Middle Mile Contract Design.pdf

CONTRACTOR AGREEMENT

Middle Mile Design & Engineering

This Contractor Agreement is entered into on 09/01/2024 between Newport Utilities and . Newport Utilities follows and is organized under the Laws of the State of Tennessee and requires that Contractor follow those same guidelines.

RECITALS

A. Owner provides certain Public Utility services to its community to include the Fiber Broadband project in Cocke County, TN.

B. Owner intends to contract with Contractor to assist Owner in providing

Fiber Optic services to its community subject to the provisions of this Agreement.

NOW THEREFORE, for and in consideration of the mutual promises and covenants contained in this Agreement. the parties agree as follows:

1. Agreement. The purpose of this Agreement is to establish the terms upon which the Contractor will furnish materials and services under one or more Work Orders mutually agreed by the parties and issued by Owner. The documents which comprise the complete Agreement between Owner and Contractor consist of the following: (I) this Agreement; (2) all fully executed Work Orders as described in Section 3 below; (3) all fully executed Change Orders as described in Section 4 below; and (4) modifications to this Agreement issued after execution of this Agreement. All of such documents are as fully a part of this Agreement as if repeated herein.

2. Contract Documents. As used herein the term "Contract Documents" means the documents listed below.

(a) This contract, including all Exhibits attached hereto, which Exhibits are incorporated herein by reference, as though fully set forth herein:

Exhibit "A" Contractor and Supplier Interim Lien Waiver Exhibit "B" Contractor and Supplier Final Lien Waiver Exhibit "C" Work Order Template

(b) The following documents:

- National Electric Code - 2011 Edition

- National Fire Protection Act - 70

- National Electric Safety Code - 2012

3. Statement of Work. Contractor shall assist Owner in providing Fiber Optic engineering and/or design services pursuant to the terms of this Agreement for the Project(s) identified in a work order or orders in the form attached hereto as Appendix "I" (hereafter the "Work Order"). Each Appendix "l" will be assigned a numeric value by Contract Administration Manager and will follow a numeric sequence based on the location of work. As to each Project, the Contractor shall furnish the personnel, equipment, materials (if requested), services, and facilities to perform the work described in the Work Order(s) referenced hereto ("the Work"). The Work shall be performed in accordance with, and the rights and obligations of the parties shall be governed by the additional terms and conditions set forth in this Agreement.

Subject to local laws and regulations, the Contractor shall be permitted to conduct

Work on the site between the hours of 7AM to 7PM unless stated differently in the assigned Work Order. Written permission shall be obtained from Owner to conduct work outside the pem1itted hours and days, which pe1mission shall not be unreasonably withheld.

4. Changes in the Work. Contractor shall make changes or deviations from the original Work Order only on receiving a written order to do so from Owner (hereafter a "Change Order"). Owner is not liable for payments for any additional work and deviations from any Work Order without Owner's prior written authorization. Prior to commencing work on a Change Order, Contractor shall submit to Owner written copies of all costs or credit proposals for that work. Owner shall pay Contractor for Contractor's labor, equipment, materials, services and other items furnished in performance of a Change Order based on terms and conditions mutually agreed upon in writing between the Owner and the Contractor.

5. Volume of Work. Work shall be provided hereunder by the Contractor as requested by Owner on an "as needed" Project-by-Project basis. Owner makes no representation, express or implied, as to the minimum or maximum amount of Work to be performed by the Contractor in connection with any particular Project or Projects.

6. Independent Contractor Contractor is an independent Contractor and shall not be construed, in any form to be an employee, partner, or joint venture with Owner.

The Contractor shall perform the Work in accordance with its own methods and issued specifications subject to compliance with the terms of this Agreement. Contractor shall be solely responsible for material and workmanship supplied under this Agreement; and pay all manufacturers' taxes, federal and state taxes, sales taxes, use taxes, processing taxes, insurance, and contributions for social security and unemployment that are measured by wages, salaries, or other remuneration paid to employees and levied under existing laws, rules, or regulations.

7. Applicable Laws. Contractor shall adhere to all applicable laws, rules and regulations, including, but not limited to, those related to safety and applicable labor and wage standards and licensing requirements. Contractor shall comply with all provisions of any Collective Bargaining Agreements applicable to Contractor's workers. In the event Federal, State or Local Prevailing Wage Laws are applicable to Work performed under this Agreement. the Contractor shall be solely responsible for compliance with all such laws, standards, rules and regulations and shall be solely responsible for payment in full of all wages and fringe benefits due to Contractor's employees for work performed under this Agreement. Contractor shall comply with all requirements for submission of payroll wage data as may be required by law. Contractor shall be responsible for payment of all Federal. State, and Local taxes as may be due by Contractor for Work performed by Contractor under this Agreement. It is the Contractor's obligation hereunder to be aware of and knowledgeable about all applicable laws and regulations and Contractor hereby represents that it is familiar with and aware of same.

8. Business License/Owner License/FEID. A copy of the Contractor's

Business License or Contractor License(s), dependent upon the requirements of the State where the Work is to be conducted, and the Contractor's Federal Employer Identity Number must be submitted to Owner prior to any Work performed by Contractor hereunder.

9. Term. This Agreement shall remain in full force and effect until

Contractor has fully completed all of the Work described in any and all duly executed Work Orders and/or Change Orders. or as mutually agreed upon by both parties.

10. Orderly Employees. The Contractor shall employ only orderly workers.

Employees deemed by Owner to be incompetent, subversive, or disorderly shall upon Owner's request be removed from the performance of the Work, and such removal shall not form the basis of any claim for compensation or damage against the Owner.

11. Materials Supplied by Contractor. Contractor shall provide all tools, equipment, and vehicles required to perform the Work under this Agreement. All vehicles, tools, and equipment shall be in good working order and shall present a professional appearance. Contractor shall use signage as directed by Owner, including. but not limited to, signage on Contractor's equipment and vehicles.

12. Time. Time is of the essence of this Agreement and upon execution of this

Agreement, Contractor shall diligently pursue the performance of the Work undertaken and will complete the Work within the time limits specified by the Owner. In the event Owner is unable to timely complete any Project due to the failure of the Contractor to perform according to the schedule set forth in the Work Order, Contractor shall be responsible for any liquidated damages assessed to the Owner on such Project due to such failure provided such liquidated damages are set forth in the Work Order. Owner's right to liquidated damages shall not in any way limit any other remedy available to Owner, including, but not limited to, the Owner's right to terminate the Contractor's further performance of the Work.

13. Ownership of the Work. All drawings, surveys, engineering design or

Contractor. All such material shall be Trade Secrets of Owner and shall be delivered to the Owner upon completion of the Work, or whenever sooner demanded by the Owner.

14. Owner's Work and Materials. Notwithstanding the provisions of paragraph 11 above, Contractor shall be responsible for the proper care and/or loss of all materials and tools, if any, provided by the Owner, or provided by the Client to Contractor.

15. Responsibility for Damage to the Work Place. Contractor shall be liable for loss of or damage to Work in place and/or equipment at the jobsite caused by Contractor's actions or inactions.

16. Inspection. All Work done, and all materials furnished by Contractor shall always be subject to inspections by the Owner or its inspectors, if applicable.

17. lnvoice/Payment/Retainage/Set-off. Contractor shall submit to Owner an invoice for payment, bi-weekly. Owner shall pay Contractor for the performance of the Work in accordance with the applicable Work Order and any associated Change Order within thirty (30) days of approved invoice. If the request for payment is received by Owner more than sixty (60) days after Contractor has completed assigned work, such invoices will be deemed untimely and Owner shall have no obligation to pay invoices provided, whereas Owner did not contribute to such delay. In addition to such retainage, the Owner may withhold the whole or part of any payment to such extent as may be reasonably necessary to protect itself from loss on account of: (i) Failure of the Work to conform to the Contract Documents or other failure of Contractor to comply with the terms and conditions of the Contract Documents; (ii) Defective or damaged Work not remedied or quality inspections not met; (iii) Claims filed or reasonable evidence indicating filing of claims against the Contractor; (iv) Failure of the Contractor to make payments properly to its Contractors or for materials, labor, or equipment; (v) A reasonable doubt that the Work on any Project can be completed for the balance then unpaid;

(vi) Damage to another Contractor; (vii) Damage to or loss of Owner-furnished materials or Owner property; (viii) Contractor's failure to meet any performance warranties required by the Agreement; or (ix) rework done by Owner resulting in Contractor failing to remedy quality issues or work not within the direction of the Project Manager or Construction Manager.

18. Insurance. Prior to commencing Work, Contractor shall obtain the required insurance as set forth in the applicable Work Order, to be provided by a responsible company authorized to do business in the State in which the Work is to be performed by the Contractor with the greater of (i) the limits set fo11h in the applicable Work Order, or (ii) the limits set fo11h below:

18.1 Workers' Compensation and Employers' Liability Insurance shall be purchased and maintained by Contractor and be in force during the term of this Agreement, in accordance with the laws of the State of Tennessee and of the state where any Project is located, and if applicable to the Work involved, shall include Federal Longshoremen’s and Harbors Workers Compensation Act Coverage.

Worker's Compensation coverage for Contractor's employees with statutory limits and Employer's Liability coverage with limits of One Million ($1,000,000) Dollars per accident.

18.1.1. Leased Employee Liability. If Contractor leases one or more employees through the use of a payroll, employee management or other company, Contractor must directly procure workers' compensation insurance. This workers' compensation insurance will be in addition to the workers' compensation coverage provided to and for the leased employees by the payroll, employee or other company.

18.2 Commercial General Liability Insurance shall be purchased and maintained by the Contractor during the period of construction, and for two years following the Owner's acceptance of the Project. Coverage shall include but not be limited to Premises and Operation, Per Project Aggregate, Personal Injury, Contractual for this Agreement, Independent Owners Broad Form Property Damage, and Products & Completed operations Coverage and shall not exclude coverage for the "X" (Explosion), "C" (Collapse), and "U" (Underground) Property Damage Liability exposures. Limits of Coverage shall be at least:

Bodily Injury & Property Damage Liability:

$1,000,000 Combined Single Limit Occurrence $2,000,000 Combined Single Limit Aggregate

18.3 Business Automobile Liability Insurance shall be purchased and maintained by the Contractor as to ownership, maintenance, and use of all owned, non-owned, leased or hired vehicles with limits of not less than:

$1,000,000 Limit Each Person $1,000,000 Limit Each Accident

Or

$1,000,000 Combined Single Limit Each Accident

18.4 Installation Floater Insurance shall be purchased and maintained by

Contractor on an "all risk" installation floater in the amount set forth in the applicable Work Order.

18.5 Excess Liability (Umbrella) shall be purchased and maintained by

Contractor with a minimum limit of $5,000,000.

18.6 All policies, except for Workers' Compensation policies, shall name the Owner as additional insureds (including completed operations) with primary coverage (with any other third-party coverage provided for Owner to be deemed as excess only). All insurance shall expressly provide that no amendment or cancellation of any policy shall be effective until 30 days written notice to Owner, unless the applicable Work Order provides otherwise. Before starting the Work and at any time Owner so requests, Contractor shall furnish certificates satisfactory to Owner evidencing the required insurance. The failure of Contractor to supply such certificates of insurance, or any payment by Owner prior to receipt of certificates of insurance, shall not diminish Contractor's duty to maintain the required insurance or to supply such certificates of insurance. If Contractor is notified by Owner of expired or fraudulent insurance, the Contractor has five (5) business days to provide a valid Certificate of Insurance (COI), an expired COI will result in a withhold of payment on any current invoices. Failure by the Contractor to maintain insurance per this Agreement does not relinquish the Contractor from liability or responsibility to resolve any proven claims that are a result of Contractor neglect. Notwithstanding the foregoing, in the event of the negligence or wrongful acts of any of the indemnitees, the Contractor's obligation to indemnify hereunder shall be reduced pro-rata in accordance with the fault of the Contractor and that of the Indemnitee including the cost of defense.

18.6.1 The following statement will be added to the Certificate of insurance in the block "Description of Operations/Locations/Vehicles" or as an attachment on ACORD 101.

"RE: Project Number TBD, Owner Name, at Address. All policies except Work Comp include the Owner as additional insured including completed operations on a primary non-contributory basis. All Insurance shall expressly provide that no amendment or cancellation of any policy shall be effective until 30 days written notice to Owner, unless the applicable Work Order provides otherwise. Workers Compensation shall be maintained and in force during the term of the contract, in accordance with the laws of the State of Georgia or of the state where the project is located."

18.7 The Contractor shall require all insurance policies in any way related to the

Work secured and maintained by Contractor to include clauses stating each underwriter will waive all rights of recovery, under subrogation or otherwise, against Owner, Architect and all tiers of contractors or consultants engaged by them.

19. Background Checks. Contractor shall perform the following background checks on its employees, contractors or agents performing Services hereunder:

Criminal Court Check (all counties of residence and work for prior seven years) Social Security Number Trace DMV Driving History Credit Check Prohibited Parties/ Terrorist Watch List Fingerprinting

20. Indemnification. Contractor shall defend, indemnity, and hold the Owner, their officers, directors, shareholders, pai1ners, employees, agents, or servants (individually, the "indemnitee", collectively, the "Indemnitees") harmless from and against any and all claims for damages involving personal injury, wrongful death, or property damages along with attorneys fees and court costs at the pre-trial and negligence or wrongful acts of any of the Indemnitees if the damages claimed relate to, or arise out of, or are connected with this Agreement and the actions necessary to perform same. Additionally, Contractor agrees to indemnify, defend and hold harmless the Owner, its directors, officers. agents and employees, from any and all actions, causes of actions, claims, demands, liabilities, losses, damages or expenses including attorney fees (incurred prior to the institution of litigation and in litigation to include trial and appellate proceedings and whether suit be brought or not) which shall or may arise or occur at any time by reason of or in consequence of any death, personnel injury, or property damage caused in any way, related to the Work being performed by Contractor under this Agreement. The Contractor shall be fully liable for the acts of its employees or agents whether or not it authorized performance of the acts giving rise to such liability. There shall also be cross-indemnification between the Owner and Contractor that is reciprocal in nature regardless of fault. Contractor acknowledges that by entering into this Agreement with Owner, Contractor has mutually negotiated the above indemnity provisions with the Owner. Contractor's indemnity and defense obligations shall survive the termination or completion of this Agreement and remain in full force and effect until satisfied in full.

21. Workmanship/Warranty. In addition to the warranties set forth in the applicable Work Order, Contractor guarantees and warrants the Work performed hereunder, together with all materials and supplies furnished by Contractor. to be new and free from any and all defects. and such warranty shall continue for a period of one year from date of final acceptance thereof by the Owner which acceptance shall not be unduly withheld or delayed, and Contractor fm1her warrants not to infringe on the patent rights of any person or persons or corporations whomever in the performance of the Work undertaken hereunder, and further agrees to defend and save Owner harmless from any and all damages, costs, and expenses by reason of claims or suits for infringement, resulting from or alleged to result from the Work. Any correction of non-conforming Work or warranty call Work shall be performed by the Contractor at no additional cost to the Owner. Notwithstanding the provisions of paragraph t 4 above, this provision shall apply to all workmanship defects regardless of the time at which the defect was discovered within the warranty period. Nothing in this provision shall relieve Contractor of any obligation to remedy any latent defects. All Work will be corrected within a reasonable time from notification of requirement, taking into consideration impact of defective Work on the Owner. In the event Contractor fails to correct or repair the Work, within a reasonable time, Owner may cause the corrective Work to be performed and Contractor shall reimburse Owner for any costs and expenses incurred thereby plus any damages incurred.

All questions regarding workmanship shall be judged by the provisions of this Agreement and by prevailing industry standards.

22. Intellectual Property Rights. Owner will own all designs, products, inventions, documents, writings and other materials created, conceived, prepared, made, discovered or produced by Contractor or any of its employees or agents while performing Work under this Agreement (the "Deliverables"). The Deliverables will be works made for hire to the extent permitted by applicable law, and Owner will retain all copyright, patent, trade secret, trademark and any other intellectual property or proprietary rights ("Intellectual Property Rights") in the Deliverables. If any of the Deliverables do not qualify as works made for hire, Contractor assigns to Owner all right, title and interest and all Intellectual Property Rights in such Deliverables and all extensions and renewals thereof. If Owner requests, Contractor will execute a written assignment of such rights to Owner and any other documents necessary for Owner to establish or protect its Intellectual Property Rights. If Contractor fails to do so, Owner is hereby granted the power and interest to act as Contractor's attorney-in-fact to execute such documents.

Contractor will not assert, and otherwise waives, any "moral rights" in the Deliverables and assigns to Owner any "moral rights" in the Deliverables.

Contractor will not incorporate any proprietary information or intellectual property owned by any third party into any Deliverable without Owner's prior written permission.

23. Confidentiality Trade Secrets. [n consideration of Owner's furnishing

Contractor with appropriate information including, but not limited to, plans, drawings, prints, and/or specifications, relating to Owner's business, processes, machinery, apparatus, and/or procedures, for Contractor to use as required in the execution of the Work, Contractor agrees to retain in confidence and shall not, without the prior written approval of Owner, make any news release, or public announcement of any part of the subject matter of the Contract Documents or disclose to any third party without the prior written consent of Owner, any information obtained in connection with the Contract Documents during the term of this Agreement and continuing for a period of one (I) year following the completion of work or termination of this Agreement. Owner agrees not to use, either for its sole benefit, or for that of third parties, information which is required hereunder to be retained in confidence without the prior written permission of Owner.

Contractor agrees to return all such information, including but not limited to all originals and copies (if any) of plans, drawings, prints, and/or specifications, whether supplied by Owner or constructively developed for Owner, immediately upon request by Owner or upon completion of the Work, except for any such [information that exists only as part of regularly generated electronic backup data, the return or destruction of which is not reasonably practicable. Provided, however, that Owner may retain one copy of all such documents for record purposes.

24. Publicity. Contractor, any entity, its employees, partners, and Contractor's lower-tier Contractors (if applicable) and suppliers and their employees shall not make any announcement related to NEWPORT UTILITIES Work, or release any information concerning this Contractor Agreement, the Project, or the Owner, or any part thereof to any member of the public, press, business entity, or any official body unless prior written consent is obtained from OWNER. Nor take any photographs, unless solely required to support any prior work beginning, damage, or investigation of a work site, or if required as a deliverable for the Project.

25. Non-Compete. Except as may be otherwise stated herein, Contractor shall perform work or services for Owner, including its subsidiaries only as a Contractor for Owner. Contractor will not hire, solicit, or contract with other employees or independent contractors of the Owner in any way that would inte1fere with the ability or availability to perform work or services.

26. Prohibition Against Solicitation of Employees. Each Party agrees that.

commencing on the date of this Agreement and continuing until one (I) year alter Final Completion, it shall not directly solicit for employment any current officer, director or employee of the other Party with whom the soliciting Party came into contact or communicated with, or about whom the soliciting Pa1ty obtained or was provided information in connection with the Project or this Agreement. Employment advertisements aimed at a broad, general audience shall not constitute prohibited solicitation, provided they are not targeted to or at the other Party.

27. Drug Free Workplace. Contractor acknowledges that the Owner maintains a drug free workplace and that Contractor shall also maintain a drug free workplace.

28. Default. If the "Contractor fails or neglects to carry out the Work in accordance with this Agreement or issued Work Order/s, the Owner shall give written notice to commence and continue co1Tection of such default or neglect with diligence and promptness, the Owner may, alter five (5) days following receipt by the Contractor of written notice and without prejudice to any other remedy the Owner may have, terminate this Agreement and finish the Contractor's Work by whatever method the Owner may deem expedient. ff the unpaid balance due Contractor pursuant to the applicable Work Order exceeds the expense of the Contractor's Work and other damages incurred by the Owner and not expressly waived, such excess shall be paid to the Contractor. If such expense and damage exceed such unpaid balance, Contractor shall pay the difference to the Owner.

29. Termination without cause. Owner/Contractor may terminate this Agreement at any time without cause. solely for convenience. If the termination of this Agreement is without cause, the Contractor's exclusive remedy is to receive payment only for Work properly executed prior to the date of termination. Upon termination of this Agreement, any SOW, or any one or more awarded Purchase Orders in accordance with the provisions of Subsection 31 and upon compliance by Contractor with such provisions.

Company shall pay Contractor in full discharge of all obligations under this Agreement

(i) such portion of the Work as Contractor shall have completed and which has been accepted by Company; plus (ii) the cost to Contractor of terminating and settling orders in accordance with the preceding Subsection 13.1; plus (iii) the reasonable cost to Contractor of complying with Company' directions relative to the preservation of the Work in progress; minus (iv) the sum of all amounts paid by Company to replace deficient Work provided by Contractor; and minus (v) the amount of any third-party claims asserted or evidence indicating probable filing of such claims. Neither party shall be obligated to pay the other for anticipated profit or overhead on any portion of the Work not completed. The sum of all amounts payable under this Subsection 31.4 plus the sum of all amounts previously paid under this Agreement, shall in no event exceed the total amount payable to Contractor under any SOW or Purchase Order. All Contractor costs, amounts, and expenses shall be subject to audit by Company, and Contractor shall retain all documents evidencing such costs for a period of two years after termination.

30. Memorandum of Job Abandonment. Contractor will be responsible for timely communication with the Owner's on-site and corporate managers at all times while performing the Work in accordance with this Agreement. In the event the Contractor is unresponsive to Owner's inquiries, whether communicated through facsimile, electronic mail (e-mail), or any other form of written communication, for a period of five (5) continuous working days, if Contractor is reasonably expected to be performing on site work, Contractor will be considered to have abandoned the job and in default of this Agreement. Owner reserves the right, in its sole and absolute discretion, to terminate this Agreement in accordance with Section 31 in the event of Contractor job abandonment.

31. Liens. This Contractor will pay and satisfy all claims for labor and material employed or used in or with the Work hereunder and agrees to indemnify and save the Owner harmless from all liens of any kind. The Contractor will furnish the Owner.

prior to receiving payment for work performed, proof that there are no unsatisfied liens, debts, or encumbrances. If any person or entity employed directly by Contractor or Contractor itself should file any Claim of Lien or serve any Notice of Claim of Lien against the real property upon which the Work is being performed or against any funds owed, then the Contractor shall cause said Lien to be removed or shall post a bond acceptable to Owner to remove said Lien within five (5) days after notice from the Owner, irrespective of the reason or justification given for the service or filing of said Lien. Owner shall have the right to remove or satisfy said Lien from funds otherwise due the Contractor.

32. Contractor's Records. Contractor shall keep full and detailed accounting records, correspondence, drawings, instructions, memoranda. receipts, specifications, vouchers and similar data relating to its performance of all Work (collectively.

"Records").

33. Governing Laws. This Agreement and the obligations of the parties hereunder shall be interpreted, construed and enforced in accordance with the laws of the State of Tennessee.

34. Jurisdiction Venue. This Agreement has been executed and delivered in, and shall be interpreted, construed, and enforced pursuant to and in accordance with the laws of the State of Tennessee. Resolution of all disputes arising pursuant to this Agreement shall be exclusively in the Circuit Court of Cocke County, Tennessee and the parties hereto hereby submit to the jurisdiction of the Circuit Court of Cocke County.

Tennessee and agree that venue is proper in such Court and hereby waive any jurisdictional or venue rights they may have otherwise. In the event of a dispute, the prevailing party in such dispute shall be entitled to reimbursement from the non-prevailing party for all costs, expenses, and attorney's fees incurred in connection with such dispute.

35. Force Majeure. Either Owner or Contractor may suspend performance hereunder during the occurrence of a Force Majeure event, which shall mean an unavoidable catastrophic event such as fire, flood, acts of God, war, terrorism, industry wide labor disputes. If Contractor discovers any fact which leads it to believe that there may be a delay due to a Force Majeure event, Contractor shall immediately advise Owner of such fact and use its best efforts in taking all measures and precautions to reduce the effect of such delay upon Owner. Such events shall entitle Contractor to an extension of time equal to the delay or stoppage; Contractor must give written notice to Owner within five (5) business days of force majeure event. Unless otherwise agreed to by Owner in advance and in writing, Contractor shall not be entitled to any additional payment or compensation as a result of any force majeure event.

36. Survival. All of the provisions of this Agreement which are intended by their terms to survive this Agreement shall survive termination of this Agreement whether or not such provisions explicitly reference survival.

37. No Assignment or Further Subcontracting. This Agreement may not be assigned by Contractor to any person, firm or corporation without the prior written consent of Owner. Contractor shall not subcontract any portion of the Work without the express prior written consent of the Owner.

38. Nonwaiver. No breach of this Agreement shall be deemed waived unless such waiver shall be in a writing duly executed by the waiving party. No waiver of any breach of this Agreement shall be construed to constitute a waiver of any other breach or of any provision of this Agreement.

39. Severability. If any part of this Agreement is held to be invalid, illegal or unenforceable, such a determination shall not affect any other provision of this Agreement.

Such provision shall, to the extent allowable by law, be modified so that it becomes enforceable and, as modified, shall be enforced as to all other provisions of this Agreement, all the other provisions continuing in full force and effect.

40. Entire Agreement; Amendments. This Agreement, the appendices attached hereto and other documents specifically adopted herein by reference (which hereby form a part of this Agreement), embody the entire agreement between the parties and supersede all previous or contemporaneous communications or agreements, whether written or oral, between the parties. None of the terms of this Agreement may be added to, modified, superseded or altered except by written agreement of modification hereof signed by an authorized representative of both parties, notwithstanding any terms which may now or in the future, or in the past, appear on either of Owner's or Contractor's invoices, quotations, acknowledgments or other forms.

41. Captions. The captions and headings included in this Agreement are for convenience only and in no way affect the meaning or interpretation of this Agreement.

42. No Presumption Regarding Drafter. Owner and Contractor hereto acknowledge and agree that the terms and provisions of this Agreement have been negotiated and discussed among Owner and Contractor and that this Agreement reflects Owner's and Contractor's mutual agreement regarding the subject matter of this Agreement. Because of the nature of such negotiations and discussions, neither Owner nor

Contractor shall be deemed to be the drafter of this Agreement, and therefore no presumptions for or against the drafter shall be applicable by any court or other governmental or judicial authority in interpreting, construing or enforcing this Agreement.

43. Notices. All communications and notices shall be sufficiently given if made in writing and shall be deemed to have been given when deposited for mailing by registered or certified mail, return receipt requested postage prepaid and addressed as follows:

OWNER:

Newport Utilities 170 Cope Blvd Newport, TN 37821 Attn:

CONTRACTOR:

Either party, by giving prior written notice to the other as set forth in this Section, may designate any other addresses or persons to which notices or communications should be sent.

44. Authority to Execute. Each individual executing this Agreement on behalf of a corporation, limited liability company or partnership represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of said entity;

that this Agreement is binding on said entity in accordance with its terms: and that this Agreement is not in violation of or inconsistent or contrary to provisions of any other agreement to which such entity is party.

45. Inconsistency. In the event of inconsistency between the terms and conditions of this Agreement and the terms and conditions of a Work Order. the terms of the Work Order shall control.

46. Equal Employment Opportunity.

During the performance of this contract, the contractor agrees as follows:

(1) The contractor will not discriminate against any employee or applicant for employment because of race, color, religion, sex, sexual orientation, gender identity, or national origin. The contractor will take affirmative action to ensure that applicants are employed, and that employees are treated during employment without regard to their race, color, religion, sex, sexual orientation, gender identity, or national origin. Such action shall include, but not be limited to the following: Employment, upgrading, demotion, or transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. The contractor agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided setting forth the provisions of this nondiscrimination clause.

(2) The contractor will, in all solicitations or advertisements for employees placed by or on behalf of the contractor, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, or national origin.

(2) The contractor will not discharge or in any other manner discriminate against any employee or applicant for employment because such employee or applicant has inquired about, discussed, or disclosed the compensation of the employee or applicant or another employee or applicant. This provision shall not apply to instances in which an employee who has access to the compensation information of other employees or applicants as a part of such employee's essential job functions discloses the compensation of such other employees or applicants to individuals who do not otherwise have access to such information, unless such disclosure is in response to a formal complaint or charge, in furtherance of an investigation, proceeding, hearing, or action, including an investigation conducted by the employer, or is consistent with the contractor's legal duty to furnish information.

(3) The contractor will send to each labor union or representative of workers with which he has a collective bargaining agreement or other contract or understanding, a notice to be provided advising the said labor union or workers' representatives of the contractor's commitments under this section, and shall post copies of the notice in conspicuous places available to employees and applicants for employment.

(4) The contractor will comply with all provisions of Executive Order 11246 of September 24, 1965, and of the rules, regulations, and relevant orders of the Secretary of Labor.

(5) The contractor will furnish all information and reports required by Executive Order 11246 of September 24, 1965, and by rules, regulations, and orders of the Secretary of Labor, or pursuant thereto, and will permit access to his books, records, and accounts by the administering agency and the Secretary of Labor for purposes of investigation to ascertain compliance with such rules, regulations, and orders.

(6) In the event of the contractor's noncompliance with the nondiscrimination clauses of this contract or with any of the said rules, regulations, or orders, this contract may be canceled, terminated, or suspended in whole or in part and the contractor may be declared ineligible for further Government contracts or federally assisted construction contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, or by rule, regulation, or order of the Secretary of Labor, or as otherwise provided by law. (8) The contractor will include the portion of the sentence immediately preceding paragraph (1) and the provisions of paragraphs (1) through

(7) in every subcontract or purchase order unless exempted by rules, regulations, or orders of the Secretary of Labor issued pursuant to section 204 of Executive Order 11246 of September 24, 1965, so that such provisions will be binding upon each subcontractor or vendor. The contractor will take such action with respect to any subcontract or purchase order as the administering agency may direct as a means of enforcing such provisions, including sanctions for noncompliance:

Provided, however, that in the event a contractor becomes involved in, or is threatened with, litigation with a subcontractor or vendor as a result of such direction by the administering agency, the contractor may request the United States to enter into such litigation to protect the interests of the United States.

47. Davis-Bacon Act

a. All transactions regarding this contract shall be done in compliance with the Davis-Bacon

Act (40 U.S.C. 3141- 3144, and 3146-3148) and the requirements of 29C.F.R. pt. 5 as may be applicable. The contractor shall comply with 40 U.S.C. 3141-3144, and 3146-3148 and the requirements of 29 C.F.R. pt. 5 as applicable.

b. b. Contractors are required to pay wages to laborers and mechanics at a rate not less than the prevailing wages specified in a wage determination made by the Secretary of

Labor.

c. c. Additionally, contractors are required to pay wages not less than once a week.

48. Copeland Anti-Kickback Act

a. a. Contractor. The contractor shall comply with 18 U.S.C. § 874, 40 U.S.C. §

3145, and the requirements of 29 C.F.R. pt. 3 as may be applicable, which are incorporated by reference into this contract.

b. b. Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clause above and a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all of these contract clauses.

c. c. Breach. A breach of the contract clauses above may be grounds for termination of the contract, and for debarment as a contractor and subcontractor as provided in 29 C.F.R. § 5.12.”

49. Contract Work Hours and Safety Standards Act Compliance with the 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 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 (b)(1) of this section the contractor and any subcontractor responsible therefor 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 (b)(1) of this section, in the t $27 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 (b)(1) of this section.

(3) Withholding for unpaid wages and liquidated damages. The (write in the name of the Federal agency or the loan or grant recipient) 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 (b)(2) of this section.

(4) Subcontracts. The contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraph (b)(1) through (4) of this section and also a clause requiring the subcontractors 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 (b)(1) through (4) of this section.

50. Clean Air Act and Federal Water Pollution Act.

Clean Air Act

(1) The contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 et seq

(2) The contractor agrees to report each violation to the (name of subrecipient entering into the contract) and understands and agrees that the (name of the subrecipient entering into the contract) will, in turn, report each violation as required to assure notification to Treasury, and the appropriate Environmental Protection Agency Regional Office.

(3) The contractor agrees to include these requirements in each subcontract exceeding $150,000

Federal Water Pollution Control Act

(1) The contractor agrees to comply with all applicable standards, orders, or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 ets eq.

(2) The contractor agrees to report each violation to the (name of the subrecipient entering into the contract) and understands and agrees that the (name of the subrecipient entering into the contract) will, in turn, report each violation as required to assure notification to the

Treasury, and the appropriate Environmental Protection Agency Regional Office.

(3) The contractor agrees to include these requirements in each subcontract exceeding $150,000

51. Debarment and Suspension

(1) This contract is a covered transaction for purposes of 2 C.F.R. pt. 180 and 2 C.F.R. pt. 3000.

As such, the contractor is required to verify that none of the contractor’s principals (defined at 2 C.F.R. § 180.995) or its affiliates (defined at 2 C.F.R. § 180.905) are excluded (defined at 2 C.F.R.

§ 180.940) or disqualified (defined at 2 C.F.R. § 180.935).

(2) The contractor must comply with 2 C.F.R. pt. 180, subpart C and2 C.F.R. pt. 3000, subpart C, and must include a requirement to comply with these regulations in any lower tier covered transaction it enters into.

(3) This certification is a material representation of fact relied upon by (insert name of recipient/subrecipient/applicant). If it is later determined that the contractor did not comply with 2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C, in addition to remedies available to (insert name of recipient/subrecipient/applicant), the Federal Government may pursue available remedies, including but not limited to suspension and/or debarment.

(4) The bidder or proposer agrees to comply with the requirements of2 C.F.R. pt. 180, subpart C and 2 C.F.R. pt. 3000, subpart C while this offer is valid and throughout the period of any contract that may arise from this offer. The bidder or proposer further agrees to include a provision requiring such compliance in its lower tier covered transactions.

52. Byrd Anti-Lobbying Amendment Byrd Anti-Lobbying Amendment, 31 U.S.C. § 1352 Contractors who apply or bid for an award of $100,000 or more shall file the required certification. Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, officer or employee of Congress, or an employee of a Member of Congress in connection with obtaining any Federal contract, grant, or any other award covered by 31 U.S.C. § 1352.

Each tier shall also disclose any lobbying with non-Federal funds that takes place in connection with obtaining any Federal award. Such disclosures are forwarded from tier to tier up to the recipient who in turn will forward the certification(s) to the awarding agency.

53. Procurement of Recovered Materials “In the performance of this contract, the Contractor shall make maximum use of products containing recovered materials that are EPA-designated items unless the product cannot be acquired competitively within a timeframe providing for compliance with the contract performance schedule; meeting contract performance requirements; or at a reasonable price.

Information about this requirement, along with the list of EPA-designated items, is available at EPA’s Comprehensive Procurement Guidelines webpage.

The Contractor also agrees to comply with all other applicable requirements of

Section 6002 of the Solid Waste Disposal Act.”

53. Domestic Preference for Procurements “Domestic Preference for Procurements As appropriate, and to the extent consistent with law, the contractor should, to the greatest extent practicable, provide a preference for the purchase, acquisition, or use of goods, products, or materials produced in the United States. This includes, but is not limited to iron, aluminum, steel, cement, and other manufactured products.

For purposes of this clause:

Produced in the United States means, for iron and steel products, that all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States. Manufactured products mean items and construction materials composed in whole or in part of non-ferrous metals such as aluminum; plastics and polymer-based products such as polyvinyl chloride pipe; aggregates such as concrete;

glass, including optical fiber; and lumber.”

54. Access to Records The following access to records requirements applies to this contract:

(1) The Contractor agrees to provide (insert name of state agency or local or Indian tribal government), (insert name of recipient), Treasury, the Comptroller General of the United States, or any of their authorized representatives access to any books, documents, papers, and records of the Contractor which are directly pertinent to this contract for the purposes of making audits, examinations, excerpts, and transcriptions.

(2) The Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed.

(3) The Contractor agrees to provide the Treasury or authorized representatives access to construction or other work sites pertaining to the work being completed under the contract.

55. Compliance with Federal Law, Regulations and Executive Orders “This is an acknowledgement that Treasury ARP SLFRF financial assistance will be used…