revisions other than those requested by the Architect/Engineer on previous submittals.

4.7.11 Informational submittals upon which the Architect/Engineer is not expected to take responsive action may be so identified in the Contract Documents.

4.7.12 When professional certification of performance criteria of materials, systems or equipment is required by the Contract Documents, the Architect/Engineer shall be entitled to rely upon the accuracy and completeness of such calculations and certifications.

4.8 SAMPLES AND TESTS

4.8.1 Materials to be used in the Work may be tested or inspected after reasonable notice by the Architect/Engineer and may be rejected if they fail the specified tests. Except as otherwise provided in the Contract, all testing of material specifically requested by the Architect/Engineer will be paid for by the Owner, except that the cost of testing of materials that fail the testing criteria shall be borne by the Contractor. If the Contractor requests permission to use a material that was not specified in the Contract Documents and the Architect/Engineer requires testing of such material before approving its use, the Contractor shall pay for such testing.

4.8.2 The source of material proposed by the Contractor shall be designated in time to permit all required testing and inspection before the material is needed for incorporation into the Work. The Contractor shall have no claim for delays due to testing if it fails to designate the proposed source or to order the material in time to provide for adequate testing and inspection.

Necessary arrangements shall be made to permit the Architect/Engineer to make factory, shop, or other inspection of materials or equipment ordered for the Work, in process of manufacture or fabrication, or in storage elsewhere than the site of the Work.

4.8.3 The Contractor shall furnish the Architect/Engineer with samples of the materials it proposes to use in the execution of the work in sufficient time to afford the Architect/Engineer the opportunity to adequately review and, if necessary, arrange for testing of such materials.

4.9 DELIVERY AND STORAGE OF MATERIALS

4.9.1 Materials and equipment shall be progressively delivered to the site so that there will be neither delay in the progress of the Work nor an undue accumulation of materials that are not to be used within a reasonable time.

4.9.2 Materials stored off-site shall be stored at the expense of the Contractor in a manner that preserves their quality and fitness for the Work. Material shall be placed on wooden platforms or other hard clean surfaces and not on the ground and shall be properly protected.

4.9.3 If the Contractor requests the Architect/Engineer's inspection of materials stored off-site, the Contractor shall assume the Architect/Engineer's reasonable costs for travel, room, and meals associated with such inspection.

4.9.4 Materials stored either at the site or at some other location agreed upon in writing shall be located so as to facilitate prompt inspection and may again be inspected prior to their use in the work.

4.9.5 The Contractor shall take charge of and be liable for any loss of or injury to the materials delivered at or in the vicinity of the place where the Work is being done and shall notify the Architect/Engineer as soon as any such materials are so delivered and allow them to be examined by the Architect/Engineer.

4.9.6 Payment for stored materials shall be made in accordance with Paragraph 10.4.

4.10 WARRANTY

The Contractor warrants to the Owner and Architect/Engineer that materials and equipment furnished under the Contract will be of good quality and new unless otherwise required or permitted by the Contract Documents, that the Work will be free from defects not inherent in the quality required or permitted, and that the Work will conform with the requirements of the Contract Documents. Work not conforming to these requirements, including substitutions not properly approved and authorized, may be considered defective. If required by the Architect/Engineer, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment.

4.11 REJECTION OF DEFECTIVE MATERIALS

The Architect/Engineer may reject materials if the Architect/Engineer reasonably determines that such materials do not conform to the Contract Documents. No rejected materials, the defects of which have been subsequently corrected, shall be used in the Work except with the written permission of the Architect/Engineer. No extra time shall be allowed for completion of the Work due to the rejection of non-conforming materials.

c.30 §39M $50k or more 7 of 21

4.12 REJECTION OF DEFECTIVE WORK

The Architect/Engineer's inspection of the Work shall not relieve the Contractor of any of its responsibilities to fulfill the Contract obligations, and defective work shall be corrected. Unsuitable work may be rejected by the Architect/Engineer, notwithstanding that such work and materials have been previously overlooked or misjudged by the Architect/Engineer and accepted for payment.

If the Work or any part thereof shall be found defective at any time before the final acceptance of the whole Work, the Contractor shall forthwith correct such defect in a manner satisfactory to the Architect/Engineer, and if any material brought upon the site for use in the Work, or selected for the same, shall be rejected by the Architect/Engineer as unsuitable or not in conformity with the Contract requirements, the Contractor shall forthwith remove such materials from the vicinity of the Work.

4.13 MATERIALS ATTACHED OR AFFIXED TO THE WORK

Nothing in this Contract shall be construed as vesting in the Contractor any right of property in the materials used after they have been attached or affixed to the Work or the soil; but all such materials shall, upon being so attached or affixed, become the property of the Owner.

4.14 SALES TAX EXEMPTION AND OTHER TAXES

4.14.1 To the extent that materials and supplies are used or incorporated in the performance of this Contract, the Contractor is considered an exempt purchaser under the Massachusetts Sales Act, Chapter 14 of the Acts of 1966.

4.14.2 The Contractor shall be responsible for paying all other taxes and tariffs of any sort, related to the work.

4.15 DOCUMENTS AND SAMPLES AT THE SITE

The Contractor shall maintain at the site for the use and information of the Owner, one record copy of the Drawings, Specifications, Addenda, Change Orders, and other Contract Modifications, in good order and marked currently to record changes and selections made during construction, and in addition approved Shop Drawings, Product Data, Samples, updated construction schedule, and similar required submittals. These shall be available to the Architect/Engineer and shall be delivered to the Architect/Engineer for submittal to the Owner upon completion of the Work.

4.16 PERMITS, FEES, AND NOTICES

4.16.1 The Contractor shall secure and the Owner shall pay for any and all permits. The Contractor shall secure and pay for all licenses, and other fees required for the proper execution of the Work. The Contractor shall coordinate all efforts required to obtain these permits including having the permit issued in the name of the Contractor.

4.16.2 The Contractor shall comply with and give notices required by laws, ordinances, rules, regulations, and lawful orders of public authorities bearing on performance of the Work.

4.16.3 It is not the Contractor's responsibility to ascertain that the Contract Documents are in accordance with applicable laws, statutes, ordinances, building codes, and rules and regulations. However, if the Contractor observes that portions of the Contract Documents are at variance therewith, the Contractor shall promptly notify the Architect/Engineer and Owner in writing, and necessary changes shall be accomplished by appropriate Modification.

4.16.4 If the Contractor performs Work knowing it to be contrary to laws, statutes, ordinances, building codes, and rules and regulations without such notice to the Architect/Engineer and Owner, the Contractor shall assume full responsibility for such Work and shall bear the costs attributable.

4.17 DEBRIS, CHEMICAL WASTE

4.17.1 The Contractor shall not permit the accumulation of debris, both exterior and interior, and the work area shall at all times be kept satisfactorily clean.

4.17.2 The Contractor shall remove debris from the site of the work and legally dispose of it at any private or public dump that the Contractor may choose. The Contractor shall make all arrangements and obtain any approvals necessary for said disposal from the owners or officials in charge of such dumps.

4.17.3 No open fire shall be permitted on site.

4.17.4 Chemical Waste: Chemical waste shall be stored in corrosion resistant containers, removed from the Project site, and disposed of not less frequently than monthly unless directed otherwise. Disposal of chemical waste shall be in accordance with requirements of the U.S. Environmental Protection Agency (EPA) and the Massachusetts Department of Environmental Protection (DEP). Fueling and lubricating of vehicles and equipment shall be conducted in a manner that affords the maximum protection against spills and evaporation. Lubricants to be discarded or burned shall be disposed of in accordance with approved procedures meeting all applicable Federal, State and local regulations. In the event of an oil or hazardous materials spill large enough to violate Federal, State, or applicable local regulations, the Architect/Engineer shall be notified immediately. The Contractor shall be responsible for immediately cleaning up any oil or hazardous waste spills resulting from its operations. Any costs incurred in cleaning up any such spills shall be borne by the Contractor.

4.18 SITE AND WEATHER PROTECTION

4.18.1 The Contractor shall take precaution during the execution of work involving demolition not to disturb or damage any existing structures, landscaping, walks, roads, or other items scheduled to remain. The Contractor shall restore any damaged items c.30 §39M $50k or more 8 of 21 to original condition and as directed by the Architect/Engineer. The Contractor shall provide and erect acceptable barricades, fences, signs, and other traffic devices to protect the work from traffic and the public as reasonably necessary and as required by the Massachusetts Building Code.

4.18.2 The Contractor shall install weather protection and provide adequate heat in the protected area from November 1 to March 31 as required by M.G.L. c.149 §44G.

4.19 ARCHAEOLOGICAL AND HISTORICAL RESOURCES

All items having any apparent historical or archaeological interest which are discovered in the course of any construction activities shall be carefully preserved and reported immediately to the Architect/Engineer for determination of appropriate actions to be taken.

4.20 SAFETY REQUIREMENTS

4.20.1 The Contractor must comply with all Federal, State, and Local safety laws and regulations of the applicable to work performed under this Contract.

4.20.2 If the Contractor uses or stores toxic or hazardous substances it is subject to M.G.L. c.111F §2, the "Right to Know" law and regulations promulgated by the Department of Public Health, 105 CMR 670, the Department of Environmental Protection, 310 CMR 33, and the Department of Labor and Workforce Development, 441 CMR 21; and must post a Workplace Notice obtainable from the Department of Labor and Workforce Development.

4.20.3 The Contractor must comply with Dig-Safe Laws. Dig-Safe is the Utility Underground Plant Damage Prevention System, 331 Montvale Ave., Woburn, MA 01801, 1.888.344.7233. The Contractor must notify Dig-Safe of contemplated excavation, demolition, or explosive work in public or private ways, and in any utility company right of way or easement, by certified mail, with a copy to Department of Environmental Protection (DEP). This notice must be given at least 72 hours prior to the work, but not more than sixty days before the work is to be done. Such notice shall state the name of the street or the route number of the way and an accurate description of the location and nature of the proposed work. Dig-Safe is required to respond to the notice within 72 hours of receipt by designating the location of pipes, mains, wires or conduits at the site. The Contractor shall not commence work until Dig-Safe has responded. The work shall be performed in such manner and with reasonable precautions taken to avoid damage to utilities under the surface at the work location. The Contractor shall provide the Superintendent with current Dig-Safe regulations, and a copy of M.G.L. c.82 §40. Any costs related to the services performed by Dig-Safe shall be borne by the Contractor.

4.20.4 This project is subject to compliance with Public Law 92-596 "Occupational Safety and Health Act of 1970" (OSHA), with respect to all rules and regulations pertaining to construction, U.S. Code Title 29, sections 651 et seq. including Volume 36, numbers 75 and 105, of the Federal Register as amended, and as published by the U.S. Department of Labor.

4.20.5 If this Project requires the containment or removal of asbestos or material containing asbestos, lead or waste containing lead based paint, the Contractor shall ensure that the person or company performing the asbestos or lead related services is licensed pursuant to applicable State laws and regulations.

4.21 ACCESS TO WORK

The Contractor shall provide the Owner and Architect/Engineer access to the Work at all times and shall cooperate with the Owner whenever the Owner invites visitors to the site.

ARTICLE 5: ADMINISTRATION OF THE CONTRACT

5.1 ARCHITECT/ENGINEER

The Architect/Engineer is the person or entity licensed to practice architecture or engineering that is responsible for performing the duties assigned to the Architect/Engineer by the Contract Documents.

5.2 COMMUNICATIONS FACILITATING CONTRACT ADMINISTRATION

Except as otherwise provided in the Contract Documents or when direct communications have been specially authorized, the Owner and Contractor shall communicate through the Architect/Engineer. Communications by and with the Architect/Engineer's consultants shall be through the Architect/Engineer. Communications by and with Subcontractors and material suppliers shall be through the Contractor. Communications by and with separate contractors shall be through the Owner.

5.3 ARCHITECT/ENGINEER'S ADMINISTRATION OF THE CONTRACT

5.3.1 The Architect/Engineer will provide administration of the Contract as described in the Contract Documents, and will be the Owner's representative (1) during construction, (2) until final payment is due and (3) with the Owner's concurrence, from time to time during the guaranty period described in Article 11. The Architect/Engineer will advise and consult with the Owner.

5.3.2 The Architect/Engineer will regularly visit the site, conduct job meetings, and keep the Owner informed of the progress and quality of the Work, and will endeavor to guard the Owner against defects and deficiencies in the Work. The Architect/Engineer's minutes of meetings shall be the official minutes kept on the Project.

c.30 §39M $50k or more 9 of 21

5.3.3 Based on the Architect/Engineer's observations and evaluations of the Contractor's Applications for Payment, the Architect/Engineer will review and certify the amounts due the Contractor and will submit to the Owner and the Department for their consideration Certificates for Payment in such amounts as the Architect/Engineer determines appropriate.

5.3.4 The Architect/Engineer shall reject Work which does not conform to the Contract Documents. Whenever the Architect/Engineer considers it necessary or advisable in order to achieve the intent of the Contract Documents, the Architect/Engineer will have authority to require additional inspection or testing of the Work in accordance with Paragraph 4.8.

5.3.5 The Architect/Engineer will review and approve or take other appropriate action upon the Contractor's submittals such as Shop Drawings, Product Data and Samples, but only for the limited purpose of checking such submittals for conformance with the information given and the design concept expressed in the Contract Documents. This review shall be in accordance with the provisions of Subparagraph 4.6.3 and the procedures described in Section 01.25.00 of the Specifications, and shall not relieve the Contractor from compliance with the requirements of the Contract Documents.

5.3.6 The Architect/Engineer will prepare Change Orders and Construction Change Directives, and may authorize Minor Changes in the Work as provided in Paragraph 8.1.

5.3.7 The Architect/Engineer will conduct inspections to determine the date of Substantial Completion and the date of Final Completion, will receive and forward to the Owner for the Owner's review and records written warranties and related documents required by the Contract and assembled by the Contractor, and will issue a final Certificate for Payment upon the Contractor's compliance with the requirements of the Contract Documents.

5.3.8 If the Owner, Architect/Engineer, and Department agree, the Owner may provide one or more project representatives to assist in carrying out the Architect/Engineer's responsibilities at the site. The duties, responsibilities, and limitations of authority of such project representatives shall be as described in the Construction Handbook and explained at the pre-construction conference.

5.3.9 The Architect/Engineer will interpret and decide matters concerning performance under and requirements of the Contract Documents on written request of either the Owner or Contractor. The Architect/Engineer's written response to such requests will be made within the thirty day time limit prescribed in Paragraph 8.6.3.

5.3.10 The Architect/Engineer's decisions on matters relating to aesthetic effect will be final if consistent with the intent expressed in the Contract Documents.

5.4 PROCEDURES AND PRACTICES

The Department's procedures, forms, and practices which must be employed on the Project are described in the Construction Handbook, and will be explained at the preconstruction conference.

5.5 PRECONSTRUCTION CONFERENCE

Prior to commencement of the Work, the Contractor shall meet in conference with representatives of the Owner, Department, and Architect/Engineer to discuss and develop mutual understandings relative to administration of the quality assurance program, safety program, labor provisions, the schedule of work, and other Contract procedures.

ARTICLE 6: NOT USED

ARTICLE 7: CONSTRUCTION BY OWNER OR BY SEPARATE CONTRACTORS

7.1 OWNER'S RIGHT TO PERFORM CONSTRUCTION

AND TO AWARD SEPARATE CONTRACTS

7.1.1 The Owner reserves the right to perform construction or operations related to the Project with the Owner's own forces, and to award separate contracts in connection with other portions of the Project or other construction or operations on the site. If the Contractor claims that delay or additional cost is involved because of such action by the Owner, the Contractor shall make such claim as provided elsewhere in the Contract Documents.

7.1.2 The Owner shall provide for coordination of the activities of the Owner's own forces and of each separate contractor with the Work of the Contractor, who shall cooperate with them. The Contractor shall participate with other separate contractors and the Owner in reviewing and coordinating their construction schedules with one another when directed to do so.

7.2 MUTUAL RESPONSIBILITY

7.2.1 The Contractor shall afford the Owner and separate contractor’s reasonable opportunity for introduction and storage of their materials and equipment and performance of their activities and shall connect and coordinate the Contractor's construction and operations with theirs as required by the Contract Documents.

7.2.2 If part of the Contractor's Work depends on proper execution or results upon construction or operations by the Owner or a separate contractor, the Contractor shall, prior to proceeding with that portion of the Work, promptly report to the Architect/Engineer apparent discrepancies or defects in such other construction that would render it unsuitable for such proper execution and results. Failure of the Contractor to so report shall constitute an acknowledgement that the Owner's or separate contractors' completed or partially completed construction is fit and proper to receive the Contractor's Work, except as to defects not then reasonably discoverable.

http://www.mass.gov/hed/housing/ph-mod/construction-handbook-with-forms.html c.30 §39M $50k or more 10 of 21

7.2.3 The Contractor shall promptly remedy damage wrongfully caused by the Contractor to completed or partially completed construction or to property of the Owner or separate contractors.

ARTICLE 8: CHANGES IN THE WORK

8.1 CHANGES - DEFINITIONS

8.1.1 All changes in the work, including any increase, decrease, or other equitable adjustment in the Contract price or in the time for performing the Contract, shall be authorized in the form of one, or a combination of, the following written instruments:

Change Order, Construction Change Directive, or a Minor Change in the Work. The term "equitable adjustment" as used in this paragraph shall include all adjustments to the Contract price or time to which the Contractor is entitled pursuant to M.G.L. c.30 §§39N and 39O and such equitable adjustment shall be made in accordance with the provisions of this Article.

8.1.2 A Change Order is a written instrument prepared by the Architect/Engineer and signed by the Owner, Department, Contractor, and Architect/Engineer, stating their agreement regarding a change in the work, including a change in the Contract Sum or Contract Time.

8.1.3 A Construction Change Directive is a written order prepared by the Architect/Engineer and signed by the Owner, Architect/Engineer, and Department, directing a change in the Work and stating a proposed basis for adjustment, if any, in the Contract Sum, or Contract Time, or both. The Owner may, by Construction Change Directive, and without invalidating the Contract, order changes in the Work within the general scope of the Contract consisting of additions, deletions or other revisions, the Contract Sum and Contract Time being adjusted accordingly.

8.1.4 A Change Order shall be based upon agreement among the Owner, Contractor, Architect/Engineer, and Department; a Construction Change Directive requires agreement by the Owner, Architect/Engineer, and the Department, and may or may not be agreed to by the Contractor; an order for a Minor Change in the Work may be issued by the Architect/Engineer with the concurrence of the Construction Advisor.

8.1.5 Change Orders and Construction Change Directives must be counter-signed by the Administrator in accordance with Subparagraph 3.3.1, to be effective.

8.2 REQUEST FOR A CHANGE IN THE WORK

A change order request shall be in writing and may originate with the Owner, the Department, the Architect/Engineer, or the Contractor. If such a request would cause a change in the Contract price, the Contractor shall promptly submit to the Architect/Engineer its cost and pricing data for such proposed change. Such data shall be accurate, current and complete at the time of submission and shall be computed in accordance with Subparagraph 8.3.1

8.3 METHOD FOR DETERMINING AMOUNT OF CHANGE

8.3.1 Changes in the Contract price shall be calculated in accordance with one, or a combination of the following methods, as determined by the Architect/Engineer:

.1 Lump sum basis, provided the lump sum amount shall include the estimated cost of the change, broken down by items a through i in the following Subparagraph .3.

.2 Unit price basis, to be adjusted in accordance with contract unit prices, or other agreed upon unit prices provided that the unit prices shall be inclusive of all costs related to such equitable adjustment.

.3 Time and materials basis, on a not-to-exceed predetermined upset amount determined by the Architect/Engineer, to be subsequently adjusted on the basis of the Contractor's actual costs based on the following items a though i:

a. Cost of labor at the rates found elsewhere in this document, including foremen;

b. Costs of materials, supplies and equipment, including cost of transportation, whether incorporated or consumed;

c. Rental cost of machinery and equipment, exclusive of hand tools, whether rented from the Contractor or others;

d. A percent of the net increase or decrease of item a to cover Worker's Compensation, F.I.C.A., and unemployment contributions;

e. The percentage for Worker's Compensation in Item d above shall not exceed the standard manual rate for the involved trade, as set by the Worker's Compensation Rating and Inspection Bureau of Massachusetts. This rate shall not include any surcharges such as experience modifications and all risk factor adjustment programs, etc.

f. For work performed by the Contractor's own forces, there shall be added an amount of 15% of items a-d for overhead, superintendence, and profit;

g. For work performed by any Subcontractor, there shall be added an amount of 15% of the Subcontractor's costs for items a-d for the Subcontractor's overhead, superintendence and profit. The Contractor shall be entitled to an additional 10% mark-up on the total amount of the Subcontractor's price as compensation for assuming full responsibility and supervision for the Subcontractor's work.

h. Actual increases in the premium costs for performance and payment bonds required of the Contractor and filed Subcontractors, provided there will be an appropriate credit for reduced premiums for a credit change order;

i. On any change in the contract price that involves a credit, the amount of the credit will not include an overhead and profit factor, however, the credit will include a 25% amount of item a (labor deleted) for item d.

c.30 §39M $50k or more 11 of 21

8.3.2 The method provided in Subparagraph 8.3.1, for compensating the Contractor and Subcontractors for changes in the Work, shall be considered to adequately compensate the Contractor and Subcontractors for any and all costs directly, indirectly, or consequentially related to, or caused by, such change in the work.

8.4 MINOR CHANGES IN THE WORK

The Architect/Engineer, with the concurrence of the Construction Advisor, will have authority to order Minor Changes in the Work not involving adjustment in the Contract Sum or extension of the Contract Time and not inconsistent with the intent of the Contract Documents. Such changes shall be effected by written order and shall be binding on the Owner and Contractor. The Contractor shall carry out such written orders promptly.

8.5 WORK PERFORMED UNDER PROTEST

The Contractor shall perform all work as directed by the Architect/Engineer, and if the Architect/Engineer determines that certain work for which the Contractor has requested a change order does not represent a change in the Contract, or if the Contractor and the Architect/Engineer cannot agree to the amount of compensation for a change order, the Contractor shall perform said work under protest and must follow the notice requirements and maintain the records required by Subparagraph 8.7.3.

8.6 STATUTORY CHANGE ORDER PROVISIONS

8.6.1 The Contractor's attention is directed to the Massachusetts General Laws Chapter 30, §§ 39I, 39J, 39N, 39O and 39P, the provisions of which apply to this Contract.

8.6.2 DIFFERING SITE CONDITIONS, M.G.L. c.30 §39N

8.6.2.1 If, during the progress of the Work, the Contractor or the Owner discovers that the actual subsurface or latent…